Indigenous Australians are being unfairly sentenced for their crimes because of the racist and prejudicial views held by some members of the judicial system, research led by the University of Technology in Sydney has found.

The research was based on formal interviews with 18 judicial officers and lawyers in New South Wales and Victoria as well as informal interviews with judicial staff that took place in 2015 and 2016. One former judge told the researchers that “magistrates, especially in country towns, can hold beliefs that Aboriginal people are hopeless”.

“This stems from witnessing recidivism among some Aboriginal people and leads to unfair sentencing outcomes for Aboriginal people,” the report found.

“Another judge commented that magistrates in remote communities relied on stereotypes about Aboriginal people as intoxicated because magistrates ‘flew-in, flew-out’ of country towns and could not comprehend the issues in the community.

“These views were reinforced by prosecutors.”

Leader of the research and Indigenous legal expert, Associate Professor Thalia Anthony said: “Prison is very criminogenic, and leads to people being more likely to be locked up again.

“They come out traumatised by the process and and without access to support services, and this makes them more alienated.”

Anthony’s research found that the background of Indigenous people facing sentencing was often not communicated to court staff in presentence reports, even though details of their history may lead to a lighter sentence.

“Someone’s community and background is very relevant because it sheds light on their culpabiltiy,” she said.

“If someone has had a very deprived upbringing and didn’t have access to stable accommodation, education and proper healthcare or they were abused or neglected, this will mean they’re less culpable because their chances in life have been more limited than someone growing up in a city with privileges but who still chooses to offend.”

White court officers were more likely to share understandings and build rapport with white offenders, Anthony said, recommending courts employ Indigenous staff and work with Indigenous experts from the offender’s community.

According to Monash University’s Castan Centre for Human Rights Law, approximately one quarter of Australia’s prison population is Aboriginal, despite making up only 3% of the country’s population. In the Northern Territory, 86% of the prison population is Indigenous.

The centre’s Indigenous legal affairs expert, Dr Stephen Gray, said a commitment to reducing Indigenous incarceration rates must be included in the government’s Close the Gap targets.

“What happened to the royal commission into Aboriginal deaths in custody primary recommendation, that imprisonment for Aboriginal people should be an option of last resort?” he said.



“It’s an issue deserving of scrutiny and of being made a Close the Gap target as a starting point. And all levels of the court process must be made aware that these are major issues.”

He said alternatives to imprisonment, such as remidiation, rehabilitation, drugs courts and community courts should all be considered by judicial staff.

“If judges and magistrates are seeing high rates of Indigenous incarceration as inevitable, we have a real problem on our hands,” he said.