Editor: Justin Healey
ISBN 978 1 920801 58 8
Year 2007

Price: $19.95

  
Indigenous Australians and the Law

Volume 248, Issues in Society
Aboriginal and Torres Strait Islanders are over-represented in Australia’s criminal justice system as both perpetrators and victims. Nationally, the indigenous rate of imprisonment is approximately 11 times that of the non-Indigenous population. Twice as many Indigenous Australians are victims of physical or threatened violence compared with non-Indigenous Australians. Family violence, substance abuse, unemployment, sexual assault and neighbourhood conflict have reached epidemic levels in some remote Indigenous communities. As contact with law enforcement both reflects and leads to social, cultural and economic disadvantage, solutions need to be found to break the cycle. What are some constructive approaches to addressing Indigenous over-representation in the criminal justice system? Does customary law have a part to play in healing communities, resolving disputes and restoring law and order, and in turn reducing the high rates of incarceration and victimisation?

Chapter 1: Indigenous People and the Criminal Justice System:
Aboriginal and Torres Strait Islander peoples: contact with the law; Causes of Indigenous contact with the justice system; Suicide fear frees blacks; Deaths in custody; Indigenous courts and justice practices in Australia; Indigenous sentencing courts in Australia; Elders in court 'a more just system'; Equal before the law; Defining Aboriginal customary law; Arguments for and against recognition of Aboriginal customary law by the general criminal law; Ethnics roped into tribal law ban; One law for all; Racial discrimination may be in order; When jail looks like a lifestyle option.

Chapter 2: Indigenous Violence and Abuse
Violence against black women, children on the rise; Murder rate high for black women; Indigenous victims of violence; Child abuse and neglect in Indigenous Australian communities; Culture of violence that must change; Neglect to blame, not the culture; Right from wrong; crime and Aboriginal culture; Excuse of tribal law to be axed; Aborigines fear 'new paternalism'; Tribal law 'no excuse for sex abuse'; Rights of Indigenous women and children must come first; Safer kids, safer communities; Law and order is only part of the solution.


Glossary; Facts and Figures; Additional Links and Resources; Index of Contentsnt
 

Facts and Figures

• In Data from 2002 show that 24% of Indigenous Australians aged 15 years or over reported being the victim of physical or threatened violence in the 12 months prior to the survey, 16% reported being arrested and 7% reported being incarcerated in the 5 years prior to the survey.

• In 2003, 20% of prisoners in Australia (4,818 prisoners) identified as Indigenous, and 10 of the 39 deaths that occurred in prison custody (26%) were Indigenous prisoners.

• At June 2004, there were 5,048 Indigenous persons in prisons across Australia (21% of all prisoners). Indigenous persons were 11 times more likely to be in prison compared with non-Indigenous persons.

• Indigenous prisoners tend to be serving shorter sen-tences and have higher rates of prior imprisonment. In 2004, the median expected time to serve for Indigenous prisoners was 15 months, compared with 25 months for non-Indigenous prisoners. 77% of Indigenous prisoners had prior imprisonment in comparison to 53% of non-Indigenous prisoners.

• In 2004, Western Australia recorded the highest ratio of Indigenous to non-Indigenous imprisonment, as the Indigenous imprisonment rate was 17 times the non-Indigenous imprisonment rate. Tasmania recorded the lowest ratio, where Indigenous rates were 4 times the non-Indigenous rates.

• In 2002, 35% of Indigenous Australians aged 15 years or over reported having been formally charged at some time in their lives. 16% of Indigenous persons reported having been arrested in the last 5 years.

• Unemployment was higher for Indigenous people who reported being arrested in the last 5 years (29% compared with 11% of those not arrested) and employment was lower (36% compared with 48%).

• A higher proportion of Indigenous people who had come into contact with law enforcement reported being victims of personal violence. 47% of Indigenous people who reported being arrested also reported being the victim of physical or threatened violence compared with 20% of those who had not been arrested.

• In 2002 Indigenous people recorded higher levels of victimisation than non-Indigenous people (20% compared with 9%).

• Illicit drug use is the strongest predictor of both criminal prosecution and imprisonment. High-risk alcohol con-sumption is the second most important predictor of criminal prosecution and the third most important predictor of imprisonment. Other factors that increased the risk of prosecution or imprisonment included: experiencing financial stress, living in a crowded household and being a member of the Stolen Generation.

• A BOCSAR study examined the question of whether the higher rate of Indigenous imprisonment is due to racial bias in sentencing. The researchers found no evidence of racial bias in sentencing.

• Indigenous offenders are about 2.5 times more likely than non-Indigenous offenders to receive a prison sentence, if convicted. However, this difference disappears when controls are introduced for factors (e.g. plea, offence, prior record) that courts can legitimately take into account in sentencing.

• Indigenous offenders are more likely to receive a prison sentence than non-Indigenous offenders because they: have much longer criminal records; are more likely to be convicted of a violent offence; are more likely at any given court appearance to be convicted of multiple offences; are more likely to have breached a previous court order; are much more likely to have re-offended after being given an alternative to full-time imprisonment, such as periodic detention and/or a suspended sentence.

• In South Australia, the Northern Territory, Western Australia and Queensland, black women are more than 111/2 times more likely to be killed than white women. But in Victoria, NSW the ACT and Tasmania, women are killed twice as often.

• While the murder rate for Indigenous males was 7 times higher than that for other men, the rate for Indigenous women was 11 times higher than that for other women.

• In SA, WA, NT and Queensland, 71% of those murders occurred in remote or very remote areas, whereas for Aboriginal men it was 51%. (p.25)
n The proportion of Indigenous people who had been a victim of physical or threatened violence was similar for people living in remote and non-remote areas (23% compared with 25%) and for men and women (26% compared with 23%).

• Indigenous people aged 18 years or over experience double the victimisation rate of non-Indigenous people.

• In 2004-2005, Indigenous children were more likely than non-Indigenous children to be reported to child protection authorities because of neglect rather than abuse concerns. For example, in Western Australia, 50% of Indigenous children in substantiations were the subject of neglect, compared with 28% of other children.

• In 2004-2005, Indigenous children were much less likely than non-Indigenous children to be reported because of sexual abuse concerns. In NSW 11% of Indigenous children in substantiations were the subject of sexual abuse, compared with 19% of other children.

• According to crime statistics recorded by NSW police in 2000, the rate of reports to police of sexual assault of Indigenous children was more than double that of non-Indigenous children. However, as with other types of abuse, the real extent of child sexual abuse in Indigenous communities is not known, as many incidents are not reported to police.

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