On 9 February, Attorney-General George Brandis announced the terms of reference for a new Australian Law Reform Commission (ALRC) inquiry into Indigenous incarceration in Australia. The inquiry was announced in October 2016, and the final terms of reference have now been released after receiving submissions about the scope of the inquiry.
The need for an inquiry has been identified in the face of ever-increasing representation of Indigenous Australians in the prison population.
In 1991, the year of the report of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), Indigenous Australians comprised 14 per cent of the Australian prison population. In 2016, it was 27 per cent. Yet Aboriginal and Torres Strait Islander Australians constitute only 2 per cent of the overall population over the age of 18.
Indigenous incarceration rates are concerning of themselves, but the fact that they continue to increase is alarming. The inquiry therefore recognises and validates widely held concerns.
On the other hand, it represents the abject failure of successive governments around the country to pay heed to what we do know about the incarceration of Aboriginal and Torres Strait Islander Australians — including the failure to implement the recommendations of the RCIADIC.
The frustration felt by many was expressed by the then head of the Prime Minister's Indigenous Advisory Council, Warren Mundine, who said that 'holding another inquiry — rather than acting on the reports that have already been conducted — was a joke and reflective of the poor performance of the government'.
The submissions to the draft terms of reference highlight the complex systems at play in Indigenous incarceration. Even before the inquiry starts, the submissions provide a stocktake of what governments must consider in analysing the problem and formulating solutions. Rather than the sole factor of the state of the criminal law or even of the justice system, the submissions identify myriad factors that contribute to disproportionate incarceration of Aboriginal and Torres Strait Islander Australians.
Many pointed out, for example, the need to inquire into social determinants of incarceration. A person's environment — the circumstances of their community, their access to services, their age or even their gender — may influence the likelihood of entering the criminal justice system.
"The scope of these broader contexts is huge. It is positive that they are included, however the ALRC is to report in December 2017, and this timeframe is far too short to do the inquiry justice."
In addition to understanding the experiences of