Justice ‘grossly unequal’ for Aboriginal people: judge

The Chief Justice of Western Australia — a state where Aboriginal people are imprisoned at a higher rate than anywhere else in Australia — says there’s no doubt Aboriginal people are disadvantaged within the justice system.

Chief Justice Wayne Martin QC said unless Australia could improve the provision of support and services to remote areas, the rate of Aboriginal imprisonment across the country would continue to spiral upwards.

He said laws should also give courts discretionary powers that could be exercised to help improve the disadvantage and deprivation experienced by too many Aboriginal people.

“There cannot be any doubt that Aboriginal people are significantly disadvantaged within our criminal justice system in almost every aspect of that system’s operation,” Chief Justice Martin told the Criminal Lawyers’ Association of the Northern Territory at its biennial conference last month.

“Even if a lawyer might describe the system’s treatment of Aboriginal and non-Aboriginal people as equal, the outcomes of the system’s operations are grossly unequal.

“Whether you attribute those outcomes to disadvantage or to discrimination, it does not alter the tragic effects of those outcomes on the descendants of the longest unbroken cultural grouping on the planet.”

Chief Justice Martin said he was ashamed to admit that the rate of Aboriginal imprisonment in WA at 4011 people per 100,000 was “significantly” higher than any other jurisdiction.

He said the Northern Territory ranked second with a rate of 2893.

Chief Justice Martin said the justice system must accept some of the blame for the high rates at which Aboriginal people end up behind bars.

“Aboriginal people are much more likely to be questioned by police than non-Aboriginal people,” he said.

“When questioned they are more likely to be arrested rather than proceeded against by summons.

“If they are arrested, Aboriginal people are much more likely to be remanded in custody than given bail. Aboriginal people are much more likely to plead guilty than go to trial, and if they go to trial, they are much more likely to be convicted.

“If Aboriginal people are convicted, they are much more likely to be imprisoned than non-Aboriginal people, and at the end of their term of imprisonment they are much less likely to get parole than non-Aboriginal people.

“Aboriginal people are also significantly over-represented amongst those who are detained indefinitely under the Dangerous Sexual Offenders legislation. So at every single step in the criminal justice process, Aboriginal people fare worse than non-Aboriginal people.”

But the Chief Justice said there were also limits to what law courts could do to address Aboriginal disadvantage — and much of the problem lay with the need for social change and better services.

He said a relatively small number of Aboriginal people were responsible for a large amount of crime.

Aboriginal people were over-represented among the most marginalised and disadvantaged people in Australia, a group more likely to commit crime.

“Aboriginal people come before the court, they suffer disabilities caused by no fault of theirs — perhaps caused by maternal alcohol use even before they are born, exacerbated by a dysfunctional and traumatic childhood, or they may have developed anti-social behavioural patterns associated with chronic substance abuse which are strongly resistant to change, and which, of course, is all too often associated with the intergenerational trauma visited upon Aboriginal people as a result of our shared history,” he said.

Chief Justice Martin said although providing culturally relevant and appropriate support and services to remote areas could be costly and difficult, unless they were improved the rates of Aboriginal imprisonment would continue to rise.

He said far too many resources would be spent imprisoning Aboriginal men, women and children rather than improving the conditions and circumstances in which too many of them lived.

“But it seems to me that there is something which is neither costly nor difficult that we all can and need to do: that is, to work in a genuinely collaborative way with Indigenous people who continue to tell us that nothing will change otherwise,” he said.

Chief Justice Martin said a report by professional services firm PricewaterhouseCoopers  put the cost of Indigenous incarceration in Australia at $7.9 billion — a figure that was set to rise to $19.8 billion by the year 2040.

The cost of Indigenous crime was highest in WA at $1.13 billion last year, with just under $900 million spent on prisons and police.

Wendy Caccetta


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