This article is more than 2 years old

This article is more than 2 years old

An Australian Law Reform Commission report on Indigenous incarceration has recommended a national inquiry into the removal of Aboriginal and Torres Strait Islander children, saying out-of-home care is a clear pathway to youth detention and adult imprisonment.

The report was tabled in parliament by the attorney general, Christian Porter, on Wednesday.

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It made 35 recommendations, including abolishing the ability of states and territories to jail people for unpaid fines, and abolishing all mandatory sentences that have a disproportionate effect on Aboriginal and Torres Strait Islander peoples.

It recommended investment in local, Indigenous-led diversionary programs through a justice reinvestment process, and said that all states should introduce a statutory custody notification scheme.

It also recommended national targets around reducing Indigenous incarceration and violence toward Aboriginal and Torres Strait Islander peoples.

Imprisonment rate by Indigenous status Imprisonment rate by Indigenous status. Source: ABS

But it said it did not have the scope to examine the impact of child protection and child removal policies on the overrepresentation of Indigenous Australians in detention, and recommended the federal government commission another national inquiry.

“It is the view of the ALRC that the incarceration rate of adult Aboriginal and Torres Strait Islander peoples cannot be fully and satisfactorily addressed without a national review of Aboriginal and Torres Strait Islander children in child protection, and the state and territory laws that see such children placed into out-of-home care,” the report said.

Aboriginal and Torres Strait Islander children make up 5.5% of all people aged 0-17 in Australia, and 36.2% of all children in out-of-home care.

Indigenous children are placed in out-of-home care at a rate of 56.6 per 100,000 – 10 times that of non-Indigenous children – and children in out-of-home care are 16 times more likely to be under a youth justice supervision order than children in the general population.

The report also recommended state and federal police review their complaints-handling mechanisms, finding that a significant proportion of Aboriginal and Torres Strait Islander peoples do not trust that complaints to police are properly and independently investigated.

It recommended states and territories review police regulations to ensure that discretionary powers, like the power to issue a caution rather than a charge, are used fairly and without discrimination.

It also recommended that states and territories abolish laws criminalising the use of offensive language, or at least narrow their application to language that is “abusive or threatening”.

According to 2016 figures, Aboriginal and Torres Strait Islander people were seven times more likely than non-Indigenous people to be charged with a criminal offence after an interaction with police, 11 times more likely to be held on remand awaiting trial or sentence, and 12.5 times more likely to receive a sentence of imprisonment.

Remand rate by Indigenous status. Remand rate by Indigenous status.

However, the median length of imprisonment for Aboriginal and Torres Strait Islander people was shorter, suggesting that Aboriginal and Torres Strait Islander peoples were being jailed for less serious crimes.

Half of all Indigenous prisoners received a sentence of two years or less, and 45% received a sentence of six months or less, compared with 27% of non-Indigenous prisoners.

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The former attorney general, George Brandis, announced the inquiry in 2016 and received the final report in December.

The inquiry chair, federal court judge and Gadigal-Wirradjuri man Matthew Myers, was criticised by the Institute of Public Affairs after he suggested that one finding might be that Aboriginal and Torres Strait Islander peoples needed to be treated differently under the law to achieve true equity under the law.

The final report dismissed concerns raised by the IPA that it was pushing for a “parallel justice system”, saying the focus was on “achieving substantive, not just formal, equality before the law”.

It quoted a former high court chief justice, Gerard Brennan, who said that formal equality may be “an engine of oppression destructive of human dignity if the law entrenches inequalities”.