Aboriginal Australians and the Criminal Law
Aboriginal Australians are disproportionately represented in low socio-economic demographics. They are more likely to be arrested, charged with offences and imprisoned than any other group in Australia. Charges often involve drunkenness, bad language and defiance of authority as an element, and because of a legacy of hostility between police and Aboriginal Australians, arrests may lead to multiple charges (see Police Offences Act 1935 (Tas) (ss4, 4A, 12 and 34B)).
In 1989 the Royal Commission into Aboriginal Deaths in Custody found that the much greater frequency of Aboriginal deaths in custody was a direct result of huge over-representation of Aboriginal Australians in the prison system. The Royal Commission made hundreds of recommendations to governments designed to overcome the high imprisonment rates of Aboriginal Australians. However, implementation of these recommendations has been slow, and high death rates continue as high rates of imprisonment remain steady.
Some of the most over-used provisions of the Tasmanian Police Offences Act 1935 (Tas), such as being drunk and incapable of taking care of oneself, were removed as a result of the Royal Commission’s work. Tasmanian Police Standing Orders were changed to require police to notify the Aboriginal Legal Service when an Aboriginal Australian is detained. Police in Tasmania at an official, and in some cases at a street, level have shown themselves more willing to enforce the law in a way that is more sensitive to the special vulnerability of Aboriginal community to law enforcement processes.
The Youth Justice Act 1997 (Tas) enables Aboriginal community representatives to participate directly in procedures designed to divert first and minor offenders away from the court system through police ‘cautions’ and ‘community conferencing’ (ss11(1), 14(1)(c)(ii), and 38(2)(e)). An Aboriginal representative may be present in the closed court with the consent of the young Aboriginal person charged (s30(1)(i)). If placed in detention, reasonable efforts must be made to meet the needs of young Aboriginal detainees as members of the Aboriginal community, in addition to their cultural needs (s129(c)).
Page last updated 03/02/2020