Law Council: Over one in 50 adult Aboriginal and Torres Strait Islanders are incarcerated

The Law Council of Australia has found that as of December 2020, 2,333 Aboriginal and Torres Strait Islander adults are incarcerated for every 100,000 persons – over 10 times the incarceration rate of Australia’s general adult population.

These findings come 30 years after the 1991 Royal Commission into Aboriginal Deaths in Custody was conducted. In response, the Law Council said that it is calling for “a comprehensive national response to address the vastly disproportionate imprisonment of Aboriginal and Torres Strait Islander peoples.”

The authors of the Royal Commission wrote in the 1991 final report that Aboriginal people die in custody “at a rate relative to their proportion of the whole population,” which they said was “totally unacceptable and which would not be tolerated if it occurred in the non-Aboriginal community.” The Royal Commission recommended that governments “let go of the controls” and grant Aboriginal and Torres Strait Islander peoples the freedom to devise their own solutions to issues affecting their communities “in accordance with the right to self-determination.”

In a 14 April media release, Law Council President Dr Jacoba Brasch QC pointed out that First Nations people have consistently offered solutions, as included in the Australian Law Reform Commission’s Pathways to Justice report. These solutions “must be prioritised,” she said.

“The refreshed Closing the Gap process requires more ambitious targets for reducing incarceration, and clear frameworks and sufficient resources in place to achieve them,” Brasch said.

In line with this need, the Law Council identified five strategies to reduce the incarceration rate of Aboriginal and Torres Strait Islander peoples:

• more funding for the organisations Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services
• the raising of the minimum age of criminal responsibility by the Commonwealth government to 14 years across all jurisdictions in Australia
• the establishment of a national justice reinvestment body and expanded justice reinvestment trials to “redirect prison spending to early intervention and prevention strategies, comprehensive support and ‘exit strategies’ to transition people out of the prison system”
• more investment in social support services, including in remote areas, to stem the accelerated rise in the number of Aboriginal women incarcerated and to address the underlying reasons why children end up tangled in the criminal justice system
• state and territory-led statutory reforms geared towards tackling the role of bail, parole and mandatory sentencing in over-incarceration