Prohibited Behaviour Orders and Indigenous Overrepresentation in the Criminal Justice System

Abstract

It is now 20 years since the Report of the Royal Commission into Aboriginal Deaths in Custody ('RCIADIC') (Johnston 1991) drew attention to the disproportionately high level of Indigenous people in custody. Since that time, the rate of Indigenous overrepresentation has continued to rise and the causes of this shameful situation have been well-documented. Despite this, Australian governments continue to adopt crime and disorder measures without regard for their likely impact on the rate of Indigenous incarceration. This is particularly concerning when laws and policies are adopted from other jurisdictions without a thorough consideration of their operation overseas and even less consideration of their likely effect in an Australian context. One recent example of such policy transfer comes from Western Australia (WA), which, under the Prohibited Behaviour Orders Act 2010 (WA) ('PBO Act'), introduced Prohibited Behaviour Orders ('PBOs') based on the UK's Anti-Social Behaviour Orders ('ASBOs'). This model was adopted despite a recent announcement by the UK Home Secretary that ASBOs are not effective at combating anti-social behaviour (BBC News UK 2010). The negative impacts identified in the UK, such as disproportionate targeting of the disadvantaged, over-criminalisation and net-widening, should alone be sufficient reason to thoroughly investigate the appropriateness of adopting this model of crime and disorder control in Australia (see Crofts 2011). More worrying, however, is that insufficient attention was paid to the effect that such orders might have in an Australian context, particularly in a State that 'has the highest rate of Aboriginal imprisonment in the nation' (WA Law Reform Commission 2006:174). This Comment will identify some of the aspects of the PBO model that make it likely to exacerbate enmeshment of Indigenous people in the criminal justice system.