In 1987, the Australian government formed the Royal Commission to investigate the deaths in custody of the Aboriginal and Torres Strait Islanders people. Each of the individual reports poignantly pointed an individual’s life and the circumstances of their death in detention. Along with that, it was noted that the number of the Aboriginal people in correctional facilities was significantly high as compared to the non-aboriginal people. Unfortunately, while the disparities in imprisonment rates of the aboriginal and the non-aboriginal people are well documented, there have been few systematic attempts to elaborate the differences. In light of this, this report seeks to analyze and present some of the key factors that have contributed to the high incarceration rates among the Aboriginal people in Australia as well as explore some principle reasons behind the statistics. In particular, the following hypotheses have been identified. It is acknowledged that some laws and legal frameworks have significantly contributed to the over-representation of the aboriginal people in the Australian criminal justice system. In this sense, legal frameworks include courts, police, legal assistance services, and jails. Laws that may contribute to the aboriginal people coming into contact with the criminal justice system as offenders include but not limited to laws regulating the availability of alcohol, unpaid fines and penalties, driving offenses, and disparities in the application of law across states or territories. In essence, prosecution for violation of laws regulating the availability of alcohol has been identified as one of the key areas that have contributed to the high levels of incarceration rates of the aboriginal people in Australian prisons. Similarly, and in order to come up with a comprehensive report, the study will also acknowledge the number of factors that decision makers consider when deciding on a criminal justice system response. The factors include but not limited to community safety, alternatives to incarceration, the degree of discretion, and imprisonment as a deterrent of punishment.
Incarceration Rates of the Aboriginal and Torres Strait Islanders
Prisons form a necessary part of the society, and people who break the law deserve to be punished appropriately. People also have a right not to be discriminated. Respecting the rights of the citizens is necessary for a healthy community based on tolerance and equality. Discrimination within the criminal justice system causes harm to individuals and society, with long-lasting effects on future generations. In Australia, there is considerable evidence showing that the aboriginal people receive relatively harsh sanctions when they encounter the criminal justice system as compared to the non-aboriginal people. Similarly, one of the most prominent conclusions of the Royal Commission’s inquiry was that the high incarceration rates of the aboriginal people were a direct consequence of the laws and legal frameworks. Similarly, according to the HREOC Social Justice Report, 2002 the overrepresentation of the aboriginal population was also a result of the underlying social, cultural, and economic disadvantages. In fact, when explaining the high rates of imprisonments, most people argue that it reflects the failure by the government to reduce the aboriginal disadvantage. In addition to the above, it is further acknowledged that although the Aboriginal contact with the criminal justice system – both as victims and offenders is significantly high – majority of the ATSI people do not commit these offenses.
Laws and legal Frameworks that Contribute to the Incarceration Rate of the ATSI
In Australia, there is a widespread problem relating to the harmful use of alcohol. The National Drug Strategy Household Survey also acknowledges that, although some people drink alcohol responsibly, substantial populations of drinkers consume alcohol at levels considered harmful to the individual. With respect to the Aboriginal people, the Specific Population Groups 2013 report indicated that as compared to the non-aboriginal people, few aboriginal individuals consumed alcohol. Further inquiries showed that there were substantial harmful effects of alcohol among the Aboriginal community. In this context, the house representatives Standing Committee on aboriginal affairs made several recommendations to minimize alcohol abuse and best alcohol practices. Unfortunately, while the laws on alcohol use were intended to reduce the harm, the law has contributed to the high incarceration rates of the Aboriginal and Torres Strait Islanders communities in the criminal justice system. For instance, the Australian Crime Commission noted that alcohol contributed to about 78 percent of violent offenses involving the aboriginal people that were represented in 2010 at the Alice Springs Supreme Court. This means although alcohol abuse is connected to criminal behavior, criminalizing consumption of alcohol is not an appropriate response. Rather, as the National Congress describes it, this is a failed strategy adding to the rising number of imprisonment rates. In fact, the National Congress recommends that offenses relating to alcohol should be seen as a social and health issue and not a criminal justice problem. Thus, the way forward relies on coming up with an approach focused on healing the community and rehabilitation of persons to address the deep underlying social, cultural, and economic factors that lead to abuse of alcohol.
Factors that Decision Makers Consider when Deciding a Criminal Justice System
Alcohol abuse and related harm is not only a problem affecting the Aboriginal and Torres Strait Islander people, but it is also diverse and far-reaching in the whole of Australia. However, the focus of the inquiry seeks to explore the harmful use of alcohol among the Aboriginal communities and factors that led to the decision makers to make laws on the availability of alcohol among the aboriginal people. According to the National health and Medical Research (NHMRC), different people have distinctive reasons for drinking, which are closely related to their culture, age, and socioeconomic status. The NHMRC also found that alcohol abuse is a societal problem that can affect the victim’s family, and that alcohol causes more harm among the poor and social marginalized groups. Essentially, laws and legal frameworks have played a significant role in contributing to the high rates of incarceration among the Aboriginal people. However, several other historical, social, and economic factors have contributed to the over-representation of the aboriginal people in Australian prisons. These factors have also by far influenced the decision makers in deciding the criminal justice system response towards the availability and consumption of alcohol among the Aboriginal. Such factors include marginalization due to lack of education, high unemployment rates, lack of proper housing, homelessness, overcrowding, poor health outcomes, alcohol dependency, and physical disability among others.
Educational attainment has been observed to a strong influence on minimizing the risk of alcohol consumption. However, there are also different relationships between education and alcohol abuse among the Aboriginal people. According to the Prime Minister and Cabinet department, alcohol abuse can affect the education of the aboriginal children. It is impossible for children to concentrate in school if they are tired due to sleep disturbance from parent anger and violence, they may be victims of alcohol-induced violence, or they are abusing alcohol among others.
Connection to Culture and Country
Among the majority of the aboriginal people, their connection to their cultures and the country is of great importance. In fact, culture takes center place among the aboriginal populations and feeling connected to their culture is important. Unfortunately, alcohol consumption destroys this link causing family dysfunction, violence, and sometimes child neglect.
Meaningful employment is important not only for the physical satisfaction but also for the mental well-being as well. Individuals are also able to participate in society, enjoy financial freedom, and experience improved living standards. However, it is impossible for adults to maintain meaningful employments if they are involved in alcohol-related violence, they are victims of such kind of violence, or are suffering from the use of alcohol.
Among the Aboriginal and Torres Strait Islander people, housing is a primary determinant affecting their health and wellbeing. In a majority of urban and remote Aboriginal communities, there is a shortage of housing, homelessness, and significant overcrowding. When living in such conditions, people are at high risk of abusing alcohol.
Discrimination based on an individual’s race has been highlighted as a social determinant of alcohol abuse, and its prevalence has been cited as a factor contributing to the development of strategies to mitigate the harm. The National Congress also notes that the interventions driven by the government on alcohol consumption by the Aboriginal may perpetuate negative stereotyping and forms of racism. Such responses include laws that allow the police to stop people and confiscate alcohol if they suspect that the alcohol will be taken to a restricted place. Unfortunately, the race-based restrictions are not viewed as a government concern to contain alcohol related harm, but as an act to isolate and control the aboriginal people.
Alcohol-related violence is a serious problem that affects a majority of the Australian community. Among the Aboriginal people, women are over-represented as victims of alcohol-based violence. In fact, according to the Australian Human Rights Commission, aboriginal women are 33 times more likely to experience assault as compared to non-aboriginal women.
Alcohol Laws that lead to the ATSI Peoples Offending
With respect to the mitigation of alcohol abuse, the 2009 review of the Alice Springs Alcohol management plan reviewed and suggested the most effective measures to reduce alcohol. Unfortunately, the majority of these laws have led to the aboriginal peoples offending. Such laws include restrictions on hours and days of the sale of alcohol on licensed premises. The other enforcement that has influenced the aboriginal people offending is the law on the minimum legal age for the consumption of alcohol and purchase. Similarly, there are rules on dry area declarations, where individuals are not allowed to consume alcohol. In addition to the above, although the laws affect both genders, the incarceration rates of women as compared to men are significantly high. The 2002 Social Justice Report notes that economic disadvantage, social marginalization, damage to culture and identity has a close link to the offending behavior of aboriginal women. Moreover, among others, high levels of alcohol dependency have been identified as an influencing rate of crimes and incarceration for aboriginal women. In Australia, prosecution for laws that regulate the availability and consumption of alcohol is mostly fine, a key factor that has been identified for the over-representation of the aboriginal people in the criminal justice system. However, when offenders default payment of fines, they are penalized, and most of the times they end up in prison. Of particular concern is the effect the incarceration has on the Aboriginal and Torres Strait Islander offenders. Several stakeholders noted that imprisonment, especially short term serve no justifiable purpose considering the economic, and social costs that come along.
Social and economic determinants are complex contributors to an individual’s choice to abuse alcohol. Nevertheless, they also demonstrate that strategies to mitigate excessive alcohol consumption must not only address the risky behavior of drinking but also address the underlying factors that trigger the behavior of alcohol abuse. Instead of sending offenders to prison, there should be an increase to necessary programs such as alcohol rehabilitation programs to mitigate the abuse of alcohol. The government should also provide housing to the aboriginal people who live in overcrowded places, and offer them financial counseling. Other interventions include increasing skill based work experience, mentoring the young people to lead them to better employment opportunities to alleviate their economic status.
Alcohol And Offending | ALRC (2017) Alrc.gov.au <http://www.alrc.gov.au/publications/alcohol-and-offending>.
Australian Guidelines To Reduce Health Risks From Drinking Alcohol (2009) National Health and Medical research Council <https://www.nhmrc.gov.au/_files_nhmrc/publications/attachments/ds10-alcohol.pdf
Australian Institute of Health and Welfare, National Drug Strategy Household Survey Detailed Report (2013) < http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129549848>
HREOC Social Justice Report 2002: Measuring Aboriginal Disadvantage | Australian Human Rights Commission (2017) Humanrights.gov.au <https://www.humanrights.gov.au/publications/hreoc-social-justice-report-2002-measuring-aboriginal-disadvantage>
Liquor Control Act 1988 (WA) AustLII < http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/wa/consol_act/lca1988197/ >
Parliament of Australia, “Inquiry Into The Harmful Use Of Alcohol In Aboriginal And Torres Strait Islander Communities: Alcohol, Hurting People And Harming Communities” (Commonwealth of Australia, 2017).
Specific Population Groups (AIHW) (2013) Aihw.gov.au <http://www.aihw.gov.au/alcohol-and-other-drugs/data-sources/ndshs-2013/ch8/#t8_3>
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