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, and many of their rights are less well protected by our legal system than are the rights of other Australians. This section reviews the facts about how Indigenous people are involved in the criminal justice system, including a review of the well known Royal Commission into Aboriginal Deaths in Custody, and will examine some of the policy options to make things better. You can click on the links below to jump to a section that interests you.

• Rates of Imprisonment
• Deaths in Custody
• Aboriginal Women and the Criminal Justice System
• Indigenous Cultural and Intellectual Property
• Resource Reviews

Rates of Imprisonment

Figures show that the rate of imprisonment for Indigenous Australians is higher than for non-Indigenous Australians. Figures from the Australian Bureau of Statistics show that Indigenous Australians make up 21% of the prison population, while they only make up 2.5% of Australia’s population. In NSW, Indigenous Australians are around 10 times more likely than non-Indigenous Australians to be in prison.

Indigenous Australians in prison are also tend to be younger than other prisoners. The average age for of Indigenous Australian in prison is 29.8, which is 2.5 years younger than the prison-wide average.

Studies also show that Indigenous Australians consistently get worse outcomes than non-Indigenous Australians when they come into contact with the criminal justice system. Only 12% of criminal justice processes involving Indigenous young offenders results in a caution, compared with 18.7% for the total population. This shows Indigenous young offenders are punished hard than non-Indigenous young offenders. Indigenous people are also more likely to be arrested on the spot than given a summons (to appear before court at a later date).

Cunneen and Garth, in the Australian Indigenous Law Reporter, write

“Aboriginal young people are more likely to receive harsher outcomes from police decisions to apprehend and prosecute, even when offence and criminal history differences are controlled for. It seems that young Aboriginal people have a 10-15% greater chance of going to court rather than receiving a formal police caution.” (1.1, Jan 1996)

Deaths in Custody

In early 1991, a report of the Royal Commission into Aboriginal Deaths in Custody was presented to Parliament. It examined the deaths of 99 Aboriginal Australians that occurred between 1980 and 1989. The report found “their Aboriginality played a significant and in most cases a dominant role in their being in custody and dying in custody.

The report decided that a “death in custody” was:

• A death, whenever occurring, of a person who is in prison, police custody or detention
• A death or fatal injury sustained in the process of police or prison officers attempting to arrest or detain a person
• A death occurring as a result of a person attempting to escape from prison, police custody or detention.

The report found that Indigenous Australians were between 7 and 22 times more likely to die in custody. Indigenous deaths accounted for 20.6% of deaths in custody – while they only make up 2.5% of Australia’s population.

In 2001, the Australian Institute of Criminology published a series of papers on deaths in custody. The papers looked at deaths in custody between 1990 and 1999. It found the number of deaths remained similar between the two decades – in the 1980 decade, there were 110 Aboriginal deaths in custody, while in the 1990 decade, there were 115 deaths.

Although the number of deaths during the two decades remained fairly similar, there was a change between which authorities were responsible for the death. During the 1980 decade, most Indigenous deaths occurred in police custody (after arrest or at the police station, for example). In the 1990 decade, most Indigenous deaths occurred in prison.

The Royal Commission into Aboriginal Deaths in Custody made a series of recommendations about what could be done to reduce the number of deaths. While some of these were taken up by various governments 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.

Aboriginal Women and the Criminal Justice System

Few detailed reports exist at a national level that look solely at Aboriginal women’s encounters with the white Australian justice system and police. Real figures are in short supply.

However, Western Australia released a report in 2002 about “Domestic violence and child abuse in Aboriginal communities” and the NSW Aboriginal Justice Advisory Council published “Speak Out Speak Strong” with data collected in 2001.

The WA report found that:

• Aboriginal women are 10.7 times more likely to be victims of violent crime than non- Aboriginal women
• 36 times more likely to be victims of abuse or violence from their spouse.

Figures from Queensland show that while Aboriginal people comprise 1.5% of the population:

• 16% of all female homicide victims are Aboriginal
• 13% of female prisoners are Aboriginal.

Further, the NSW’s report “Speak Out Speak Strong” wrote that:

• Aboriginal women in prison are usually young with an average age of 25
• Most of the women in prison have low levels of formal education and high levels of unemployment
• They are usually single mothers with 2 -4 children of their own and were often also responsible for the care of other non-biological children
• 98% of the women surveyed had prior convictions
• 68% of the women surveyed said they were on drugs at the time of their last offence.

The study found a strong link between drug and alcohol use and offending behaviour.
Also significant, the report found there was a long history of Aboriginal women in prison being sexually abused – throughout their lives. 70% said they had been sexually abused as children while 44% said they had been sexually abused as adults.

The report stated that “98% of the women who were sexually assaulted as children stated that they have a drug problem, most equated their drug problem to their experiences of past violence and their inability to get help with it. One of the most significant and important findings of this study is the clear link between child sexual assault, drug addiction and the patterns of offending behaviour that led the women who participated in the study to be imprisoned.”

Positive Alternatives – Circle Sentencing

In recent years, alternative forms of sentencing for Aboriginal Australians have become to be recognised as legitimate by state courts. This is an attempt to reduce the negative impact the white court system has on Aboriginal Australians. One alternative is circle sentencing.
In circle sentencing, the process is held outside of court. Once an offender has been found guilty, the magistrate may allow for the punishment to be determined through circle sentencing. People who attend the Circle include:

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

The Circle 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 in NSW in 2002. Although there has been only a small number of court cases referred to circle sentencing, the feedback received by the NSW Crime Prevention Division has been extremely positive, both for offenders and for victims.

Indigenous Cultural and Intellectual Property

Intellectual property are laws that protect ideas and culture,like inventions and works of art, to ensure that the people that developed them retain control over them and get the income 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. Today’s intellectual property laws originate from this era. While there are numerous laws to protect various forms of intellectual property, until recently the knowledge and cultur of Indigenous people had no such protection. Indigenous songs, dance, stories, lifestyles, knowledge, languages, environmental resources were not considered “intellectual property”.

There are also problems in trying to categorise an Indigenous song or story into either “cultural” or “intellectual” or “artistic” for legal purposes. Copyright laws in Australia, Europe and the Western world do not stretch to fit the unique experience of Indigenous Australian knowledge and heritage.

From the 1980s a series of reports have been published that recommend changes to intellectual property law so that it will be able to protect Indigenous intellectual property. In 1994 the Keating Government released a report called Stopping the Rip-offs: Intellectual Property Protection for Aboriginal and Torres Strait Islander People. This was followed in 1999 by an ATSIC report titled Our Culture Our Future: A Report on Australian Indigenous Cultural and Intellectual Property Rights.

The report, Our Culture Our Future came up with a definition of Indigenous Cultural and Intellectual Rights (ICIP), saying it refers to Indigenous Australian’s rights to their heritage:

Heritage consists of the intangible and tangible aspects of the whole body of cultural practices, resources and knowledge systems developed, nurtured and refined by Indigenous people and passed on by them as part of expressing their cultural identity. Heritage includes:

• Literary, performing and artistic works (including music, dance, song, ceremonies, languages, symbols and designs, narratives and poetry)
• Scientific, agricultural, technical and ecological knowledge (including cultigens, medicines and sustainable use of flora and fauna)
• Spiritual knowledge
• All items of moveable cultural property including burial artifacts
• Indigenous ancestral remains
• Indigenous human genetic material (including DNA and tissues)
• Cultural environment resources (including minerals and species)
• Immovable cultural property (including Indigenous sites of significance, sacred sites and burials)
• Documentation of Indigenous peoples’ heritage in all forms of media. (including scientific, ethnographic research reports, papers and books, films, sound recordings)

The heritage of an Indigenous people is a living one and includes items which may be created in the future, based on that heritage.

Any definition of Indigenous Cultural and Intellectual Property (ICIP) should be flexible to reflect the notions of the particular Indigenous group and the fact that this may differ from group to group and may change over time.

ICIP is collectively owned, socially based and evolving continuously. Only the group as a whole may consent to sharing ICIP.

Despite this recognition of Indigenous knowledge and heritage as the property of Indigenous groups, Indigenous property – such as art, music, etchings, ancient tools, and human bones – have not be returned to their rightful owners or dully paid for.

Resource Reviews

http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/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.

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.

http://www.lawlink.nsw.gov.au/ajac

This is the NSW Aboriginal Justice Advisory Council website. Here you can download and read about the Aboriginal Justice Plan (“Beyond Justice 2004-2014”). The publications page has lots of interesting reports, including (at the VERY bottom) the “Speak Out Speak Strong” report about Aboriginal women’s experiences of justice and living in custody. It is, however, for NSW only.

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.