06 December 2016


The national Government has released the draft Terms of Reference for the Australian Law Reform Commission inquiry into the incarceration rate of Indigenous Australians .

The Attorney-General of Australia states
 In referring to the ALRC an inquiry on laws and legal frameworks, it is acknowledged that these are an important, but not the only, factor that contributes to the rate of Indigenous incarceration.
It is also acknowledged that, while the rate of imprisonment of Indigenous Australians significantly exceeds the rate of imprisonment of non-Indigenous Australians and while Indigenous Australians experience contact with the criminal justice system – as both offenders and as victims – at much higher rates than non-Indigenous Australians, the majority of Indigenous Australians never commit criminal offences.
The draft continues
Scope of the reference
In developing its recommendations, the ALRC should have regard to laws and legal frameworks that contribute to the incarceration rate of Indigenous Australians, including:
• laws and legal frameworks that inform decisions to hold or keep Indigenous Australians in custody, including decisions in relation to:
o cautioning
o protective custody
o arrest
o remand and bail
o diversion
o sentencing, including mandatory sentencing
o parole, parole conditions and community reintegration
• factors within laws and legal frameworks that affect decisions to hold or keep Indigenous Australians in custody, including:
o consideration of community safety
o the nature of the offences resulting in incarceration
o availability of alternatives to incarceration
o degree of discretion available to decision-makers
o consideration of incarceration as a last resort
o consideration of incarceration as a deterrent and as a punishment
• whether certain laws and legal frameworks, for example laws that regulate the availability of alcohol, contribute to the rate of Indigenous offending and incarceration
• legal institutions and law enforcement, including police, courts (including courts specialising in dealing with Indigenous offenders), legal assistance services and prisons
• differences in the application of laws in different local contexts.
In conducting its inquiry, the ALRC should have regard to existing data and research that demonstrates:
• best practice laws and legal frameworks both in Australia and internationally that reduce the rate of Indigenous incarceration
• the effects of laws and legal frameworks on the rate of Indigenous incarceration, including:
o the paths of Indigenous Australians through the criminal justice system, including most frequent offences, relative rates of bail and diversion and progression from juvenile to adult offending
o the availability of alternatives to custody in reducing Indigenous incarceration and/or Indigenous offending, including rehabilitation, therapeutic alternatives and community reintegration supports
o the availability of and access to legal assistance and Indigenous language and sign interpreters
• the experiences of the legal system and incarceration and its impacts for Indigenous Australians, including in relation to employment, housing, health, education and families
• the broader contextual factors contributing to Indigenous incarceration and any laws and legal frameworks with regard to these, including:
o the characteristics of the Indigenous prison population
o the relationships between Indigenous offending and incarceration and alcohol and drug use, trauma including inter-generational trauma, loss of culture, poverty, discrimination, experience of violence, child abuse and neglect, educational access and performance, availability of disability supports, housing circumstances and employment
o availability and effectiveness of programs that intend to reduce Indigenous offending and incarceration.
In undertaking this reference, the ALRC should identify and consider other reports, inquiries and action plans that relate to this issue, including:
• the Royal Commission into Aboriginal Deaths in Custody
• the Royal Commission into the Protection and Detention of Children in the Northern Territory (due to report 31 March 2017)
• Senate Standing Committee on Finance and Public Administration’s inquiry into Aboriginal and Torres Strait Islander experience of law enforcement and justice services
• Senate Standing Committee on Community Affairs’ inquiry into Indefinite detention of people with cognitive and psychiatric impairment in Australia
• Senate Standing Committee on Indigenous Affairs inquiry into Harmful use of alcohol in Aboriginal and Torres Strait Islander communities
• reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner
• the ALRC’s inquiries into Family violence and Family violence and Commonwealth laws
• the National Plan to Reduce Violence against Women and their Children 2010-2022.
 In conducting its inquiry the ALRC should also have regard to relevant international human rights standards and instruments. The ALRC should also consider the gaps in available data on Indigenous incarceration and consider recommendations with regard to laws and legal frameworks that might improve data collection.
In undertaking this inquiry, the ALRC should identify and consult with relevant stakeholders including Aboriginal and Torres Strait Islander persons and their representative organisations, state and territory governments, relevant policy and research organisations, law enforcement agencies, Indigenous legal assistance service providers and the broader legal profession, community service providers and the Australian Human Rights Commission.
The ALRC should provide its report to the Attorney-General by 15 December 2017.