Law Council’s Indigenous imprisonment symposium … Cutting the incarceration rate … Growing concern amid the political inaction … Suggestions, policies, strategies … Where to start? … From Kate Lilly at Conferenceville
Indigenous Australians make up 2.5 percent of the population, according to the national census, yet contribute 27 percent of the nation’s prison inmates. One-in-five deaths in custody is an Indigenous person, and it’s getting worse with the rate of Aboriginal imprisonment increasing 57 percent since 2000. Other reports put the increase at 88 percent over the last 10 years.
The Law Council of Australia’s symposium on Indigenous imprisonment (Thurs. Nov. 26) saw plenty of insights from well credentialed authorities and, at the end, a communiqué seeking ways to contain an escalating and shameful problem.
Twenty speakers from across the country assembled at the Bangarra Dance Theatre in Sydney and dissected various aspects of indigenous imprisonment in six panel discussions.
The event was seen as an opportunity to identify policy responses to “break the cycle of imprisonment of Aboriginal and Torres Strait Islander Australians”.
In reality, the issue of implementation of a workable reform agenda is a more challenging issue.
The discussion was dominated by what is lacking – accurate statistics, sufficient funding, community involvement and political willpower.
The high incarceration rate of Aboriginal and Torres Strait Islanders was identified as a crisis at the time of the Royal Commission into Aboriginal Deaths in Custody (1987-1991).
The Australian Institute of Criminology reports that since then the proportion of Indigenous prisoners has almost doubled.
For women and children, the numbers are particularly disturbing. The imprisonment rate for Indigenous women increased by over 57 percent between 2000 and 2010, and Indigenous juveniles are 31 times more likely to be in detention than non-Indigenous juveniles.
Although data collection occurs at a number of points in the criminal justice process, several speakers identified a lack of consistent and comprehensive numbers as a key issue.
In the case of ABS stats, Professor Stuart Kinner of Griffith University noted that numbers are collected on one day each year. This is problematic for Indigenous offenders, who often spend shorter periods in prison. He told the symposium:
“The only data that we have at the moment is the daily number [of prisoners] … what we don’t have is the churn through that system. So our guess is that we’re underestimating the annual number by about 25 percent …
I don’t know why we’re guessing, because the data exists – it’s just not collated or provided to appropriate agencies like the ABS … So Indigenous Australians are dramatically overrepresented in prison, and we’re underestimating the extent of that over-representation.”
A number of judges spoke at the conference, including – Dina Yehia and Stephen Norrish from the NSW District Court, Peter Johnstone from the NSW Children’s Court, Chief Justice Wayne Martin from the WA Supremes, Chief Justice Christopher Kourakis from South Australia and Judge John Smallwood from the Koori County Court of Victoria.
A recurring theme was the impact of minor offences on imprisonment rates.
Judge Yehia expressed frustration at the lack of sentencing options for magistrates in NSW. In the case of repeat driving offenders, she noted a magistrate has no choice but to disqualify for a minimum period – even where this will impose unduly onerous burden on the offender and lead to further offending. She said:
“Some people are disqualified into, I wouldn’t say the next century, but a decade or more into the future. And if you live in isolated towns, without transport – you can’t attend medical appointments, deal with day to day things or indeed, maintain employment …
It does have, arguably, unjust results – both for Indigenous people and indeed the communities in which those individuals live.”
Chief Justice Martin canvassed the issue of fine default in WA, where multiple fines can be worked off concurrently in prison. He reported that in 2013, 16 percent of Aboriginal prisoners entered prison simply for fine default.
“The idea was that you reduce the amount of time taken to work off the total outstanding amount – what a great idea. But it has had disastrous consequences, because it has made it attractive for people to go to prison to work off their fines. It has simply dramatically increased the number of people who are in prison only for fine default.”
Martin partly reprised a speech he gave in February this year in Western Australia on “strategies for reform”.
Disability as a factor in Indigenous imprisonment was also discussed. Damian Griffiths from the First Peoples Disability Network estimated that, “by appropriately addressing disability we could potentially reduce the Aboriginal prison population by at least 20 percent, perhaps more.” He added:
“Incarceration becomes the default option in the absence of available and appropriate community-based care, housing and support. Early intervention and a greater focus on appropriate disability support is an urgent priority across Aboriginal Australia.”
The President of the AMA, Brian Owler highlighted the prevalence of mental health disorders among Indigenous prisoners – as high as 74 percent for male prisoners and 86 percent for female prisoners.
“For one of the world’s richest nations, Australia, for us to say that we can’t tackle a health and justice crisis that only affects three percent of our population, is just not credible.”
There is a general consensus that Indigenous communities and elders must play central roles in any effective solutions. Several speakers identified Indigenous sentencing courts as a key vehicle for change.
Judge Smallwood described the County Koori Court of Victoria as “stunningly successful” because offenders who feel they have been treated with respect are less inclined to re-offend – or re-offend less seriously.
“I can personally say that I’m astonished by the results that we’ve had. After the Koori Court had been going for a few years, we interviewed a lot of prisoners. Invariably they said that for the first time in their lives, they could remember what had been said in the court.
It was the first time in their lives that they felt like they had been treated with respect and they were determined, because of the respect shown by the elders, not to offend again.”
Professor Elena Marchetti from the University of Wollongong noted that programs might appear unsuccessful against traditional indicators. She said:
“Policy-makers rely on quantitative studies of re-offending when making funding decisions, leaving programs at risk of closure when such measures generate less than satisfactory results.
Quantitative recidivism studies have found little or no impact as a result of the introduction of Indigenous courts, despite there being some evidence that they’ve had an impact on strengthening informal social controls within Indigenous communities.”
Chief Justice Kourakis from South Australia looked at some of the funding difficulties around justice-reinvestment programs, and emphasised the need to explore everything on the table.
“National comparative evaluation I think is important – not only for proof to treasuries that the money is well worth spending, but also so we can all identify best practice across a range of community, corrections and reinvestment programs,” he said.
“I know there will be difficulties … but I think we’re all here to recognise that doing nothing is not an option. In my view, even delay as we try and get these studies done is not an option either – these incarceration rates really do need immediate attention.”
It appears that the Australian public is underestimating or, at worst, ignoring the extent of the crisis.
Dr Fadwa Al-Yaman from the AIHW reported that the imprisonment rate of Indigenous males in WA has been higher than that of the US male black population.
Overall, the Indigenous imprisonment rate is 15 times higher than non-Indigenous prisoners.
Despite this, the Law Council of Australia noted that the federal government has rejected the inclusion of a “justice target” within the Closing the Gap initiative and “has characterised over-representation of Indigenous Australians in imprisonment as a state and territory government responsibility”.
The role of COAG and intergovernmental reform was the subject of some discussion. NT attorney general and minister for corrections, John Elferink, asked people to approach and develop relationships with their ministers to get policy reform on the political agenda. Others questioned whether this is a viable option in practice.
In the final panel of the day, Fiona McLeod, president of the Australian Bar Association, noted that lawyers have greater access to ministers and attorneys compared to other members of the community.
“You really need evidence to convince politicians that your advocacy is sound, otherwise it’s just a good idea – they’re not compelled to do anything about it.
Lawyers, of course, are very good at presenting persuasive arguments to court. We’re also not bad at advocating for change in policy. I think this is where we can be quite useful – telling the story in a powerful way that makes a change.”
A week after the symposium, the LCA released a communiqué, setting out remedies and ambitious targets.
The aim is to reduce the rates and length of imprisonment for men, women and youths by 50 percent in five years. The key driver to that end is an effective diversionary program for which trials should be implemented within 12 months.
Some of the obvious things proposed for speedy implementation include:
- Reform of laws that have a disproportionate effect on Indigenous people;
- Diversion, instead of imprisonment, for sentences of less than six months;
- Engagement to achieve Indigenous participation in alternatives to imprisonment;
- Support for a campaign to inform the broader Australian community of the crisis in Indigenous imprisonment.
This last proposal was pushed by NT barrister and former president of the NT bar, John Lawrence SC. During discussion at the symposium he urged the LCA to use its resources to let Australians know the extent of the problem.
“The policy of dealing with and addressing submissions directly to politicians has been proven worthless and should be dropped. Informing ‘the great uninformed’ should now be LCA policy.”
According to the communiqué, the development of strategies to address violent offending and addressing imprisonment of Aboriginal and Torres Strait youths and women with cognitive disabilities should be a priority of COAG.
The Law Council has been tasked with convening a group to identify a national data set to be collected by state and territory governments.
On the day of the symposium an organisation called Change the Record, a coalition of interest groups – including Mick Gooda from the Human Rights Commission, Amnesty International, the Australian Council of Social Service, the Federation of Community Legal Centres (Vic), the Human Rights Law Centre, and the LCA – published a Blueprint for Change.
Many of the Blueprint’s proposed responses run parallel to those in the LCA’s communiqué and can be examined through the link below.