InBrief

Policy and law reform

The New South Wales Bar Association's submission to the Australian Law Reform Commission's Inquiry Into the Incarceration Rates of Aboriginal and Torres Strait Islander Peoples was the subject of an article in today's Sydney Morning Herald. The Bar Association's submission is available here.

In his statement to the Herald, Arthur Moses SC said:

The New South Wales Bar Association has provided a detailed submission to the Australian Law Reform Commission Inquiry regarding Incarceration Rates of Aboriginal and Torres Strait Islander Peoples. The submission has been prepared by a high profile expert Joint Working Party including members of the Association’s Criminal Law and Human Rights Committees, the judiciary, a former Attorney General, academics and others involved in Aboriginal Justice issues. The Working Party is chaired by former NSW Bar Association President Phillip Boulten SC and the Chair of the Association’s Human Rights Committee, Sarah Pritchard SC, and will play an ongoing role assisting the Association in developing policy initiatives to respond to the ongoing national shame of aboriginal imprisonment rates.

It is obvious from the increasing rates of Aboriginal incarceration, both in NSW and nationwide, that the justice system as a whole is failing to adequately deal with indigenous offenders. This failure is leading to generations of indigenous persons being incarcerated and their full potential not being realised. The Association’s submission makes a number of recommendations regarding important and urgently required criminal justice improvements ranging from changes to the bail regime, properly resourced diversionary programs for offenders, parole and fine enforcement reform to principles and practice regarding sentencing. Principal amongst these recommendations is the Bar Association submission that systemic and background factors must be considered by courts in sentencing Aboriginal and Torres Strait Islander peoples. State and Territory governments should legislate, as a matter of urgency, to expressly require courts to consider the unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples when sentencing Aboriginal and Torres Strait Islander offenders. The legislation should introduce provisions as to the purposes of sentencing in each State and Territory that specifically recognise:

(a) a purpose of sentencing as “ameliorating the overrepresentation of Aboriginal and Torres Strait Islander peoples in custody”;

(b) a purpose of sentencing of “reparation for harm done by the offending to victims or to the community” rather than current purposes relating to recognition of the harm done to the victim of crime and the community;

(c) a purpose of sentencing of “restoration of harmony within Aboriginal and Torres Strait Islander communities”, noting that the latter is an important part of dealing with crime and resolution of disputes in Aboriginal and Torres Strait Islander communities; and

(d) a purpose of sentencing of “providing equal justice in sentencing decisions”.

The Association’s submission also notes with particular concern that current funding arrangements for Aboriginal and Torres Strait Islander legal services has not kept up with increased demand and the cost of service delivery. It is obvious that manifestly unacceptable incarceration rates of Aboriginal and Torres Strait Islander people cannot even begin to be addressed without adequate, consistent and reliable funding of legal services. In this regard the Association has this week approached the NSW Attorney General regarding funding for the Aboriginal Legal Service (NSW/ACT). The Government has announced a package of reforms regarding a system for early guilty pleas in the criminal justice system. The early guilty pleas proposal will have an enormous impact on Aboriginal and Torres Strait Islander people in our criminal justice system and yet the Government has not provided any additional funding to the ALS to assist it in dealing with increased demand for their services. I have written to the Attorney General urging him to urgently address this oversight and ensure that the ALS receives appropriate additional funds to enable it to fulfil its increased responsibilities under this proposal.