We need evidence-based law reform to reduce rates of Indigenous incarceration

On March 28, the Australian Law Reform Commission (ALRC) report on reducing Indigenous incarceration was tabled in parliament. Its recommendations aim to decrease Indigenous contact with the criminal justice system and reform punitive laws that entrench Indigenous disadvantage.

Imprisonment statistics for Indigenous Australians are deplorable. Imprisonment of Indigenous Australians increased 41% between 2006 and 2016. In 2016, Indigenous Australians constituted 27% of the national prison population, but just 3% of the Australian population. Indeed, Indigenous Australians are the most incarcerated people on Earth.

For those who remain unmoved by these numbers, there are the economic costs. The cost of incarceration of Indigenous Australians in 2016 was estimated at A$3.9 billion. Beyond costs directly related to the justice system, the estimated cost rises to A$7.9 billion.

Governments have met these statistics not with inaction, but with the creation of more crimes, tougher bail laws, and lengthier sentences.

The recommendations

Informed by 127 submissions, 149 consultations, and earlier reports and inquiries, the report makes recommendations to improve justice for Indigenous Australians.

Notable among its 35 recommendations are:

• the establishment of a justice reinvestment body

• review of police complaints handling policies and practices

• consideration of systemic and cultural factors affecting Indigenous Australians in bail and sentencing decisions

• abolition of imprisonment in lieu of, or as a result of, unpaid fines, and

• national criminal justice targets to reduce the incarceration of, and violence against, Indigenous Australians.

Minor fines create a cycle of poverty

Many Australians have received on-the-spot fines for parking offences, traffic breaches or minor offences. Such fines may be inconvenient, or place a small financial burden on some; but for those without the means to pay, fines can spiral into insurmountable debt.

Indigenous Australians, people who are homeless, and those of low socioeconomic status are more likely to receive infringement notices for public order and other minor offences. This is a result of multiple and complex factors.

Indigenous Australians occupy public space more often than non-Indigenous Australians, primarily due to socio-cultural factors and their connection to the land. People who are homeless or living in temporary accommodation must conduct their private lives, including personal disputes, in public spaces.

There is also a greater proportion of physical disability, mental illness, alcohol or drug dependency, and a history of family and domestic violence among these groups. This leads to increased police surveillance and interactions, particularly for public nuisance-type offences.

Indigenous and vulnerable Australians are more likely to fail to pay fines on time and incur further sanctions. Fines coupled with enforcement costs become impossible to pay for people on low incomes, or those who are homeless or unemployed.

Fine amounts can be prohibitive. In 2014, the NSW government increased the fine for the continuation of intoxicated and disorderly behaviour following a move-on direction from A$200 to A$1,100. A report by the NSW Ombudsman found Indigenous Australians accounted for 31% of the 484 fines and charges issued for this offence in the review period.

Read more: Indigenous incarceration in Australia at a glance

Every state and territory has progressive sanctions regimes for fine default. If fines are not paid on time, people accumulate further debts, have their drivers licence suspended or disqualified, have property seized, perform community service work, and — in some cases — are imprisoned.

Drivers licence sanctions operate especially harshly on Aboriginal people living in regional, rural or remote communities. Private vehicles are often the only practical means of transport available to access work or basic services, such as health care.

Sentences of imprisonment may also be imposed as a result of secondary offending from driver licence disqualification. The ALRC has recommended governments develop options to reduce the imposition of fines and infringement notices, limit penalty amounts, and avoid suspension of driver licences for fine default.

Imprisonment for fine default

In many states and territories, a person can “cut out” court-imposed fines by serving a prison sentence, where that person has failed to comply with a Community Service Order, or is otherwise ineligible for a CSO.

Western Australia has the highest rate of incarceration for fine default. Between July 2006 and June 2015, 7,462 people were imprisoned for fine default in WA. The average sentence served was four days. Indigenous men represented 38% of the male defaulter prison population.

The impact on Indigenous and disadvantaged women is even more stark. Between July 2006 and June 2015, 73% of female fine defaulters in WA were unemployed when imprisoned, and 64% were Indigenous.

The injustice that may be suffered by fine defaulters was highlighted by the death of Aboriginal woman Ms Dhu in August 2014. Ms Dhu died in the custody of police officers after being taken to South Hedland Police Station for unpaid fines and enforcement penalties amounting to A$3,662. The fines, which neither she nor her father could pay, were largely for swearing at police officers.

Read more: Seeing Ms Dhu: how photographs argue for human rights

Repealing offensive language crimes

Another focus of the inquiry was the policing and impact of offensive language provisions. All Australian states and territories criminalise offensive, obscene or indecent language used in or near a public place. Offensive language crimes generally target verbal speech, and predominantly the swear words “fuck” and/or “cunt”. Written signs and displays (such as a person wearing a t-shirt with a swear word printed on it) are punished under offensive conduct offences.

A recent initiative allows police to issue on-the-spot fines for offensive language. These fines range from A$110 in Queensland to A$500 in NSW and WA.

Read more: A nation of convict cussers? Time for Australian law to embrace our potty mouths

Kimberly Community Legal Services has suggested that for many Indigenous people, those who are homeless, and other disadvantaged groups, the imposition of a A$500 fixed fine for swearing is “tantamount to a prison sentence”.

Indigenous people are significantly over-represented when it comes to receiving fines and charges for offensive language. In the year from 1 April 2016 to 31 March 2017, Indigenous adults comprised 21% of all 1,054 adults in NSW proceeded against to court for using offensive language. Indigenous adults also comprised 15% of all 1,716 adults in NSW proceeded against by way of infringement notice.

The ALRC has recommended state and territory governments review the effect of offensive language provisions on Indigenous people, with a view to repealing them or narrowing their scope.

This recommendation is by no means novel. The review and repeal of offensive language crimes has previously been advocated by legal academics and law reform bodies. Most notably, in 1991, the Royal Commission into Aboriginal Deaths in Custody observed:

It is surely time that police learnt to ignore mere abuse, let alone simple “bad language” … Charges about language just become part of an oppressive mechanism of control of Aboriginals.

Implementation of the recommendations

The Turnbull Government has been criticised for its underwhelming response to the ALRC report. The Coalition has so far issued a two-line statement indicating that it “will consider the report’s relevant recommendations and respond in due course.”

It is hoped the report will be not be “shelved” like that of the Royal Commission into Aboriginal Deaths in Custody, and instead the government will respond promptly with evidence-based law reform.

Reducing contact with the criminal justice system is an important aspect of achieving equality and justice for Indigenous Australians. Implementation of the 35 recommendations — alongside measures to enhance Indigenous self determination — are necessary steps on the path to achieving these goals.

Elyse Methven receives funding from a UTS Early Career Research Grant.