First Nations Issues

The Australian Bar Association is committed to advancing and advocating for the legal rights of First Nations Australians. The ABA regularly responds to requests for advice and submissions to assist in the formulation of policies with respect to First Nations Australians, the Australian legal system and the legal profession. Issues include, but are not limited to, native title, land rights, customary law, legal education, access to justice, Indigenous incarceration and racial discrimination.

The ABA has a dedicated Indigenous Issues committee made up of barristers from across Australia with specialist knowledge and experience of these issues. The First Nations Issues committee members are:

First Nations incarceration

The ABA has proactively campaigned for law reform measures to tackle Australia’s First Nations incarceration rates. Among the proposals, the ABA has strongly recommended that mandatory sentencing laws, that have the biggest impact with minimum effect on First Nations people, be amended or removed, and funds saved from housing prisoners redirected into programs that rehabilitate and reduce recidivism.

The current situation:

• Incarceration rates of First Nations Australians are at least 16 times higher than the rate for non-ATSI Australians.
• First Nations children between 10-14 years of age are 30 times more likely to be incarcerated than their non-First Nations peers.
• First Nations women are almost 20 times more likely to be incarcerated than non-First Nations women.

A recent report by the Australian Institute of Criminology found a key factor contributing to the disproportionate First Nations over-representation is that of State and Territory government bail and sentencing policies, particularly in jurisdictions with high populations of First Nations people where mandatory sentencing laws operate, and individuals are often incarcerated for trivial offences.

Mandatory sentencing contributes to a higher rate of imprisonment which often unnecessarily increases the costs in the administration of justice. Under mandatory sentencing laws, a defendant has no motivation to plead guilty as there is no chance of a reduced sentence. This means that potentially more contested cases appear before the courts requiring the use of extra resources and producing further court delays.

The Australian Bar Association proposes the following:

• Amend or remove mandatory sentencing laws that have the biggest impact on First Nations people but deliver minimum effects, such as minor assault, driving offences and minor theft.
• Review fine default imprisonment: Existing mechanisms for the enforcement of fines are unsatisfactory. Imprisonment in default of payment is unjust, unfair to poor offenders, dangerous to vulnerable offenders, expensive and disproportionate in its effect on First Nations offenders.
• Invest in Justice Reinvestment: channel money that would have been spent on housing prisoners into community projects aimed at keeping Indigenous offenders out of prison. Oregon (US) experienced a 72% drop in juvenile incarceration after the state reinvested $241 million from prison spending to treatment programs and improved probation and parole services.