Australia: Lionel Murphy Memorial Lecture 2015 - Vigilance against Injustice in the Justice System - Part 1

Acknowledgments 1

Good evening, and thanks Professor Dietze for your very kind introduction.

First, I would like to acknowledge the traditional custodians on whose land we are meeting today — the Ngunnawal people — whose cultures we honour as among the oldest continuing cultures in human history. And I would like to pay my respects to Elders past and present.

I'd also like to recognise:

  • our hosts this evening — the ANU College of Law and, in particular, Associate Dean Fiona Wheeler and Head of School, Stephen Bottomley;
  • members of Lionel Murphy's family;
  • trustees of the Lionel Murphy Foundation;
  • Dr Kristine Klugman, President Civil Liberties Australia, and Mr Bill Rowlings, CEO Civil Liberties Australia;
  • Dr Helen Watchirs, ACT Human Rights and Discrimination Commissioner; and
  • Mr Daryl Dellora.


It's a great honour to have been asked to speak this evening. I have entitled this year's address as 'Lionel Murphy's Legacy — Vigilance against Injustice in the Justice System'.

And I wish to speak to the national shame that is the over-representation of Indigenous Australians in the criminal justice system.

And to the practical steps the Commonwealth and the States and Territories must take to right this enduring wrong.

This problem has been brought to the public's attention this year particularly because of the 20 th anniversary of the Royal Commission into Aboriginal Deaths in Custody (1991) and the release, in June 2011, of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (2011) inquiry report Doing Time – Time for Doing: Indigenous Youth in the Criminal Justice System.

Lionel Murphy

But before turning to that I'd first like to pay a brief tribute to Lionel Murphy, whose memory we are here to honour tonight — a great Labor leader, an accomplished Attorney-General and an inspiring High Court Justice.

And in doing so, I would like to speak briefly of a judgment he wrote as a judge of the High Court — Neal v The Queen.

The case was that of an Aboriginal man, Mr Neal.

Mr Neal was Council Chairman in Yarrabah, a community in Northern Queensland. This community had a deep sense of grievance about the paternalistic treatment by white authorities, including the management of the store which was reportedly selling rotten meat. Mr Neal had argued with the store manager about the management of the reserve. When the discussion reached an impasse, Mr Neal swore at the store manager and spat at him.

For this, Mr Neal was sentenced to two months' hard labour. On appeal to the Queensland Supreme Court, Mr Neal's sentence was increased to six months.

Mr Neal then appealed to the High Court, where Lionel Murphy presided.

The year was 1982, and Murphy noted in his judgment the appallingly high rates of Indigenous incarceration at that time — that although Indigenous Australians made up only one per cent of the total population they made up nearly 30 per cent of the prison population.

In addressing the question of Mr Neal's relatively harsh sentence for what was a seemingly trivial offence, he said:

That Mr. Neal was an "agitator" or stirrer in the magistrate's view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. ... Mr. Neal is entitled to be an agitator. (at 317)

Needless to say, Mr Neal's appeal was allowed.

So I'd like to draw some inspiration from Lionel Murphy tonight as I speak to the challenges that we currently face in terms of the over-representation of Indigenous Australians in the justice system — an injustice that remains nearly 30 years after Neal v The Queen.

Prior to the recent Commonwealth Law Ministers Meeting 2 that brought together Attorneys-General and Justice Ministers from across the Commonwealth, I had cause to reflect on the origins of European settlement in Australia. The British transportation system arose from an attempt by England's privileged classes to remove a so-called 'criminal' class.

Transportation was a means of punishment for lesser offences that were more often than not the effect of extreme social disadvantage. While that's how Europeans originally came to Australia, as a law and order measure this policy was unsuccessful. Crime wasn't addressed until chronic social disadvantage was addressed.

Today, Attorneys-General and Justice Ministers across Australia need to ask ourselves if we making the same mistakes in respect to the issue of the incarceration of Indigenous Australians.

The figures speak for themselves.

Rates of Indigenous incarceration

Today, Indigenous Australians make up only 2.5 per cent of the population, but account for 26 per cent of the adult prison population. The incarceration of Indigenous adults is 14 times higher than for non-Indigenous adults (Steering Committee for the Review of Government Service Provision 2011a:4.132).

Between 2000 and 2010, the rate at which Indigenous women are incarcerated increased by 58.6 per cent. The rate at which Indigenous men are incarcerated increased by 35.2 per cent (Steering Committee for the Review of Government Service Provision 2011a:4.130).

The figures are even higher for Indigenous juveniles. Only five per cent of young Australians are Indigenous, but half the young people in detention are Indigenous. Indigenous young people are 22.7 times more likely to be in detention (Steering Committee for the Review of Government Service Provision 2011a:4.137).

In fact, Indigenous young people are more likely to be incarcerated today than at any time since the release of the National Report of the Royal Commission into Aboriginal Deaths in Custody (1991) — some 20 years ago.

The purpose of incarceration

I do not consider for one moment that the Attorneys-General and Justice Ministers that I have met have the same premeditated intent as our British forebears. But it is clear that the desire to be seen as tough on crime has contributed to a significant increase in the prison population generally.

I am satisfied that there is a genuine desire among all law ministers around Australia to reduce crime — particularly in Indigenous communities. And there is no question that there is an urgent need to do that. The question is — are we doing it effectively?


Every Australian has a fundamental right to live free from fear. It is clear that this is not the case in many Aboriginal and Torres Strait Islander communities.

Statistics show that Indigenous people are almost twice as likely as non-Indigenous people to have been a victim of physical or threatened violence (Steering Committee for the Review of Government Service Provision 2011a:4.122).

Indigenous women are 31 times more likely than non-Indigenous women to be admitted to hospital for injuries caused by assault (Steering Committee for the Review of Government Service Provision 2011a:4.124).

In remote areas, Indigenous people are hospitalised as a result of family violence at 35.6 times the rate of other people (Steering Committee for the Review of Government Service Provision 2011a:4.125).

And the rate of homicide for Indigenous people is 8.5 times higher than for non-Indigenous people, with the victim and offender being intimate partners in 60.9 per cent of cases as compared with 24.2 per cent for non-Indigenous homicides (Steering Committee for the Review of Government Service Provision 2011a:4.125–4.126).

There is no doubt that we need to work to make Indigenous people and communities safer.

And there is no question that incarceration is the appropriate response for serious and violent crimes.

But there is a strong argument that such high levels of incarceration may ultimately undermine our objective of safer communities.

The marginal effect of incarceration in reducing crime

In an excellent article published in July 2010, Emeritus Professor Dave Brown (2010:142) from the University of New South Wales (also the Chairperson of the Lionel Murphy Foundation) argues that incarceration has 'at best, a modest effect in reducing crime' — but that effect is short term.

He argues that, in fact, excessive imprisonment rates may actually cause more crime in the long term.

Professor Brown's point is that prisons can, in effect, become 'schools of crime' that result in the fracturing of family and community ties, hardening and brutalisation, and poor mental health outcomes for those who have been incarcerated (Brown 2010:141).

And after an offender is released they are likely to have lost essential life skills, have an increased reliance on criminal networks built up in prison, and experience reduced employment opportunities and access to social programs (Brown 2010:141).

He also points to a study that shows there may be a 'tipping point' for certain communities — where, once incarceration reaches a certain level, crime in that community will only increase (Brown 2010:141).

How is this 'tipping point' reached? Professor Brown argues that

high rates of imprisonment break down the social and family bonds that guide individuals away from crime, remove adults who would otherwise nurture children, deprive communities of income, reduce further income potential, and engender a deep resentment toward the legal system. As a result, as communities become less capable of managing social order through family or social groups, and crime rates go up. (Rose and Clear in Brown 2010:141)

We know that this is currently what is happening in our Indigenous communities. And we must turn this around.

If we are to address crime and victimisation we need to commit to a longer term approach and address the causes of offending and — very importantly — reoffending.

So how do we do this?

Addressing social disadvantage

Of the factors that contribute to high incarceration rates, social disadvantage comes at the top. And so addressing social disadvantage must be a key part of the solution.

To this end, in 2008 the Council of Australian Governments has agreed to specific timeframes for achieving six 'Closing the Gap' targets:

  • to close the life-expectancy gap within a generation;
  • to halve the gap in mortality rates for Indigenous children under five within a decade;
  • to ensure access to early childhood education for all Indigenous four years olds in remote communities within five years;
  • to halve the gap in reading, writing and numeracy achievements for children within a decade;
  • to halve the gap for Indigenous students in Year 12 (or equivalent) attainment rates by 2020; and
  • to halve the gap in employment outcomes between Indigenous and non-Indigenous Australians within a decade.

And all jurisdictions have committed to work together — with Indigenous Australians — to achieve these targets.

Progress towards overcoming the extreme social disadvantage experienced by many Indigenous people and communities will go a long way towards reducing the high rates of Indigenous incarceration.

The important role of families

And key to this will be ensuring that we address the dysfunctional family life experienced by many Indigenous young people. David Malcolm (2007:44–5), the former Chief Justice of Western Australia, said in 2007:

The family is the most important factor in a young person's development. We as a community rely primarily on the family to educate children as to matters such as a shared morality, ethics, and a sense of "right and wrong". There is also a link between the dysfunctional family and a deterioration in the self-esteem and self-worth of a young person which may lead into substance abuse, violence and, eventually, criminal behaviour. There is a need to target resources to assist and support families and children as a strategy in addressing juvenile crime.

We must clearly address family dysfunction in the community if we are going to make a real impact in terms of young Indigenous Australians' contact with the justice system.

A 2008 study has found up to one-in-five Aboriginal children have a parent or carer in prison (Levy 2008).

It is not difficult to see, and the evidence confirms this, that having a parent in prison is considered to be a significant predictor of future criminal behaviour.

The Overcoming Indigenous Disadvantage Report released last month emphasises the impact of this, and I quote:

High rates of imprisonment remove adults from their important roles in caring for the next generation ... and can lead to the 'normalisation' of incarceration. Prison can become more of an expectation than a deterrent; for some it might even become a rite of passage. (Steering Committee for the Review of Government Service Provision 2011a:4.131)

The New South Wales (NSW) Department of Corrective Services Women's Advisory Council gave evidence to the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs inquiry into Indigenous youth in the criminal justice system which demonstrates that this is the tragic reality for many Indigenous families. The Council said:

So many of the people in custody or on community based orders are following the footsteps of their parents or grandparents. When I was going to Muluwa prison a woman came up to me and introduced me to her mother and her grandmother. They had all been in custody and they are all in Muluwa together in the women's jail. It was not remarkable to them. It was just what happens. (McFarlane 2010:6–7)

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