Equal Justice At Risk If Judges Consider Aboriginality In Sentencing

During the past 10 years, incarceration in Australia has risen 40 per cent.  A third of this is the result of more Indigenous Australians being jailed.  Indigenous Australians are now jailed at a rate more than 12 times that of non-Indigenous Australians.

The Australian Law Reform Commission is conducting an inquiry into this disproportionate rate of incarceration and how the criminal justice system might be reformed to address it.  There are a number of reforms being considered that have the potential to gain bipartisan support, such as making alternatives to prison, like work orders and home detention, more available to Indigenous offenders and improving access to justice by resolving issues such as a lack of translators.

Reformers should focus on ideas that have the potential for broad-based support and that reinforce traditional criminal justice principles like equality under the law, fair punishment, and personal responsibility.  Moves to further separate the administration of justice for Indigenous and non-Indigenous Australians are unnecessary and contrary to the universality on which the authority of the criminal law depends.  The NSW Bar Association's proposal to amend sentencing laws to specifically take into account an offender's Indigenous background and the high level of Indigenous incarceration should be rejected.

Sentencing is governed by two main principles:  consistency and proportionality.  Sentences must be consistent for all types of offending, so that like crimes are treated alike.  And sentences must keep a proportion between the severity of the punishment and the harm done to the victim and to society.

With this later question, judges can take into account the circumstances of an individual's offending, including factors known to be correlated with criminal offending, such as unemployment, low educational attainment, and alcohol abuse.

These factors are more present, on average, in Indigenous communities.  When they are relevant to an individual Indigenous offender's punishment, judges already have discretion to consider them.  Importantly, because these factors are universal, judges can consider them regardless of the cultural background of the offender, preserving the principle of consistency.

Instructing judges to consider the offender's Indigenous status poses a problem for equal justice because it may or may not be a factor in cases that are otherwise the same.  Moreover, describing Indigenous status as itself a form of disadvantage risks portraying all Indigenous communities as disordered, even though the vast majority of Indigenous Australians are law-abiding.  It also risks diminishing the harm experienced by victims, many of whom are themselves Indigenous.

Similarly, the high level of Indigenous incarceration is not relevant to the sentencing of any particular Indigenous offender.  The fact that other people are imprisoned does not lessen the harm an offender has caused, and again, taking it into consideration in some cases but not others is unfair and inconsistent.

More broadly, there is no principled reason to further entrench racial and cultural separatism in criminal law.  The law's moral authority rests on its universality.  Australians need to be able to depend on the law treating each of us the same way and to rely on our fellow citizens to act according to the norms embedded in the law.

It is possible to address Indigenous incarceration without compromising on universality.  The NSW government, for example, recently announced changes to the punishment of driving without a licence to make it less likely someone would be imprisoned for unpaid fines, an issue that disproportionately affects Indigenous people in rural areas.

Criminal justice is about defending the rights of individuals and keeping the community safe.  It is therefore a limited tool for addressing the socioeconomic and cultural factors underlying Indigenous disadvantage.  For more than two decades, states and territories have undertaken reforms such as specialist courts and diversion programs for Indigenous offenders, and yet the situation now is worse than ever.

The high level of Indigenous incarceration is an important public policy matter.  But treating Indigenous offenders as somehow distinct from other offenders diminishes their agency and dignity, and undermines the moral basis of criminal law.