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Cunneen, Chris; McDonald, David --- "Indigenous Imprisonment in Australia: an Unresolved Human Rights Issue" [1997] AUJlHRights 6; (1997) 3(2) Australian Journal of Human Rights 90

Indigenous Imprisonment in Australia: An Unresolved Human Rights Issue

Chris Cunneen [1] and David McDonald[2]


The final National Report of the Royal Commission into Aboriginal Deaths in Custody3 (the “Royal Commission”) was tabled in Federal Parliament in May 1991. It was the culmination of almost four years of work by the Royal Commission, and needs to be read in the context of 99 individual case reports and four regional reports of the Royal Commission. The work was hailed as a landmark in Aboriginal affairs, as the most comprehensive review of the needs and opportunities for change ever produced.

Broadly speaking, the 339 recommendations from the Royal Commission fall into two streams. One group is concerned with reforming the operation of the criminal justice system and reducing the level of over-representation of Indigenous people within the system through institutional reform. The second group addresses what has been referred to as the ‘underlying issues’. These are the social, cultural, economic and political factors which contribute to the likelihood of Indigenous contact with criminal justice agencies in the first instance. Overarching these two groups is recommendation 188 which requires Governments to negotiate with Aboriginal organisations and communities in applying the principle of self-determination to the design and implementation of programs and policies.

In 1995 the Aboriginal and Torres Strait Islander Commission (“ATSIC”) commissioned two research projects to consider various aspects of the progress in implementing the Royal Commission recommendations. One study considered Aboriginal deaths in custody which had occurred since May 1989 when the Royal Commission ceased its investigations.[4] The study evaluated the extent to which specific deaths in the post Royal Commission period indicated compliance with or implementation of the Royal Commission recommendations. The second study was concerned with evaluating the implementation of a number of specific recommendations from the Royal Commission which were designed to reduce the level of over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system.[5] Both studies therefore addressed the key issue of how well governments were carrying out reforms within their area of responsibility, including juvenile justice, police, corrections and law reform.

This article draws on both of these reports to consider the question of the ongoing high levels of Indigenous incarceration within the context of human rights. Much of the primary material referred to in this article derives from the research conducted by the two authors for Keeping Aboriginal and Torres Strait Islander People Out of Custody.[6]

The Worsening Custodial Situation

The available data shows little sustained improvement in the overall situation of Indigenous people in the criminal justice system, if measured by imprisonment rates, police custodial rates, or the incidence of deaths in custody. We briefly consider below some of the relevant indicators.

Police Custodies

Police are the first point of contact with the criminal justice system and it is reasonable to start assessing the level of contact between Indigenous people and the criminal justice system at that point. There have been three National Police Custody Surveys conducted in August of 1988, 1992 and 1995. These surveys collect information on persons detained in police custody and held in police cells for any length of time.

Aboriginal and Torres Strait Islander people represented 31.8 per cent of all persons held in custody by the police during August 1995. The percentages for the same month in the 1988 and 1992 surveys were 28.6 per cent and 28.8 per cent respectively. Overall, the actual number of police custodies has dropped between 1988 and 1995. The reduction has been similar for both Indigenous and non-Indigenous groups. However, the increased proportion of Indigenous custodies in 1995 suggest that the non-Indigenous rate may be falling more quickly.

Despite the reduction in real numbers, there are still enormous disparities between the two groups. In 1995 the police custody rate for Indigenous people was 2,228 per 100,000 compared to 83 per 100,000 for non-Indigenous people. As a result, Indigenous people were 27 times more likely to find themselves in police custody than non-Indigenous people. The highest rate of Indigenous incarceration in police custody was in South Australia (4,841). The greatest level of over-representation was in Western Australia, where Indigenous people were 39 times more likely to be placed in police custody than non-Indigenous people. [7]

Another insight into the extent of contact between Indigenous people and police can be found in the results of the National Aboriginal and Torres Strait Islander Survey. The Survey found that one in five persons aged 13 years and over, and one in four persons aged between 15 and 44 years, had been arrested at least once in the previous five years. More than half of those arrested reported having been arrested on more than one occasion in the previous five years. The results suggested that a large number of arrests were for alleged disorderly conduct or drinking in public.[8]

Juvenile Detentions

The Royal Commission noted that, “At no level of the criminal justice system is statistical information more inadequate than it is with respect to juvenile offenders”.[9] However, despite the limitations, the Royal Commission found that there were strong perceptions that the level of Indigenous juvenile over-representation was increasing in detention centre populations during the later part of the 1980s.[10]

It is only since 1993 that comparable national data has been available which identifies whether incarcerated young people are Indigenous or non-Indigenous. Between September 1993 and June 1996 the rate of incarcerated Indigenous young people increased by 24 per cent from 408 to 540 per 100,000. In real numbers there were 26 per cent more Indigenous young people in detention at the end of June 1996 than there had been three years previously.

During the same period the non-Indigenous rate increased by 4.7 per cent from 24.1 to 25.3 per 100,000. The level of over-representation of Indigenous young people was 21 at June 1996.[11] In other words, Indigenous young people were 21 times more likely to be locked-up in juvenile detention centres than non-Indigenous young people. At the same time they comprised 36 per cent of all young people held in detention centres.[12]

New South Wales and Western Australia were the States with the highest rates of Indigenous incarceration (746 per 100,000 and 734 per 100,000 respectively). Queensland had the highest level of over-representation of Indigenous young people (41.1).[13] A report from the Australian Institute of Criminology concluded:

There appears to be little cause for optimism in relation to the over-representation of Indigenous juveniles in detention. Of particular concern are the consistently high number of Indigenous youth in detention in NSW, Queensland and WA; the likelihood that very young detainees will be Aboriginal [and] the steady increase in the rate of detention of Indigenous juveniles in Australia.[14]

Adult Imprisonment

Indigenous imprisonment rates have grown steadily since the late 1980s. Between 1988 and 1993 the number of Indigenous people imprisoned increased by more than one third. The rate of Indigenous imprisonment rose from 1,232 to 1,438 per 100,000. Although Non-Indigenous imprisonment also increased, the rate in 1993 was 102 per 100,000. Thus, by June 1993 Indigenous people were 14 times more likely to find themselves imprisoned than non-Indigenous people— identical to the level of over-representation six years earlier in 1988.[15]

New prison data collection methods have been utilised since 1994 and are not strictly comparable with previous figures. However, since July 1994 Indigenous imprisonment figures have continued to rise. In July 1994 there were 2,742 Indigenous people in prison throughout Australia. This number represented 17.5 per cent of the total prison population, an Indigenous rate of 1598 per 100,000, and an over-representation of 16.5. As of March 1996, there were 3,069 Indigenous prisoners which comprised 19 per cent of all Australian prisoners. The rate was 1,786 per 100,000, and the level of over-representation as measured by comparing Indigenous and non-Indigenous imprisonment rates had risen to 18.3.[16]

Deaths in Custody

Traditionally, deaths in custody have been defined as incidents where individuals die in a police lock-up, prison or juvenile detention centre, or where deaths have occurred when a person in custody has been transferred to a medical or other facility.

As recommended by the Royal Commission, the definition of a death in custody was expanded with effect from 1990 to include deaths which occur in situations where police and custodial officers are attempting to detain a person. The expanded category includes primarily cases arising from high speed police vehicle pursuits and sieges.

Irrespective of whether the more restrictive or expansive definition of a death in a custody is used, it is clear that the number of Aboriginal deaths in custody remains at record levels. Comparisons can be made for the period 1980 to 1996 if the more restrictive definition of a death in custody is utilised. Fourteen Aboriginal deaths in custody occurred in 1995–96. This figure was equal to the number in 1993–94 and 1989–90, lower than 1986–87 and 1988–89, and greater than the other eleven years in the period. Looked at from another perspective, there have only been two years in the last sixteen when there were more Aboriginal deaths in custody than in 1995–96.[17]

Comparisons of Aboriginal deaths in custody using the expanded definition reveal that there were 19 Aboriginal deaths in 1995–96. This was the largest number in any of the six years from the final reporting of the Royal Commission and when new definitions of deaths in custody became applicable (1990).[18] Indigenous people were also 16.5 times more likely than non-Indigenous people to die in custody during the period between 1990 and 1996. The higher rate reflected the disproportionately high number of Aboriginal and Torres Strait Islander people in custody, combined with the elevated number of Aboriginal deaths.[19]

A further factor of note is the change in the location of Aboriginal deaths in custody since the beginning of the 1990s. When the Royal Commission was investigating deaths in custody some two thirds had occurred while the victim was in the custodial authority of the police. In 1995–96 more than two thirds of the deaths occurred in prison custody. Similarly the States with higher proportions of deaths have also changed, moving primarily from Western Australia to New South Wales.

The investigation of recent deaths in custody by the Office of the Aboriginal and Torres Strait Islander Social Justice Commission found, of the 179 recommendations specifically aimed at changing the criminal justice and coronial systems, that an average of 8.5 recommendations were breached in each death.[20]

The evidence on police custody, juvenile detention, adult imprisonment and deaths in custody show a picture of little progressive change since the Royal Commission handed down its findings and made such extensive recommendations in 1991. Both of the ATSIC commissioned reports which evaluated Government responses to the Royal Commission recommendations found critical failures on the part of Governments to implement the recommendations. This failure, along with other associated factors such as a more punitive approach to law and order generally, has exacerbated an already unacceptable situation.[21]

It is clear that Australian Governments have failed to resolve the issue of the extraordinary level of criminalisation and imprisonment of Indigenous people. International comparisons also demonstrate an appalling record. For example, Indigenous people in Australia, Canada and New Zealand are disproportionately represented in their respective prison populations. However, the ratio of that disproportion is greatest in Australia. A comparison of incarceration rates per 100,000 between Indigenous people in Australia and New Zealand in 1993 showed an imprisonment rate four times higher in Australia. While some allowances must be made for differences in data collection methods and procedures, it is undeniable that Australia incarcerates proportionately more Indigenous people than Canada and New Zealand.[22]

A Matter of Human Rights

The abuse of human rights in Australia has been in focus internationally for over a decade since Amnesty International began to raise questions concerning Aboriginal deaths in custody in the 1980s.[23] Since 1988, annual Amnesty International Reports have reported on Australia in relation to potential human rights abuses primarily associated with Indigenous deaths in custody. A specific report on Australia was issued in 1993 which focussed on the relationship between Aboriginal people and the criminal justice system. It found that “conditions in certain facilities may amount to cruel, inhuman or degrading treatment”, and that systemic problems associated with disproportionate levels of incarceration of Aboriginal and Torres Strait Islander people may “violate their right ‘to be treated with humanity and with respect for their inherent dignity of the human person’, as set out in Article 10 of the International Covenant on Civil and Political Rights”.[24]

In 1997. Meanwhile in January 1997, Amnesty’s Focus newsletter questioned Australia’s commitment to human rights. While other issues such as police shootings, Tasmania’s criminal code and the detention of asylum seekers were also considered, the main thrust of the newsletter was the treatment by criminal justice authorities of Indigenous people. Amnesty accused Australia of a “wavering commitment to human rights” and noted that:

Aboriginal Australians have been ill-treated and abused by state officials, and suffer systemic discrimination. Incidents of ill-treatment by police have gone unpunished. The government has also taken decisions that appear to undermine its stated commitment to human rights.[25]

The annual US State Department’s Country Reports on Human Rights Practices have also been critical of Australia since the late 1980s. Inevitably these criticisms have centred on Australia’s record of treatment of Indigenous people, particularly with regard to the operation of the criminal justice system. The report for 1996 noted that Aboriginal people continue to suffer “significantly higher rates of imprisonment ... and general discrimination which contribute to an overwhelming feeling of disenfranchisement”.[26]

The application of a human rights perspective to the issue of the ongoing extreme over-representation of Indigenous people in Australian criminal justice systems can usefully begin with a consideration of Australia’s obligations under existing conventions, as well as a consideration of emerging human rights norms specifically applicable to Indigenous peoples.

A number of commentators have considered the question of existing treaty obligations and emerging international law to both issues of Aboriginal deaths in custody,[27] and the Royal Commission recommendations which were developed specifically to reform Australian criminal justice systems.[28] Various articles and provisions of human rights instruments including the International Covenant on Civil and Political Rights (“ICCPR”), the International Covenant on Economic, Social and Cultural Rights (“ICESCR”),the Convention Against Torture and Other Cruel or Degrading Human Treatment (“CAT”), the Convention on the Rights of the Child (“CROC”), the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention on the Elimination of All Forms of Racial Discrimination (“CERD”), the Standard Minimum Rules for the Treatment of Prisoners and the Standard Minimum Rules for the Administration of Juvenile Justice have all been considered in relation to their applicability to the situation of Aboriginal and Torres Strait Islander people in Australia.[29] One area which was omitted from any serious discussion was the potential relevance of provisions under the Convention on the Elimination of all Forms of Discrimination Against Women (“CEDAW”). This is part of the much broader problem of the relative failure to consider gender specific issues by the Royal Commission.

In relation to the ICCPR, the Aboriginal and Torres Strait Islander Social Justice Commission has noted that there are a number of articles which relate to various Royal Commission recommendations including racial discrimination (Article 2(1)); right to life (Article 6); torture or cruel, inhuman or degrading treatment or punishment (Article 7); arrest and detention (Article 9); prison conditions and treatment with humanity and respect (Article 10); court processes (Article 14); right of peaceful assembly (Article 21); and equality before the law (Article 26).[30]

Some of these rights are also detailed in CAT and CERD. Article 5 of CERD requires states to prohibit and eliminate racial discrimination. In addition Article 2 requires states to implement policies which include the review of existing legislation and practices which have the effect of creating or perpetuating racial discrimination. Ongoing discriminatory police discretionary practices and the discriminatory application of some laws (such as ‘street offence’ legislation) could be usefully considered in respect of Article 2.

In relation to CROC, there are a number of articles which are reflected at least partially in Royal Commission recommendations including arrest and detention as a last resort and the utilisation of alternatives (Article 37(b)); separation from adults detainees[31], treatment with humanity and respect, treatment suitable for age (Article 37(c)); treatment to promote a child’s sense of dignity and promotion of the child’s reintegration into society (Article 40.1); the availability of a variety of sentencing dispositions (Article 40.4); and the opportunity for a child to express his or her views in any judicial or administrative proceedings which affect him or her (Article 12). CROC establishes the child’s best interests as a primary consideration (Article 3.1) and those best interests will normally be to be brought up by the birth family and by both parents (Articles 8 and 9). CROC also established a right of the child to inherit and participate in the culture into which it was born and an obligation on the state to provide assistance if a child is removed from its cultural environment (Articles 8.1, 20, 29.1(c) and 30).

The Aboriginal and Torres Strait Islander Social Justice Commission has argued that “the failure of State and Territory Governments to properly implement the findings of the Royal Commission raises serious questions as to whether these instruments are being complied with by Australia”.[32] In particular compliance with Articles 2(1), 9, 10 and 14 of ICCPR; Articles 1, 2 and 5 of CERD; Article 5 of CAT;[33] and Articles 37 and 40 of CROC is questioned by the Commission.[34]

The Commission’s report suggests how the failure to implement recommendations might be used to formulate a successful communication to the Human Rights Committee for breaches of various articles of the ICCPR, as well as other treaty-based committees. The Commission notes that:

There is considerable scope for international action. For many recommendations, domestic avenues will be more worthwhile. However, for some recommendations, a communication to the various committees may be the only remedy.[35]

The report by Cunneen and McDonald considered 74 recommendations from the Royal Commission which were designed to directly reduce the number of Aboriginal and Torres Strait Islander people coming into police and prison custody. The research found that the recommendations had not been adequately implemented and that there was a massive lost opportunity to resolve issues which lead to the unnecessary incarceration of Indigenous people.[36] The report does not use an approach that directly considers human rights issues. It is primarily concerned with evaluating government policy. However, the main argument of the report centres around the extent to which criminalisation, police custody and imprisonment are utilised in situations where alternatives could be found if Royal Commission recommendations had been adequately implemented and/or adhered to. In other words, the nature and extent to which criminalisation and imprisonment are being used against Indigenous people does constitute a critical failure to conform to a number of international instruments to which Australia is a party. Australian Governments are not only failing to adequately implement Royal Commission recommendations, they are also failing to ensure the conditions for compliance with international standards in human rights.

Unnecessary Criminalisation/Unnecessary Custodies

The critical issue in relation to the findings of the Royal Commission is the extent to which criminalisation, police custody and imprisonment are still used unnecessarily with Indigenous people. Associated with these issues are a variety of human rights questions in relation to compliance with key international treaties and conventions including the ICCPR, CROC, CAT and CERD. As will be discussed further below, there are also questions raised in terms of emerging human rights norms to be found in the draft Declaration on the Rights of Indigenous Peoples.


Recommendation 60 of the Royal Commission called for the elimination of violent treatment, verbal and racist abuse by police. Racism and physical abuse by police are still seen to be a major problem throughout Australia. The researchers were informed of beatings and racist abuse by police officers against Aboriginal people in most States.[37] The widespread complaint of ill-treatment continues to raise issues in relation to compliance with Articles 7 and 10 of the ICCPR. Similarly, recommendation 88 called for a consideration of the issue of over-policing in Aboriginal communities. The research found that there is still a widespread view that harassment and heavy-handed policing of Aboriginal people by police is a critical issue.[38]

There were several recommendations (239–241) which were designed to encourage greater police use of cautions and discourage the use of arrest when dealing with juveniles. These recommendations are consistent with Article 37 of CROC. In some jurisdictions like NT, QLD and NSW the normal procedure is to arrest and charge a young person. Process by way of summons is utilised in a minority of cases. There is also widespread evidence that in most jurisdictions Indigenous young people are less likely to receive a police diversionary caution than non-Indigenous youth. Evidence from NSW has shown that this disparity in treatment holds even where the offence and prior criminal history for both individuals is the same.[39] Such disparities imply a failure to ensure racial equality in the application of legal processes, and hence a failure to comply with CERD.

There was also a more general recommendation (87) that arrest should be used as a sanction of last resort for adults. The results of the National Police Custody Survey demonstrate the over-representation of Aboriginal people in arrest statistics and strongly suggest that arrest is not used as a last resort option. Aboriginal organisations consistently maintained that arrest was used as the first resort option even in minor matters. Particular incidents such as the death of Daniel Yock in police custody demonstrate the police preference for proceeding by way of arrest.[40]

Contrary to recommendation 86, there were widespread complaints by Aboriginal organisations throughout Australia concerning the use of public order offences. Arrests and charges for offences relating to language and behaviour are still made in situations initiated by police. Informants in Aboriginal organisations consistently advised the researchers that breaching this recommendation is a daily occurrence across the nation: Aboriginal people are being arrested, placed in police custody and imprisoned on the basis of behaviour that the police find offensive, but that is precipitated by police actions.

Police Custody

The Royal Commission made a number of recommendations (79–83) designed to decriminalise public drunkenness and eliminate the use of police custody for intoxicated persons in unnecessary situations. Public drunkenness remains a criminal offence in Victoria, Tasmania and Queensland despite recommendation 79. In many jurisdictions there is also a range of other legislation and local by-laws which can have the effect of criminalising alcohol consumption in a public place such as the 2km law in the NT and street drinking legislation in NSW.

Throughout Australia many Aboriginal people find themselves either in police custody, before the courts or, in some cases, in prison because they have committed no substantive offence other than consume or be affected by alcohol. In Victoria there was a 97 per cent increase in charges for public drunkenness between 1994 and 1995. Aboriginal people are estimated to over-represented by a factor 14.7 in drunkenness charges.[41] In some parts of rural Victoria it has been estimated by the Aboriginal Legal Service that 40 per cent of all arrests of Aboriginal people are for public drunkenness. In parts of Queensland Aboriginal and Torres Strait Islander people are fined up to $150 for public drunkenness. These people inevitably end up in the police watchhouse to “cut out” the fine. The 1995 National Police Custody Survey revealed that public drunkenness was a major reason for the use of police custody in Queensland. Some 35 per cent of all Indigenous people taken into police custody in Queensland where the offence was recorded were for public drunkenness.

The report concluded that there was enormous potential to reduce the number of Indigenous people in police custody through the implementation of these recommendations. The failure to do so was based on a lack of political will, the refusal to allocate the necessary resources and, in some settings, community opposition to sobering-up facilities. Anomalies and discriminatory practices abound in the operation of public drinking legislation, appealing to racist elements in the community and in local government.

Recommendation 242 of the Royal Commission stated “that, except in exceptional circumstances, juveniles should not be detained in police-lock-ups”. Informal juvenile holding homes, particularly homes of Aboriginal people should be utilised. As noted above Article 37(b) of CROC also requires that arrest and detention following arrest should be measures of last resort. Alternatives should be utilised unless the circumstances are exceptional.

Despite all Australian Governments reporting that they had implemented this recommendation, there was widespread concern nationally that Aboriginal young people were continuing to be held in police cells. Although it is difficult to get national data, the results of the 1995 National Police Custody Survey showed that 40 per cent of all young people held in police cells during the reporting period were Indigenous. Interviews with Aboriginal organisations revealed many routine instances of the use of police cells for Aboriginal young people. In Hobart there were no other alternatives within reasonable distance. In Cairns young people were held for days awaiting transport back to their communities or to other accommodation. In Queensland some 60 per cent of juvenile detentions in police watchhouses for overnight or longer were Aboriginal or Torres Strait Islander children. In Alice Springs there were no alternatives to the police cells and children were held when they were unable to meet bail requirements even for relatively minor offences. In Darwin there were no alternative holding homes established and the police cells were still utilised.[42] The authors concluded that “proper implementation of the recommendation would result in a significant reduction in the number of Indigenous young people held in police custody”.[43] It would also ensure greater compliance with CROC.


Probably the most well known of the Royal Commission recommendations is 92, which requires Governments to legislate to enforce the principle that imprisonment should be utilised as a sanction of last resort. The principle underlying this recommendation is critical to obtaining a reduction in the over-representation of Indigenous people in prison. However, the political and legislative shift in recent years has been towards the greater use of imprisonment. The move has been distinctly towards a greater emphasis on deterrence and has seen the abolition of remissions, the establishment of minimum non-parole periods and fixed sentences without the availability of parole. In WA and NT there has been the introduction of mandatory terms of imprisonment for specific offences and types of offenders.[44]

Mandatory ‘three strikes’ type legislation particularly impact on Aboriginal people because of their greater likelihood of a prior offending history. It has been argued that mandatory sentences, besides breaching the Royal Commission recommendation, are also in breach of Article 9(1) of the ICCPR, Articles 3 and 37(b) of CROC, as well as the Standard Minimum Rules for the Administration of Juvenile Justice.[45]

There are many examples in both the adult and juvenile court where it can be argued that imprisonment is not used as a sanction of last resort for Indigenous people. Specific cases referred to in the report include the use of imprisonment for “fail to appear” before court,[46] for convictions of habitual drunkenness,[47] for vagrancy,[48] or in the case of a 13 year old sentenced to 21 months because the magistrate was at a loss as to what to do with the child.[49]

It is difficult to avoid the conclusion that at a policy level imprisonment is not used as a sanction of last resort. It is ridiculous for States and Territories to claim that it is, when the general thrust of sentencing policy over the last few years has been in the opposite direction. Even in the few jurisdictions with relatively low imprisonment rates such as Victoria and Tasmania, the Royal Commission’s recommendation should be carefully considered. For instance, in Victoria the general low imprisonment rate does not hold for Aboriginal people. In Tasmania, fine defaulters and people serving short term sentences still find their way into prison.

In relation to sentencing juveniles, there is widespread research data which shows that Indigenous young people generally receive harsher outcomes in the Children’s Court and are more likely to be sentenced to detention. While there are a number of factors at work including differing offence patterns and longer criminal histories for Indigenous youth, there are also patterns of cumulative discrimination which inevitably lead to greater use of incarceration.[50] These differences in treatment again raise issues of compliance with the ICCPR, CROC and CERD.

Indigenous Community-Based Sentencing Alternatives

There were several inter-related recommendations in the Royal Commission’s report which related to expanding the availability of non-custodial sentencing options and ensuring Aboriginal participation in their design and implementation (recommendations 109, 111–114 and 116).

In the area of juvenile justice, recommendations 236 and 238 emphasise the role of Aboriginal organisations in developing and implementing community-based youth programs. Adequate resources must be provided for these programs to be successful.

Aboriginal child care agencies, resources agencies and legal services all expressed a desire for greater involvement in the design and development of non-custodial sentencing options.[51] A critical problem that emerged was the lack of alternatives for Indigenous people — even where the sentencing alternatives might be technically available as a sentencing option. A related problem is the lack of commitment to Aboriginal-run and controlled programs in the community. Most States have a few Aboriginal-run community alternatives but nowhere near enough to deal with the number of Aboriginal people in prison.

The lack of adequate funding for Indigenous community-based alternatives to the formal criminal justice system is a national problem. The lack of alternatives undermines principles of arrest, detention or imprisonment as last resort options. It also undermines the right of self-determination, and directly and inevitably results in more Indigenous people in custody.


Of all the rights available for the protection and promotion of Indigenous well-being, the right to self-determination is widely considered by Indigenous people in Australia and internationally as one of the most fundamental.[52]

Article 1 of the ICCPR and Article 3 of the draft Declaration on the Rights of Indigenous Peoples (the “draft Declaration”) describe the right of self-determination as involving the free choice of political status and the freedom to pursue economic, social and cultural development. Article 4 of the draft Declaration further provides that

Indigenous people have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems, while retaining their rights to participate fully, if they choose, in the political, economic, social and cultural life of the State [emphasis added].

There are a number of other articles in the draft Declaration which establish rights for Indigenous people as well specifying the potential areas which might be included in the exercise of a right to self-determination.

Articles 6 and 7 deal with genocide, ethnocide and cultural genocide. Article 6 deals directly with genocide including the prohibition on the removal of children. Article 7 expands international human rights through the development of provisions on ethnocide and cultural genocide.[53] Article 7(d) prohibits “any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures”. Certain forms of criminalisation and imprisonment by non-Indigenous legal systems could conceivably contravene this provision.

Articles 19, 20 and 23 of the draft Declaration further recognise a right of Indigenous peoples to autonomy or self-government and control over decisions affecting them, including a right to maintain and develop Indigenous decision-making institutions, and a right to determine and develop social and economic programs affecting them and to administer such programs through Indigenous institutions.

The Royal Commission did not consider at length either the jurisprudential aspects of self-determination or a concrete political framework for the development of Indigenous self-determination in Australia. Indeed, at the time the Royal Commission reported, the draft Declaration was still being formulated. However, the Royal Commission did place the principle of self-determination at the core of its approach to resolving the issue of Aboriginal deaths in custody and the over-representation of Indigenous people in the criminal justice system.

As noted at the beginning of this paper, the centrality of self-determination is reflected in recommendation 188. However, it is also the implicit principle in a range of other recommendations (including recommendations 62, 84, 88, 109, 111–114, 116, 214, 215, 223, 235, 236 and 238). These recommendations demand negotiation and consultation between Governments and Aboriginal communities and organisations. In this sense, the Royal Commission was not prescriptive. “A conscious decision was made not to attempt to provide a blueprint for a ‘perfect’ system, but rather to recommend a co-operative, negotiated, community-based approach to addressing problems”.[54]

Policing and Negotiated Responses

There were several recommendations (214, 215, 223) made by the Royal Commission which require negotiation with Aboriginal communities and organisations to develop Aboriginal community policing strategies, as well as procedures and protocols for state policing in Aboriginal communities. Recommendation 88 also called for a review of issues relating to over-policing and the development of appropriate police responses.

These recommendations rest on the observation that in some areas Aboriginal organisations have already made a substantial contribution to the resolution of local law and order issues in their own communities. These have operated best where there has been “shared jurisdiction” between the community and the state police.

The research found that in developing these approaches there was still inadequate regard by Governments to recommendation 188 and the principle of self-determination. The development of community policing strategies demands at least a foundation of respect. For many police at the local level it involves a transformation from seeing Aboriginal people as a problem to be policed, to seeing Aboriginal people as important and valued members of a community who have a right and a desire to formulate effective law and order strategies for their own communities.[55]

At a practical level, the Royal Commission recommended the formulation of protocols to regulate the interaction between police and Indigenous organisations at the local level. There are a few outstanding examples such as the one in Alice Springs negotiated between police and Tangentyere Council. However, generally this recommendation has been ignored.[56]

The research concluded that there needs to be greater commitment to the development of effective community policing strategies which take seriously the demand to negotiate with Aboriginal communities about suitable processes and outcomes. The ideas embedded in recommendation 188 concerning self-determination are still poorly understood and poorly complied with.[57] Collaborative and negotiated planning between police and communities could have an instrumental effect in reducing custody levels.[58]

A similar situation was evident in relation to recommendation 84 which requires negotiation between local governments, police and Aboriginal organisations to produce generally acceptable plans for public drinking. There were very few examples of this approach being adopted. Rather than negotiate with Aboriginal organisations, police and local council often collaborated to devise plans aimed at Aboriginal people. Again the central failing here has been to ignore principles of negotiation and self-determination.

Juvenile Justice

The principle of self-determination and the need for Aboriginal communities to be in a position to develop their own responses to Indigenous young people was fundamental to the main recommendation from the Royal Commission in relation to juvenile justice and child welfare. Recommendation 62 called on Governments to negotiate with Aboriginal communities and organisations to find acceptable solutions to reduce the rate of separation of Indigenous young people from the families and communities. However, it is clear that legislation impacting on Indigenous young people is often introduced without negotiation and against the expressed interests of Indigenous organisations. These include fundamental changes to sentencing practices which introduce mandatory sentences for juveniles (such as in NT and WA), as well as localised examples of public order ordinances (such as in Southbank in Brisbane), and particular diversionary schemes such as community conferencing.[59] After reviewing the situation nationally, the authors conclude that the focus of the recommendation on negotiating with Aboriginal communities and organisations has been lost. Indeed far from implementing a process for self-determination, more punitive law and order approaches towards young people are likely to see the ongoing escalation of rates of detention for Indigenous youth.

Recommendation 235 requires that the primary source of advice about Aboriginal young people should derive from Aboriginal communities and organisations. It recognises that decisions in juvenile justice and welfare are too frequently made by non-Indigenous people. The recommendation calls for a legislative basis for Indigenous input into decision-making. There have been no legislative responses to this recommendation setting out requirements for negotiation and consultation in juvenile justice. The available processes for Indigenous organisations to contribute to decisions are inadequate and are not always adhered to in practice.[60] Indeed some jurisdictions (like Queensland and NSW) have opted for legislation which compels parents to attend court and punishes them if they fail to comply, rather than adopting legislation to ensure negotiation and consultation with Indigenous organisations.


Recommendation 104 requires that sentencing authorities consult with Aboriginal communities concerning the general range of sentences as well as for advice on specific sentences for particular offenders. The Royal Commission recognised that Aboriginal people throughout Australia have expressed a desire for much greater involvement in court processes, particularly sentencing. Previous efforts to involve Aboriginal people in sentencing decisions have been haphazard. They have rarely been concerted in nature and generally not based on legislation. The recommendation is consistent with the principle of self-determination and recognises the fact that Aboriginal communities are in the best position to understand the impact of criminal behaviour on their communities, the needs of victims and offenders, and the likely impact of particular sentences.

A review of the situation five years after the recommendation was written indicates that attempts to involve Aboriginal people in the sentencing process are still “haphazard, piecemeal and ad hoc” and without an adequate legislative base.[61]


This article has drawn out some of the major problem areas which emerged from the research into the implementation of Royal Commission recommendations some five years after their original formulation. The discussion has attempted to place these recommendations within a broader framework of human rights. The discussion itself has been by no means exhaustive. There are many other matters which could have been raised including access to bail, the execution of warrants, imprisonment for unpaid fines, judicial decision-making by untrained justices of the peace, access to legal representation, considerations of duty of care by custodial officers, and access to adequate medical services when in custody to name a few.[62] In the previous discussion we have simply referred to some of the more outstanding and general issues.

A further area which warrants far greater treatment is the relationship between Indigenous women and the criminal justice system. Neither of the recent research reports on government implimentation of Royal Commission recommendations deal with this issue to any significant extent.63 This is partly because the Royal Commission recommendations were themselves not specific about the needs of Indigenous women.64 Thus the recent evaluative studies on government implementation tend, by their nature, to reinforce this omission. However, it is noted that ten of the 103 post Royal Commission deaths investigated by the Aboriginal and Torres Strait Islander Social Justice Commissioner were Indigenous women.[65] The majority of the women’s deaths were in police custody rather than prison, which again establishes a differing pattern to male Indigenous deaths in custody.[66] In a different context, the ongoing complaints concerning inadequate police responses to instances of sexual assault and domestic violence when Indigenous women are the victims can be considered in relation to CEDAW.[67]

The empirical data shows clearly that the incarceration of Indigenous adults and young people in police and prison custody remains a critical issue. Similarly there has been no resolution to the ongoing high incidence of Aboriginal deaths in custody. There has also been an apparent failure on the part of Governments to adequately implement the recommendations from the Royal Commission. This failure itself represents the loss of an opportunity to significantly reduce Indigenous custody levels.

In many areas the failure to implement the recommendations from the Royal Commission also represents a failure to ensure the enjoyment by Indigenous people in Australia of fundamental human rights. The single most critical failure relates to the reluctance on the part of Governments to take the issue of self-determination seriously. Indigenous discussions on the nature of self-determination have developed substantially since the Royal Commission reported in 1991. In Australia the Aboriginal and Torres Strait Islander Social Justice Commission, ATSIC and the Council for Aboriginal Reconciliation have all progressed serious discussion on the issue. In the international arena the draft Declaration on the Rights of Indigenous Peoples provides clear guidance on Indigenous aspirations. In other comparable countries such as Canada the dynamics and possibilities of Indigenous self-government and shared jurisdiction in various fields including criminal justice are becoming political realities.[68] Governments in Australia have yet to reach the relatively modest goals set by the Royal Commission at the beginning of the 1990s.[69]

[1] Institute of Criminlogy, Faculty of Law, University of Sydney.

[2] Australian Institute of Criminology, Canberra.

[3] Johnston E National Report, Royal Commission into Aboriginal Deaths in Custody (AGPS, Canberra, 1991).

[4] Office of the Aboriginal and Torres Strait Islander Social Justice Commission Indigenous Deaths in Custody 1989 to 1996 (ATSIC, Canberra, 1996).

[5] Cunneen C and McDonald D Keeping Aboriginal and Torres Strait Islander People Out of Custody (ATSIC, Canberra, 1997).

[6] Ibid.

[7] Ibid pp 20-22.

[8] Ibid p 22.

[9] Royal Commission, op cit vol 2, p 254.

[10] Ibid vol 2, p 263.

[11] The level of over-representation is the ratio between Indigenous and non-Indigenous rates of incarceration.

[12] Atkinson L “Detaining Aboriginal juveniles as a last resort: Variations from the theme” Trends and Issues in Crime and Criminal Justice No 64 (Australian Institute of Criminology, Canberra, 1996).

[13] Ibid.

[14] Ibid.

[15] Cunneen and McDonald op cit pp 24-30.

[16] McDonald D & Cunneen C (forthcoming) “Aboriginal incarceration and deaths in custody: looking back and looking forward” Current Issues in Criminal Justice.

[17] Ibid.

[18] Ibid.

[19] Office of the Aboriginal and Torres Strait Islander Social Justice Commission, op cit p xiii.

[20] Ibid p xiv.

[21] Ibid pp xii-xxi; Cunneen and McDonald, op cit pp 7-11.

[22] Cunneen and McDonald, op cit p 35.

[23] See, for example: Amnesty International, Urgent Action 187/88, “Death in Custody Australia: Edward Charles Cameron” (International Secretariat, London 15 July 1988); Amnesty International, Urgent Action 284/88, “Death in Custody Australia: Graham Walley” (International Secretariat, London 28 October 1988).

[24] Amnesty International A Criminal Justice System Weighted Against Aboriginal People (International Secretariat, London 1993) Summary, p 1.

[25] Amnesty International “Australia: A champion of human rights?” (1997) 27(1) Focus 3.

[26] Quoted by Hewett J “Indonesia: US Speaks Canberra Silent” Sydney Morning Herald 1 February 1997, 17.

[27] Hookey J Aboriginal Deaths in Custody: International Law Issues (Aboriginal Law Centre, University of NSW, 1990).

[28] Office of the Aboriginal and Torres Strait Islander Social Justice Commission, op cit pp 312–319.

[29] Ibid, and Hookey, op cit p 24.

[30] Office of the Aboriginal and Torres Strait Islander Social Justice Commission, op cit p 315. Hookey also discusses the potential application of many of the same articles to issues arising from deaths in custody. Hookey, op cit pp 37-88.

[31] Australia has submitted a reservation on this part of the Convention arguing that geography makes total segregation difficult to achieve and that responsible authorities should have discretion to decide whether it is beneficial for a child or juvenile to be imprisoned with adults.

[32] Office of the Aboriginal and Torres Strait Islander Social Justice Commission, op cit p x.

[33] Two Queensland deaths investigated by the Social Justice Commission suggest possible breaches of CAT. Ibid pp 428-435.

[34] Ibid p x.

[35] Ibid p 318.

[36] Cunneen and McDonald, op cit.

[37] Ibid pp 90-93.

[38] Ibid pp 119-121.

[39] Ibid pp 178-182.

[40] Ibid pp 116-118.

[41] Ibid p 107.

[42] Ibid pp 182-184.

[43] Ibid p 184.

[44] Ibid p 130.

[45] Dodson M Aboriginal and Torres Strait Islander Social Justice Commissioner Third Report (AGPS, Canberra, 1995) pp 38-39.

[46] For a variety of reasons, Aboriginal people are likely to “fail to appear” before the court, and face imprisonment as a result. Cunneen and McDonald, op cit p 128.

[47] A recent Victorian example of a 64 year old man serving two months imprisonment in Pentridge Gaol for a conviction of habitual drunkenness is cited in the report, ibid p 126.

[48] Aboriginal men have received convictions for imprisonment for several months under Queensland vagrancy laws, ibid p 115.

[49] Ibid pp 67-68.

[50] Luke G and Cunneen C Aboriginal Over-Representation and Discretionary Decisions in the NSW Juvenile Justice System (Juvenile Justice Advisory Council of NSW, Sydney, 1995). Gale F, Wundersitz J and Bailey-Harris R Aboriginal Juveniles and the Criminal Justice System (Cambridge University Press, Melbourne, 1990).

[51] Cunneen and McDonald, op cit pp 138-139, 176-178.

[52] See the discussion in Dodson M Aboriginal and Torres Strait Islander Social Justice Commissioner First Report (AGPS, Canberra, 1993). For a discussion of the right to self-determination in the context of the draft Declaration on the Rights of Indigenous Peoples, see Coulter R “The Draft UN Declaration on the Rights of Indigenous Peoples: What is it? What does it mean?” (1995) 13 (2) Netherlands Quarterly of Human Rights 123.

[53] Burger J and Hunt P “Towards the protection of Indigenous peoples’ rights” (1994) 12 (4) Netherlands Quarterly of Human Rights 405.

[54] Dodson M Aboriginal and Torres Strait Islander Social Justice Commissioner Fourth Report (AGPS, Canberra, 1996) p 200.

[55] Cunneen and McDonald, op cit pp 94-97.

[56] Ibid pp 100-102.

[57] Ibid p 103.

[58] Ibid p 121.

[59] Ibid pp 170-174.

[60] Ibid pp 174-176.

[61] Ibid pp 135-137.

[62] These matters are dealt with in the two reports. See Cunneen and McDonald, op cit and Office of the Aboriginal and Torres Strait Islander Social Justice Commission, op cit.

[63] Ibid.

[64] See Kerley K and Cunneen C “Deaths in custody in Australia: The untold story of Aboriginal and Torres Strait Islander women” (1995) 8(2) Canadian Journal of Women and the Law 531.

[65] Office of the Aboriginal and Torres Strait Islander Social Justice Commission, op cit pp 324-327.

[66] Cunneen C and Kerley K “ Indigenous women and criminal justice: Some comments on the Australian situation” in Hazlehurst K (ed) Perspectives of Justice (Avebury, Aldershot 1995) p 71.

[67] Cunneen and McDonald, op cit pp 58-60, 120.

[68] See the Canadian Royal Commission on Aboriginal Peoples for an extensive discussion on the relationship between Indigenous self-determination and the development of Native criminal justice systems. Royal Commission on Aboriginal Peoples Bridging the Cultural Divide. A Report on Aboriginal People and Criminal Justice in Canada (Canada Communication Group, Ottawa, 1996).

[69] The Royal Commission spoke primarily in the language of “consultation and negotiation”. The issue of Indigenous self-government and the exercise of exclusive Indigenous jurisdiction is largely absent from its immediate concerns.

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