No discrimination in Criminal Law
Criminal laws that are passed entirely without inclusion of discriminating factors can, through the operation of that law, on its face of universal application, create discrimination based on either non universal enforcement or based on the existence within one group of behaviours or factors which means the law is more likely to apply to persons from within that group.
It is clear that there is pronounced discrimination, in its broad sense, as regards aboriginal Australians and the criminal justice system.
The Australian Bureau of Statistics in 2013 produced the following as regards aboriginal incarceration rates22:
The rate of imprisonment for Aboriginal and Torres Strait Islander prisoners was15 times higher than the rate for non-Indigenous prisoners at 30 June 2012, an increase in the ratio compared to 2011 (14 times higher). The highest ratio of Aboriginal and Torres Strait Islander to non-Indigenous imprisonment rates in Australia was in Western Australia (20 times higher for Aboriginal and Torres Strait Islander prisoners).
Tasmania had the lowest ratio (four times higher for Aboriginal and Torres Strait Islander prisoners). (Table 4.2)
Between 2002 and 2012, imprisonment rates for Aboriginal and Torres Strait Islander Australians increased from 1,262 to 1,914 Aboriginal and Torres Strait Islander prisoners per 100,000 adult Aboriginal and Torres Strait Islander population. In comparison, the rate for non-Indigenous prisoners increased from 123 to 129 per 100,000 adult non-Indigenous population. (Table 4.2)
This incarceration rates Australia wide represents the reality that an aboriginal man is 15 times more likely that a non aboriginal man to be imprisoned.
Aboriginal people represent only 3% of the total population, yet more than 28% of Australia’s prison population is Aboriginal.23 As such 30% of prisoners incarcerated in Australia in 2014 (both male and female) are aboriginal. This rises to 42% for juvenile prisoners.
Australia is heading towards one in two of the prison population comprised by Aboriginal prisoners by 2020. In 1992, the ratio was one in seven.
The fastest growing portion of the prison population is aboriginal women. Between 2000 and 2010 the rate at which aboriginal women were imprisoned increased by 58.6%. Over that period the increase for non-aboriginal women was 22.4%. The rate of increase of imprisonment for aboriginal men over the same period was 35.2% (as opposed to 3.6% for non aboriginal men).
Re offending rates are similarly high and disproportionate.
Also of concern are statistics relating to aboriginal children involved in State Care and Protection (Child Welfare) jurisdictions and a similarly alarming rate of over representation.
In a 2013 statistical review by the Australian Institute of Family Studies24 (AIFS) it was observed that:
Aboriginal and Torres Strait Islander children are over-represented in the Australian out-of-home care system. In 2011-12, approximately 34% of all children in out-of-home care were identified as Aboriginal or Torres Strait Islander. Overall, rates of out-of-home care for both Aboriginal and Torres Strait Islander children and non-Indigenous children have continued to increase since 2000-01 (AIHW, 2013). The number of Aboriginal and Torres Strait Islander children in out-of-home care rose by 7% from 11,468 children in 2009-10 to 12,358 children 2010-11 (AIHW, 2012). These numbers continued to rise a further 7.6% in 2011-12 with 13,299 (55.1 per 1,000) placed into out-of-home care. Aboriginal and Torres Strait Islander children were 10 times more likely than non-Indigenous children to be placed in care nationally with rate ratios ranging from 3.4 in Tasmania to 15.8 in Victoria.
In the 10 years from 1998 to 2008 there was a 258% increase in the number of aboriginal children in NSW living in out of home care25 and such that the rate of aboriginal children in out of home care (largely government arranged care) is now higher than at any previous point in history including during the periods when the Office of the Protector of Aborigines was in existence and during the eras of the Stolen Generations. This is so at a time when adoption is proposed as a preferable outcome to care proceedings.26
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