australian indigenous LAW REVIEW 2011 Volume 15, Number 1 A PUBLICATION OF THE INDIGENOUS LAW CENTRE UNIVERSITY OF NEW SOUTH WALES www.ilc.unsw.edu.au ii australian indigenous LAW REVIEW 2011 Volume 15, Number 1 EDITORS Daniel Threlfall Daniel Wells Megan Davis Robert Woods EDITORIAL PANEL Thalia Anthony BA LLB PhD (Sydney) Toni Bauman BA (Macquarie) Sean Brennan BA LLB LLM (ANU) Ngiare Brown BMed (Newcastle) MPHTM (James Cook) FRACGP (Aust Coll GP) Claire Charters BA LLB (Hons) (Otago) LLM (NYU) Donna Craig BA LLM (Osgoode Hall) Kyllie Cripps BA (Hons) (South Aust) PhD (Monash) Chris Cunneen BA DipEd (UNSW) PhD (Sydney) Megan Davis BA LLB (UQ) GDLP LLM (ANU) Dalee Sambo Dorough MALD (Tufs) PhD (British Columbia) Brendan Edgeworth LLB (Hons) MA (Shefeld) Tim Goodwin BA LLB (Hons) (ANU) Brenda Gunn BA (Manitoba) JD (Toronto) LLM (Arizona) Jackie Hartley BA (Hons) LLB (UNSW) LLM (Arizona) Samantha Joseph BA LLB (UNSW) Peter Jull BA (Toronto) Patricia Lane BA LLB (Hons) LLM (Sydney) Terri Libesman BA LLB (Macquarie) Erin Mackay BA LLB (UNSW) GDLP (ANU) Hannah McGlade LLB LLM (Murdoch) Garth Netheim LLB (Sydney) AM (Tufs) Keryn Ruska LLB (Melbourne) GDLP (ANU) Sonia Smallacombe BA DipEd (Monash) BA (Hons) MA (Melbourne) Prue Vines BA MA (Sydney) DipEd (Syd Teach Coll) LLB (UNSW) STUDENT EDITORS Juliet Akello, Emmanuel Brennan, Kate Cora, Laura Ferraro, Katie Gilchrest, and Simon Lindsay STUDENT EDITORIAL PANEL Juliet Akello, Jefrey Beech, Laura Ferraro, Katie Gilchrest, Zoe Hankin, Jessica Holgerrson, Amanda Kazacos, and Xavier O’Halloran Editorial communications should be addressed to: phone 61 2 9385 2252 The Editor fax 61 2 9385 1266 Australian Indigenous Law Review email [email protected] Indigenous Law Centre web www.ilc.unsw.edu.au Faculty of Law University of New South Wales Sydney NSW 2052 Australia phone 61 2 9385 1496 This issue may be cited as (2011) 15(1) AILR fax 61 2 9385 1266 ISSN 1835-0186 email [email protected] Print Post Approved Number 255003/05849 To register a subscription to: © Indigenous Law Centre, University of New South Wales Australian Indigenous Law Review for 1 volume (two issues): This publication is copyright. Other than for purposes @ AUD$220 (Australian subscribers) of and subject to the conditions prescribed under the @ AUD$240 (International subscribers) Copyright Act, no part of it may in any form or by any please visit: www.ilc.unsw.edu.au/ailr means (electronic, mechanical, microcopying, photocopying, for details and a subscription form, or contact: recording or otherwise) be reproduced, stored in a retrieval Subscriptions Manager system or transmited without prior writen permission. Indigenous Law Centre Inquiries should be addressed to the publishers. Faculty of Law University of New South Wales Graphic Design / DTP: Sydney NSW 2052 Australia John Hewit Since 1981 the Indigenous Law Bulletin has led the way with accessible, accurate and timely information about Australia’s Indigenous peoples and the law. We write for legal practitioners, advocates, policy makers, researchers and students. We cover legislation and government policy, case law, parliamentary proceedings, international developments, local activism and the work of Indigenous communities and organisations. We report on crime, family law, native title, custody issues, legal services, international and comparative law, land and water rights, intellectual property and copyright law. CONTACT DETAILS Indigenous Law Bulletin, Faculty of Law, UNSW, Sydney 2052, Australia phone 61 2 9385 2256 fax 61 2 9385 1778 email editor [email protected] email subscriptions [email protected] web www.ilb.unsw.edu.au SUBSCRIPTION RATES individual $ 49.50 (all GST inclusive), organisation $ 66.00 one year / six issues student $ 20.00 unwaged individual $ 33.00 community and non-government $ 49.50 international (one year) $ 85.50 ADVISORY COUNCIL Professor S James Anaya United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people; College of Law, University of Arizona Professor Michael Dodson Chairperson, Australian Institute of Aboriginal & Torres Strait Islander Studies Justice ETJ Durie High Court of New Zealand Judge Caren Fox Maori Land Court Professor Kent McNeil Faculty of Law, Osgoode Hall Law School Professor Doug Sanders Faculty of Law, University of British Columbia (Retired) Professor Brian Slatery Faculty of Law, Osgoode Hall Law School EDItORIAL NOtE The Australian Indigenous Law Review (‘AILR’) is a publication unique for its currency, expert commentary and international perspectives. It draws together legal developments from all areas afecting Indigenous peoples in Australia and around the world. The AILR publishes detailed, peer-reviewed commentary from leading Australian and international experts. Its general editions also include recent and relevant case law, publishing the most prominent cases alongside those that would otherwise go unreported. Included in the last volume of each edition is a cumulative index. The AILR is designed to complement the Indigenous Law Centre’s long-established publication, the Indigenous Law Bulletin. Previous editions of the AILR are available online at <htp://www.austlii.edu.au/au/journals/AILR> and <htp://www.informit. com.au>. vi ACKNOWLEDGMENtS In the opening chapter of the National Report of the Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’), Commissioner Elliot Johnston acknowledged that the Royal Commission would not have taken place but for the deaths of the 99 Aboriginal men and women whose deaths were investigated. The RCIADIC recorded its sympathies to the families of the deceased. Since then, Aboriginal men and women have continued to die in custody. This publication is dedicated to them, and to the men and women who have sought reform on this important issue. The Australian Indigenous Law Review (‘AILR’) is prepared at the Indigenous Law Centre at the University of New South Wales, Sydney, Australia, whose in-kind support makes its publication possible. The AILR also gratefully acknowledges the support of the Commonwealth Atorney-General’s Department in the development of this publication. We would like to thank Raymond Brazil from the Aboriginal Legal Service (NSW/ACT) for his enormous contribution to this issue, which would never have come together if not for his tireless eforts and vision. As always, thanks are extended to the members of our Editorial Panel for their generous support and assistance, and to the anonymous referees who gave their time and efort to review the articles presented here. The editors would also like to thank Janete Murdoch, Dylan Lino, April Long, Kyllie Cripps and all of the Indigenous Law Centre staf and volunteers, as well as designer John Hewit, for their contributions to the creation and production of this edition of the AILR. We would also like to thank incoming editor Robert Woods for all of his assistance in fnalising this issue. The AILR is sure to prosper under his capable management. Artist’s Note The late Wiradjuri/Kamilaroi artist Michael Riley (1960–2004) is widely considered to have been one of the most important contemporary Australian artists of the past two decades. His contribution to the urban-based Indigenous visual arts industry was substantial. Over the course of his career he created an impressive body of work ranging from black-and-white portraiture to flm, video and large-scale digital photography. Throughout, his concern was to celebrate the spirit of his people while also bearing witness to their struggles. He had a deep commitment to the process of reconciliation. Riley’s work draws upon a multiplicity of infuences: European and Western (particularly British and North American) Indigenous and non-Indigenous flmmaking; international fashion and design; and Indigenous and European spirituality and its contradictions. His portraits of family and community were the antithesis of the bleak photojournalist studies of contemporary Aboriginal life in towns and cities so ofen portrayed in print media of the day, with the obvious warmth between subject and photographer evident in the photographs. Riley’s work is represented in various major public and private collections throughout the country, including the National Gallery of Australia. In early 1998, a debilitating illness impacted on his professional and personal life. Riley’s last and most signifcant body of work – cloud (2000), from which the cover image for this volume of the AILR was drawn – shifed from terra frma to otherworldly locations and concerns. vii CONtENtS Volume 15, Number 1 Foreword 1 Hal Wooten AC QC Commentary Punishment: Two Decades of Penal Expansionism and Its Efects on Indigenous Imprisonment 8 Chris Cunneen Aboriginal Identity – The Legal Dimension 18 Chief Justice Robert French AC A Refection on the Royal Commission into Aboriginal Deaths in Custody and Its Consideration 25 of Aboriginal Women’s Issues Megan Davis Police Ofcers’ Experience of Indigenous ‘Capacity’ 34 Margaret Mitchell and Tim Rowse Indigenous Women in Australian Criminal Justice: Over-represented but Rarely Acknowledged 47 Julie Stubbs Twenty Years of Monitoring Since the Royal Commission into Aboriginal Deaths in Custody: 64 An Overview by the Australian Institute of Criminology Laura Beacrof, Mathew Lyneham and Mathew Willis Practice Editorial Introduction 86 A Contemporary Snapshot of Two Issues Upon Which the RCIADIC Report Commented: Youth 87 Justice and the Over-incarceration of Aboriginal Young People, and Alcohol-Related