The Guardian

Head of law reform inquiry into Indigenous incarceration says some laws have had unintended consequences and may need to be changed

indigenous man with hands clasped in street

Some laws affected Indigenous Australians so much they might need to be changed, said the head of a national inquiry into Indigenous incarceration.

The head of a national inquiry into Indigenous incarceration has said Aboriginal and Torres Strait Islander people might need to be treated differently by the justice system in order to achieve equity under the law.

Federal court judge Matthew Myers said Indigenous incarceration statistics had become “so bad” that it was difficult to argue some laws did not disproportionately affect Aboriginal and Torres Strait Islander people, and that those laws might need to be changed to address the problem.

Myers, a Gadigal-Wirradjuri man who was the first Indigenous Australian appointed to the bench of the federal court, was appointed to head up the Australian Law Reform Commission (ALRC) inquiry into Indigenous incarceration this month.

The inquiry received some criticism when it was announced by the federal attorney-general George Brandis last year. The former head of the prime minister’s Indigenous Advisory Council Warren Mundine called it a “joke” and said: “I don’t know who the dickhead is who actually thought up this incredibly brilliant idea … it’s just a total waste of taxation money.”

It was also met with scepticism by Western Australian Senator Pat Dodson, who said there had been a number of inquiries into Indigenous incarceration but very little action.

Myers acknowledged the chequered success of past inquiries, but said the ALRC inquiry would be different because it would recommend specific legislative changes rather than set broad targets.

The terms of reference for the inquiry also allow it to look at prejudicial policing practices and alternatives to incarceration, such as programs like Justice Reinvestment.

Myers listed bail laws, jailing for fines, and laws on granting and reinstating drivers’ licences as areas that appeared to disproportionately affect Aboriginal and Torres Strait Islander peoples, saying they were “laws that are often instituted for good reasons but with unintended consequences”.

“Not all laws do disproportionately affect Aboriginal and Torres Strait Islander people but I think if you look at some specific laws you’ll find that they do,” he told Guardian Australia.

“The statistics for incarceration are so bad that it’s going to be hard to argue that this small population, representing somewhere between 2.5% to 3% of the Australian population, aren’t disproportionately affected when we see them disproportionately represented in the prisons around this country.”

Myers pointed to data released by the Bureau of Crime Statistics and Research in October, which found a 238% increase in the number of Aboriginal and Torres Strait Islander people held on remand in NSW prisons over 15 years, and also that 38% of Aboriginal and Torres Strait Islander people denied bail did not receive a custodial sentence.

“Really what we’re looking at is: is there equity, is there equality?” he said.

“We’re seeing disproportionate effect so we have go to drill down and work out: why is there a disproportionate effect, why are we seeing these outcomes? Why are we seeing our jails in the state they are, full of Aboriginal and Torres Strait Islander people? Sometimes we need to look at the law and say: do we need to treat people differently so that they may be treated equally?”

The advisory committee for the inquiry will be announced next week and the discussion paper is due in June, with a final report to be handed to Brandis by 22 December.

Myers said he was “very hopeful” that Aboriginal and Torres Strait Islander people would support the inquiry, and that there was goodwill from the federal government at least to lobby the states and territories to adopt any proposed changes, all of which will be to state-based criminal laws.

“The importance can’t be lost on the fact that we’re talking about individuals,” he said. “These are people’s real lives. These are mums and dads, aunties and uncles, grandparents, that have been incarcerated, and there’s big knock-on effect … and you can’t lose sight of the humanity. These aren’t just numbers, these are people.”