'Please give us answers’ Indigenous incarceration in Australia: strategies for urgent reform
"Ms. Dhu's grandmother Carol Roe, and her mother, Della"
Picture source: http://mobile.abc.net.au/news/2015-11-23/inquest-into-death-of-dhu-in-police-custody/6963244
‘My granddaughter died in a cell begging for help. Please give us answers’ – Carol Roe, grandmother of 22-year-old Yamatji woman, Ms Dhu.
Ms. Dhu died after being held for 45 hours in police custody in Western Australia on 4 August 2014. She was arrested and taken to South Hedland police station, north of Perth on 2 August[1]. Her crime was to owe $3,622 in unpaid fines. Ms Dhu is one of about 340 people[2] who have lost their lives in custody since the handing down of the final report of the Royal Commission into Aboriginal Deaths in Custody (‘the Royal Commission’) on 15 April 1991[3]. 25 years on from the report, Ms Dhu’s grandmother’s plea must urgently be answered.
The Royal Commission’s 339 recommendations were the outcome of its investigation of 99 deaths in custody that occurred between 1980 and 1989, totalling five volumes of research.[4] It found Indigenous people were more likely to die in custody because they were more likely to be in custody. With this finding as a foundation, the report was intended to be a working document of change directed at reducing the disproportionate rates of incarceration of Indigenous Australians.
However, 25 years on from the report’s findings, the current rates of imprisonment and police custody have actually increased substantially.
This article sets out some of the data on current rates of Indigenous people in custody in Australia; describes the international legal framework relevant to reducing these rates; examines the drivers of why the rates of incarceration are so high; and gives an overview of current recommendations for urgently needed reform.
The Figures
The increasing national rates of contact by Indigenous people with Australia’s criminal justice system, including their over-representation in custody, are staggering. As Chris Cunneen, Professor of Criminology at the University of New South Wales points out:
“Put bluntly, the last 25 years have seen a spectacle of punishment most graphically illustrated in climbing imprisonment rates. And these changes were directly in opposition to the fundamental findings of the royal commission. [….] Prisons have become human warehouses for marginalised peoples, and most particularly Indigenous people.”[5]
A recent discussion paper published as part of the Law Council of Australia November 2015 symposium Addressing Indigenous Imprisonment,[6] collated data sets from the Australian Bureau of Statistics, government committee reports, and a number of leading academic papers on the current rates of Indigenous incarceration and disadvantage. The Law Council reported that right now:
1 in 4 deaths in custody is Indigenous;
27% of the prison population is Indigenous, while comprising just 2.5% of the national census;
Indigenous youths comprise over 50 per cent of juveniles in detention;
The rate of imprisonment of Aboriginal people has increased by over 57% since the year 2000;
Aboriginal and Torres Strait Islander women are the fastest growing cohort of people who are both victimised and imprisoned for violent offences (with Indigenous men not far behind); and
The overall crime rate in Australia has fallen substantially over the last 20 years, over a period in which the rate of imprisonment for the general population increased and the rate of Indigenous incarceration doubled.[7]
More recently, the imprisonment rate for Indigenous adults, recorded between June 2013 and June 2014, increased by 6.5%.[8] As at June 2015, the national Indigenous imprisonment rate was 13 times higher than it is for non-Indigenous Australians. These rates are higher in both Western Australia (17 times)[9] and the Northern Territory (14 times).[10] Extraordinarily, prisoner numbers among Aboriginal and Torres Strait Islander peoples since 2004 grew by 88%. This is compared with the non-Indigenous prisoner growth of 28%.[11]
The International Legal Framework
The Australian Government has declared to the international community and its own citizens that it is committed to the protection of universal human rights. It has done this by its ratification and adoption of international human rights declarations and binding treaties. However, as noted by Amnesty International in its May 2015 report, A brighter tomorrow: Keeping Indigenous kids in the community and out of detention in Australia,[12] the extraordinary over-representation of Indigenous people, young people in particular, in the criminal justice system has been recognised by a number of UN treaty bodies as a pressing human rights issue requiring urgent reform.[13]
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) was ratified by Australia in 1975. Its function is to prohibit any distinction on the basis of race that restricts the enjoyment of human rights. The Committee on the Elimination of Racial Discrimination, in its 2010 report on Australia, recommended that resources be directed to address the social and economic factors that underpin contact by Indigenous people with the criminal justice system. The Committee also advocated for the introduction of justice reinvestment and restorative justice strategies, and that Australia urgently takes steps to implement the recommendations of the Royal Commission.[14]
The Declaration on the Rights of Indigenous Peoples recognises the specific rights of Indigenous Peoples; including having greater control over decision-making about their lives and futures.[15] These are fundamental rights that the Federal, State and Territory governments must consider in regard to the implementation and administration of any policies that affect Indigenous people. The Australian Government declared its support for the Declaration in 2009; however, it is yet to be implemented in Australian law, policy and practice.[16]
In their submission to the Universal Periodic Review (UPR) process ahead of Australia’s second UPR, the Australian Human Rights Commission included in their recommendations that the Australian government develop, in partnership with Aboriginal and Torres Strait Islander peoples, a National Strategy to give effect to the Declaration; include the Declaration in the definition of human rights in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth); and review existing legislation, policies and programmes for conformity with the Declaration[17]
The Drivers
Contrary to what might be thought to be a contributing factor to the increased rates of Indigenous incarceration, overall national crime rates have actually fallen whilst imprisonment has risen. Instead, evidence suggests that the answers lie in the significant socio-economic disadvantage experienced by Indigenous peoples, coupled with increasingly harsh criminal justice policies of governments. As Chris Cunneen notes:
“[….] The growth of the law-and-order agenda has […] resulted in far weaker ideological differentiation between major political parties on criminal justice policy. The most politically expedient response to crime is the promotion and implementation of the “toughest” approach.”[18]
The Law Council of Australia also notes that policy settings, rather than crime rates, are a significant driving factor influencing increased imprisonment rates, and that law-and-order policies across most jurisdictions are becoming increasingly punitive.[19]
Mandatory sentencing is one policy setting that has most recently attracted significant criticism. The Australian Bar Association (ABA) have called for the amendment or removal of these laws, arguing that State and Territory government bail and sentencing policies, especially in jurisdictions where mandatory sentencing laws are in operation, are a key contributing factor to the over-representation of Indigenous people in custody.[20] In a recent media release on the issue, the ABA president, Patrick O’Sullivan QC, remarked:
“Mandatory sentencing appears a significantly attractive option to reduce crime and provide consistency in sentencing, however a lack of evidence exists as to the efficacy as a deterrent or the ability to decrease crime, particularly around minor theft, driving offences and minor assault.”[21]
Further drivers, intricately related with the circumstances of Indigenous disadvantage include disability, community dysfunction, high rates of drug and alcohol abuse, and a lack of alternatives to imprisonment, particularly in rural and remote areas where many Indigenous people live.[22]
The Solutions
So what can be done? Many different Indigenous groups, academics, politicians, legal practitioners and bodies, and human rights organisations have worked tirelessly over the years to answer this urgent question.
In November 2015, Change the Record, a national coalition of leading Aboriginal and Torres Strait Islander, human rights, legal and community organisations[23], released its Blueprint for Change.[24] The blueprint made a number of detailed recommendations. Fundamental to the blueprint were two key of targets aimed at promoting community safety and reducing the rates at which Aboriginal and Torres Strait Islander people come into contact with the criminal justice system. The targets are to:
i. Close the gap in the rates of imprisonment between Aboriginal and Torres Strait Islander people by 2040; and
ii. Cut the disproportionate rates of violence against Aboriginal and Torres Strait Islander people to at least close the gap by 2040; with priority strategies for women and children.[25]
The Australian Red Cross, in its recent Rethinking Justice: Vulnerability Report[26] published in March 2016, both endorsed this blueprint, and presented detailed research and recommendations on the implementation of a justice reinvestment strategy in Australia. Justice reinvestment is a proposal that has gained significant support across many sectors recently, after successful trials of the approach internationally.
Justice reinvestment is a mechanism that is designed to redirect money away from incarceration and towards community based initiatives aimed at addressing underlying causes of crime. It is argued that this is done in a way that yields a more cost beneficial impact on public safety. [27] It has also been noted that strengthening communities will not only result in a reduction of anti-social behaviour, but will also encourage the use of alternatives to imprisonment when courts impose sentences.[28]
The Red Cross argues that the key to the success of Justice Reinvestment has been that the approach involves local stakeholders, collaborating across their own communities to identify the drivers of the costs of criminal justice system. It then implements novel and more effective ways of reinvesting resources to achieve better outcomes by focussing on the causes of crime.[29] In recently advocating for the implementation of the strategy in Australia, the ABA has pointed to positive outcomes in other jurisdictions, noting that: “Oregon (US) experienced a 72% drop in juvenile incarceration after the state reinvested $241 million from prison spending to treatment programs and improved probation and parole services.”[30]
The Australian Human Rights Commission has also endorsed the approach in its submission to Australia’s UPR, recommending that Australia: “adopt targets and introduce justice reinvestment trials to reduce Indigenous incarceration rates.[31] Australia’s Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda, in endorsing the strategy, said:
“[w]hat I like about Justice Reinvestment is that it provides opportunities for communities to take back local control … to not only take some ownership of the problem but also to own the solutions.”[32]
To implement such a strategy will be a brave move by governments, particularly given their propensity to maintain the status quo in relation to being “tough on crime”. We have already seen the Federal Justice Minister, Michael Keenan, in response to the Red Cross report express his rejection of the idea to the ABC: “I would never suggest making an investment in some sort of amorphous set of social infrastructure would result in a decrease in crime.”[33]
Nevertheless, calls for practical short and long-term solutions have come from many quarters, including the Judiciary. In an address to the Western Australia Law Summer School in February of 2015, the Hon. Wayne Martin AC, Chief Justice of Western Australia, outlined some responses that are needed.[34] Chief Justice Martin outlined as short-term responses: reforms to driving offences; fine default offences; mandatory sentencing; and cautiously criticised the cuts to Legal Aid funding. For the longer term, Chief Justice Martin suggested that resource allocation needed to be spent more on addressing disadvantage and prevention, rather than on punishment:
“The only real solution, which is necessarily long term, is to address disadvantage and marginalisation in the longer term.”
“If resources are reduced in what I might call the prevention side, then we will be spending additional resources in our prisons. Why not spend the money on prevention rather than punishment?”
Conclusion
The rates of Indigenous contact with the criminal justice system are alarmingly high, and increasing. Current policy settings are not working. In the 25 years since the findings of the Royal Commission into Aboriginal Deaths in Custody, Australia’s Indigenous peoples have been locked up at higher and higher rates, infringing Australia’s international obligations to respect and preserve human rights, and the specific rights of Indigenous peoples. The drivers are clear – an increasingly punitive law-and-order policy landscape, at a time of falling crime rates has collided with the significant socio-economic disadvantage of our Indigenous population to cause increasing racial disparity, and still more deaths in custody. The solutions are within reach, and are needed urgently to ensure that no more Indigenous Australians die on our watch.
Carol Roe needs our answers - now.
References
[1] Calla Wahlquist, ‘Ms Dhu death in custody inquest hears details of the last 48 hours of her life’ Guardian Australia, 23 November 2015
[2] Calla Wahlquist, ‘Aboriginal deaths in custody: 25 years on, the vicious cycle remains’ Guardian Australia, 15 April 2016 <http://www.theguardian.com/australia-news/2016/apr/15/aboriginal-deaths-in-custody-25-years-on-the-vicious-cycle-remains>.
[3] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).
[4] Thalia Anthony, ‘Deaths in custody: 25 years after the royal commission, we’ve gone backwards’ The Conversation, 13 April 2016 <https://theconversation.com/deaths-in-custody-25-years-after-the-royal-commission-weve-gone-backwards-57109>.
[5] Chris Cunneen, ‘How ‘tough on crime’ politics flouts death-in-custody recommendations’ The Conversation, 14 April 2016 <https://theconversation.com/how-tough-on-crime-politics-flouts-death-in-custody-recommendations-57491>.
[6 Law Council of Australia, ‘Addressing Indigenous Imprisonment’ (Discussion Paper presented at National Symposium, Law Council of Australia, November 2015) <http://www.lawcouncil.asn.au/lawcouncil/images/II_Discussion_Paper_23_11.pdf>.
[7] Ibid 9.
[8] Australian Red Cross, ‘Rethinking Justice: Vulnerability Report 2016’ (Research Report, Australian Red Cross, March 2016) <http://www.redcross.org.au/files/VulnerabilityReport2016.pdf> 16>.
[9]Australian Bureau of Statistics, Prisoners in Australia (2015) <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/4517.0~2015~Main%20Features~Western%20Australia~24>.
[10]Ibid.
[11] Australian Red Cross, above n 8.
[12] Amnesty International Australia, ‘A brighter tomorrow: Keeping indigenous kids in the community and out of detention in Australia’ (Research Report, Amnesty International Australia, May 2015)
[13] Ibid 13.
[14] Ibid 14.
[15] Ibid 14.
[16] Australian Human Rights Commission, ‘Factsheet: Aboriginal and Torres Strait Islander Peoples’
[17] Australian Human Rights Commission, ‘Australia’s Second Universal Periodic Review: Submission by the Australian Human Rights Commission under the Universal Periodic Review Process’ April 2015 <https://www.humanrights.gov.au/sites/default/files/WEB_Australias_Second_UPR_Review_2015.pdf> 6.
[18] Cunneen, above n 5.
[19] Law Council of Australia, above n 6, 12.
[20] Australian Bar Association, ‘ “Amend mandatory sentencing and watch Indigenous incarceration rates fall” says ABA President’ (Media Release, 8 April 2016) <http://www.austbar.asn.au/wp-content/uploads/2013/12/MR-ABA-on-Indigenous-Incarcertion-80416.pdf>.
[21] Ibid.
[22] Law Council of Australia, above n 6, 12.
[23] The Change The Record coalition includes the following individuals and organisations:
ANTaR
Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Gooda
Amnesty International
Australian Council of Social Service
Federation of Community Legal Centres (Vic)
First Peoples Disability Network (Australia)
Human Rights Law Centre
Law Council of Australia
National Aboriginal Community Controlled Health Organisations
National Aboriginal and Torres Strait Islander Legal Services
National Congress of Australia’s First Peoples
National Family Violence Prevention Legal Services Forum
Oxfam Australia
Secretariat of National Aboriginal and Islander Child Care
Sisters Inside
Victorian Commissioner for Aboriginal Children and Young People, Andrew Jackomos.
[24] Change The Record, ‘Blueprint for Change’ (Research Report, Change The Record, November 2015) <https://drive.google.com/file/d/0B3OlOcaEOuaFU3BNc3Zrbl9wa0U/view?pref=2&pli=1>.
[25] Ibid 5.
[26] Australian Red Cross, above n 8.
[27] Ibid.
[28] Melanie Schwartz, ‘Building Communities, Not Prisons: Justice Reinvestment and Indigenous Over-Representation’ (2010)14(1) Australian Indigenous Law Review 2-17. <http://www.austlii.edu.au/au/journals/AUIndigLawRw/2010/1.pdf>.
[29] Ibid.
[30] Australian Bar Association, above n 20
[31] Australian Human Rights Commission, above n 17, 10.
[32] Mick Gooda, ‘Justice Reinvestment: A New Strategy to Address Family Violence’ (Paper presented at The National Family Violence Prevention Forum, Mackay QLD, 19 May 2010).
[33] Sam Tomlin, ‘Locking bad people up 'works': Minister for Justice rejects calls for prison overhaul’ ABC News, 31 March 2016 <http://www.abc.net.au/news/2016-03-31/federal-justice-minister-rejects-prison-criticism/7289038?section=wa>.
[34] Chief Justice Wayne Martin, ‘Indigenous incarceration rates: Strategies for much needed reform’ (Speech delivered at the Western Australia Law Summer School, 20 February 2015) <http://www.supremecourt.wa.gov.au/_files/Speeches_Indigenous_Incarceration_Rates.pdf>.
