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There is a way to reverse this national tragedy - if we have the will


Numerous reports have identified evidence-backed strategies to reduce the tragically high rate of Indigenous incarceration in Australia – so why won’t governments take action?

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Most know Indigenous over-incarceration is a national problem. Few appreciate just how catastrophic it has become.

So it’s worth pausing to consider the facts.

Indigenous Australians are, based on the best available data, the most incarcerated people on Earth.

If you are an Aboriginal and Torres Strait Islander person, you are 12.5 times more likely to go to jail than other Australians.

If you are an Aboriginal and Torres Strait Islander woman, the comparisons are even more startling – you are incarcerated at more than 20 times the rate of non-Indigenous women.

Aboriginal and Torres Strait Islander people constitute 27 per cent of the total adult prison population, but just two per cent of the Australian adult population. That is, one in 50 Indigenous adults are in prison.

Aboriginal or Torres Strait Islander young people aged 10–17 were 24 times more likely to be in juvenile detention than non-Indigenous young people.

We know that Aboriginal and Torres Strait Islander offenders are more likely to receive a short sentence of imprisonment and less likely to receive a community-based sentence than non-Indigenous offenders.

We know being in custody, even for short periods, increases the likelihood of further offending, entrenching future cycles of imprisonment and disadvantage. Notably, 76 per cent of Aboriginal and Torres Strait Islander prisoners have previously been in prison, compared with 49 per cent of non-Indigenous offenders.

This constitutes a singular national tragedy.

It calls for urgent national leadership, through the introduction of justice targets in the COAG Closing the Gap strategy, underpinned by long-term commitments and place-based solutions.

These solutions should be – and are being – led by Aboriginal and Torres Strait Islander people themselves, through the Redfern Statement, Change the Record’s Blueprint for Change, and local on-the-ground initiatives.

So far, the trial results strongly suggest that justice reinvestment is an experiment with which we must continue.

In the United States, justice reinvestment has now been introduced in 33 states since 2007.

Justice reinvestment reallocates resources that would otherwise be spent on prisons and reinvest them in programs and services that address the underlying causes of crime. It aims to reduce offending and related criminal justice spending, improve public safety, and strengthen communities.

The Productivity Commission in the Report on Government Services 2018 found that total net operating expenditure (including capital costs) of Australian governments on adult corrective services in 2016-17 was $4.1 billion. The total net operating expenditure (including capital costs) per prisoner per day in 2016-17 was $286 (or approximately $104,000 per year).

The costs of juvenile detention are significantly higher than the cost of adult detention. According to the Productivity Commission, in 2016-17, the average cost per day, per young person subject to detention-based supervision was $1482 (or approximately $541,000 per year).

In Australia, the first major trial of justice reinvestment has been the Maranguka project in Bourke, which began in 2016. The trial was developed by Just Reinvest NSW in partnership with the local Aboriginal community.

Bourke has experienced high levels of unemployment, high rates of predominantly non-violent crime, and low levels of education. In 2015-16 it had the highest rate of juvenile convictions in NSW. The direct costs of Bourke’s Aboriginal juvenile and young adult involvement with the juvenile system have been estimated at around $4 million per year.

Initiatives under the Bourke Maranguka project include helping young people obtain driver’s licences, supporting those at risk of disengaging with education, and establishing school holiday programs during high-risk crime periods. Local Bourke police, along with broader multidisciplinary servicing teams, have been critical community partners in building these early intervention and diversion solutions.

A new report by KPMG, analysing the results in Bourke, found a gross economic impact of $3.1 million in 2017. Two-thirds of this impact is relief on the justice system itself and a further third is a broader economic impact on the region.

If just half of the results achieved in 2017 are sustained, Bourke could deliver an additional economic impact of $7 million over the next five years.

Other key findings include:

Rates of reoffending have dropped and young people are also being sentenced to less time in prison.

So far, the trial results strongly suggest that justice reinvestment is an experiment with which we must continue. And the blueprint to extend the concept is there.

In 2016, then Attorney-General George Brandis commissioned the Australian Law Reform Commission’s Pathways to Justice report to investigate Aboriginal over-incarceration in Australia.

This report was tabled in parliament more than six months ago and contains a range of sensible and important recommendations, including to expand justice reinvestment trials and establish a national justice reinvestment body.

Unfortunately, the Australian Government has made no formal response to this landmark report.

And in August this year, the Law Council’s Justice Project, a comprehensive review into the state of access to justice in Australia for groups experiencing disadvantage, also supported justice reinvestment and broader early intervention and diversionary approaches to tackle the underlying factors behind crime.

These, too, are available for government to draw on. All that is required is political will.

As we head into a federal election year, there will be an historic opportunity for whoever wins: they could be the first Australian Government in 40 years to oversee a reduction in the national indigenous incarceration rate.

All that is needed is to implement sensible policies that have been recommended, tried, and tested.

Morry Bailes is president of the Law Council of Australia.

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