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Hard targets needed to end the disgrace of indigenous incarceration


The incarceration rates for Aboriginal and Torres Strait Islander peoples represent a national crisis, writes Morry Bailes.

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A legacy of dispossession, marginalisation and exclusion have created conditions where Aboriginal and Torres Strait Islander peoples experience a myriad of serious forms of disadvantage.

Today, Aboriginal and Torres Strait Islander peoples are 13 times more likely to be imprisoned than the general population. Despite representing less than three per cent of the population, 27 per cent of all adult prisoners identify as Aboriginal and/or Torres Strait Islander.

This history of marginalisation hammers the confidence Aboriginal and Torres Strait Islander peoples have in the justice system.

There is a view in these communities, reinforced by history, that the legal system, the police, and the prison system are tools of oppression.

We rightly hail the previous Federal Government’s apology to the Stolen Generation and we marked its 10-year anniversary last month. But how’s this for a sobering fact: since the apology, the imprisonment of Aboriginal and Torres Strait Islander peoples has increased by close to 75 per cent.

Further, Aboriginal and Torres Strait Islander women are 10 times more likely to die of violent assault and 34 times more likely to be hospitalised as a result of violent assault. Children are seven times more likely to be in contact with the child protection system or to be subject to abuse or neglect

These numbers are nothing short of shocking. Which is why I believe it is imperative that justice targets are put back on the national agenda.

Justice targets involve Australian governments setting measurable goals to improve justice outcomes for indigenous Australians, including reducing imprisonment rates – goals to which they can be held accountable.

The Closing the Gap strategy, initiated in 2007, is the primary means through which the Council of Australian Governments seeks to address Aboriginal and Torres Strait Islander disadvantage.

Closing the Gap contains a range of targets, including closing the life expectancy between indigenous and non-indigenous Australians within a generation. What it doesn’t contain yet is a justice target equivalent, such as closing the gap in imprisonment rates.

To date, the Federal Government has been reluctant to introduce justice targets into the strategy.

But setting hard targets would help drive real change from federal, state, and territory governments. Targets create accountability.

The Government seems to have no trouble accepting this logic on other fronts.

Under the Closing the Gap strategy, targets are grouped into building blocks including early childhood, schooling, healing, economic participation, healthy homes, safe communities, and governance and leadership.

Despite safe communities being one of these building blocks, at present, no Closing the Gap targets are directly included to drive improvement in this area.

The fact is that without such targets and a concerted strategy to achieve them, efforts in all other areas are being undermined.

The Change the Record Coalition, of which the Law Council of Australia is a member, has set a number of justice targets. These targets are 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 National Congress of Australia’s First Peoples has also outlined important targets related to reducing driving infringements, fine debt and remand periods. The National Aboriginal & Torres Strait Islander Legal Service has suggested adding a further target to slash the over-representation of Aboriginal and Torres Strait Islander children in out-of-home care.

These should not be overly ambitious targets for a nation as wealthy and advantaged as Australia in 2018.

The Federal Government has previously said that national justice targets are not needed, arguing that the focus should be at the individual state and territory level. They have also argued that justice outcomes are best achieved by addressing the underlying causes of imprisonment.

And indeed there are social determinants, such as poverty and socioeconomic disadvantage, that uniquely affect Aboriginal and Torres Strait Islander people and contribute to incarceration rates and other broader legal issues.

But we must also recognise that difficulties are exacerbated, and sometimes created, bylaws and policies that have a disproportionate effect on indigenous communities, or otherwise compound existing disadvantage.

For example, indigenous people, especially the young, are often entangled in legal problems around driving.

Much of this is because traffic laws fashioned for the metropolitan area can operate unjustly in regional and remote communities, where higher proportions of indigenous people live, but where fewer basic services (such as driving schools, public transport and social services) are available. Some of these traffic laws could be sensibly amended or relevant services brought to these areas.

In addition, administrative assistance could be made available to indigenous people who will often not have identification documents – including birth certificates. This can be a barrier to obtaining a driver’s licence, which contributes to many charges of driving without a licence. Another short-term measure would be to immediately suspend fine-default imprisonment.

In 2013, 16 per cent of Aboriginal people who entered prison that year were there only for fine default.

Various mandatory sentencing laws around the country also magnify the problem of incarceration of Aboriginal people, because of their disproportionate impact on socially and economically disadvantaged groups.

Legislatures could remove existing mandatory minimum sentences and commit to not introduce new mandatory sentencing penalties.

Another immediately implementable measure would be an injection of funding for alternative sentencing approaches and diversionary programs that help people to avoid prison and throughcare programs to assist people re-entering the community.

We know such programs can reduce recidivism, save money, and prevent crime. They also help redirect nonviolent offenders from a life of repeated crime and prison time.

Another key way we can approach the problem of incarceration through the justice system itself is through legal assistance support.

In Australia, Aboriginal and Torres Strait Islander Legal Services were established in every state and territory some 40 years ago to provide culturally competent legal assistance services. Family Violence Prevention and Legal Services also play a vital role.

Unfortunately, these indigenous legal services have been stretched to breaking point. The challenges these services face are immense and the pressures imposed on their hard-working staff are enormous.

ATSILS and FVPLS provide legal assistance services in the areas of criminal, family and civil law in addition to undertaking community legal education, prisoner through-care and law reform and advocacy activities.

Regrettably, after decades of inadequate and declining funding from the Federal Government, these services are increasingly unavailable or inaccessible to many who need them most.

Successive federal governments have seen fit to wind back funding and states and territories have not filled the gap, despite increases in some jurisdictions.

The reviews of funding arrangements for ATSILS and FVPLS taking place this year provide an important opportunity for the Federal Government to ensure that these vital organisations are properly funded and supported.

But as any good business leader will tell you: what gets measured, gets managed.

If governments were held accountable to hard justice targets, I feel confident that the impetus for justice system reforms would grow.

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

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