Issue 127: April 2018
The Incarceration rate of Aboriginal and Torres Strait Islanders is a national disgrace – what can pro bono lawyers do?
The ALRC Report Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples was publicly released on 28 March 2018 and makes a series of recommendations on how to tackle what is a national disgrace — a population that is approximately 2.5 percent of the Australian population represents 27 percent of the prison population, despite being a people who are not innately criminal. Many are imprisoned simply for not paying fines and for repeated driving offences. That the rates of Indigenous incarceration have increased by 41 percent in the decade to 2016 proves that action must be taken – urgently.
The ALRC recommendations are largely aimed at State and Territory governments, which are responsible for the laws under which most Aboriginal people are detained, bailed, tried, sentenced, imprisoned and released. Some recommendations concern the police (reviewing accountability and complaint mechanisms as would be expected), and some concern the Commonwealth government (support for justice reinvestment, repealing mandatory sentencing legislation, setting criminal justice targets, establishing an inquiry into national child protection laws and processes as they affect Aboriginal children).
Lawyers who do pro bono work are motivated to further social justice and address unmet legal need. So what can we do? The ALRC Report doesn’t mention pro bono, perhaps unsurprisingly as its terms of reference are about the criminal law system and there is very limited capacity amongst criminal lawyers to undertake pro bono legal work for Aboriginal and Torres Strait Islander people, and no criminal lawyers in the larger firms. Much of the burden of direct representation falls on the underpaid and overworked lawyers from the Aboriginal and Torres Strait Islander Legal services, and on Public Defenders and Legal Aid lawyers.
Antoinette Braybrook, co-chair of Change the Record says,
“we need to shift investment from expensive, ineffective prisons, into community-controlled organisations that will address the underlying drivers of Aboriginal and Torres Strait Islander people going to prison.”
There are various examples of pro bono lawyers effectively helping Aboriginal community-controlled organisations.
For example, in 2017 Gilbert+Tobin was recognised for its work on the Housing Repairs Project addressing tenant-landlord issues in northeastern NSW where there is a significant Aboriginal population. Improving housing conditions for these residents means that they have secure accommodation – a factor in their ability to be granted bail.
Another example is the lawyers who have worked on Aboriginal Wills projects around the country, preparing wills for Aboriginal people and thus providing them with some control over their personal affairs and more certainty for the future. This work could not have been done other than in close cooperation with Aboriginal community-controlled organisations that identify and support clients, and contribute an essential coordination service for these projects.
As the ALRC Report mentions, the fundamental causes of over-representation of Aboriginal people in custody are not located within the criminal justice system. The issue must be seen in its social and historical context. Social determinants of incarceration of Aboriginal and Torres Strait Islander peoples include education and employment, health and disability, housing and homelessness, and child protection and youth justice. These are areas where law firms can and do play a role in improving conditions.
For example, most large firms now have Reconciliation Action Plans (RAPs) that aim to increase access to opportunities for education, build capacity in communities, increase employment opportunities and recognise, respect and celebrate Aboriginal culture. Work done in accordance with these RAPs helps strengthen Aboriginal society which in turn reduces the risk of incarceration.
Closer to the criminal law system, it is important to note that over the years many lawyers have directly helped the Aboriginal Legal Services based in each State and Territory.
Work has been done to strengthen organisational capacity and efficiency and to help draft law reform submissions, and many barristers have given of their time to represent Aboriginal people in difficult criminal law matters. This work is more important than ever. In fact, the ALRC recommendations open up new opportunities to work with Aboriginal organisations to help drive law reform to maintain the momentum arising from the public release of the ALRC report.
Submissions to State and Territory governments need to be drafted to articulate the legislative and policy changes that should be made. This is work that could be done by firms working together with an ALS.
For example, important work could be done to advocate for implementation of the ALRC’s recommendations that mandatory sentencing regimes should be repealed, and that fine defaulters should not be able to be imprisoned.
This work if successful could have a real impact on what is one of Australia’s great issues of shame: imprisonment due to social injustice rather than criminality. If you would like an introduction to an ALS, please don’t hesitate to contact us.
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