The preventable scandal of Aboriginal incarceration

Australians should be ashamed of the rate of indigenous incarceration, particularly when there are proven solutions, argues our legal commentator Morry Bailes.

Dec 03, 2015, updated Dec 03, 2015


If you are a parent, how would you feel if you knew that statistically there was a 73% chance that your child would be warned or charged by police by the age of 23? That your child was 24 times more likely to be in juvenile detention than other children? That there was a greater likelihood of your child being incarcerated than completing year 12 schooling?

Welcome to the world of Aboriginal and Torres Strait Islander people. Indigenous people in Australia represent 2% of our population but 27% of our prison population. In the case of indigenous women, the numbers are even more disturbing. Indigenous women represent 34% of the female prison population and are the largest growing demographic in our nation’s prisons. Since 2004, the number of indigenous Australians in custody has increased by 88% compared to a 28% increase for  non-indigenous Australians.

The need for better data

If you have heard these statistics before, there is one fact that you may not know, and that is that these numbers are almost certainly underestimating the reality. At the Law Council of Australia’s recent Indigenous Imprisonment Symposium held in Sydney, statistician and academic Professor Stuart Kinner made the point that the Australian Bureau of Statistics figures are a “moment in time” measurement. The ABS isn’t to blame. In Australia we do not measure prison flow-through or ‘churn’. Many prisoners are in and out of prison more than once per annum, making the numbers published by the ABS almost certainly wrong. Dr Fadwa Al-Yaman of the Australian Institute of Health and Welfare says simply “we are underestimating indigenous imprisonment”.

Governments in Australia need a complete data set to properly understand the size of, and reasons for, indigenous imprisonment. We have no real handle on why there are such high rates of recidivism, for example. It is difficult to develop decent solutions when the extent of, and reasons for, the problem remain less than clear. By comparison qualitative statistics have been collected in the health sector for many years leading to much improvement in what is a difficult sector. Why not for the blight that is our indigenous Australians in incarceration?

What is evident listening to the many judges, academics, lawyers and indigenous leaders who participated in the symposium, is that there are many ideas about how to improve and reduce rates of indigenous imprisonment, but it takes our parliaments and politicians to listen, accept and act.

The role of the courts

Let’s start with our courts, where current problems exist. Alleged indigenous offenders are convicted at 15 times the rate of non-indigenous people. Why? Are they properly understanding the court process? Often not. There are examples of indigenous Australians for whom English is a fourth language after their own tongue and other Aboriginal languages. Against that, interpreting services are not being improved. Incredibly, in Western Australia they are being de-funded.

Resourcing for indigenous legal aid is inadequate. Legal representatives have little time with their clients, leading to inadequate representation, and indigenous defendants are sometimes unsure whether their lawyer is friend or foe. This is through no fault on the part of the advocates. There are just not enough of them.

Finally, sentencing options in most, if not all, our sentencing Acts are limited and lack flexibility. How relevant is the fundamental principle of deterrence, for example, when we are told by Judge Yehia SC of the District Court of NSW that the recidivism rate for indigenous offenders in her state is 69%? We are kidding ourselves if we persist in arguing that sentences of imprisonment for indigenous Australians act as a deterrent.

While in South Australia we have the Nunga Court at a summary court level located within the Port Adelaide Magistrates Court, other states have taken the concept of a specialist indigenous court into the superior court sphere. The inspirational Judge Smallwood of the Koori County Court of Victoria describes the results in his court as “stunningly successful”. Offenders are still imprisoned but they are sentenced only after the involvement of elders at every step of the sentencing process. In the usual setting of a criminal court indigenous offenders often struggle to follow what is happening. In the case of the Koori court the offender understands and is able to recall and recount, perhaps for the first time, the judicial process, why they are being incarcerated and how they will be supported not to re-offend. It is a community approach and recidivism rates have fallen dramatically as a result. It is an undeniable success.

We want to be proud of our country, but I for one look at this problem and feel ashamed, particularly when we know how to tackle it, if only our parliaments and politicians had the political will to back us up.

The origins of the problem

But why should it come to this? The President of the Children’s Court of NSW Judge Johnstone says “breaking the cycle starts with children”. It is a truism of the criminal justice system that the more we imprison the more we will cause imprisonment. It is broadly accepted that prison is a training ground for criminality. Once stigmatised with a sentence of imprisonment your chances of future employment are diminished.

Judge Johnstone asks why do children have to go to prison to get their teeth fixed, to have their behavioural or mental problems addressed and to be sent to school? Why can’t this happen in the community? Poverty and socio-economic factors are as much at play with indigenous child offenders as non-indigenous. To perpetuate the myth that a law and order approach as adopted by many governments in Australia, including our own, is somehow a panacea for crime is misplaced. And to not invest in preventing criminality in the first place is just bad economics.

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Five ideas to reduce incarceration

If we want to reduce rates of indigenous incarceration, here are five suggestions.

First, establish solution focused courts such as the Koori court. Such courts have a proven track record both in Australia and other countries. They should not be the exception, they should be the norm.

Second, bring flexibility into our sentencing regimes by amending our outdated sentencing Acts. Further, make sentencing relevant to those who you are sentencing. To sentence an affluent white Australian from Sydney in the same way as an impoverished indigenous offender in a remote community hardly makes sense.

Third, rid ourselves of ill conceived mandatory sentences, especially for driving offences designed for city folk but applied to those in remote communities. No wonder Western Australia’s indigenous recidivism rate is 80% and the percentage of indigenous people imprisoned is greater than that of blacks in America. A great many are serving mandatory sentences for driving offences or unpaid fines arising from driving offences. We are not Victorian Britain, or are we?

Fourth, resource our justice system adequately, including providing proper levels of funding to such outfits as the North Australian Aboriginal Justice Agency in the Northern Territory, and our own Aboriginal Legal Rights Movement. These organisations are at the coal face of the indigenous criminal ‘justice’ system and they are losing the battle. If governments want to invest in law enforcement then the quid pro quo is investment in the justice system. Simply, that is not happening. The failure of our State Government to go through with its earlier commitment to build a new city court complex is a perfect example.

Fifth, get serious about justice reinvestment. Not every program successfully implemented elsewhere is going to work here but when properly resourced and implemented, they work. There are some ‘sit up and listen’ tales from the Canadian Aboriginal justice system that gives cause for hope. In broad sweep, the idea is to take some of the $1.2 billion currently spent on incarcerating indigenous Australians per annum and apply it to prevention. It’s an approach that is supported by leading economic minds, because a dollar spent now is many dollars saved later on. The average cost of imprisoning someone in South Australia is $285 per day. Yes the old joke that it costs less to stay a night at the Hilton than in jail is true. You would think that some of the money currently applied at the end point might be better applied at the start of the problem.

The reasons for our distressingly high rate of indigenous imprisonment are complicated and complex. There is no silver bullet and to pretend that there may be is misleading. Yet many of the players in our criminal justice system have answers, and proven answers. Our own Chief Justice Chris Kourakis SC, who participated in the Indigenous Imprisonment Symposium, is one of those to ask. He has strong views on introducing new Close the Gap justice targets, and was only one of a number of chief justices and many senior judges who attended. Tellingly only one Australian Attorney-General was present – John Elferink of the Northern Territory. The stark absence of our elected law makers at the symposium sadly speaks volumes.

Our governments need to back down from their respective law and order platforms and admit that our current approach is fundamentally flawed. Our experiment with an inflexible and punitive approach to criminal justice has failed, and it’s costing a bomb.

Consider this: 43% of aboriginal men who are incarcerated in Canada have an average of 2.8 children in government care. The cost to government per annum to care for a child is $138,000. The cost to incarcerate the prisoner is $118,000 per annum. The average time that man will spend in custody is 3.5 years. The cost to government for that period is $1.4 million. I can’t use an Australian equivalent example because we haven’t bothered to collect the data, but the wider cost to Australian society is undeniable.

It’s time to wake up Australia. We know at least some of what has to be done, so let’s get on and do it. No-one in Australia is proud of the way we colonised our land, when it comes to the treatment of Torres Strait and Aboriginal Australians. We are at risk of replicating similar mistakes all over again in a different way and in a different century. We want to be proud of our country, but I for one look at this problem and feel ashamed, particularly when we know how to tackle it, if only our parliaments and politicians had the political will to back us up.

Morry Bailes is managing partner at Tindall Gask Bentley Lawyers, Member of the Executive of the Law Council of Australia and immediate past President of the Law Society of SA. The opinions expressed in this column are his own.

His column appears every second Thursday.

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