Australian Law Reform Commission Discussion Paper on Incarceration Rates of Aboriginal and Torres Strait Islander Peoples

The Australian Law Reform Commission has published a discussion paper on Incarceration Rates of Aboriginal and Torres Strait Islander Peoples.

From the Terms of Reference:

"It is acknowledged that while laws and legal frameworks are an important factor contributing to over‑representation, there are many other social, economic, and historic factors that also contribute. It is also acknowledged that while the rate of imprisonment of Aboriginal and Torres Strait Islander peoples, and their contact with the criminal justice system - both as offenders and as victims - significantly exceeds that of non‑Indigenous Australians, the majority of Aboriginal and Torres Strait Islander people never commit criminal offences.

Scope of the reference

1. In developing its law reform recommendations, the Australian Law Reform Commission (ALRC) should have regard to:
   1. Laws and legal frameworks including legal institutions and law enforcement (police, courts, legal assistance services and prisons), that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples and inform decisions to hold or keep Aboriginal and Torres Strait Islander peoples in custody, specifically in relation to:
      1. the nature of offences resulting in incarceration,
      2. cautioning,
      3. protective custody,
      4. arrest,
      5. remand and bail,
      6. diversion,
      7. sentencing, including mandatory sentencing, and
      8. parole, parole conditions and community reintegration.
   2. Factors that decision-makers take into account when considering (1)(a)(i-viii), including:
      1. community safety,
      2. availability of alternatives to incarceration,
      3. the degree of discretion available to decision-makers,
      4. incarceration as a last resort, and
      5. incarceration as a deterrent and as a punishment.
   3. Laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples offending and including, for example, laws that regulate the availability of alcohol, driving offences and unpaid fines.
   4. Aboriginal and Torres Strait Islander women and their rate of incarceration.
   5. Differences in the application of laws across states and territories.
   6. Other access to justice issues including the remoteness of communities, the availability of and access to legal assistance and Aboriginal and Torres Strait Islander language and sign interpreters."