Incarceration Rates of Aboriginal and Torres Strait Islander

Abstract

In Australia, the overwhelming numbers of Aboriginal and Torres Strait Islanders in the prisons are one of the urgent human rights issues that the country is facing today. According to the Royal Commission report, that sought to investigate the Aboriginal deaths in custody the number of the Aboriginal people in custody was exceedingly higher than that of non-indigenous people. Similarly, and as Attorney-General Senator the Honourable George Brandis acknowledged, laws and legal frameworks are a significant fact to over-representation of the Aboriginal, amidst other several factors such as economic, social, and historical. He also noted that the imprisonment rates of the Aboriginal and Torres Strait Islander people and their connection to the system of criminal justice was exceedingly higher than that of non-indigenous Australians. In light of this, we analyze and evaluate how the law on unpaid fines and penalties has contributed to the high rates of incarceration of the Aboriginal people. As it is, fines and penalties among the Aboriginal people are often imposed for minor infractions that do not warrant imprisonment. Such offenses include breaking laws on the consumption of alcohol justifying the law officers or the court to impose fines on the individuals. Unfortunately, most of the Aboriginal people cannot afford to pay, and before they realize, the fines pile up, and they are thrown into prison. Based on the above information, we also seek to understand why the law on unpaid fines and penalties affects the indigenous people by a higher percentage as compared to non-indigenous people.

Incarceration Rates of Aboriginal and Torres Strait Islander

The Royal Commission into Aboriginal Deaths in Custody

In 1987, the Australian government decided to investigate the increasing number of complaints about the suspicious circumstances in which the Aboriginal people were dying in police cells. The response was due to the growing public concerns about increased deaths that were not adequately explained. In order to monitor this outcry, the Australian Institute of Criminology established a program, which would publish an annual report on national deaths in custody. By 1991 when the final report was released, it was evident that the Aboriginal people were ten more times likely to end up in prison as compared to their non-Indigenous counterparts. Further statistics show that the rates have been increasing. For instance, by 2010 report presented to the Parliament of Australia (n.d) revealed that the Aboriginal were 15 times more likely to be jailed, with Western Australian recording rates as high as 20. In 2013, the Australian Institute of Criminology noted that the death rates of the Aboriginal had spiked by five times, while the non-Indigenous remained stable. Sadly, in 2014, the royal commission suffered a major setback into solving the mystery of the Aboriginal when the Northern Territory introduced paperless arrest laws. The move was to free the police from paperwork, and the rules were triggered by offenses such as drinking in public, being rowdy or an untidy yard among others. Initially, these crimes only attracted small fines. The move came along with more than 80 percent of the indigenous people representing the 2,000 arrests made (Davidson, 2015). As if the harm made by these arrests were not enough, in November 2015, the High Court validated the paperless arrests (“High Court upholds Northern Territory paperless arrests law,” 2015). Along with this information and amidst the new development the commission brought light to something else. The ultimate question was why were so many indigenous people in custody, bearing in mind that their population percentage was not as high as non-indigenous individuals were. According to the recommendations of the report, it is easy to conclude that a majority of the Indigenous people in prisons were victims of a legal framework that seemed biased on one community. 

Aboriginal People and the Criminal Justice System

In one way or another, the majority of indigenous Australians have had contact with the criminal justice system as either or both victims and offenders. By large, this is a catastrophe because the percentage of the Indigenous people in prison surpasses that of non-Indigenous Australians and because these people make up less than three percent of the overall population. In fact, and according to a report by the Australian Institute of Criminology, the imprisonment rates are 12 times higher as compared to those of the other individuals forming the Australian population (“Indigenous justice in focus,” 2015). Similarly, and as Senator the Honourable George Brandis acknowledged in his report, several factors such as economic, social, and historical factors have been linked with the over-representation of these indigenous people in Australian prisons. Along with that, some various Australian laws have largely contributed to the rates of incarceration among the ATSI’s. Such laws include but not limited to laws regulating unpaid fines among others. For the study, this paper will explore further the law on unpaid fines and its contribution to the Indigenous people offending.

Unpaid Fines and Penalties

In Australia, court fines and infringement penalties are some of the most common sanctions for criminal behavior. Although infringement offenses have relatively low levels of seriousness, the number of notices issued every year with offending sentences in courts shows that, they have far-reaching consequences. Essentially, for a majority of the Aboriginal population, their contact with the criminal justice system as offenders is based on several factors among them alcohol consumption. At the very least, the majority of the Aboriginal population indulge in excess alcohol consumption, which is often considered harmful. Several social and economic factors have by far contributed to the excessive use of alcohol among the indigenous. Unfortunately, the poverty levels among the indigenous people are considerably high as compared to the non-indigenous. Most of these people also rely on the government pension for livelihood. In light of this, most Aboriginal people drink in groups, but their intention is not to socialize but to get drinks from their counterparts who can afford to pay for alcohol. Similarly, due to the high levels of unemployment among the indigenous people, most of them drink to kill boredom. Other factors that contribute to the excessive consumption of alcohol among the Aboriginal is low self-esteem, where they seek comfort in getting intoxicated. Regrettably, when these people indulge in alcohol they often engage in violence, brawls, fights, and other offenses, earning them fines and penalties and sometimes imprisonment (Australian Bureau of Statistics, 2011). Along with that and as Davey (2016) notes, the Aboriginal people are also likely to be caught drinking in dry zones, which is an offense punishable by fines. However, due to their economic status, most of the people cannot afford to pay, and before they realize it, the fines are penalized, and most of the times the individuals end up in prison.

Why Fines and penalties affect the Indigenous people

Although the Aboriginal people of Australia were the original people in Australia, they have been discriminated the most as compared to the non-indigenous individuals. These people represent only a small percentage of the Australian population and face higher levels of disadvantages at the workforce than the general population. As it is, due to various cultural, social, economical, and historical factors, the Aboriginal people record the highest levels of poverty and often rely on small wages for sustenance. Apart from inequalities that come with low wages at the work place, the government does not seem eager to make it easier for them (Burton-Bradley, 2017). For instance, the recently introduced rate cuts are feared to have a negative impact on the indigenous workers, particularly when employment opportunities are limited. In addition to the above, a majority of the indigenous people are employed in the retail sector and hospitality industry among other small industries. Due to the nature of their jobs, most of the Aboriginal people survive on the family members’ wages with no surplus capital to spend on other things.

The Impact of the Fine and penalty System on Indigenous People

On the surface, the fine enforcement system treats both the Indigenous and non-Indigenous people equally. Unfortunately, the problem comes in on the impacts the system has on the Aboriginal people. As stated earlier, the indigenous people are more likely to experience low-incomes and record the highest number of unemployment. Along with that, the number of illiteracy levels is considerably high with little or no knowledge of English. All these disadvantages come down to one thing; the indigenous people are less likely to afford fines or even negotiate mainly because of the language barrier. In Australia, William & Gilbert (2011) note that the common law principle is categorical about imposing fines to the tune of an amount that the offender has no means of paying. Most jurisdictions are required by statute to consider the means of the offender to afford the fines and penalty when determining fines and penalties. Unfortunately, during the hearing process, most defendants do not have legal representation, which means they have no means to defend their case. Apart from that, most offenders are not willing to disclose the financial status, which leaves the court with no information about debts accumulated, family obligations, income, and expectations from the society. It is hard for the judiciary to know about existing fines, as the fines enforcement agencies do not routinely provide this information. Similarly, in some cases, even when there is information on the inability of the defendant to afford the imposed penalty, the judicial must follow the legislation on the minimum penalties set out for the particular offense. In fact, there is considerable evidence showing that a majority of magistrates impose fines with the full knowledge that the defendant is not in a position to pay because it is the only sentencing option available.

In Australia and New Zealand, fines are usually accompanied by sanctions such as enforcement fees, community service, and sometimes imprisonment. When fines are not paid within a stipulated duration, a certain amount of enforcement fees are imposed on the penalty. In some areas, the enforcement fee is added on top of each fine translating to more debt for a single individual. According to a report by William & Gilbert, only a small percentage of the Aboriginal population affords to clear their on-spot fines. The large majority cannot afford due to poverty and end up accumulating lots of unpaid debt as enforcement fees accumulate. Another thing that seems to work against the Aboriginal people is the fact that some jurisdictions do not allow payment of fines in installment except when enforcement fees have been added. Still, even with that, some courts demand a large volume of information about the individual’s financial status, income, the value of assets among others. Others require offenders to make a minimum payment, which is still beyond them due to the economic situation. The fine and penalties laws do not seem to favor a majority of the Aboriginal people, leading to a majority of them ending up in prison to serve the required term as required by the criminal justice system. 

Prosecution for unpaid fines and penalties has been identified as one of the grounds for high incarceration rates of Aboriginal and Torres Strait Islanders in Australia. The issue is worrying, especially considering that the Aboriginal people have been sidelined for a long time and often discriminated. While fines laws should not be eliminated, the government should come up with other ways to punish offenders instead of issuing fines. Such means may include but not limited to giving warning to the law breaker, community work in place of imprisonment, and driving lessons for the unlicensed drivers among others.

References

 “High Court upholds Northern Territory paperless arrests law.” (2015). ABC News. Retrieved from: http://www.abc.net.au/news/2015-11-11/high-court-upholds-northern-territory-paperless-arrests-law/6930340

“Indigenous justice in focus.” (2015). Australian Institute of Criminology. Retrieved from: http://www.aic.gov.au/crime_types/in_focus/indigenousjustice.html

“The drivers behind the growth in the Australian imprisonment rate.” (n.d). Parliament of Australia. Retrieved from: http://www.aph.gov.au/parliamentary_business/committees/senate/legal_and_constitutional_affairs/completed_inquiries/2010-13/justicereinvestment/report/c02

Australian Bureau of Statistics. (2011). 4704.0 – The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples, Oct 2010. Retrieved from: http://www.abs.gov.au/AUSSTATS/abs@.nsf/lookup/4704.0Chapter756Oct+2010

Burton-Bradley, R. (2017). Indigenous Australians in remote areas to be hit hard by penalty rate cuts. NITV. Retrieved from: http://www.sbs.com.au/nitv/nitv-news/article/2017/05/19/indigenous-australians-remote-areas-be-hit-hard-penalty-rate-cuts

Davey, M. (2016). Alcohol abuse behind high rates of early death among Indigenous, study finds. The Guardian. Retrieved from: https://www.theguardian.com/australia-news/2015/feb/20/alcohol-abuse-behind-high-rates-of-early-death-among-indigenous-study-finds

Davidson, H. (2015). NT admits paperless arrest laws misused in Aboriginal death in custody case. The Guardian. Retrieved from: https://www.theguardian.com/australia-news/2015/nov/12/nt-admits-paperless-arrest-laws-misused-in-aboriginal-death-in-custody-case

William, M.S., & Gilbert, R. (2011). Reducing the unintended impacts of fines.  Indigenous Justice Clearing House. Retrieved from: https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/initiative002.v1.pdf

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