Indigenous Justice

(Private Members Statement, 30 July 2020, Legislative Assembly, NSW Parliament)

Australia is privileged to have one of the oldest and richest living cultures in the world, but two centuries of dispossession and racist policies have led to widespread disadvantage of First Nations peoples. Indigenous and non-Indigenous Australians are calling on leaders to do better in closing the gap.

A priority must be to close the justice gap. Aboriginal and Torres Strait Islander people experience significantly poorer treatment and outcomes in the justice system compared to their non-Indigenous counterparts. Recent videos of police incidents, including in Surry Hills, are disturbing and I asked the Surry Hills commander for a full investigation and for the Law Enforcement Conduct Commission to review policing practices.

I acknowledge the great work many police officers do in partnership to support their local Indigenous communities and help particularly young people stay out of the justice system, but systemic reform is needed to make a real difference and turn around the alarming statistics.

Indigenous people make up over 24 per cent of the New South Wales adult prison population but only 2.9 per cent of the wider population, and they make up 60 per cent of the ten to 13 year old children in detention. Despite reductions in their rate of arrest for violent offences by nearly 37 per cent and property offences by 33 per cent over the last 15 years, Indigenous incarceration rates have more than doubled – something the Bureau of Crimes Statistics and Reporting attributes to tougher sentencing and law enforcement.

Aboriginal and Torres Strait Islander people are more likely to be charged with summary offences like offensive language and resisting arrest, and are more likely to be subject to discretionary police powers like move-on orders, consorting laws and strip searches.

The Redfern Legal Centre Rethinking Strip Searches by NSW Police report identified the routine use of strip searches on Indigenous people. Ten per cent of strip searches documented by NSW Police were on Indigenous people, but many go unrecorded because they don’t result in a charge or get challenged. Aboriginal children as young as 10 have been unlawfully strip searched in public view. I remind the house that this consists of adult police officers ordering children to take off their clothes or expose their body parts outside of a child protection framework. Strip searches on Indigenous people rarely uncover items of serious danger or comply with what can be considered “serious and urgent”.

Over-policing and high incarceration rates of Aboriginal and Torres Strait Islander people do not result in community safety benefits yet have longstanding impacts on life, health, mental health, education, income, job prospects and family. Incarceration of mothers results in many children being taken away from their loving home, with lifelong impacts that continue the cycle of intergenerational disadvantage. Too often there are fatal outcomes for Aboriginal and Torres Strait Islander people in custody where they are 10 times more likely to die than non-Indigenous detainees.

The 2018 Australian Law Reform Commission report: Pathways to Justice – An Inquiry into the Incarceration of Aboriginal and Torres Strait Islander Peoples provided a number of recommendations that should urgently be adopted.

They include community based sentencing options; bail for low level offending; narrowing offensive language offences; culturally appropriate programs for women in prison; interpreter services; specialist sentencing courts; encouraging Indigenous prisoners to apply for parole; an overhaul of fines and penalties; and greater independence and transparency in police complaint reviews.

Of high importance are recommendations to establish targets to reduce the over imprisonment and a review of all law enforcement with the aim to reduce discrimination.  

We should also narrow or repeal other summary offences that disproportionately impact on First Nations people including resisting arrest and public drunkenness; and reform discretionary police powers such as move-on orders and strip searches. There needs to be independent oversight of all black deaths in police and corrective services custody, with the families of victims involved in the process, and this includes a fresh investigation into David Dungay’s death.

The recommendations of the Special Commission of Inquiry into the Drug ‘Ice’ should be adopted including decriminalising illicit drugs for personal use. We must urgently raise the age of criminal responsibility from ten to 14.

Real change across all aspects of life including health, education and income will only come if we work together through a treaty process or makarrata that recognises the wrongs of the past and gives First Nations people a voice in Parliament on decisions that affect them.

The federal minister for Aboriginal affair’s announcement today committing all levels of government to 16 closing-the-gap targets, set in partnership with Indigenous organisations, with regular reporting and First Nations’ involvement, is an excellent start.