Canberra courts would have to consider an accused person's Aboriginality when both deciding to release them on bail and how to sentence them, under changes to laws recommended by a specialist Indigenous legal service and submitted to a national inquiry.
Suggested reforms to address Indigenous incarceration rates also include long-term resourcing for "bail houses" in Canberra and NSW, and expressed support for Indigenous specific sentencing reports.
Federal Attorney-General George Brandis announced an inquiry last year into the rates of Aboriginal and Torres Strait Islander incarceration, led by the Australian Law Reform Commission.
In its submission to the inquiry, the Aboriginal Legal Service (NSW/ACT) first observes that many of the proposals in the discussion paper reflect recommendations made more than 25 years ago by the Royal Commission into Aboriginal Deaths in Custody.
In relation to bail, the legal service's submission notes there is no provision in Canberra's bail laws that require a judge or magistrate to consider Aboriginality as part of a bail assessment.
It recommends Canberra adopt a standalone provision like the one in Victorian laws that requires someone deciding bail to consider any "issues that arise due to the person's Aboriginality". This includes cultural background, ties to family and place and cultural obligations.
It also argues for law reform that requires the court to consider the "unique systemic and background factors" affecting Indigenous peoples when sentencing offenders.
The submission is in part a response to a 2013 High Court decision, Bugmy v The Queen. In a race-neutral approach, the court held the same principles of sentencing applied to Aboriginal and non-Aboriginal offenders and the background of any offender, including social disadvantage, might mitigate the sentence imposed.
The reform should recognise the history of dispossession of land, history of paternalistic attitudes and policies and removal of children were unique systemic and background factors affecting Indigenous people.
Calls to legislate that approach were repeated by the NSW Bar Association in its own submission to the inquiry.
Another recommendation in the submission was long-term resourcing for "bail houses". Indigenous defendants are more likely to be refused bail than non-Indigenous defendants, the submission notes, and a lack of suitable and stable housing is a key barrier to being freed on bail.
A bail house is a supervised short-term housing arrangement for a person eligible for bail.
The submission recommends Indigenous specific sentencing reports mirrored on a Canadian model. Gladau reports are being trialled in the ACT.
The submission expresses support for a statutory custody notification service in all states and territories, that puts a duty on police to contact the ALS or equivalent, immediately on detaining an Aboriginal and Torres Strait Islander person.
The notification service, a 24-hour telephone legal advice service for Aboriginal people, was set up in NSW and the ACT in 2000.
The ACT Law Society also made some submissions to the inquiry.