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North Australian Aboriginal Justice Agency NAAJA Freecall 1800 898 251 ABN 63 118 017 842 Email [email protected] Australian Law Reform Commission inquiry into the incarceration rate of Aboriginal and Torres Strait Islander peoples North Australian Aboriginal Justice Agency submission October 2017 “An overwhelming request from both men and women during community consultations was for Aboriginal law to be respected, recognised, and incorporated with the wider Australian law where possible.” Rex Wild QC and Patricia Anderson, ‘Little Children are Sacred’, Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, 2007, 54. “Rrambaŋi limurr dhu djäma guŋga’yunmirr ga räl-manapanmirr.” “Equally we will all work cooperatively and combine our energy.” When Balanda law does not respect Yolŋu law, young people learn not to respect Yolŋu law and start to disrespect each other. Any solution to a problem like this [violence] must involve Yolŋu and Balanda. We must work together. We must share authority and real decision-making power. We must be able to have both laws working together, which requires respect for and recognition of each other’s law. Dhäwu Mala Galiwin’ku Community-wuŋ Nhaltjan Dhu Gulmaram Bunhaminyawuy Rom ~ A Galiwin’ku Community Statement to Prevent Family Violence (ARDS), May 2016, 9, 7 We want to be champions for our future generations and children so we can create a caring place for them to walk free, to create a country, a culture and a life that they want to live for our children, their children and their children’s children. We have done enough searching and working - what more can we do to let the Napaki law see how we are trying to help our young people who are in trouble and are sick in body, for our young people who want to be well but they can’t find the right path. Gayili Yunupingu Marika statement 1st September 2017. Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are alienated from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future. These dimensions of our crisis tell plainly the structural nature of our problem. This is the torment of our powerlessness.’ Uluru Statement from the Heart, 26th May 2017 In developing this submission a broad range of collaborators across several sections of NAAJA were involved. These are people with direct experience and expertise in their area, and include Aboriginal lawyers. In particular, we acknowledge the significant in-kind contribution of intern Shauna Stanley who was also able to reflect on, and share with us, the historic practices in Ireland to today’s justice system and how a justice system which is responsive and adapted to local context is necessary for the exercise of justice itself. Page | 2 Table of contents Executive Summary ................................................................................................... 5 Background to the submission ................................................................................... 7 About NAAJA ............................................................................................................. 7 Cultural competency and the justice system .............................................................. 7 An ethnocentric justice system and Aboriginal diversity ......................................... 8 Ethnocentricity of prison ....................................................................................... 12 The justice system and cultural appropriateness ..................................................... 12 The case for an Aboriginal Justice Agency Indicator (AJAI) ..................................... 16 Bail and remand population ...................................................................................... 20 Sentencing and Aboriginality .................................................................................... 22 Sentencing options ................................................................................................... 25 Mandatory sentencing is morally wrong ................................................................ 27 Ineffectiveness of mandatory sentencing .............................................................. 27 Mandatory sentencing does not prevent crime ..................................................... 28 Mandatory sentencing costs the community ......................................................... 28 Our Prisons are full ............................................................................................... 29 Mandatory sentencing results in unfair sentences ................................................ 30 Shifting the role of justice away from courts and to Police/Prosecution ................ 31 Perceptions of discrimination ................................................................................ 31 The provisions which should be prioritised for review ........................................... 32 Availability of community-based sentencing options ................................................ 33 Resourcing and Integrating Cultural Authorities across the justice system ........... 36 Current practice of supporting Cultural Authorities in the Top End of the NT ....... 39 The Galiwin’ku Statement and a proposal for a Cultural Authority ........................ 40 The need for Community Based Sentencing ........................................................ 42 Community-Based Sentencing Parallels with Western Law: The Open Prison in Ireland ................................................................................................................... 44 Short sentences ....................................................................................................... 45 Minimum period of Imprisonment.......................................................................... 46 Fines and driver licences .......................................................................................... 47 Mandated fines ..................................................................................................... 48 Consequences for non-payment ........................................................................... 49 Fines and the justice system ................................................................................ 49 Justice Procedure Offences – Breach of Community Based Offences..................... 50 Page | 3 Alcohol ..................................................................................................................... 50 Banned Drinkers Registers ................................................................................... 51 Female Offenders..................................................................................................... 53 Diversionary options ............................................................................................. 54 Aboriginal Justice Agreements ................................................................................. 56 Access to Justice Issues .......................................................................................... 58 Legal education .................................................................................................... 58 Linking Aboriginal interpreters into the justice system .......................................... 59 Value of interpreters .......................................................................................... 60 NT Police .......................................................................................................... 61 Department of Correctional Services ................................................................ 61 Opportunities to enhance and improve the provision and accessibility of interpreters ........................................................................................................ 63 Legal Education .................................................................................................... 65 Mental Health and Disability ..................................................................................... 70 Police Accountability ................................................................................................ 76 Two month period to file a statement of claim against the Police ......................... 76 Decriminalisation of infringement debts and Paperless arrest .............................. 78 Decriminalisation of Public Drunkenness .............................................................. 78 Efficacy of the Body Warn Camera scheme and other footage of Police conduct 79 Police Accountability and the Ombudsman .......................................................... 80 Mandated complaint outcomes ............................................................................. 86 Justice Reinvestment ............................................................................................... 95 Conclusion ............................................................................................................... 95 Page | 4 Executive Summary Due to the high number of Aboriginal people in contact with the criminal justice system (and amongst the highest rates of incarceration for any group in the world1), and the complex cultural and related aspects including significant diversity of languages, there is a need to consider the cultural appropriateness of the justice
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