Commonwealth, state and territory governments have been urged to implement sweeping recommendations to tackle the overincarceration of Aboriginal and Torres Strait Islander people.
A major new report from the Australian Law Reform Commission, responding to a February 2017 brief by former Attorney General George Brandis, calls for national criminal justice targets and for governments to support justice reinvestment trials.
It calls on governments to establish an independent justice reinvestment body, to promote redirection of resources from the criminal justice system to community-led, place-based initiatives addressing the drivers of crime and incarceration.
The report also recommends the Commonwealth Government establish a national inquiry into child protection laws and processes affecting Aboriginal and Torres Strait Islander children, recognising the links between out-of-home care, juvenile justice and adult incarceration.
The report repeatedly stresses the importance of working in partnership with Aboriginal and Torres Strait Islander organisations and people in implementing its recommendations.
For example, the justice reinvestment body should be overseen by a board with Aboriginal and Torres Strait Islander leadership, and all initiatives to reduce the harmful effects of alcohol in communities should be developed with, and led by, these communities to meet their particular needs.
The report highlights both the crucial need for trauma-informed services as well as the trauma that so many agencies and systems now inflict.
It illustrates the critical importance of tackling poverty, homelessness, violence against women, and other social determinants of health (without actually once mentioning this term, SDOH, although there is a section on the social determinants of incarceration).
Many submissions to the inquiry raised homelessness as a major driver of incarceration; in 2015, 27 percent of Aboriginal and Torres Strait Islander prison entrants reported being homeless in the four weeks prior to imprisonment.
Homelessness and inadequate housing also affected access to bail and increased the risk of returning to prison; in 2015, 31 percent of prison dischargees were expecting to be homeless.
Other critical health-related concerns in the report included the links between overincarceration and hearing loss, cognitive impairment, mental illness and substance abuse.
The prevalence of hearing loss makes it difficult for many Aboriginal and Torres Strait Islander people to understand and participate in legal proceedings, the report said, with 90 percent of Indigenous prisoners in the Darwin and Alice Springs correctional systems having hearing loss.
The report said the criminal justice system was poorly suited to respond to complex needs arising from mental illness, disability, acquired brain injury and substance abuse.
It cited submissions stating “the role of prison has become, in many cases, simply to ‘warehouse’ or ‘manage’ people who fall into these categories, without providing appropriate or adequate support in addressing the underlying issues”.
Police practices and procedures are identified as a key site for intervention, and the report gives many examples of harsh and unjust policing.
Governments should review police practices and procedures “so that the law is applied equally and without discrimination with respect to Aboriginal and Torres Strait Islander peoples,” the report said.
Police-related complaints handling mechanisms should be reviewed, “particularly addressing the perception by Aboriginal and Torres Strait Islander people that their complaints are not taken seriously and that police misconduct is not addressed”.
While the ALRC said police practices, and police and community relationships had improved over recent years, concerns remained, especially for Aboriginal and Torres Strait Islander women, who are over-policed as offenders, while under-recognised as victims of crime.
The report cited research suggesting up to 90 percent of violence against Aboriginal and Torres Strait Islander women goes unreported to police, and said fear and mistrust of police was a factor.
This mistrust also reflected the historical role of police in the Stolen Generations policies, and the role of police in Aboriginal and Torres Strait Islander deaths in custody.
The report stresses the impact of overincarceration on women and their families (about 80 percent of Aboriginal and Torres Strait Islander women in prison are mothers). It noted concerns that women had been “invisible” to policymakers, and called for better and more accessible prison programs for all female Aboriginal and Torres Strait Islander prisoners.
“The interaction of poverty and punitive criminal justice regimes can be hugely damaging for Aboriginal and Torres Strait Islander women, particularly in relation to unpaid fine regimes, penalty notices, and Criminal Infringement Notices,” the report said.
“It can result in escalating consequences arising from what may begin as relatively minor and victimless offending.”
Prosecuting and imprisoning women is damaging for Aboriginal and Torres Strait islander children, who are already over-represented in child protection and youth justice systems.
The report highlights a vicious cycle between prison and child protection systems, with one informant stating:
In my observations whilst visiting Aboriginal women in prison they have told me how they have wanted to leave violent relationships and have gone to seek help and refuge only to be flagged in the system as unable or unwilling to protect their children from violence. This systemic contact results in the removal of the children with more permanent consequences in child placement through government policies.
The removal of Aboriginal children from their families and communities, in particular their mothers, has a historical legacy for Aboriginal people. The removal of Aboriginal women from their role in families and communities, further fragments and exacerbates the social and cultural issues that occur in the everyday lives of Aboriginal people.
The immediate consequence for the women on a deeply personal level is the interruption of attachment to their children resulting in transmission of intergenerational trauma and further entrenching cycles of disempowerment, sometimes resulting in multiple generations of Aboriginal women from the same families incarcerated at the same time.”
Implementing the report’s recommendations would cost less than the escalating costs of prisons. The total justice system costs of Aboriginal and Torres Strait Islander incarceration in 2016 were estimated at $3.9 billion, and this cost rose to $7.9 billion when other economic costs are included.
These costs are expected to jump to $9.7 billion per annum in 2020 and $19.8 billion per annum by 2040, as a result of a growing prisoner population. For example, the NSW Government plans to spend $3.8 billion on over a dozen new correctional centres.
The gap between Indigenous and non-Indigenous incarceration rates has widened over the past decade, with Aboriginal and Torres Strait Islander rates increasing 41 percent between 2006 and 2016, although the report notes considerable variation between jurisdictions.
Aboriginal and Torres Strait Islander women account for 34 percent of the female prison population and are 21.2 times more likely to be imprisoned than non-Indigenous women.
In 2016, the rate of imprisonment of Aboriginal and Torres Strait Islander women (464.8 per 100,000) was not only higher than that of non-Indigenous women (21.9 per 100,000), but was also higher than the rate of imprisonment of non-Indigenous men (291.1 per 100,000).
Most of the Aboriginal and Torres Strait Islander prison population is either being held on remand (many of whom do not receive a custodial sentence upon conviction) or is serving sentences of less than two years.
This suggests, the report says, that many Aboriginal and Torres Strait Islander prisoners may be held on remand for otherwise low-level offences for which diversion and rehabilitation may be a more appropriate response.
The report makes specific recommendations for law reform, including of state and territory bail laws, sentencing legislation, and improving access to community-based sentencing options for Aboriginal and Torres Strait Islander offenders.
It calls on governments to repeal legislation imposing mandatory or presumptive terms of imprisonment, and to make changes to parole regimes. Where needed, state and territory governments should establish specialist Aboriginal and Torres Strait Islander sentencing courts.
The report documents many inequities that Aboriginal and Torres Strait Islander people face in justice and policing systems, including:
- Aboriginal and Torres Strait Islander young people are less likely to be cautioned and more likely to be charged than non-Indigenous young people.
- Aboriginal and Torres Strait Islander women are more likely to be charged and arrested for public order offences and other forms of minor offending than non-Indigenous women.
- Aboriginal and Torres Strait Islander defendants were convicted in the same proportion as non-Indigenous defendants, but were more likely to receive a sentence of imprisonment.
- The ‘conviction rate’ – the rate of people who enter a plea of guilty or who are proven guilty – did not vary substantially by Aboriginal and Torres Strait Islander status: 85 percent of Aboriginal and Torres Strait Islander defendants were proven guilty, compared with 81 percent of non-Indigenous defendants. But 31 percent of Aboriginal and Torres Strait Islander defendants were given custodial sentences, compared with just 18 percent of Non-Indigenous defendants.
- For some types of offences, the types of penalties issued to Aboriginal and Torres Strait Islander offenders differed markedly from those issued to non-Indigenous offenders. For ‘acts intended to cause injury’, 60 percent of Aboriginal and Torres Strait Islander offenders received a custodial sentence, compared with only 30 percent of non-Indigenous offenders.
- Aboriginal and Torres Strait Islander offenders are less likely to receive a community-based sentence than non-Indigenous offenders.
- Indefinite detention regimes for forensic patients disproportionately affect Aboriginal and Torre Strait Islander peoples; the report details cases of Aboriginal men being held for years longer than any conviction would have detained them.
The Chief Justice of WA, Wayne Martin AC, said:
Over-representation amongst those who commit crime is, however, plainly not the entire cause of over-representation of Aboriginal people. The system itself must take part of the blame. Aboriginal people are much more likely to be questioned by police than non-Aboriginal people.
When questioned they are more likely to be arrested than proceeded against by summons. If they are arrested, Aboriginal people are much more likely to be remanded in custody than given bail.
Aboriginal people are much more likely to plead guilty than go to trial, and if they go to trial, they are much more likely to be convicted.
If Aboriginal people are convicted, they are much more likely to be imprisoned than non-Aboriginal people, and at the end of their term of imprisonment, they are much less likely to get parole than non-Aboriginal people.”
The report said a Jesuit Social Services submission to the inquiry summed up a common assessment, that: “The over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system is a national disgrace”.
It will be even more of a disgrace if governments fail to respond swiftly and effectively to the report’s compelling arguments for reform, and its detailed roadmap for action.
The report is also a wider call to action on the social determinants of health, especially on issues such as self-determination, institutional racism, poverty, and housing.
Read the Change the Record statement:
The Australian Law Reform Commission report Pathways to Justice provides the Attorney-General and the Federal Government with a once-in-a-generation opportunity to halt soaring over-imprisonment of Aboriginal and Torres Strait Islander people.
“The evidence is in. The Law Reform Commission provides a clear roadmap for change,” said Damian Griffis, Co-Chair of Change the Record.