The Indigenous Population and the Criminal Justice System




Australia’s legal system seeks to uphold the rule of law through a criminal justice system which endeavours to effectively maintain natural justice and protect all members of society. However, despite the presumption of innocence until proven guilty, many populations or groups have become increasingly involved with the criminal justice system to an excessive degree. In particular, culturally exclusive processes and narrowly distributed services incorporate racial bias which negatively impacts those who live in rural areas; comprising largely of Indigenous peoples (National Rural Health Alliance 2011). Thus, this population experiences disproportionate levels of interaction with the justice system throughout their lives due to the unique circumstances they possess. Overall, the overrepresentation of the Indigenous population is a direct result of the system’s failure to incorporate or adjust to meet the specific needs of the marginalised.


The Indigenous population has experienced significant disadvantage and marginalisation throughout history within many areas of the criminal justice system. Such disadvantage has become increasingly amplified for those who live in rural areas, and therefore experience adverse intersectionality to an extraordinary degree. Indigenous peoples are at a higher risk of experiencing multiple forms of persistent disadvantage at a rate of 60%; four times the national average (McLachlan, Gilfillan & Gordon 2013). Moreover, Indigenous people who live in rural areas comprise around 45% of the ‘very remote’ population, and are more likely to be unemployed and lack education (National Rural Health Alliance 2011). Concomitantly, disadvantage and service exclusion is the highest in rural areas and large towns which accommodates more than 29% of Australia’s population (Human Rights and Equal Opportunity Commission 1997). Therefore, this intersectional rural Indigenous population is entering the criminal justice system at an increased rate of 28%, in prisoner population, due to (1) the systems racially discriminatory nature which displays cultural ignorance and (2) a lack of support services.


Unfortunately, the Indigenous population is also entering the criminal justice system at an increased rate due to the narrowly focused structure of operations. The criminal justice system lacks consideration of the cultural differences, customary law, and polarising issues present within Indigenous societies (Law Reform Commission of Western Australia 2006). Principally, indigenous women share the reasoning of non-indigenous women with regards to their increased criminal justice system involvement; however they face an intersection of double disadvantage (O’Rourke 2002). Indigenous women have experienced the fastest increase in prisoner growth, at 34% of all women prisoners, and are more likely to be imprisoned for minor offences than even non-indigenous women (Kilroy 2016). Furthermore, physical and sexual abuse is experienced at a much higher rate by Indigenous women, which increases the likelihood of drug use and criminal activity. Simultaneously, Indigenous women are less likely to seek access to drug-treatment programs due to language barriers, discrimination, and distrust. Thus indicating a continual failure of the justice system to resolve these issues by implementing change, as well as affirming the finding of the Australian Law Reform Commission that Indigenous women are ‘multiply disadvantaged’ (Australian Law Reform Commission 1994).


Indigenous communities, in particular in rural areas, are also over-policed, which amplifies the potential for entrance into the criminal justice system; in particular as Indigenous persons are sentenced to imprisonment at 10 times the expected rate (NSW Legislative Council 2001). Moreover, when imprisonment results, Indigenous families that reside in rural areas are particularly impacted due to the significant distance of prisons away from homes, and the lack of transport availability. Likewise, the children of prisoners are 5 times as likely to end up in prison; which perpetuates the cycle of criminal justice system involvement for Indigenous youth (Bloom, Owen & Covington 2004, pp.35-40). Unfortunately, this too is exacerbated by the justice system as non-imprisonment pathways are less accessible for much of the Indigenous population because the alternative sanction of home detention is significantly limited for rural residents (NSW Legislative Council 2001).


Furthermore, the lack of support service options made available to the Indigenous community in rural areas has proven detrimental to their involvement with the criminal justice system. For example, in the case of Indigenous woman Robyn Kina, her stigmatisation and alienation by the criminal justice system led to a shocking miscarriage of justice. Ms Kina had been sexually assaulted and brutally beaten by her non-indigenous partner, and when he threatened to rape her 14 year old niece, a confrontation ensued that led to his death. She pleaded not guilty to murder, as there was no intent to kill him. However, due to her language barrier (Hanson, Avarita 2015, pp.76-79) and inability to communicate with her lawyers, very little evidence was produced. A 15 minute jury deliberation led to a guilty verdict and the sanction of life imprisonment with hard labour; of which she served several years before the injustice was recognised by television interviewers who utilised proactive communication methods (Eades 2003, pp.1109-1134). This case evidently affirms that support services are seriously lacking so as to bridge the gap of disproportionate disadvantage between marginalised groups and the rest of society. Thereby, the Indigenous population is entering the criminal justice system at an increased rate due to highly polarising and unresolved barriers which are inherent to the nature of the criminal justice system.


Overall, the increased rate of Indigenous people entering the criminal justice system can be explained by a lack of system-wide consideration for the marginalised. Indigenous populations are faced with biased procedures and societal strains, and must function with a lack of support services. Moreover, the Indigenous community are often multiply disadvantaged as a result of their rural location and cultural needs; which are often overlooked by the criminal justice system. Thus, the rapidly increased entrance of indigenous populations into the criminal justice system can be attributed to misguided legislation, unequal procedures, and delayed change.

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