Despite constituting only 3 per cent of the population, Australia’s First Nations people make up a staggering 33 per cent of the country’s prison population as of June 2023, according to the Australian Bureau of Statistics.

Sionea Breust, the director of SCB Legal, the winner of the Indigenous Leader of the Year category at the 2023 Australian Law Awards and a proud Indigenous Australian, offers valuable insights into the distinct challenges and systemic injustices faced by First Nations individuals within the criminal justice system, contributing to their alarming overrepresentation.

Over-policing

One of the specific challenges that Breust revealed has contributed to the representation of First Nations people in custody is over-policing.

Breust expressed how this problem arises from the fact that “despite the policies, procedures and training that officers receive, the systemic racism coupled with discretionary powers has resulted in unfair treatment and harsher penalties”.

She highlighted a common discretionary decision made by law enforcement officers that profoundly affects First Nations’ involvement in the criminal justice system, which is the arrest of individuals for minor infractions.

“For example, a common police discretionary decision that heavily contributes to First Nations encounters with the criminal justice system is that they are being arrested for minor offences such as offensive language or public intoxication, whereas non-Indigenous peoples may receive a move-on direction, a warning or a caution,” she said.

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Breust disclosed that this differential treatment undoubtedly “increases their involvement in the criminal justice system, which, in turn, leads to them receiving lengthy sentences of full-time imprisonment”.

Socioeconomic disadvantages

The socioeconomic disadvantages faced by First Nations people further compound their difficulties within the criminal justice system.

Breust explained that these disadvantages frequently result in the denial of bail for many Indigenous individuals, compelling them to remain in custody while awaiting the resolution of their cases.

She outlined that a critical factor contributing to the denial of bail is the “lack of access to housing”, as the court requires individuals to demonstrate a stable and verifiable address to be eligible for bail.

Breust also noted that inadequate support services and transportation further exacerbate the problem.

“Their lack of access to supports and transport may lead to their inability to report even when they have been granted bail, leading to bail being revoked, and again, having to sit in custody pending the finalisation of their matter,” she said.

Difficulty understanding legal processes

Another critical issue identified by Breust is the lack of understanding that First Nations people often have regarding the “criminal justice process, their rights, and the potential consequences of their sentencing”.

Breust explained that systemic barriers, such as “inadequate access to legal representation and support services”, significantly contribute to this issue.

As she voiced, this deficiency in understanding places individuals at a significant “disadvantage when it comes to making informed decisions about their legal options or understanding the long-term impact of their convictions on their lives”.

She also articulated that cultural differences and historical injustices significantly exacerbate these challenges for Indigenous individuals.

“For instance, traditional Indigenous legal practices are not integrated effectively into the mainstream legal framework, creating a disconnect between Indigenous ways of understanding justice and the formal legal system,” she said.

Root causes of injustice

Breust revealed that the underlying causes of the injustices experienced by First Nations people in Australia are deeply embedded in the country’s colonial history.

“From Invasion Day came racial profiling, discrimination, stereotypes and over-policing that would forever impact our people,” she said.

This historical context has created a profound lack of trust in the criminal justice system and those in positions of power.

“It also meant a complete lack of trust in the system and those in positions of power. The intergenerational trauma continues to have a lasting impact on our First Nations Peoples, having been passed down from generation to generation,” she said.

Through intergenerational trauma being passed down through generations, Breust exposed how it has “contributed to the ongoing cycle of violence, mental health disorders, substance abuse and socioeconomic disadvantage”.

Another critical issue that contributes to the systemic injustices First Nations face is the lack of recognition and integration of customary law within the Australian legal framework.

Breust indicated that this oversight leads to a “lack of understanding and respect for the punishment imposed” by the criminal justice system.

Together, these factors create a complex web of barriers that perpetuate injustice for First Nations Peoples.

Breust alluded that “the reality is that the historical atrocities faced by First Nations Peoples and the embedded institutionalised discrimination would seem to be irreversible unless drastic changes are made”.