Introduction
1.1
The inquiry into Aboriginal and Torres Strait Islander peoples access to
legal services is extremely important. As identified in the Redfern Statement,
‘[t]he state of access to justice for Aboriginal and Torres Strait Islander
people and their over-representation in the criminal justice system is a
national crisis.’[1]
The Redfern Statement makes a number of urgent calls of the
Government. The Australian Greens urge the Government to act on the urgent
issues in the calls for action.
1.2
While the majority committee report addresses a number of issues raised
throughout the inquiry, the recommendations only go some way to addressing the
issues that have been identified during the inquiry. In particular,
recommendations 1, 3, 9 and 11 should be strengthened. The Australians Greens
also have a number of additional recommendations in relation to consumer
credit/debt matters, justice targets, mandatory sentencing and the
implementation of the recommendations of the Royal Commission into Aboriginal
Deaths in Custody.
Barriers to legal assistance
1.3
Chapter three of the majority committee report looks at the barriers
faced by Aboriginal and Torres Strait Islander peoples accessing legal
assistance services.
1.4
One of the barriers identified by submitters and discussed in the
majority committee report is the provision of interpreters.
1.5
In its submission to the inquiry, the National Aboriginal and Torres
Strait Islander Legal Services (NATSILS) said:
Hearing loss can result in the same communication barriers as
those produced by language difficulties and cross-cultural differences. Given
the high rate at which Aboriginal and Torres Strait Islander peoples suffer
from hearing loss this is an issue that must be addressed[.][2]
1.6
In relation to recommendation 1 and interpreters, the majority committee
report recommends that:
... the Commonwealth Government adequately support legal
assistance services, and that specifically funding should focus on ...
interpreters for Aboriginal and Torres Strait Islanders in both civil and
criminal matters to ensure that they receive effective legal assistance.[3]
1.7
This funding should include the provision of interpreters for Aboriginal
and Torres Strait Islander peoples with hearing loss and hearing impairment.
Recommendation 1
1.8
The Commonwealth
Government provide funding for the provision of interpreters for Aboriginal and
Torres Strait Islander peoples with hearing loss and hearing impairment.
1.9
A number of submissions to the inquiry dealt with consumer credit/debt
matters, including the submissions from the Northern Australian Aboriginal
Family Violence Legal Service (NAAFVLS) and the Northern Territory Legal Aid
Commission.
1.10
The NAAFVLS said in its submission:
Isolated communities are often 300 to 1000 km from white
community services' advice and assistance, making some legal services entirely
inaccessible. For instance, legal information on consumer rights, employment,
discrimination and credit/debt issues is virtually non-existent in remote
communities. The accrual
of debt can have serious long-term ramifications. NAAFLVS is aware that members
of communities, have no knowledge of how to manage a Telstra contract, and may
not know they must continue payments if their mobile phone is damaged, lost or
stolen, which can lead to serious financial and legal consequences. One
resident of an isolated community was being harassed by a debt collection
service and demands for payment over a six month period regarding payments on a
car loan he had taken out some years previously. He owed over $20,000.00, had
recently lost his job, and did not know about his rights under bankruptcy.[4]
1.11
The majority committee report discusses these issues but does not
provide a recommendation that directly addresses the need for legal education
and legal assistance services that relate to consumer credit/debt matters to
Aboriginal and Torres Strait Islander communities.
Recommendation 2
1.12
The Commonwealth
Government adequately support legal assistance services, including legal
education and advocates, for consumer credit/debt matters.
Imprisonment of Aboriginal and Torres Strait Islander peoples
1.13
Chapter four of the majority committee report discusses imprisonment
rates for Aboriginal and Torres Strait Islander peoples and includes a
discussion on justice targets being included in the Closing the Gap targets.
1.14
In surmising on justice targets, the majority committee report says:
The committee notes the strong support for justice targets to
form part of the Closing the Gap measures. The Committee also notes the Coalition
parties, despite supporting such targets prior to the last election, have, in
government, backed away from that commitment.
The committee accepts the Minister for Indigenous Affairs’
statement that the Commonwealth government is going to work with the states and
territories, which have responsibility in this area, to assist them to put in
place justice targets and the measures to meet those targets.[5]
1.15
The Australian Greens are disappointed the report accepts the
Government’s failure to take leadership on justice targets.
1.16
We accept the criminal justice system is largely the responsibility of
states and territories. However, the Commonwealth Government should be taking a
leadership role in this space by developing justice targets.
1.17
In his submission, Mr Gooda, the Aboriginal and Torres strait Islander
Social Justice Commissioner at the time, said:
I understand that, generally, justice-related issues are
state and territory responsibilities. However, there are a number of areas,
particularly regarding Aboriginal and Torres Strait Islander people's
experience of the justice system, in which the Australian Government has a role
to play, for example in leadership, coordination and funding.[6]
1.18
In its submission, NATSILS stated:
NATSILS believes that the crisis levels of Aboriginal and
Torres Strait Islander peoples’ imprisonment demands critical federal
government leadership which should include a commitment to justice targets. It
is noted, that the safer communities ‘building block’ of the COAG Closing the
Gap Strategy is the only area that does not incorporate specific targets and
this is where clear targets on lowering imprisonment and violence against
Aboriginal and Torres Strait Islander people should be incorporated. It is
argued that the lack of specific targets for justice is a glaring omission
which undermines the government’s attempts to tackle key priorities such as
education and health due to the interrelated nature of these issues.[7]
1.19
The
Redfern Statement calls on the Government to ‘[a]dopt justice targets as part
of the Close the Gap framework’.[8]
1.20
The
Australian Greens are concerned that recommendation 3 does not call on
the Commonwealth Government to develop justice targets for inclusion in the
Closing the Gap targets for COAG to consider at its next meeting, especially
when there was multiparty commitment for an additional Closing the Gap target
relating to justice prior to the 2013 federal election.
Recommendation 3
1.21
The Commonwealth
Government develop justice targets for inclusion in the Closing the Gap targets
for presentation and adoption at the next COAG meeting.
Reasons for high Indigenous imprisonment rates
1.22
Chapter five of the of the majority committee report looks at reasons
for high Aboriginal and Torres Strait Islander peoples imprisonment rates.
1.23
The Aboriginal Legal Service of Western Australia (ALSWA) stated in its
submission to the inquiry:
[T]he reasons fall into two main categories. The first
category are underlying factors that contribute to higher rates of offending
(eg, socio-economic disadvantage, impact of colonisation and dispossession,
stolen generations, intergenerational trauma, substance abuse, homelessness and
overcrowding, lack of education and physical and mental health issues). The
second category is structural bias or discriminatory practices within the
justice system itself (ie, the failure to recognise cultural differences and
the existence of laws, processes and practices within the justice system that
discriminate, either directly or indirectly, against Aboriginal people such as
over-policing practices by Western Australia Police, punitive bail conditions
imposed by police and inflexible and unreasonable exercises or prosecutorial
decisions by police).[9]
1.24
The Australian Greens are concerned that the recommendations of
the majority committee report addressing the reasons for high imprisonment
rates, specifically recommendations 4 and 5, are limited to Fetal Alcohol Spectrum
Disorders and do not address the other factors, specifically socio-economic
factors, contributing to high imprisonment rates. The Commonwealth Government
needs to be addressing the underlying causes of the high rates of imprisonment.
Recommendation 4
1.25
The Commonwealth
Government should address the underlying socio-economic causes of high
imprisonment rates for Aboriginal and Torres Strait Islander peoples.
For
a start, the Commonwealth Government should reinstate the funding that was
removed from the Indigenous Advancement Strategy in the 2013-14 Budget.
1.26
In the Redfern Statement, it says:
Aboriginal and Torres Strait Islander people with disability
are amongst the most marginalised in Australian society. It is estimated that
approximately 45 per cent of Aboriginal and Torres Strait Islander people
identify as having some form of disability, with 9.1 per cent having severe and
profound disability.[10]
1.27
At the recent Perth hearing of the Senate Community Affairs References
Committee’s inquiry into indefinite detention, Mr Peter Collins, Director of
Legal Services for the Aboriginal Legal Service of Western Australia, said:
In my estimate, 95 per cent of Aboriginal people charged with
criminal offences appearing before the courts have either an intellectual
disability, a cognitive impairment or a mental illness. The overwhelming
majority of those are undiagnosed and therefore untreated. If they go to jail
it is almost impossible to conceive of them being diagnosed in jail; therefore,
they are untreated.
1.28
The Australian Greens are deeply concerned with the high number of
Aboriginal and Torres Strait Islander peoples with a disability that are
interacting with the justice system and it is imperative that the Aboriginal
legal services have additional resources and expertise to support Aboriginal
and Torres Strait Islander peoples with a disability.
Recommendation 5
1.29
The Government
should fund a therapeutic model of justice for Aboriginal and Torres Strait
Islander peoples with cognitive and psychosocial disability to address their
incarceration rates.
Recommendation 6
1.30
The Commonwealth
Government should fund an Aboriginal disability justice program with dedicated
disability advocates for Aboriginal and Torres Strait Islander peoples with
disability at all points of the policing and justice systems.
1.31
In terms of structural bias, mandatory sentencing is a contributing
factor to the incarceration of Aboriginal and Torres Strait Islander peoples.
1.32
We note the contributions outlined in the majority committee report,
specifically the following contribution from the National Association for
Community Legal Centres that:
[M]andatory sentencing laws are arbitrary and undermine basic
rule of law principles by preventing courts from exercising discretion and
imposing penalties tailored appropriately to the circumstances of the case and
the offender. Of particular concern is the disproportionate impact of such laws
on Aboriginal and Torres Strait Islander peoples in light of the
over-representation of Aboriginal and Torres Strait Islander peoples in the
criminal justice system.[11]
1.33
In his submission, Mick Gooda stated:
Twenty-four years ago, the Royal Commission into Aboriginal
Deaths in Custody recommended that governments which had not already done so
should legislate to enforce the principle that imprisonment should be utilised
only as a sanction of last resort.[12]
1.34
A number of submissions to the inquiry, as noted in the majority
committee report, highlighted that the United Nations Committee against Torture
recommended in 2014 that Australia abolish mandatory sentencing somewhat due to
the discriminatory impact on Aboriginal and Torres Strait Islander Australians.[13]
1.35
In relation to recommendation 11 and mandatory sentencing, the majority
committee report recommends that:
... COAG task the Council of Australian Government’s Law, Crime
and Community Safety Council to review state laws such as mandatory sentencing
which have a disproportionate effect on Indigenous Australians in order to
quantify the effects and report to COAG.[14]
1.36
The Australian Greens have grave concerns regarding the disproportionate
impact of mandatory sentencing laws on Aboriginal and Torres Strait Islander
peoples.
Recommendation 7
1.37
The Commonwealth
Government work with the States and Territories to repeal mandatory sentencing
legislation.
Current Programs
1.38
Chapter six of the majority committee report looks at a number of
successful programs providing services to Aboriginal and Torres Strait Islander
peoples pre-incarceration through to post-incarceration.
1.39
At the beginning of the chapter there is a discussion of fines and
infringements and the effect of incarceration on Aboriginal and Torres Strait
Islander peoples for non-payment of fines.
1.40
The Australian Greens note the contributions outlined in the majority
committee report regarding the Work and Development Order (WDO) program and are
encouraged by the successes this program appears to be having.
1.41
At the public hearing in Sydney, Ms Monique Hitter, the Executive
Director of the Civil Law Division of Legal Aid NSW, said:
[S]ince the program has been operating, it has waived $44
million worth of unpaid fines. In Aboriginal communities the figure is $9
million. One in five people on a work and development order is Aboriginal,
which is huge.[15]
1.42
The Australian Greens note the contributions outlined in the majority
committee report regarding the Custody Notification Service (CNS) in New South
Wales and the Australian Capital Territory in the same chapter. The CNS, which
was established in response to the Royal Commission into Aboriginal Deaths in
Custody, costs $526,000 per annum and assists over 15,000 Aboriginal people per
annum.[16]
1.43
Recommendation 9 of the majority committee report deals with ‘supporting
programmes which strengthen families and communities through a focus on early
intervention and support.’[17]
1.44
The Australian Greens would like to see the Commonwealth Government show
leadership by investing more in successful programs similar to those outlined
above so they can be rolled out across Australia where appropriate.
1.45
Many of the issues raised during the inquiry were previously addressed
in the report of the Royal Commission into Aboriginal Deaths in Custody. It is
unfortunate that more than 25 years later we are still discussing how to
resolve these issues when many of the recommendations of the Royal Commission
remain unimplemented. The Government should work with the States and
Territories to implement these recommendations.
Recommendation 8
1.46
The Commonwealth
investigate alternatives to incarceration for non-payment of fines and work with
the States and Territories to implement these alternatives.
Recommendation 9
1.47
The Commonwealth
Government and States and Territories implement all remaining recommendations
of the Royal Commission into Aboriginal Deaths in Custody.
Senator
Rachel Siewert
Australian Greens
Navigation: Previous Page | Contents | Next Page