This piece originally appeared in The Australian on 6 April 2018. It is about the Australian Law Reform Commission’s Pathways to Justice report, which can be found here. It draws on my research on Indigenous incarceration, which can be found here.
The exceptionally high rate of incarceration among indigenous Australians requires a policy response that does not compromise equality before the law or community safety.
Over the past decade, the national prison population rose by 43 per cent, with more than a third of this growth the result of more indigenous Australians being incarcerated. Indigenous Australians are incarcerated at 12.5 times the rate of the non-indigenous. This statistic should be read against a complex background of higher offending rates, including higher rates of violent offending, and under performance on all metrics of socio-economic wellbeing.
This issue is back on the national agenda following the release last week of the Australian Law Reform Commission’ report on indigenous incarceration, Pathways to Justice. This is a welcome contribution to the debate around criminal justice reform in Australia.
Unfortunately, however, the report makes some recommendations that would undermine the bedrock principle of equality before the law. There are policy options available to governments that do not infringe on this principle, some of which are also recommended in the report, and these should be preferred.
The most objectionable recommendation of the report is that indigenous status should be considered as a factor in sentencing, on the premise that special notice should be taken of socio-economic disparities between indigenous and non-indigenous Australians.
All jurisdictions in Australia should reject this recommendation. Sentencing is the process by which the harm done by an offender is matched to a proportionate punishment. It takes into account the harm done to the victim and the harm done to society.
It should be obvious that the harm done to a victim does not change depending on the identity of the offender. Nor is there reason to think that the harm done to society is lessened by cultural or racial identification.
Indigenous status has no direct causal connection to offending: the majority of indigenous Australians are, of course, law-abiding.
It is true that there are socio-economic factors correlated with offending, and that these factors are more present on average in indigenous communities. But because these factors are taken as relevant to measuring the harm an offence causes society, judges already have discretion to take them into account in sentencing.
For this reason, when the High Court considered these issues, in the Bugmy case, it held that socio-economic disadvantage may be relevant to individualised sentencing but that indigenous status is not. Judges should be concerned with delivering proportionate punishments that are consistent across types of offending, and universally applicable sentencing principles help to secure this outcome.
On top of this, we need to consider the attitude that differential treatment under the law would express.
No matter how it is presented, inconsistency in sentencing communicates that some victims’ suffering is somehow more important to society than that of others. When you consider that the victims of most indigenous offenders are themselves indigenous, this recommendation looks less like compassion towards indigenous Australians and more like the justice system turning its back on them.
Relatedly, this recommendation would also risk ignoring the majority of indigenous Australians who abide by the law and depend on its equal protection, in favour of portraying all indigenous lives and communities as disordered. It would be to patronise the indigenous with low expectations.
The report makes a point of rejecting concerns about formal equality such as these, claiming instead a preoccupation with “substantive equality”. This is shortsighted. Equality before the law is a hard-won principle that has emerged over the long course of our civilisation to protect minority rights. Setting aside this principle would be to wilfully ignore this history and to fail future generations.
Moreover, the law’s authority depends on its equal application to all of us. Formal equality is an expression of the identity that we all share, and underpins the trust that holds our society together.
It is lucky, then, that despite what the report’s authors might think, there are a number of ways to address indigenous incarceration without abandoning core constitutional principles. The report rightly notes that incarceration of fine-defaulters is costly and pointless, and this is true for all such offenders, indigenous or otherwise.
The report also recommends addressing the burgeoning remand population by changing bail laws to take account of, for example, different types of housing arrangements. If this can be done safely, it can also be done universally. There are also access to justice issues, like the provision of interpreters, that go to the administration of justice and not its content, and these too should attract support from governments.
The high rate of indigenous incarceration can and should be addressed consistent with the traditional principles of our criminal justice system: fair punishment, personal responsibility, and community safety. To do anything else would be to retreat from the commitment we all have to one another as Australians.