Law Council: governments don't seem to care about Indigenous incarceration

By Stephen Easton

March 29, 2019

It appears the federal government doesn’t care about high rates of Indigenous incarceration, according to the Law Council of Australia, given it has failed to respond to a major law reform report on the issue it commissioned and received over a year ago.

The lawyer’s association argues the lack of action at Commonwealth level shows an alarming ambivalence to an issue which is a “national disgrace and international embarrassment” and is also “compounded” by a similar disinterest on the part of state and territory governments, while being “an affront” to those who did the “arduous work” to compile the recommendations.

Six months ago, the government was urged to respond to the Pathways to Justice report, which was published by the Australian Law Reform Commission in March 2018 and tabled in parliament a few months after that, by a group of prominent individuals and organisations who are keen to see more progress towards a fairer justice system.

It still hasn’t done so, and the delay says a lot about the Coalition government’s priorities, according to the Law Council.

Not only is it disappointing but it “demonstrates a lack of appreciation as to the difficulties faced by generations of Aboriginal and Torres Strait Islander people, which we are all responsible for as a nation”, according to a strong statement from the legal peak body.

“The government’s apparent indifference [is] troubling and demonstrates a failure to understand that Aboriginal-led solutions are essential and effective” in the view of Law Council president Arthur Moses. He said the need for Indigenous perspectives on justice reform was a “fundamental truth” that was reflected in the law reform commission’s recommendations.

“Pathways to Justice painted a grim picture of the national tragedy that is overwhelmingly high Indigenous incarceration rates, but it also offered practical law reform processes that can help us turn the tide,” said Moses.

“The lack of government action also demonstrates a lack of respect for the ALRC, which exists to help ensure Australian law reform is good reform. Ignoring this report is an affront to the arduous work that went into it.

“The fact is that Aboriginal and Torres Strait Islander Australians are the most incarcerated people on Earth, which is a national disgrace and international embarrassment.”

The Law Council also called on state and territory governments to respond to the report and urgently get on with implementing its recommendations.

“This report provides real, tangible recommendations that the government has had the chance to consider and implement,” said Moses. “Unfortunately, the government’s silence is deafening.

“It is compounded by other governments’ failures to act. Only last week the Northern Territory Parliament passed an Act which strips away key safeguards to protect children which were recommended by the Northern Territory Royal Commission into Protection and Detention of Children.

“The Law Council’s Justice Project also highlighted the disadvantage Aboriginal and Torres Strait Islander people face in the criminal justice system, and further deserves a response. The time for change is now – the world is watching.”

It’s all about the difference between formal equality — ie, no explicitly disciminatory laws — and substantive equality, which is about how things turn out. As the opening summary on “the case for reform” explains:

“Formal equality suggests that all people should be treated the same regardless of their differences. Substantive equality is ‘premised on the basis that rights, entitlements, opportunities and access are not equally distributed throughout society and that a one size fits all approach will not achieve equality’.”

The ALRC began its report by stating clearly it was not recommending a “parallel justice system” for Indigenous people, as the right wing think tank The Institute of Public Affairs feared.

“However, it recognises, as Brennan J observed in Gerhardy v Brown, that formal equality may be ‘an engine of oppression destructive of human dignity if the law entrenches inequalities “in the political, economic, social, cultural or any other field of public life”’. Achieving substantive and not formal equality before the law includes, for example, the consideration upon sentencing of the unique and systemic factors affecting Aboriginal and Torres Strait Islander offenders. It also includes not only consistency in the provision of sentence options and diversion and support programs across the country, but also ensuring that these are culturally appropriate.”

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