Why Does Australia Still Make Laws That Are Detrimental to Aboriginal People?

WARNING: Aboriginal and Torres Strait Islander readers are advised that the following article contains names, images and descriptions of people who have died. Some people’s full names have not been used for cultural reasons and out of respect for their families. Honorifics have been used in certain cases for the same reason.

The gap in inequality between Indigenous and non-Indigenous Australians is depressingly vast, and nowhere is this better illustrated than in the legal and justice system.

Despite multiple inquiries – including the 1991 Royal Commission into Aboriginal deaths in Custody – many say that the legal system has failed to adequately incorporate the unique circumstances that impact Indigenous Australians negatively compared to other Australians. These include a lower life expectancy, a higher unemployment rate, a lower average income and a lower level of education. 

With all of this in mind, the obvious questions remain: why are laws that disproportionately impact Aboriginal people implemented at all? And why are they often implemented without discussion with Indigenous groups? 

Since the 80s, the imprisonment of Indigenous Australians has increased dramatically. In 1990, First Nations peoples in jail numbered 1,124 per 100,000 adults. By 2018, this number had more than doubled to 2,481 per 100,000 adults. 

Among Indigenous men born in the 70s, almost one in four have spent time behind bars. Western Australia is home to the highest rate of Aboriginal incarceration throughout the country. 

And despite a downward trend in violent crimes throughout Australia, punitive responses to all crimes, including tougher sentencing laws and more uncompromising bail laws, have only exacerbated the number of people behind bars.

Even further: poverty impacts Aboriginal Australians at 2-3 times that of non-Indigenous Australians. A lack of opportunities for work in regional areas, along with the historical and long lasting impacts of racism and colonisation, have directly resulted in systemic poverty in Indigenous communities. 

Professor George Newhouse, CEO of the National Justice Project, was blunt when asked why this is the case.

“I can only put the failure to consult Indigenous groups down to racism,” Newhouse told VICE. “Politicians don’t want to confront the systemic discrimination that occurs when their laws disproportionately target Indigenous peoples.”

Hannah McGlade, a Kurin Minang Noongar woman, human rights lawyer, and associate professor at Curtin Law School, says that some legislation in Western Australia discriminates against Indigenous people. She leads a growing and concerted media effort to bring these practices into the mainstream. 

McGlade told VICE that laws disproportionately targeting Indigenous Australians directly impact figures in WA that show an increase in Indigenous peoples incarcerated. This is all despite the WA Labor Party vowing to decrease this figure after it was elected in 2017. 

“There is a fundamental lack of respect for the humanities of Indigenous people,” she said. “It’s simply a flawed relationship between Indigenous Australians and the settler-state.”

Sometimes the government does consult on issues, but it appears that too often they do not listen. 

“Often, certain groups are no more than reconciliation committees, giving advice on cultural matters,” said McGlade. “When what they really need to do is be advising on legal issues.”

One of those laws is currently being challenged in the High Court. Designed to keep “high risk” prisoners out of the community - even after their sentence has finished - it keeps people imprisoned and has now been expanded to include many lesser crimes, including robbery. 

Peter Garlett, whose first offence was aggravated home burglary, served three-and-a-half years in prison. Before his sentence was finished, he was told he would stay incarcerated as he was deemed a risk to the community. Perth Law firm Roe Legal have taken his case to the High Court. 

Indeed, there is a long list of predetermined factors that negatively impact Indigenous people at a higher rate than non-Indigenous people, which judges are meant to take into account before sentencing. 

The courts are also asked to weigh up the mental health impact decisions have on prisoners, but across all metrics, the suicide rate is significantly higher for Indigenous Australians. Of the deaths in prison custody, a third were self-inflicted. Out of custody, this pattern continues. Deaths and mental-health related hospitalisations are higher for former Indigenous prisoners. 

It’s just a handful of many examples throughout Australia of legislation that has an overwhelmingly negative impact on Indigenous Australians. 

In NSW, a law allowing police searches drew condemnation amid claims it was discriminatory towards Indigenous people. A Guardian Australia report revealed NSW police had conducted 1,183 strip searches on Indigenous people between 2016 and 2018. Of these, two people were 11 years-old, and one was only 10.

Recently, fines for Aboriginal people during COVID-19 restrictions highlighted the divide. Some children were charged going to and from school, receiving multiple $1000 fines in the same day.

The Redfern Legal Centre (RLC), who provide free legal services to disadvantaged people in New South Wales, told VICE in a statement “a child has as much capacity to pay a $1,000 or $5,000 fine using their pocket money as an ant has to push a boulder uphill.” 

One Indigenous woman in NSW described her harassment by police for simply bringing groceries to her brother's house. She told VICE that a police officer “turned his car all the way around just to follow me.”

“He looked all over the car, taking his time, trying to pin me with something.” 

“He couldn’t find anything, so he just gave me a COVID fine for $1000”

The legal advocacy group, along with the Aboriginal Legal Service (NSW/ACT) Limited and Public Interest Advocacy Centre, wrote an open letter to the NSW government in September last year that called on police to stop using fines to ensure compliance of health measures. They argued that these fines only further entrenched poverty in Indigenous communities. 

They also called for all fines that were mistakenly given out to people participating in outdoor activities to be immediately overturned. 

With all of these cases, the cycle is vicious. The open targeting of low-income areas has the effect of bringing people, often children, into the prison system, and judges have often used sending people to jail as a first option - against the recommendations in the 1991 Royal Commission. All this does is further push Indigenous people into poverty. 

The same Royal Commission recommended that each state and territory establish an independent Aboriginal Justice Advisory Committee to provide each Government with advice on Aboriginal perceptions of criminal justice matters.

Professor Newhouse argues that implementing these recommendations would go a long way to “reducing the impact of structural discrimination on Indigenous peoples.” 

In Australia, evidence of the law being implemented differently based on skin colour is everywhere. Indigenous Australians are being refused bail at a higher rate, they are being pursued through the courts for minor offences more than anyone else, and they are being routinely harassed by police - often for no reason. 

Robert Eggington, director of the Indigenous advocacy group Dumbartung Aboriginal Corporation (DBC), experienced “a lifetime of racism from police.” He describes the vicious cycle as one built on police brutality. 

“When my people see the police their automatic reaction is to run,” he told VICE. “Privilege is not being afraid of the police.” 

Eggington points to a lot of laws as being a gateway for “racial profiling.” 

“Initially it might be a bike helmet. But, because of this fear, people may run away and then are charged with more crimes, such as resisting arrest. Suddenly, they are in the system.” 

For everyone VICE spoke to the sentiment was the same: Government groups need to be more accountable to Aboriginal culture. 

Instead of enacting punitive measures that imprison people as a first resort, governments and the police need to work with the communities to reduce incarcerations, so that they are only a last resort. 

Once someone is imprisoned, the vicious cycle of mental health issues, violence and death are all too common for some of the most marginalised people in Australia.

For Dr. McGlade and Professor Newhouse, they have one word to describe the government's effort in stemming Indigenous incarceration: “pathetic.” 

For Robert Egginton, the laws that result in mass arrests have a tragic impact. “Young people look at police profiling and they don’t want to live anymore,” he said. 

“The arrests create a suicide epidemic in some communities. The hardest thing for young people to do is stay alive.”

Both the Western Australian Attorney General and the Western Australian Indigenous minister were approached for comment.