Australian Human Rights Commission Submission to the UN Committee On The Elimination Of Racial Discrimination, 30 October 2017 86. The Special Rapporteur on the rights of indigenous peoples has encouraged the Australian Government to explore the possibility of a national ‘treaty’ with Aboriginal and Torres Strait Islander peoples.94 The Commission notes that, while there are discussions about a Makarrata Commission at the national level, ‘treaty’ negotiations are more likely to take place at the state level. The Commission notes that ‘treaty’ discussions have commenced in Victoria and South Australia.95 87. The Special Rapporteur on racial discrimination has recommended that the Australian Government finalise a constitutional amendment in order to recognise the inherent rights and culture of Aboriginal and Torres Strait Islander peoples and set up constitutionally protected institutions to protect their ancestral rights and promote their culture and identity.96 Recommendation 20: That the Australian Government develop with Aboriginal and Torres Strait Islander peoples a model for constitutional recognition and negotiate in good faith with Aboriginal and Torres Strait Islander peoples about national representative mechanisms. Incarceration of Aboriginal and Torres Strait Islander people (CERD article 5; Declaration articles 7 & 22; CO 19 & 20) (a) Disproportionate rates of incarceration 88. The Commission is extremely concerned that Aboriginal and Torres Strait Islander people are significantly overrepresented in Australia’s prison population,97 especially those with mental health disorders or cognitive disability98 and children.99 89. Rates of imprisonment of Indigenous women are extremely concerning. Aboriginal and Torres Strait Islander women account for 34% of the adult female prison population.100 It is also important to note that 80% of Aboriginal and Torres Strait Islander women in prison are mothers.101 90. Despite currently being only 2% of the total Australian population aged over 18 years, Aboriginal and Torres Strait Islander prisoners represent over a quarter (27%) of all prisoners in Australia.102 91. Laws and policies disproportionately affecting Aboriginal and Torres Strait Islander people have contributed to these incarceration rates. In particular, the Commission notes:  Imprisonment from fine default — often caused by small overdue fines for criminal offences that, on their own, do not carry an imprisonment penalty — is contributing to high incarceration rates.103  Bail laws and policies have become more restrictive in Australia and have led to a significant increase in the number of Aboriginal and Torres Strait Islander people held on remand.104 Research indicates that the length of time individuals spend on remand affects the 19