1. BACKGROUND

1. The Northern Territory

   Australia is a federation comprised of six states and two internal territories. The Northern Territory is one of the internal territories. It has a population of 190000. Aboriginal people comprise one quarter of that population. The effect of the Australian Constitution is that the Federal parliament has the power to make laws for the government of the Northern Territory. The Commonwealth parliament has, by legislation devolved to the Northern Territory powers which approximate the powers of the states of the federation. Consequently, the Northern Territory parliament, executive and judiciary are primarily responsible for the administration of criminal justice in the Northern Territory. The Commonwealth parliament created the Northern Territory parliament and has the power to override any law of the Northern Territory parliament.

   North Australian Aboriginal Legal Aid Service (NAALAS)

   NAALAS is a long-standing community based Indigenous organisation. It is governed by a Board elected from among Indigenous communities and is mainly concerned with ensuring Aboriginal people resident in the "Top End" region of the Northern Territory receive legal advice and assistance whenever necessary. The Aboriginal and Torres Strait Islander Commission (ATSIC) fund NAALAS. Legal counsel employed by NAALAS appear for most Aboriginal defendants charged with a crime and visit communities and courts throughout the Top End for this purpose. NAALAS also offers legal services in civil and family law.
   
   

2. ABSENCE OF INTERPRETING SERVICES IN INDIGENOUS LANGUAGES: An infringement of the right to equality before the law in Article 5

Background

There is no interpreter service in Aboriginal languages in the Northern Territory (NT).

Aboriginal people make up 27% of the NT's population, 70% of the prison population and 50% of all hospital admissions. 74% of these people speak Aboriginal languages as their first language, and many have difficulties communicating anything but basic information in the English language. This figure is as high as 95% in remote communities. As a result, Aboriginal clients are unable to access a wide range of services or to exercise their basic rights as citizens. For example they are unable to instruct their lawyers, knowingly consent to bail conditions or give informed consent to medical procedures such as surgery.

There are two interpreter services in the Northern Territory. The NT Interpreter and Translator Service is operated by the Northern Territory government. The Commonwealth government funds a 24 hour telephone interpreter service. These services do not offer services in any Aboriginal language. This is despite the fact that of the top 15 languages after English, spoken in the Northern Territory, 12 are Aboriginal languages. Both the Northern Territory and Commonwealth interpreter services are provided free to non-English speaking people who are not Aboriginal. Yet only 8% of the Northern Territory population are non English speaking, non-Aboriginal people.

In our view, the failure to provide such a service to Aboriginal people is both discriminatory and unjust. The ongoing failure to provide an interpreting service to Indigenous Australians where such a service exists for all other non-English speaking people residing in Australia contravenes Australia's obligations under CERD. This conclusion was shared by the Northern Territory Anti- Discrimination Commissioner in her July 1999 Report: Inquiry into the Provision of an interpreter Service in Aboriginal Languages in the Northern Territory. She also found that the failure to provide such a service contravenes both the federal Racial Discrimination Act 1975 and the Northern Territory Anti Discrimination Act 1992.

The situation described above is reasonably representative of most of Northern Australia, regardless of state boundaries. In short, large numbers of Indigenous Australians are unable to access services or have any real participation in the legal processes to which they are subject due to a lack of an appropriate interpreter service.

Further information:

1. Northern Territory Anti Discrimination Commissioners Report: Inquiry into the Provision of an Interpreter Service in Aboriginal Languages by the Northern Territory Government.
   
   This Report was published in July 1999, however the events covered include the relevant CERD reporting period.
   
   
2. Bibliography of relevant reports and articles addressing the need for an Interpreter Service in Aboriginal and Torres Strait Islander languages compiled by Mr Russell Goldflam in his submission to the Anti Discrimination Commissioners Inquiry at (1) above.

Australia's Report

This document uses the same paragraph numbering system as that used in the Australian Report for ease of reference.

5.1 Equal Access to the Law

Criminal Law

Paragraphs 423-431 relate to provisions contained in the Commonwealth Crimes Act 1914 which purport to provide some protection to people who may be disadvantaged because of race or ethnic origin in their dealings with the criminal law system.

In general these provisions do little or nothing to protect indigenous Australians in their dealings with the criminal law system. There are two reasons for this.

First, the Crimes Act 1914 relates only to "Commonwealth crimes" which account for a tiny number of criminal matters heard in Australian jurisdictions. The overwhelming majority of criminal proceedings in Australia are governed by State and Territory Criminal laws. The "special measures" provided by the Commonwealth in the Crimes Act 1914 have no application to most criminal proceedings in Australia.

Secondly, the requirement to provide "information in a language that they understand" referred to in paragraphs 426,430 and 431 is meaningless without a funded, trained interpreter service in place. It is simply not possible to give effect to these requirements in any meaningful sense without such a service. The use of untrained, unaccredited people as Aboriginal interpreters does not fulfil this requirement.

5.2 Interpreters and Translation Services

The Commonwealth Government's funding initiatives referred to at paragraph 434 fall far short of providing an adequately funded, trained, operating interpreter service in Aboriginal languages. This failure is in marked contrast to its willingness to provide this service to all other non-English speaking, non-Aboriginal people residing in Australia.

Interpreters during police questioning

Paragraph 436 refers to the right to an interpreter under the Crimes Act 1914. It goes on to refer to the collation of a list of people "willing to help or to act as interpreters" for Aboriginal or Torres Strait Islander people. This paragraph fails to identify any level of training or accreditation required for such interpreters other than a "willingness to help or act". It fails to identify any actual current list of interpreters, and as already indicated, such a list is far inferior to the properly funded, government administered interpreter service in place for non-Aboriginal people.

The legislative provisions in South Australia, Victoria and the Australian Capital Territory referred to at para. 437 are similarly of little practical value without an interpreter service in any Aboriginal languages.

Interpreters in courts

Paragraph 438 states that the Evidence Act 1995 entitles all witnesses to give evidence through an interpreter unless they are able to understand and express themselves in English sufficiently to understand questions and give adequate replies. It goes on to state that this entitlement extends to all proceedings in Federal Courts and in the Australian Capital Territory courts. However, it is acknowledged that "because nearly all Commonwealth criminal matters are currently tried in State and Territory courts, the provisions of the Evidence Act 1995 do not apply to most criminal proceedings under Commonwealth laws."

This fact when coupled with the fact that most criminal proceedings are governed by State and Territory Criminal laws clearly shows that the provisions in the Evidence Act 1995 and the Crimes Act 1914 do next to nothing to guarantee a right to an interpreter in the majority of criminal cases in Australia.

Paragraph 441 refers to a proposal that uniform legislation be enacted to ensure a right to an interpreter for non-English speaking people. Again, such a right is of no practical worth unless there are trained, accredited interpreters available to interpret. The Commonwealth government's continued refusal to fund such a service in Aboriginal and Torres Strait Islander languages renders any such proposal for uniform legislation meaningless for Indigenous Australians.

Paragraph 443 refers to the use of interpreters in federal tribunals and outlines the Administrative Appeals Tribunal's (AAT's) interpreter policy. Again the issue of trained, accredited, accessible interpreters in Indigenous languages challenges the practical impact of such policies. The Australian government at paragraph 443 states that the AAT provides all its information packages in 10 community languages. The AAT's website at 7 March 2000 now lists information brochures in 34 community languages. Not one of the "community" languages listed is an Indigenous language.

Translating and Interpreting Services

Paragraph 444 refers to the Commonwealth Government's Translating and Interpreter Service (TIS). It states that "TIS assists Australian residents whose English language skills are limited to gain equitable access to services provided by government and community agencies."

TIS did not provide any services in any Indigenous languages during the relevant reporting period. This situation remains the same today.

The Commonwealth government clearly acknowledges that limited English language skills are a barrier to equitable access to government and community services, yet it's own provision of interpreter services is racially discriminating and continues to be so.

Conclusion

The Australian government's report in relation it its obligations under Article 5 is incomplete if not misleading. In short, the Australian government has failed to provide an Interpreter Service in Indigenous Languages.

This failure has meant that many Indigenous Australians who speak limited English do not enjoy equality before the law and the equal enjoyment of human rights in any real sense.

3. COMPULSORY IMPRISONMENT: An infringement of Article 2 which requires the adequate protection and development of racial groups; An infringement of the right to equality before the law in Article 5

Background

In Australia the issue compulsory imprisonment laws, also known as mandatory sentencing, has received a great deal of attention. There has been a Senate Inquiry concerning the mandatory sentencing of children and extensive media coverage of cases involving the imprisonment of people for committing trivial offences. The recent death in custody of a 15 year old boy who was serving a mandatory period of detention drew attention to these laws.

The laws operate differently for juveniles and adults. The operation of the laws is explained below.

(1) Juveniles

The Northern Territory's Juvenile Justice Act provides that a 15 or 16 year old child found guilty of a property offence for the second time must be detained for 28 days.

The definition of "property offence" is wide and includes stealing, burglary, unlawful use of a motor vehicle, receiving stolen property, criminal damage, and possession of property reasonably suspected of being stolen.

In August 1999 the laws were amended to give magistrates and judges the option of directing second time juvenile property offenders to attend an approved diversionary program as an alternative to detention. The court may order the child to complete an "approved program" provided that a program is available and the child has not previously completed a program.

Programs are not widely available and there has been little financial commitment from the NT government to diversionary programs.

(2) Adults

The Northern Territory's Sentencing Act (NT) requires judicial officers to sentence a person aged 17 years to 14 days imprisonment the first time that person is found guilty of a property offence.

Amendments in August 1999 allows "first strikers" who can establish exceptional circumstances to avoid a mandatory period of imprisonment. However, the exceptional circumstances clause is extremely limited. There have been very few trivial offenders who have been able to satisfy the requirements of the section.

A person found guilty of a second or third property offence must be imprisoned for a minimum of 90 days and 12 months respectively - there are no exceptions. The mandatory minimum period of imprisonment cannot be served concurrently with any other sentence.

The impact upon indigenous people

The effect of mandatory sentencing in the Northern Territory is to disproportionately incarcerate Indigenous people who are already imprisoned at a rate 10 times that of the non-indigenous population of the Northern Territory.

We are concerned that the removal of children and young people from communities and into detention will have a long term detrimental impact upon Indigenous culture in the Northern Territory of Australia.

The Northern Territory has the highest proportion of young Indigenous people in Australia and the highest proportion of adult Indigenous people in Australia. Mandatory sentencing laws have been enacted against a backdrop of Indigenous incarceration in the Northern Territory that is high by world standards, with 1,460 per 100,000 indigenous adults jailed compared with 169 per 100,000 non indigenous adults. The effect of mandatory sentencing has been that more Aboriginal people have been imprisoned.

Australia has obligation to protect Indigenous culture and promote non-discrimination under CERD. In our view, this obligation is not being met.

The property offences prescribed for the purposes of mandatory sentencing exclude offences such as fraud and other "white collar" property crimes. Statistically, such white collar offences are more likely to be committed by non-Aboriginal people than Aboriginal people. There is no explanation for the different treatment of these property crimes.

There are many factors, such as cultural, economic and social background that contribute to property offending. Traditionally in Australia such factors as cultural background and Aboriginality have been relevant matters taken into account by judicial officers involved in sentencing. The method by which Courts have taken cultural circumstances into account is outlined below:

"The relevance of Aboriginality is not necessarily to mitigate; rather it is to explain or throw light on the circumstances of an offence. In so doing it may point the way to an appropriate penalty. Aboriginality may in some cases mean little more than the conditions in which the offender lives. In other cases it may be the very reason why the offence was committed."

Justice Toohey, address delivered to the National Criminal
Law Congress on `Aboriginal customary law' (24/6/1988).

Mandatory sentencing abolishes existing sentencing principles which allow courts to have regard to cultural and social factors.

The Northern Territory Government has advised the Commonwealth parliament that mandatory sentencing laws are not discriminatory. The Northern Territory Government's submission to the Senate states that "the legislation applies to all Territorians who commit property offences, regardless of racial origin." (Northern Territory Government submission to the Australian Senate January 2000). Nevertheless, the effect of mandatory sentencing laws is that Aboriginal imprisonment is increasing.

The laws deny defendants the opportunity to have their personal circumstances taken into account on sentence. For Indigenous defendants, this means that the political, social and economic disadvantage Indigenous people often suffer by virtue of their membership of the Aboriginal community must be disregarded by the court.

Equal treatment before courts administering justice in the Northern Territory requires consideration of the different impact of sentencing options on different racial groups. The Northern Territory Government was aware when mandatory sentencing was introduced that it would detrimentally impact upon the Indigenous community. The statistical evidence that is available makes it clear that this view was correct.

NAALAS has acted in numerous cases where mandatory imprisonment followed a trivial offence. Examples of cases from the Top End region of the Northern Territory appear in the following table.

In considering these cases, it is important that the Committee bear in mind that many Aboriginal communities in the Northern Territory have populations of less than 2000 people. The incidence of "third strikers" (that is, those who face minimum mandatory sentence of 12 months) is increasing. The impact of such sentences on the individuals concerned and their small communities is significant.

Australia's Report

Australia's report deals with issues relevant to the incarceration of Aboriginal people in their reporting on Article 2 of CERD. The relevant part of the report is located under the heading Royal Commission into Aboriginal Deaths in Custody, paragraphs 75 to 85.

Australia's report acknowledges the importance of the Royal Commission recommendations and a need by all governments in Australia to take steps to ensure the recommendations are implemented. Australia acknowledges the need for all governments to take concrete steps to ensure that the causes of the over-representation of Aboriginal people in the criminal justice system are addressed.

At paragraph 76 the report notes that "Indigenous people come into contact with the criminal justice system at a disporportionately high rate. The Commission concluded that the most significant reason for this was the severely disadvantaged position of many Indigenous people in society - socially, economically and culturally."

Aboriginal people continue to experience severe disadvantage in the Northern Territory. As already noted, mandatory sentencing prevents the Courts from taking into consideration those circumstances of disadvantage. Mandatory sentencing laws have resulted in an increase in the levels of imprisonment and detention of Indigenous people. Mandatory sentencing laws are in breach of the Royal Commission's recommendations. See for example recommendations 92 to 121 that deal with the principle of imprisonment as a last resort.

In paragraphs 81 to 84, Australia's report describes the process of how Australia intends to address the high rates of incarceration and deaths of indigenous prisoners. The report describes sharing responsibility with State and Territory governments. It descibes a Summit on the issue involving those regional governments. Out of that process strategic plans were to be developed.

The Northern Territory of Australia is the only government in Australia who decided not to commit to a strategic plan. The Northern Territory government has taken other steps to distance itself from the process of implementing the Commissions recommendations. A history of the Northern Territory governments failure to commit to any plan for addressing deaths in custody issues is described in the Aboriginal Justice Advocacy Committee's submission to the Senate Inquiry into mandatory sentencing laws.

Further information:

NAALAS, AJAC and ATSIC submissions to the Senate Inquiry into mandatory sentencing

Dollars without Sense A report about mandatory sentencing produced by NAALAS in November 1999.

The Royal Commission into Aboriginal Deaths in Custody National Report, Commonwealth of Australia, 1991

Mandatory Injustice: Compulsory Imprisonment in the Northern Territory Dr Diane Johnson, Associate Professor George Zdenkowski, March 2000

4. THE NORTHERN TERRITORY INFRINGEMENT NOTICES FINE ENFORCEMENT SCHEME: Infringes Article 2 which requires measures to ensure the adequate protection and development of certain racial groups; Infringes the right to equality before the law in Article 5

Background

The Territory Infringement Notices Scheme (TINES) is contained in Division 2A of the Justices Act (NT). Pursuant to the scheme an infringement notice may be issued or served under a prescribed provision of an Act, regulation or by-laws. This scheme existed throughout the reporting period. The scheme applied to juveniles throughout the reporting period.

An infringement notice specifies an infringement penalty amount to be paid within a particular period of time. If the notice has been served and not paid within a specified time, then a courtesy letter may be issued. A person is given a further 28 days to pay the fine together with any prescribed costs. A person may then decline to be dealt with under the scheme and be dealt with by a court instead. If a person fails to pay or fails to elect to be dealt with by a court, then a clerk of the court may register an infringement penalty and order that the person pay the prescribed costs and infringement penalty within 28 days. An enforcement order is deemed to be an order of a court. If the person does not pay within that further 28 days, then the clerk shall issue a warrant of commitment or distress. The person against whom a warrant is issued cannot apply for the revocation of the enforcement order once the warrant has been executed.

The scheme is a form of mandatory sentencing. This is because periods of imprisonment are determined according to a formula, and without regard to the circumstances of the offence or the offender.

We are concerned that the order resulting in imprisonment is made by a Clerk without a hearing of the charge. Once a warrant has been executed there is no court proceeding and no procedural fairness. There is no judicial oversight of a process that can result in imprisonment. In effect the scheme allows for imprisonment for minor offences without trial. Furthermore, the period of imprisonment is calculated according to a formula and therefore constitutes a form of mandatory sentencing.

The North Australian Aboriginal Legal Aid Service has had frequent complaints from prisoners who say that they have been wrongly imprisoned under the scheme because they had not committed an offence. This can occur when a person provides the enforcement agency with a false name. It may also occur because Aboriginal people may possess many names, some which are shared by other family members (for example a skin name and family name). As a matter of cultural practice, an Aboriginal person's names may be changed frequently throughout his or her life. There is no judicial oversight of infringement notices and no requirement to determine the offenders true identity. When a warrant is issued, it is issued under the name originally given to the enforcement agency. The only remedy open to a person who is wrongly identified is to bring an action for false imprisonment and seek release from prison via the writ of habeas corpus.

The warrant that is issued is generally a warrant of commitment. This warrant directs all Northern Territory police to arrest the named person and commit him or her to a prison. A person arrested on such a warrant does not come before a court and will rarely if ever, have the opportunity to speak with a lawyer about the notice.

Aboriginal legal services in the NT sought and obtained the release of at least 4 people during 1999 by using the writ of habeas corpus. This number does not represent the number of people wrongly imprisoned in the Northern Territory under this scheme. Because there is no court oversight of the process, and because lawyers are never notified of these matters, Aboriginal legal services are made aware of these matters by accident.

There are a number of steps in the TINES that give a person an opportunity to either pay or to have their matter dealt with by a court. However, at the critical moment, when a person has their liberty removed, there is no procedural fairness or power to have the matter brought before a court.

A large proportion of the people who serve gaol periods in default of payment of TINES fines are Aboriginal people living itinerant lifestyles and whose English is a second language. Often people in this position do not receive their reminder notices and when they do cannot read them. There is no attempt made by enforcement agencies to explain the notices in Aboriginal languages. In the absence of an interpreter service in Aboriginal languages the ability of enforcement agencies to easily explain the nature of the notices is impaired.

We are concerned that the effect of the TINES scheme is to imprison people without trial. We are further concerned that the scheme is discriminatory in its effect. This is because there is no attempt made to reasonably accommodate Aboriginal peoples languages or culture when issuing and processing these notices.

It is possible to interpret the scheme as providing for imprisonment for a person's inability to comply with a contractual obligation, such as a civil debt.

The Northern Territory also provides for imprisonment for non-payment of restitution or compensation. Ordinarily, compensation is provided as a remedy for a civil wrong and a person cannot obtain restitution or compensation except through civil litigation. The criminal courts have been willing to make restitution or compensation orders where the applicant can establish the amount damaged or stolen and the respondent's capacity to pay. The Courts have clearly stated that restitution or compensation orders cannot be made unless these criteria are met because the applicant has civil remedies.

Australia's report

The discussion under the heading Royal Commission into Aboriginal Deaths in Custody in Austrlai's report is relevant here.

Aboriginal people are the vast majority of those imprisoned under the TINES system. The TINES system therefore contributes to the over-representation of Indigenous people in Northern Territory prisons.

During the reporting periods, the scheme was responsible for imprisoning many Aboriginal people for offences such as "Sleep in public place between sunset and sunrise".

There are many groups of Aboriginal people living in and around Darwin who are without accommodation. They sleep where they can, on beaches and in makeshift shelters. Some of these people are visiting Darwin for short periods of time, whilst others are more permanent residents. The Australian and Northern Territory governments have failed to make available to them any basic facilities. The response by the Darwin City Council has been to prosecute them for breaching council by laws. Breaching the by laws frequently results in imprisonment without trial under the TINES system.

The TINES system therefore imprisons Aboriginal people for extremely minor offences such as breaches of by -laws and minor public order offences. Such a scheme is in clear breach of the Royal Commission recommendations 92 to 121 that deal with the principle of imprisonment as a last resort.

Recommendations 120 and 121 are particularly relevant. Recommendation 120 states that "governments consider an ongoing amnesty on the execution of long outstanding warrants of commitment for unpaid fines." Recommendation 121 states that "governments should ensure that sentences of imprisonment are not automatically imposed in default of imposing a fine" and "such legislation should provide alternative sanctions and impose a statutory duty upon sentencers to consider a defendants capacity to pay".

The juvenile Justices Act fine enforcement scheme

During the reporting period, the TINES scheme applied to juveniles as well as adults. However, a legal challenge (see TN v Walford & Others below) has resulted in an entirely new scheme to enforce the non payment of fines by juveniles. We are concerned about this scheme. However, because it is a recent change, we are not in a position to form a detailed view as to whether it is an adequate response to the difficulties inherent in the TINES system.

We are concerned however that any child should face the prospect of incarceration for non payment of fines. Those children who come from indigent families or who may be homeless are more likely to be incarcerated under this scheme than those who come from families with a capacity to pay. In the Northern Territory children from impoverished backgrounds are often Aboriginal children.

Conclusion:

Australia's report concerning the implementation of the Royal Commission's recommendation did not mention the serious and ongoing breaches of those recommendations by the Northern Territory's fine enforcement scheme.

The scheme clearly constitutes a breach of those recommendations. The scheme is clearly contributing to the over-representation of Indigenous people in Northern Territory prisons.

It is our view that the scheme, along with other mandatory sentencing schemes, constitute an infringement of rights outlined in CERD.

Further information:

TN, RB, and MB v Walford & Others [1998] NTSC, Kathrine No. 199, 200 and 201 of 1998

Goymer v Moore & Others [1999] NTSC 146 No.175 & 176 of 1999

FAIRA Aboriginal Corporation
Phone +61 7 3391 4677 • Fax +61 7 3391 4551 • email letterbox@faira.org.au
Post Office Box 8402 Woolloongabba Q 4102 Australia
37 Balaclava Street Woolloongabba