Indigenous Australians and the Criminal Law

Indigenous Australians are disproportionately represented in disadvantaged socio-economic demographics. They are more likely to be arrested, charged with offences and imprisoned than any other group in Australia. Charges involving intoxication, bad language and defiance of authority as an element, may lead to multiple charges – sometimes called ‘multiple charge syndrome‘, which entrenches disadvantage in the criminal justice system. In Tasmania, multiple charge syndrome might be a combination of intoxication offences, prohibited language and behaviour, and failure to obey a direction of a police officer. Tasmania Police has specific arrest and charge policies in place that seek to prevent multiple charge syndrome.

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 changed as a result of the Royal Commission’s work. Tasmanian Police Standing Orders (now the Tasmania Police Manual) 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 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’, which can be formal or informal, administered by an Aboriginal elder, and ‘community conferencing’. An Aboriginal representative may be present in the closed court with the consent of the young Aboriginal person charged. 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.