Submission to the Expert seminar on Indigenous Peoples and the administration of justice (2003)
Submission to the Expert seminar
on Indigenous Peoples and the administration of justice
12-14 November 2003
Aboriginal and Torres Strait
Islander Social Justice Commissioner, Human Rights and Equal Opportunity
Commission of Australia
1: An overview of the current status in addressing Indigenous peoples
contact with criminal justice processes in Australia
This submission is
made by the Aboriginal and Torres Strait Islander Social Justice Commissioner
on behalf of the Human Rights and Equal Opportunity Commission (HREOC)
of Australia. HREOC is Australia’s national human rights institution
established by a law of the federal Parliament and operating in compliance
with the ‘Paris Principles’ for national institutions for
the promotion and protection of human rights. 
The Social Justice
Commissioner has an independent monitoring role on the impact of government
activity on the exercise and enjoyment of human rights by Australia’s
Indigenous peoples. The Commissioner reports annually to Australia’s
federal Parliament on the status of enjoyment of Indigenous human rights
(the Social Justice Report) and the impact of native title legislation
on the enjoyment of Indigenous human rights (the Native Title Report).
Reports to federal Parliament and other research activities are available
There are estimated
to be 458,500 Aborigines and Torres Strait Islander peoples in Australia.
This constitutes approximately 2.4% of the total Australian population.  Despite this, Indigenous peoples have regularly constituted
over 20% of the adult prison population and over 40% of juveniles in detention
There remains significant
concern among governments in Australia at this situation. There are also
many initiatives currently underway aimed at reducing the over-representation
of Indigenous people in criminal justice processes. The Social Justice
Commissioner has evaluated progress in addressing these issues through
reports to Australia’s federal Parliament. 
The Social Justice
Commissioner has prepared three submissions for this workshop and the
Special Rapporteur. This first submission provides a general overview
and is divided into the following sections:
of the Royal Commission into Aboriginal Deaths in Custody;
An overview of
progress in implementing the Royal Commission and current rates of incarceration
and contact with criminal justice processes;
status of Indigenous peoples and non-discrimination; and
An over view of
developments in partnership approaches with governments to the administration
of justice in Australia.
A second submission
addresses the following issues:
faced by Indigenous women in the administration of justice;
Public order laws
and the exercise of police discretion;
programs in Australia and best practice standards for Indigenous peoples.
A third submission
provides an overview of recent developments in the recognition of Indigenous
customary law and the development of Indigenous community justice mechanisms.
This submission concludes
with an appendix of concluding observations of the United Nations human
rights committees on the administration of justice and Indigenous peoples
i) The findings of the Royal
Commission into Aboriginal Deaths in Custody (1991)
A wide-ranging inquiry
was conducted into issues relating to the contact of Indigenous peoples
with the criminal justice system in Australia from 1989 – 1991.
The Royal Commission into Aboriginal Deaths in Custody was established
to investigate the deaths of 99 Indigenous people in the custody of police,
prison or juvenile detention centres between 1 January 1980 and 31 May
1989. The five volume national report of this inquiry remains the most
extensive examination of the causes and underlying factors relating to
Indigenous peoples’ contact with criminal justice processes. 
The Royal Commission
found that in relation to each of the Aboriginal people whose deaths were
considered, ‘facts associated… with their Aboriginality played
a significant and in most cases dominant role in their being in and dying
in custody’ . There was, however, no evidence
of an overall pattern of abuse, neglect or racism common to the deaths.
Instead, the Royal Commission concluded that:
in custody do not die at a greater rate than non-Aboriginal people in
custody. However, what is overwhelmingly different is the rate at which
Aboriginal people come into custody, compared with the rate of the general
community … 
In other words, Indigenous
people died in custody in great numbers because there were in custody
in great numbers. The recommendations of the report focused on the necessity
to reduce Indigenous over-representation at every stage of the criminal
justice system if deaths in custody were to be prevented.
The Royal Commission
saw that this task lay at two levels – first, ‘and in some
ways the most immediate and in many ways the least difficult, is at the
level of the criminal justice system itself’ .
The report examined the processes of the criminal justice system from
the initial point of contact with the police through to the point of sentencing,
as well as the practices of coroners following a person’s death.
Key factors identified
by the Royal Commission in this regard were the often petty nature of
much contact with the police and the way that this contact escalated into
more serious offending and contact – with particular concern expressed
at the ‘crucial importance which detention for public drunkenness
occupies in Aboriginal custodial over-representation’ , 
as well as other forms of public order regulation. The key principle which
underpinned the recommendations of the Commission in this regard was that
imprisonment should be a measure of last resort, with the use of alternatives
to custody and diversionary mechanisms where appropriate. 
A focus on the criminal
justice system alone, however, was not going to change the overall life
circumstances which drew Indigenous people into the criminal justice system’s
web, and the report argued that:
the more fundamental
causes for the over-representation of Aboriginal people in custody are
not to be found in the criminal justice system but in those factors
which bring Aboriginal people into conflict with the criminal justice
system in the first place... the most significant contributing factor
is the disadvantaged and unequal position in which Aboriginal people
find themselves in society – socially, economically and culturally
The report argued
that the current circumstances of Indigenous people in this country are
a direct consequence of the history of colonisation. This history, the
Royal Commission noted, was one of:
systematic disempowerment of Aboriginal people starting with dispossession
of their land and proceeding to almost every aspect of their life…
(with) every turn in the policy of government and the practice of the
non-Aboriginal community… postulated on the inferiority of Aboriginal
people… Every step of the way is based upon an assumption of superiority
and every new step is an entrenchment of that assumption 
… Aboriginal peoples were never treated as equals and certainly
relations between the two groups were conducted on the basis of inequality
and control’ . 
This inequality manifested
itself greatest at the point of contact between Indigenous and non-Indigenous
societies – namely, through policing and the criminal justice system.
over-representation in the criminal justice system in a lasting manner
therefore required fundamental change to the existing relationship between
the mainstream society and Indigenous communities. It required that the
control over Indigenous people’s lives be removed from the public
institutions of the mainstream society, particularly those formalised
through the police and criminal justice system, and that the unequal basis
of the relationship be remedied by addressing the profound economic, social
and cultural disadvantage experienced by Indigenous peoples.
ii) Progress in Australia
since the Royal Commission into Aboriginal Deaths in Custody
The Royal Commission
made 339 recommendations for reforming the criminal justice system and
to address the underlying causes of Indigenous contact. Over seven years,
each government in Australia submitted an annual implementation report
on how it was addressing the recommendations of the Royal Commission.
An additional $400 million was allocated for implementation by the federal
In the twelve years
since the Royal Commission reported there have been some advances in the
situation of Indigenous people and the administration of justice. Major
advances in response to the Royal Commission include:
of Aboriginal Justice Advisory Committees to provide scrutiny of state
and territory governments on criminal justice issues from an Indigenous
perspective ; 
in coronial, court and police statistical collection systems. A major
initiative in this regard has been the introduction of the Australian
Institute of Criminology’s Deaths in Custody Monitoring Program,
which provides an annual report on all incidents of deaths in custody
in Australia (disaggregated on a number of grounds, including Indigenous
status) ; 
of nationally accredited training programs for Aboriginal workers in
criminal justice issues by the Human Rights and Equal Opportunity Commission. 
However, the trend
over the past twelve years has been for Indigenous peoples’ contact
with criminal justice processes to increase rather than decrease, with
minimal improvements in the rates of deaths in custody of Indigenous people.
In 1991, at the time
of the Royal Commission, Indigenous people made up 14% of the total prison
population. Since 1991, the Indigenous prison population has grown by
an average of 8% per year (compared to 3% per year for non-Indigenous
people). The most recent figures show that consistently since 1999 Indigenous
people constitute 20% of the prison population. 
Expressed as a rate of over-representation, Indigenous people nationally
are currently incarcerated at 16 times the rate for non-Indigenous people
in Australia. 
A recent study in
the state of New South Wales demonstrates the extent of contact of Indigenous
people with criminal justice processes. Between 1997 and 2001, a total
of 25,000 distinct Indigenous people appeared in a NSW Court charged with
a criminal offence. This constitutes 28.6% of the total NSW Indigenous
population. In the year 2001 alone, nearly one in five Indigenous males
in NSW appeared in Court charged with a criminal offence. For Indigenous
males aged 20-24 years, this rate increased to over 40%. 
This situation is
not unique to NSW. The rate of over-representation of Indigenous people
in Western Australia is 22 times the non-Indigenous rate .
Recent statistics for the Northern Territory also indicate that Aboriginal
people constitute between 75-78% of all prisoners, and up to 82% of juveniles
in detention in the Territory in the past year. 
(up to age 18) remain over-represented in criminal justice processes.
In 2000, they were in juvenile corrections at a rate 15.5 times that of
non-Indigenous juveniles .  This compares to a rate
of 13 times the non-Indigenous rate in 1993. Since 1997, Indigenous juveniles
have consistently constituted 42% of all juveniles in detention nationally
.  One of the most important recommendations of
the Royal Commission into Aboriginal Deaths in Custody had called on governments
and Aboriginal organisations to:
the problems affecting Aboriginal juveniles are so widespread and have
such potentially disastrous repercussions for the future that there
is an urgent need for governments and Aboriginal organizations to negotiate
together to devise strategies designed to reduce the rate at which Aboriginal
juveniles are involved in the welfare and criminal justice systems,
and, in particular, to reduce the rate at which Aboriginal juveniles
are separated from their families or communities, whether by being declared
to be in need of care, detained, imprisoned or otherwise. 
Since the Royal Commission,
the greatest relative increase in incarceration has been for Indigenous
women. The Indigenous female prison population increased by 262% between
1991 and 1999 (compared to an increase in non-Indigenous women of 185%).
In December 2002, Indigenous women were incarcerated at a rate 20 times
that of non-Indigenous women . The findings of a
review conducted by the Social Justice Commissioner into the situation
of Indigenous women’s contact with criminal justice processes are
discussed further below.
In the decade from
1990-1999, 115 Indigenous people died in custody. This compared to 110
people in the period leading to the Royal Commission (ie, 1980-1989).
This constitutes a slight improvement from 4.4 deaths per 100,000 people
to 3.8 deaths per 100,000 over the decade. A significant feature of these
deaths was that there were significantly fewer deaths in police custody
(as opposed to in prisons) which tends to indicate that the implementation
of recommendations of the Royal Commission relating to conditions and
design of police custody had some impact . 
Despite these improvements,
Indigenous deaths in custody over the past decade still represented 18%
of all deaths in custody. This figure has risen since 2000 to 20% of all
deaths in custody. 
In reporting on this
situation to the federal Parliament in 2001 I stated:
The lack of concern
and urgency from governments to rectify this situation is distressing.
As the Royal Commission stated, this situation would not be tolerated
it if occurred in the non-Indigenous community. 
iii) The socio-economic status
of Indigenous peoples and non-discrimination
The Royal Commission
into Aboriginal Deaths in Custody concluded that the over-representation
of Indigenous people in the criminal justice system is inextricably linked
to their socio-economic status. The Report found that ‘the single
significant contributing factor to incarceration is the disadvantaged
and unequal position of Aboriginal people in Australian society in every
way, whether socially, economically or culturally.’ 
remain the most disadvantaged of all Australians. There are clear disparities
between Indigenous and non-Indigenous Australians across all indicators
of quality of life. In August 2000, the Committee on Economic, Social
and Cultural Rights expressed concern ‘that, despite the efforts
and achievements of the State party, the indigenous populations of Australia
continue to be at a comparative disadvantage in the enjoyment of economic,
social and cultural rights, particularly in the field of employment, housing,
health and education’.
The Committee Against
Torture also expressed concern in November 2000 and recommended that:
The State party
continue its efforts to address the socio-economic disadvantage that, inter alia, leads to a disproportionate number of indigenous
Australians coming into contact with the criminal justice system
The following table
provides an overview of key indicators of quality of life for Indigenous
people live approximately 20 years less than non-Indigenous people.
Indigenous males 56.3 years, non-Indigenous 77 years. Indigenous
females 62.8 years, non-Indigenous 82.4.
children are over-represented in care and protection systems across
Australia by 3.2 times the non-Indigenous rate. This over-representation
increases with the seriousness of the intervention, with Indigenous
children placed under care and protection orders and out-of-home
care at 5.9 and 6.3 times the non-Indigenous rates respectively.
household income for Indigenous persons was $364 per week, or 62%
of the corresponding income for non-Indigenous persons.
22% of Indigenous
males are unemployed compared to 8% of Indigenous males; and 18%
of Indigenous females compared to 7% of non-Indigenous females.
This does not include Indigenous people participating in Community
Development Employment Projects (a ‘work for the dole’
equivalent program). 1 in 6 Indigenous people classified as employed
work on CDEP.
32% of Indigenous
Australians did not complete year 10 schooling, compared to 18%
of non-Indigenous Australians. 18% of Indigenous Australians did
complete school to year 12, compared to 41% of non-Indigenous Australians.
rates among Indigenous households are significantly lower than non-Indigenous
households (32% compared to 69%). Households with Indigenous persons
were more than twice as likely to be living in rental accommodation
than non-Indigenous households. These are relevant factors in explaining
inter-generational poverty among Indigenous people.
(aged 15-19 years) at risk of poverty
44% of all
Indigenous teenagers are likely to be at risk of entering into poverty,
compared to 15% of non-Indigenous teenagers. This situation worsens
further in remote and very remote regions of Australia. The rate
of risk of poverty is calculated according to the number of people
that are either not in full-time work or education or combining
part time work and education.
A worrying trend
is that there has been limited progress in improving the situation of
Indigenous peoples over the past five years. Recent Census data indicates
that many indicators of socio-economic well-being have either declined
or have not grown as quickly as for the non-Indigenous population (hence
increasing the inequality gap between Indigenous and non-Indigenous Australians)  . This remains a significant contextual factor
for addressing Indigenous peoples contact with criminal justice processes. 
iv) Partnership agreements
with Indigenous peoples
A focus of Indigenous
organisations and Australian governments in recent years has been the
entering into partnership agreements for service delivery to Indigenous
peoples. Agreements have been entered into setting out the principles
that underpin the relationship between Indigenous people and the relevant
government, and specific Justice Agreements have been developed in a number
of States. For example:
Justice Agreement has been signed by the NSW Attorney-General which
seeks to reduce Aboriginal people’s involvement in the criminal
justice system and improve community safety for Aboriginal people. An
Aboriginal Justice Plan, setting out key priority areas and commitments
is being finalised following consultation and negotiation with Indigenous
Territory Government recently signed a communiqué committing
the Government to work in partnership with peak Indigenous organisations
and communities through the development of an Aboriginal justice plan
to reduce overrepresentation in the criminal justice system. The justice
action plan is to address the following objectives: Preventing crime;
Improving community safety; Improving access to justice related services,
including services for victims; Improving access to bail; Improving
access to diversionary programs; Increasing community based sentencing
options and non-custodial sentencing options; and Increasing the rate
of participation of Indigenous people in the justice system.
government has established the Ten Year Partnership. It commits the
Government to work with Aboriginal and Torres Strait Islander peoples
to improve standards of living over the next ten years. Under the partnership,
there are eight key areas to be addressed, namely: Justice; Family violence;
Reconciliation; Human services; Service delivery; Economic development;
Community governance; and Land heritage and natural resources.
government has signed an Aboriginal Justice Agreement, developed through
negotiation with Indigenous people. The Agreement is supported by an
Aboriginal Justice Forum, where senior members of the Koori communities
sit with the most senior Victorian Government agency representatives
in monitoring, evaluating and steering the implementation of the Justice
have not been in place for sufficient time for there to be any concrete
results or reductions in the contact of Indigenous peoples with criminal
justice processes. They offer much potential for adopting a more collaborative
approach to addressing Indigenous crime and its impact on Indigenous communities.
Appendix 1: Concluding observations
of human rights committees on Australia relating to Indigenous peoples
and the administration of justice
against Torture: November 2000
53. The Committee
(g) The State party
continue its efforts to address the socio-economic disadvantage that,
inter alia, leads to a disproportionate number of indigenous Australians
coming into contact with the criminal justice system (UN Doc: A/56/44,
paras 47-53, 21 November 2000)
on Economic, Social and Cultural Rights: August 2000
15. The Committee
expresses its deep concern that, despite the efforts and achievements
of the State party, the indigenous populations of Australia continue to
be at a comparative disadvantage in the enjoyment of economic, social
and cultural rights, particularly in the field of employment, housing,
health and education (UN Doc E/C.12/1/Add.50, 1 September 2000)
Rights Committee: July 2000
With respect to article
1 of the Covenant, the Committee takes note of the explanation given by
the delegation that rather than the term "self-determination",
the Government of the State party prefers terms such as "self-management"
and "self-empowerment" to express domestically the principle
of indigenous peoples' exercising meaningful control over their affairs.
The Committee is concerned that sufficient action has not been taken in
that regard. The State party should take the necessary steps in order
to secure for the indigenous inhabitants a stronger role in decision-making
over their traditional lands and natural resources (art. 1, para. 2).
mandatory imprisonment in Western Australia and the Northern Territory,
which leads in many cases to imposition of punishments that are disproportionate
to the seriousness of the crimes committed and would seem to be inconsistent
with the strategies adopted by the State party to reduce the over-representation
of indigenous persons in the criminal justice system, raises serious issues
of compliance with various articles of the Covenant. The State party is
urged to reassess the legislation regarding mandatory imprisonment so
as to ensure that all Covenant rights are respected (UN Doc: A/55/40,
paras.498-528, 24 July 2000)
on the Elimination of Racial Discrimination: March 2000
15. The Committee
notes with grave concern that the rate of incarceration of indigenous
people is disproportionately high compared with the general population.
Concern is also expressed that the provision of appropriate interpretation
services is not always fully guaranteed to indigenous people in the criminal
process. The Committee recommends that the State party increase its efforts
to seek effective measures to address socio-economic marginalization,
the discriminatory approach to law enforcement and the lack of sufficient
16. The Committee
expresses its concern about the minimum mandatory sentencing schemes with
regard to minor property offences enacted in Western Australia, and in
particular in the Northern Territory. The mandatory sentencing schemes
appear to target offences that are committed disproportionately by indigenous
Australians, especially juveniles, leading to a racially discriminatory
impact on their rate of incarceration. The Committee seriously questions
the compatibility of these laws with the State party's obligations under
the Convention and recommends to the State party to review all laws and
practices in this field.
18. The Committee
acknowledges the efforts being made to increase spending on health, housing,
employment and education programmes for indigenous Australians. Serious
concern remains at the extent of the continuing discrimination faced by
indigenous Australians in the enjoyment of their economic, social and
cultural rights. The Committee remains seriously concerned about the extent
of the dramatic inequality still experienced by an indigenous population
that represents only 2.1 per cent of the total population of a highly
developed industrialized State. The Committee recommends that the State
party ensure, within the shortest time possible, that sufficient resources
are allocated to eradicate these disparities. (UN Doc: CERD/C/304/Add.101,
19 April 2000)
on the Rights of the Child: October 1997
13. While noting
the information provided by the delegation of the State party on a number
of programmes to raise health standards for Aboriginal and Torres Strait
Islander children and the State party's intention to start a two-year
anti-racism campaign, the Committee is nonetheless concerned about the
special problems still faced by Aboriginals and Torres Strait Islanders,
as well as by children of non-English-speaking backgrounds, with regard
to their enjoyment of the same standards of living and levels of services,
particularly in education and health.
22. The Committee
is also concerned about the unjustified, disproportionately high percentage
of Aboriginal children in the juvenile justice system, and that there
is a tendency normally to refuse applications for bail for them. The Committee
is particularly concerned at the enactment of new legislation in two states,
where a high percentage of Aboriginal people live, which provides for
mandatory detention and punitive measures of juveniles, thus resulting
in a high percentage of Aboriginal juveniles in detention.
32. The Committee
encourages the State party to take further steps to raise the standards
of health and education of disadvantaged groups, particularly Aboriginals,
Torres Strait Islanders, new immigrants, and children living in rural
and remote areas. The Committee is also of the view that there is a need
for measures to address the causes of the high rate of incarceration of
Aboriginal and Torres Strait Islanders children. It further suggests that
research be continued to identify the reasons behind this disproportionately
high rate, including investigation into the possibility that attitudes
of law enforcement officers towards these children because of their ethnic
origin may be contributing factors. (UN Doc: CRC/C/15/Add.79, 10 October
5. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 1, AGPS Canberra 1991, p1.
6. ibid, p6.
7. ibid, p12.
8. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 3, AGPS Canberra 1991, p3.
9. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 1, op.cit, p15.
10. ibid, pp 9-10.
11. ibid, p10.
12. See the website of the NSW Aboriginal Justice Advisory
13. See: http://www.aic.gov.au/research/dic/
14. See further: www.humanrights.gov.au/social_justice/nilac/.
15. Australian Bureau of Statistics, Prisoners in
Australia – 30 June 2002, Series: 4517.0, ABS Canberra 2003, www.abs.gov.au.
16. Australian Bureau of Statistics, Corrective Services
– June 2003 Quarter, Series 4512.0, ABS Canberra 2003, pp2-3, www.abs.gov.au.
17. Weatherburn, D, Lind, B, and Hua, J, ‘Contact
with the New South Wales court and prison systems: The influence of age,
Indigenous status and gender’ (2003) 78 Crime and Justice Bulletin
(NSW Bureau of Crime Statistics and Research) 1, pp4-5, .
18. Australian Bureau of Statistics, Corrective Services
– June 2000
www.lawlink.nsw.gov.au/bocsar1.nsf/pages/cjb78text 3 Quarter, op.cit,
19. Northern Territory Government, Northern Territory
Quarterly Crime and Justice Statistics, Issue 4: June Quarter 2003,
Office of Crime Prevention, Department of Justice, Darwin 2003, www.nt.gov.au/justice/ocp/pages/stats.shtml.
20. Australian Institute of Criminology, Persons
in juvenile corrective institutions 1981-2000, AIC Canberra 2001,
Table 3 and Figure 2.
21. Australian Bureau of Statistics and Australian Institute
for Health and Welfare, The health and welfare of Australia’s
Aboriginal and Torres Strait Islander Peoples, op.cit, p109.
22. Royal Commission into Aboriginal Deaths in Custody,
National Report, Volume 2, AGPS, Canberra, 1991, Recommendation 62, p252.
23. Australian Bureau of Statistics, Corrective Services
– December Quarter 2002, SABS Canberra 2003, p22.
24. Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2001, op.cit, pp15-16.
25. Collins, L and Ali, M, Deaths in Custody Australia
– 2002 National Deaths in Custody Program (NDICP) Annual Report,
Australian Institute of Criminology, Canberra 2003, p25.
27. Royal Commission into Aboriginal Deaths in Custody, National Report – Volume 1, op.cit, p15.
28. This table is adapted from Aboriginal and Torres
Strait Islander Commission, Submission to the Senate Community Affairs
Committee Inquiry into poverty and financial hardship in Australia,
and Australian Bureau of Statistics and Australian Institute of Health
and Welfare, The health and welfare of Australia’s Aboriginal
and Torres Strait Islander Peoples 2003, op.cit.
29. Altman, J and Hunter, B, ‘Monitoring ‘practical’
reconciliation: Evidence from the reconciliation decade, 1991-2001’,
Centre for Aboriginal Economic Policy Research Discussion Paper 254/2003,
Australian National University, Canberra 2003, www.anu.edu.au/caepr/discussion2.php#254.