This aim of this page is to provide an introduction to a handful of key issues surrounding law and justice and how it effects Indigenous Australians. Indigenous people are over-represented in our prison and court systems, particularly Indigenous young people and women. This webpage reviews the facts about how Indigenous people are involved in the criminal justice system and examines some of the policy options governments can take to make things better. It also looks at some other kinds of legal rights, including the right of Indigenous people to practice and protect their culture. You can click on the links below to jump to a section that interests you.

• Rates of Imprisonment
• Deaths in Custody
• Indigenous Women and the Criminal Justice System
• Positive alternatives – Circle Sentencing
• Cultural and Intellectual Property
• Resource Reviews

Rates of Imprisonment

Research shows that the rate of imprisonment for Indigenous Australians is much higher than for non-Indigenous Australians. Figures from the Australian Bureau of Statistics show that Indigenous Australians make up 24% of the prison population, while they only make up 2.5% of Australia’s population.

Despite commitments from governments at all levels, the number of Indigenous people in prison has been increasing, and the gap between the numbers of Indigenous and non-Indigenous people in prison has been getting larger, not smaller. Indigenous adults were 13 times more likely than other Australians to be in prison in 2008. In 2000, it was only 10 times. Today, Indigenous young people are 28 times more likely to be detained in a juvenile detention centre.

Studies also show that Indigenous Australians consistently get worse outcomes than non-Indigenous Australians when they come into contact with the criminal justice system, and are often punished more harshly. For example, only 12% of criminal justice processes involving Indigenous young offenders results in a ‘caution’, compared with 18.7% for the total population.

Deaths in Custody

In early 1991, a report of the Royal Commission into Aboriginal Deaths in Custody was presented to Federal Parliament. The Royal Commission had been established to investigate why a large number of Indigenous people had died in police custody or in prison. The Royal Commission looked at all the different factors which impact on why Indigenous people may have contact with the police or end up in prison – including poverty, drug and alcohol use, history and police racism. The report found that being Aboriginal “played a significant and in most cases a dominant role” in why a person may be in custody and die in custody.

The report found that Indigenous Australians were between 7 and 22 times more likely to die in custody than non-Indigenous Australians.

Since the Report of the Royal Commission into Aboriginal Deaths in Custody all State and Territory Governments have developed strategies to try and reduce the numbers of Indigenous people in prison. Unfortunately, little has changed since 1991. Today there are less Indigenous people who die in police custody (this includes people who die while they are being kept in a police station) but more Indigenous people are dying while in prison.

The Royal Commission into Aboriginal Deaths in Custody made a wide ranging series of recommendations about what could be done to reduce the number of deaths. Some of these were taken up by various governments; but most of the recommendations were never implemented. A number of organisations continue to campaign for all of the recommendations to be implemented as a way of addressing Indigenous disadvantage.

Indigenous Women and the Criminal Justice System

It is difficult to get a clear picture about Aboriginal women’s encounters with the Australian justice system and police. Violence and sexual assault against women is often unreported.

Recent research that has been done shows that:

• Indigenous woman are 35 times as likely than other women to be hospitalised due to ‘family violence’, which is violence at the hands of someone they are related to, or are living with; and
• In 2005 it was reported that 18 per cent of Indigenous women experienced physical or threatened violence in the previous 12 months, compared with 7 per cent of non-Indigenous women.

There is also a recent trend for more Indigenous women to be imprisoned for causing crime, but it is important to note that:

• Most of the women in prison have low levels of formal education and high levels of unemployment.
• Indigenous women in prison tend to be single mothers with 2 -4 children of their own and were often also responsible for the care of other non-biological children.
• There is also a strong link between drug and alcohol use and offending behaviour. There is a long history of Indigenous women who are in prison having been sexually abused in their lives. A NSW study in 2001 found that 70% of women in prison said they had been sexually abused as children while 44% said they had been sexually abused as adults. This abuse often led to drug use, which in turn led to Indigenous women committing offences and ending up in prison.

Positive Alternatives – Circle Sentencing

In recent years, alternative forms of sentencing for Indigenous Australians have been used in some areas, to try and keep Indigenous people out of prison or reduce goal time. One of these alternatives is circle sentencing.

In circle sentencing, the process is held outside of a court. A ‘circle’ of people sit together and try to decide on the appropriate punishment for an Indigenous offender. People who attend the Circle include:

• The offender, and his or her supporting family or friends
• The victim and his or her supporting family or friends
• A prosecutor or Magistrate
• Aboriginal Elders from within the community
• An Aboriginal Project Officer (who organised the Circle) and
• Any other community members affected by the offence.

The Circle openly discusses the offence and how it has affected the victim, the offender and wider community. The Circle also talks about the offender’s background to help determine a unique sentence that is tailored for that offender. The Circle’s sentence is not solely about punishment. More importantly, it is about healing, moving on from the offence and helping the offender address issues such as alcoholism, unemployment and aggression.

Circle sentencing began with Indigenous communities in Canada, and started in Australia in NSW in 2002. Recently circle sentencing has been successfully extended across other areas in Australia. It has been shown to dramatically reduce reoffending rates, particularly amongst young offenders, whilst also giving the victim an opportunity to have input into the sentence and communicate the effect of the crime.

Indigenous Cultural and Intellectual Property

Intellectual property laws are laws that protect ideas and culture, like inventions and works of art, to ensure that the people that developed the intellectual ideas retain control over them and get the income and recognition they deserve. The concept of property rights applying to knowledge and ideas - of someone owning an idea - was developed in England and Europe in the late 15th century. Australia’s intellectual property laws originate from this era.

While there are numerous laws in Australia to protect various forms of intellectual property, until recently the knowledge and culture of Indigenous people had no such protection. Indigenous songs, artworks, dance, stories, lifestyles, knowledge, languages, environmental resources were not protected as ‘intellectual property’.

Today Australian copyright law recognises that some Indigenous paintings, songs or written stories should not be reproduced without the permission of the artist. National laws have also been introduced, to apply from 2009 onwards, which require that 5% of the re-sale of an artwork go to the Indigenous artist. These laws are long overdue and are designed to ensure that Indigenous artists whose artworks increase in value over time receive some of the money when their artworks are sold for thousands or even millions of dollars more than they were originally paid.

Many other Indigenous intellectual property rights are still not recognised. There is no protection, for example, for special knowledge that Indigenous people may have about particular animals or herbs, as used in traditional medicines.

Generally, the level of respect and protection that the law provides for Indigenous culture and heritage is different across the various Australian states and territories. In some states the right of Indigenous communities to control and protect their sacred sites and objects is recognised, but in many areas it is not. There is no one national law which recognises Indigenous communities’ rights to control their heritage.

Resource Reviews
Report of the Royal Commission into Aboriginal Deaths in Custody
http://www.austlii.edu.au/au/other/IndigLRes/rciadic/

This is the full report of the Royal Commission in Aboriginal Deaths in Custody. It is a very long report, broken into volumes; so scroll through the chapters for a section you are interested in.

Statistics

Most statistics about crime and prisons are collected by States, but several government websites collect the statistics together. This includes the Australian Institute of Criminology at http://www.aic.gov.au. Check out the ‘Crime and Community’ sections for different reports about race and crime. The Australian Bureau of Statistics at http://www.abs.gov.au also has lots of useful reports, but they can be tricky to find. Search by ‘Topics’ for information about Crime and Justice, and about Aboriginal and Torres Strait Islander people.

Our Culture Our Future: A Report on Australian Indigenous Cultural and Intellectual Property Rights
http://www.austlii.edu.au/au/journals/AILR/1999/51.html

This is the full copy of “Our Culture Our Future: A Report on Australian Indigenous Cultural and Intellectual Property Rights”, released in 1999. Once again, it is long, but has well marked chapters that you can pick from to read.

Bureau of Crime Statistics and Research (NSW)

http://www.bocsar.nsw.gov.au/

This is the Bureau of Crime Statistics and Research in NSW. It has the latest statistics on crime rates, imprisonment rates and recidivism (the likelihood that those in prison will re-offend). It also has a range of papers on different issues, including issues effecting Indigenous people.