Incarceration Rates of Aboriginal and Torres Strait Islander Peoples DISCUSSION PAPER You are invited to provide a submission or comment on this Discussion Paper Discussion Paper 84 (DP 84) July 2017 Incarceration Rates of Aboriginal and Torres Strait Islander Peoples DISCUSSION PAPER You are invited to provide a submission or comment on this Discussion Paper Discussion Paper 84 (DP 84) July 2017 This Discussion Paper reflects the law as at 30 June 2017. The Australian Law Reform Commission (ALRC) was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). The office of the ALRC is at Level 40, MLC Centre, 19 Martin Place, Sydney, NSW 2000, Australia. Postal Address: GPO Box 3708 Sydney NSW 2001 Telephone: within Australia (02) 8238 6333 International: +61 2 8238 6333 Facsimile: within Australia (02) 8238 6363 International: +61 2 8238 6363 Email: [email protected] Website: www.alrc.gov.au ALRC publications are available to view or download free of charge on the ALRC website: www.alrc.gov.au/publications. If you require assistance, please contact the ALRC. ISBN: 978-0-9943202-7-8 Inquiry Artwork: A Pathway for Justice Created by Gilimbaa artist/designer, Rachel Sarra, Goreng Goreng Citation: Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples, Discussion Paper No 84 (2017) © Commonwealth of Australia 2017 This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Requests for further authorisation should be directed to the ALRC. Making a submission Any public contribution to an inquiry is called a submission. The Australian Law Reform Commission seeks submissions from a broad cross-section of the community, as well as from those with a special interest in a particular inquiry. The closing date for submissions to this Discussion Paper is 4 September 2017. Online submission form The ALRC strongly encourages online submissions directly through the ALRC website where an online submission form will allow you to respond to individual proposals and questions: https://www.alrc.gov.au/content/indigenous-incarceration-dp84-make- submission Once you have logged into the site, you will be able to save your work, edit your responses, and leave and re-enter the site as many times as you need to before lodging your final submission. You may respond to as many or as few proposals and questions as you wish. There is space at the end of the form for any additional comments. Further instructions are available on the site. If you have any difficulties using the online submission form, please email [email protected], or phone +61 2 8238 6305. Alternatively, pre-prepared submissions may be mailed, faxed or emailed, to: The Executive Director Australian Law Reform Commission GPO Box 3708 Sydney NSW 2001 Email: [email protected] Facsimile: +61 2 8238 6363 Open inquiry policy As submissions provide important evidence to each inquiry, it is common for the ALRC to draw upon the contents of submissions and quote from them or refer to them in publications. Generally, submissions will be published on the ALRC website unless marked confidential. Confidential submissions may still be the subject of a Freedom of Information request. In the absence of a clear indication that a submission is intended to be confidential, the ALRC will treat the submission as public. The ALRC does not publish anonymous submissions. The ALRC may redact certain information from submissions in order to protect the privacy of submitters or others mentioned in submissions. This may include withholding the name of the submitter. Publication or redaction of information in submissions is at the discretion of the ALRC. See the ALRC policy on submissions and inquiry material for more information http://www.alrc.gov.au/about/making-submission. Content Terms of Reference 5 Participants 9 Proposals and Questions 11 Part 1. Introduction to the Inquiry 17 1. Introduction to the Inquiry 19 Acknowledgment of Country 19 The Inquiry 19 Context 21 Approach to reform 26 Structure of the Discussion Paper 28 Terminology 29 Getting involved 31 Part 2. Criminal Justice Pathways 33 2. Bail and the Remand Population 35 Summary 35 Background 36 Legislative amendment 44 Services that mitigate bail risks 46 Policing bail conditions 48 3. Sentencing and Aboriginality 51 Summary 51 Systemic and background factors 51 Specialist sentencing reports 68 4. Sentencing Options 73 Summary 73 Mandatory sentencing 74 Short sentences of imprisonment 81 Availability of community-based sentencing options 88 Flexibility to tailor sentences 91 2 Incarceration Rates of Aboriginal and Torres Strait Islander Peoples 5. Prison Programs, Parole and Unsupervised Release 93 Summary 93 The availability and effectiveness of prison programs 94 Parole for eligible Aboriginal and Torres Strait Islander prisoners 97 The provision of throughcare 103 Part 3. Non-Violent Offending and Alcohol Regulation 105 6. Fines and Driver Licences 107 Summary 107 Fines and infringement notices 108 Imprisonment terms that ‘cut out’ fine debt 111 Driver licence related issues 125 7. Justice Procedure Offences—Breach of Community-based Sentences 133 Summary 133 Background 134 Breach of community-based sentences 139 8. Alcohol 143 Summary 143 Alcohol and offending 143 A focus on harm reduction 147 Assessing solutions 149 Part 4 Aboriginal and Torres Strait Islander Female Offender 159 9. Female Offenders 161 Summary 161 Underlying factors 161 Addressing the complex needs of ATSI female offenders 166 Diversion 172 The need for improved data collection 173 Part 5 Engagement and Accountability 175 10. Aboriginal Justice Agreements 177 Summary 177 Background 178 Characteristics of Aboriginal Justice Agreements 181 The future of Aboriginal Justice Agreements 182 Criminal justice targets for ‘Closing the Gap’ 184 11. Access to Justice Issues 187 Summary 187 Interpreter services 188 Specialist courts and diversion programs 191 Indefinite detention when unfit to stand trial 198 Provision of legal services and supports 202 Custody Notification Service 204 Content 3 12. Police Accountability 207 Summary 207 Background 207 Improving responses 211 13. Justice Reinvestment 223 Summary 223 ‘Justice reinvestment’ 223 Impact on Aboriginal and Torres Strait Islander peoples 224 Justice reinvestment in this Discussion Paper 226 Consultations 227 Terms of Reference ALRC inquiry into the incarceration rate of Aboriginal and Torres Strait Islander peoples I, Senator the Hon George Brandis QC, Attorney-General of Australia, refer to the Australian Law Reform Commission, an inquiry into the over-representation of Aboriginal and Torres Strait Islander peoples in our prisons. It is acknowledged that while laws and legal frameworks are an important factor contributing to over-representation, there are many other social, economic, and historic factors that also contribute. It is also acknowledged that while the rate of imprisonment of Aboriginal and Torres Strait Islander peoples, and their contact with the criminal justice system - both as offenders and as victims - significantly exceeds that of non-Indigenous Australians, the majority of Aboriginal and Torres Strait Islander people never commit criminal offences. Scope of the reference 1. In developing its law reform recommendations, the Australian Law Reform Commission (ALRC) should have regard to: a. Laws and legal frameworks including legal institutions and law enforcement (police, courts, legal assistance services and prisons), that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples and inform decisions to hold or keep Aboriginal and Torres Strait Islander peoples in custody, specifically in relation to: i. the nature of offences resulting in incarceration, ii. cautioning, iii. protective custody, iv. arrest, v. remand and bail, vi. diversion, vii. sentencing, including mandatory sentencing, and viii. parole, parole conditions and community reintegration. b. Factors that decision-makers take into account when considering (1)(a)(i-viii), including: i. community safety, ii. availability of alternatives to incarceration, 6 Incarceration Rates of Aboriginal and Torres Strait Islander Peoples iii. the degree of discretion available to decision-makers, iv. incarceration as a last resort, and v. incarceration as a deterrent and as a punishment. c. Laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples offending and including, for example, laws that regulate the availability of alcohol, driving offences and unpaid fines. d. Aboriginal and Torres Strait Islander women and their rate of incarceration. e. Differences in the application of laws across states and territories. f. Other access to justice issues including the remoteness of communities, the availability of and access to legal assistance and Aboriginal and Torres Strait Islander language and sign interpreters. 2. In conducting its Inquiry, the ALRC should have regard to existing data and research[1] in relation to: a. best practice laws, legal frameworks that reduce the rate of Aboriginal and Torres Strait Islander incarceration, b. pathways of Aboriginal and Torres Strait Islander peoples through the criminal justice system, including most frequent offences, relative rates of bail and diversion