Equal justice at risk if judges consider Aboriginality in sentencing

This article originally appeared in the Sydney Morning Herald on 22 September 2017.

During the past 10 years, incarceration in Australia has risen 40 per cent. A third of this is the result of more Indigenous Australians being jailed. Indigenous Australians are now jailed at a rate more than 12 times that of non-Indigenous Australians.

The Australian Law Reform Commission is conducting an inquiry into this disproportionate rate of incarceration and how the criminal justice system might be reformed to address it. There are a number of reforms being considered that have the potential to gain bipartisan support, such as making alternatives to prison, like work orders and home detention, more available to Indigenous offenders and improving access to justice by resolving issues such as a lack of translators.

Reformers should focus on ideas that have the potential for broad-based support and that reinforce traditional criminal justice principles like equality under the law, fair punishment, and personal responsibility. Moves to further separate the administration of justice for Indigenous and non-Indigenous Australians are unnecessary and contrary to the universality on which the authority of the criminal law depends. The NSW Bar Association’s proposal to amend sentencing laws to specifically take into account an offender’s Indigenous background and the high level of Indigenous incarceration should be rejected.

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