The Bar Association of NSW's submission to a Law Reform Commission inquiry into Indigenous incarceration calls for a new approach to sentencing which takes into account the deprivation and disadvantage inherent in an individual's Aboriginal background.
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The association also calls for an end to mandatory sentences, which make it impossible for courts to make any allowance for such disadvantage in their decisions.
There can be no argument that the rate at which Aboriginal people end up in jail is appalling. In NSW last year Aboriginal people were 3 per cent of the population, but 24 per cent of the prison population.
Some improvements look straightforward. For example, one third of Indigenous prisoners are on remand, but many won’t go to jail. Bail law can be an issue here.
Cultural obligations can cause some Indigenous prisoners to breach bail conditions and be returned to prison. The Law Reform Commission has suggested courts should take cultural considerations into account in bail decisions. The Bar Association suggests courts should grant bail more readily where community safety is not an issue. Both seem sensible.
More broadly, however, legislators face the problem that they have two communities whose needs must be met, needs which are in part contradictory. The non-Indigenous community needs a legal system, which regards all citizens as equal before the law, and which deters crime. The Indigenous community, for whom the legal system has too often seemed a general instrument of oppression of all its members, needs some other way to acknowledge, judge and where necessary punish crime.
That contradiction leads to a familiar merry-go-round. Community alarm at petty crime produces a law-and-order backlash. Sentences are made mandatory; rules about bail, and other matters, are tightened. The effect is felt particularly in Aboriginal communities. Jail populations especially of Aboriginal people rise, and there is a scandal. The rules are relaxed again until the next crime-wave panic – and so the merry-go-round spins on.
The disproportionate representation of Aboriginal people in our jails is a symptom of a wider disconnect, which no court process can fix. Jails may mean one thing for Australia's non-Indigenous population but it means something different for its first people.
