The Australian Bar Association is right in stating that the over-representation of Aboriginal people in the criminal justice system has nothing to do with racial discrimination.
But while the suggestion by the Australian Bar Association to review mandatory sentencing laws for minor offences such as the practice of jailing fine defaulters is worthwhile, it is important to remember the reason why most Indigenous people are in jail in the first place.
In the push to lower Indigenous incarceration rates the real victims are often forgotten. People who are assaulted or even killed by their family members, like the woman whose partner set fire to her genitals because she ‘looked at another man the wrong way.’
Abolishing mandatory sentencing for minor crimes is also unlikely to reduce the Indigenous incarceration rate as much as most people hope.
The belief that most Indigenous people are in jail because they have been unfairly targeted by police and arrested for relatively minor ‘social nuisance’ offences is not true.
Data from the Australian Bureau of Statistics on prisoner characteristics shows that of the 9,885 indigenous prisoners in 2015, only 1,069 indigenous prisoners were in jail for offences against justice procedures, such as non-payment of fines. Most (56%) per cent were in jail for serious crimes such as homicide, assault and sex offences.
As Indigenous lawyer and member of the Prime Minister’s Indigenous Advisory Council, Josephine Cashman, has pointed out, Indigenous family violence statistics are horrifying. Between 2012 and 2013, Indigenous women were hospitalised for family-violence assault at 34 times the rate of non-Indigenous women. Homicide rates for Indigenous people are also seven to eight times higher than the rate for non-Indigenous people.
In saying this, however, it is important to note that these disturbing statistics are not necessarily related to Indigeneity, but rather are a problem of poverty and social dysfunction.
Australia’s most disadvantaged postcodes have at least twice the rate of unemployment, criminal convictions and imprisonment than other postcodes. One of the main reasons the Indigenous incarceration rate is 13 times higher than non-Indigenous Australians is because a greater proportion of Indigenous Australians live in these low socioeconomic, welfare-dependent suburbs or communities than other Australians.
A 2012 Queensland study found the postcodes with the most chronic offenders were in remote and very remote locations with the highest levels of disadvantage. These are places like Yuendumu in the Northern Territory where at one time, 93 people from a total population of 587 were in prison.
According to the Australian Bar Association president, Patrick O’Sullivan there is no direct discrimination on the basis of race in the criminal justice system. For various reasons, mandatory sentencing tends to indirectly discriminate on the basis of disadvantage and the high rate of disadvantage experienced by Indigenous Australians, is why mandatory sentencing has had a disproportionate impact on them.
In fact, although many social justice advocates claim ‘the criminal laws and sentencing regulations unfairly target Indigenous people’ if there is any discrimination it tends to be in favour of Indigenous people. Overall, Indigenous offenders receive shorter sentences than non-Indigenous offenders for most crimes.
The reason Indigenous people are more likely than non-Indigenous people to be locked up for minor crimes like traffic offences, is because Indigenous people are more likely to lack the financial means to pay their fines, not because the courts are biased.
The Australian Bar Association is right to suggest reviewing the practice of jailing fine defaulters, but in the rush to reduce the overall Indigenous Incarceration rate it is also important not to forget who the real victims are.
Strategies to reduce the level of disadvantage and the corresponding high rates of family violence and intimate partner homicides among Indigenous Australians are likely to be much more effective in reducing Indigenous incarceration rates than tinkering with the criminal justice system ever will.
Sara Hudson is a Research Fellow and Manager of the Indigenous Research Program at the Centre for Independent Studies