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National Affairs

Unlocking Indigenous incarceration

28 July 2016

From the archive | Governments have ignored a new report exposing appalling rates of young Indigenous people in detention, writes Robert Milliken. But a new response is attracting growing support

Right:

Twenty-four years after the final report of the royal commission into Aboriginal deaths in custody, an Amnesty International report has revealed that the incarceration rate has doubled among young Indigenous people. Tony Phillips/AAP Image

Twenty-four years after the final report of the royal commission into Aboriginal deaths in custody, an Amnesty International report has revealed that the incarceration rate has doubled among young Indigenous people. Tony Phillips/AAP Image

First published on 31 July 2015


Bourke, the town that inspired several of Henry Lawson’s Darling River stories, has always been on the frontier. Now it’s become an unlikely cauldron for an experiment that could reverse Australia’s shocking record of locking up young Indigenous people.

“We’re setting some new foundations,” says Alistair Ferguson, chair of the Bourke Aboriginal Community Working Party. He is talking about “justice reinvestment,” an approach first advocated by the American hedge fund billionaire and philanthropist George Soros, which is having its first serious Australian trial on the banks of the Darling, 760 kilometres northwest of Sydney.

The plan involves channelling money that would have been spent building more prisons into community projects aimed at keeping young Aborigines and other vulnerable groups out of them. About a third of Bourke’s 2500 people are Indigenous, and the town has experienced some of Australia’s worst Aboriginal youth imprisonment rates.

In March 2014, with Ferguson as their leader, a loose consortium including the police, the Bourke Shire Council, business figures and Indigenous leaders embarked on a project to apply what Ferguson calls “this community model” of justice reinvestment to try to bring the imprisonment rate down. They have secured funding, mainly from philanthropists at the Dusseldorp Forum and the Vincent Fairfax Family Foundation, for two years.

Ferguson is wary of discussing the program’s workings and achievements so far. But he is confident that next year the Bourke partners will have a case to take to the NSW government for supporting similar schemes elsewhere. “We’ve even got the Bourke liquor accord,” he says. “On Monday, we got the pub licensees to endorse what we’re doing. They’re helping with the problem of young people hanging around, and looking at ways of improving parental responsibility.”


The project could hardly be more timely. It’s twenty-four years since the final report of the royal commission set up by the Hawke government to examine the alarmingly high rate of Aboriginal deaths in police custody and juvenile detention. A recent Amnesty International report, A Brighter Tomorrow, has revealed that, among young Aboriginal people at least, the incarceration rate has doubled since then.

Amnesty’s two-year research project found that Indigenous young people – those aged between ten and seventeen – are now twenty-six times more likely to be in detention than their non-Indigenous peers. Aboriginal people make up about 5 per cent of Australia’s population in this age group, but are almost twelve times that proportion among detainees. On an average night in 2013–14, 430 of the 724 detainees in that age group Australia-wide were Indigenous children.

The picture is even worse for Aboriginal children aged ten and eleven: they make up more than 60 per cent of that group’s detainees. And it is worse still for Indigenous youth as a whole in Western Australia. They are fifty-three times more likely to be locked in detention than non-Indigenous young people – more than twice the national average.

The revelations come as the Abbott government, with Labor’s support, is preparing the ground for a referendum to recognise Indigenous Australians in the constitution. When Tony Abbott led the Coalition to power in 2013, he made much of his commitment to improving life for Indigenous Australians. He promised a “new engagement with Aboriginal people” and to be a “prime minister for Aboriginal affairs.” Yet the Abbott government has responded to the Amnesty report with silence.

It’s not hard to see why. The report takes Australia to task on an issue for which Abbott’s government has already shown contempt: Australia’s failure to comply with international human rights obligations through the UN Convention on the Rights of the Child. Australia signed up to this, the most widely ratified human rights treaty, twenty-five years ago. The convention stipulates that children should be imprisoned only as a “measure of last resort.”

This is the same convention that Gillian Triggs, president of the Australian Human Rights Commission, cited in The Forgotten Children, the report of the commission’s inquiry into Australia’s practice of locking up for indefinite periods children arriving on boats crammed with asylum seekers.

Triggs, too, cited Australia’s international human rights obligations covering the rights of the child. The Abbott government dismissed the findings out of hand and set about vilifying Triggs. Abbott called the report a “transparent stitch-up” that was politically biased. Asked then if he felt any guilt about the treatment of children in immigration detention, he replied, “None whatsoever.”

Amnesty, at least, has been spared such language. But its report on Australia’s treatment of Indigenous children is quite unsparing. It highlights some of the reasons why incarceration rates are climbing to a level that Mick Gooda, the Aboriginal and Torres Strait Islander social justice commissioner at the Human Rights Commission, calls “one of the most challenging human rights issues facing our country today.”

Since 1996, Western Australia has imposed mandatory prison sentences of one year on young people under its so-called “three strikes” law for those convicted of home burglaries. The last publicly available figures, from 2001, show that 81 per cent of the ten- to seventeen-year-olds sentenced under this law were Aboriginal. Amnesty has condemned Western Australia’s refusal to divulge mandatory detention figures since then, “given the human rights implications of these laws.”

Yet the WA government, under premier Colin Barnett, has recently introduced legislation imposing even tougher mandatory sentencing rules for judges and magistrates. Denis Reynolds, president of the Children’s Court of Western Australia, says these changes would only increase numbers in detention, especially among young country Aborigines. In 2013–14, 87 per cent of ten- to thirteen-year-olds in detention in Western Australia were Aboriginal; Amnesty was refused similar figures for children aged ten and eleven.

Queensland violates the Convention on the Rights of the Child in at least two ways. It treats seventeen-year-olds as adults in its criminal justice system, when the convention defines a child as anyone below eighteen. On top of that, the former Liberal National government, under Campbell Newman, changed the state’s Youth Justice Act to free courts from the “detention as a last resort” requirement when sentencing children. After an outcry from human rights groups and the Queensland Law Society, Annastacia Palaszczuk’s Labor government promised to repeal that change after it unseated the Newman government in February; so far, it has not done so.

Meanwhile, Amnesty has called on the federal government to override the Western Australian mandatory sentencing law, and the offending Queensland provisions, in Canberra’s capacity as the government responsible for enforcing Australia’s human rights obligations. It also wants Canberra to raise the age at which children in Australia are held criminally responsible from ten to twelve, the age the UN convention stipulates.

There seems little, if any, chance of such intervention. After a damning UN report on Australia’s asylum policies last March, Abbott declared that Australians were “sick of being lectured to by the United Nations.” Yet pressure from Amnesty and other human rights bodies is only bound to mount unless fresh solutions to the Indigenous incarceration rates are explored. Indeed, former High Court judge Michael Kirby argues that getting imprisonment rates down should take precedence over a referendum on constitutional recognition of Indigenous Australians.


Justice reinvestment as a name and idea first surfaced in 2003 in an article by Susan Tucker and Eric Cadora for the Open Society Institute, a think tank founded by George Soros. Attacking what they called “the failures of prison fundamentalism,” the authors argued that the war on drugs, three-strikes sentencing laws, elimination of judicial discretion and parole, and the “broad abandonment of rehabilitation” had produced an unprecedented level of imprisonment in the United States: more than two million then compared with 200,000 in 1972.

Prison inmates were often “people of colour,” convicted for non-violent crimes, poor, undereducated and unemployed. Three-quarters of them were dependent on drugs or alcohol; two-thirds would end up back in prison. Much of this profile would fit many of the young Indigenous Australians thrown into custody, too. The authors contended that chunks of the public money spent on prisons should be redirected to building schools, job training, healthcare, better public spaces and other “human resources.”

Central to their argument is the need to devolve responsibility for all this to the communities where high incarceration rates are worst. The communities could redeploy funds that the state would have spent on prisons and raise their own funds in the process, just as Bourke is doing.

“From an investment perspective, both our prison and parole/probation systems are business failures,” Tucker and Cadora wrote. “The question should be ‘What can be done to strengthen the capacity of high incarceration neighbourhoods to keep their residents out of prison?’ not ‘Where should we send this individual?’.”

The idea sounds logical enough, and some communities in Britain and the United States have since taken it up. More often, though, governments have feared risking populist backlashes should they appear to be less than tough on law and order. During Barry O’Farrell’s period as premier of New South Wales, the state’s Liberal attorney-general, Greg Smith, tried to reform the state’s prison system with an approach reflecting some elements of justice reinvestment. In the face of a relentless campaign by Sydney’s Daily Telegraph, Smith sought to rehabilitate many young offenders instead of locking more of them up. After Mike Baird took over as premier last year, he dumped Smith from cabinet; Smith later quit politics.

Tom Calma, the former Aboriginal and Torres Strait Islander social justice commissioner, was the first to advocate justice reinvestment for Indigenous Australia in his 2009 Social Justice Report. The approaches that had been tried in the two decades since the royal commission, he said, were simply not working: “If it were working, we would be seeing a reduction in Indigenous imprisonment, rather than the 48 per cent increase since 1996.” Calma called for “bold and creative” thinking “outside our safe policy parameters.” He nominated justice reinvestment as an approach that “may hold the key to unlocking Indigenous Australians from the cycle of crime and escalating imprisonment rates.”

Mick Gooda took this up when he succeeded Calma as commissioner the following year. In one of his first speeches, he challenged his audience to “imagine if instead of imprisoning all these people, weakening the community further, some were diverted from prison and the money that would have been spent on locking them up is then put into crime prevention and community building programs.”

Gooda cited results from American states that had tried justice reinvestment: a 72 per cent drop in juvenile incarceration in Oregon, and a halt to the growth of Texas’s prison population after that state reinvested $241 million from prison spending to treatment programs and improved probation and parole services.

By contrast, he said, New South Wales would have to build another prison every two years if its prison population continued to grow at current rates, with running costs alone increasing by $170 million each year.

David Brown, emeritus professor of law at the University of New South Wales, also champions justice reinvestment for its potential to “shift from the increasingly discredited and hugely expensive resort to imprisonment as the default response to social marginality, dysfunction and crime.” Brown says there are 30,000 prisoners in Australia at any one time, more than a quarter of them Indigenous, and this is costing governments $3 billion a year. Even a 10 per cent reduction in the Indigenous reimprisonment rate would save more than $10 million a year, according to the NSW Bureau of Crime Statistics.


Long before the term justice reinvestment was coined, the royal commission into black deaths in custody recommended something similar when it called for community-led solutions as a key to keeping young Aborigines out of prison.

But achieving an approach like justice reinvestment needs a bipartisan commitment. Brown points out that in America the idea receives support from conservatives and progressives alike. Moral, religious and fiscal conservatives like it if it stops wasting public money on building more prisons. Many progressives welcome shifting resources to social-democratic approaches that cut crime and increase public safety.

There is little sign of such bipartisanship emerging in Australia. After an inquiry two years ago, the Senate standing committee on legal and constitutional affairs supported justice reinvestment as a “mechanism” worth exploring to cut incarceration rates, especially among Indigenous Australians. It recommended that the federal government take a leading role through the Council of Australian Governments, or COAG, and that Canberra establish a trial of the scheme with the states and territories, with at least one remote Indigenous community included as a site.

The Senate report was presented in June 2013, three months before the Abbott government won power. The government has never responded to it. The Senate committee’s Coalition members probably sealed the report’s fate when they issued a minority report opposing the recommendation for federal leadership on justice reinvestment. They said that the states and territories were responsible for most of Australia’s criminal justice system and all of the prison system: “The cockpit for implementation and reform on JR is the states and territories, not the Commonwealth.”

For Amnesty, this attitude ignores the fact that the federal government, not the states, bears responsibility for addressing human rights issues through Australia’s international legal obligations. In its recommendations to the federal government, Amnesty calls on Canberra to take the lead in implementing a national justice reinvestment approach; the Bourke trial, it suggests, could be a model. Amnesty also wants Canberra to add another target to the Closing the Gap targets on Indigenous life expectancy, infant mortality, health and jobs that COAG has pursued since 2008. Like some lobby groups in Australia, Amnesty wants a new “justice target” to close the gap between Indigenous and non-Indigenous Australia on prison incarceration rates.


That will be a long haul. The latest Closing the Gap report listed just two of the seven targets (infant mortality and Year 12 school attainment rates) as being “on track”; for at least one target (employment), the gap had actually widened.

Eddie Cubillo, an Indigenous lawyer and executive officer of the National Aboriginal and Torres Strait Islander Legal Services, or NATSILS, welcomes the Amnesty report. The Abbott government had planned to abolish funding to the peak Indigenous law body from mid 2015, a move that probably would have killed it; the government only reversed the decision after an outcry from Indigenous and human rights lobby groups.

NATSILS had already lobbied federal and state attorneys-general to put justice reinvestment on their agendas. “They’ve said it’s a discussion point,” says Cubillo. Late last year the Productivity Commission also endorsed justice reinvestment as something that “requires testing new approaches.”

Priscilla Collins, chief executive of the North Australian Aboriginal Justice Agency, a legal aid body, reckons the Amnesty report highlights what organisations such as hers have long argued. “It’s about investing in youth, not locking them up,” she says. “Being tough on crime obviously isn’t working.”

Some aspects of the tough-on-crime approach seem entrenched. Young Indigenous people in remote regions suffer more than most from lack of suitable accommodation, which would enable magistrates to release them on bail. So they are much more likely to be locked up on remand. Over the year to June 2014, young Indigenous people were twenty-three times more likely than non-Indigenous ones to be in unsentenced detention.

Only late last year, the NT government introduced its so-called “paperless arrest” law, allowing police to hold for four hours, without charge, someone who is suspected of committing a minor offence. Legal experts say the law is unprecedented: it leaves police unaccountable. At the least, it seems destined to be weighted against young Indigenous people. It also appears to violate the “measure of last resort” provision on imprisonment under the Convention on the Rights of the Child.

Collins’s agency has launched a High Court challenge to the law. The Human Rights Law Centre, a non-government organisation involved in the challenge, says the law was used more than 700 times in its first three months, with three-quarters of paperless arrests applied to Indigenous people. Even before the new law came into effect, young Indigenous people comprised 96 per cent of those aged between ten and seventeen in detention in the Northern Territory, according to Amnesty, more than double their proportion of that age group’s population.

Former policeman John Elferink, the NT attorney-general, argued that the new arrest law relieves a “burden on our police officers.” He told the ABC, “Unfortunately paperwork, and excessive amounts of paperwork, do affect our police.” Elferink blamed high rates of Indigenous incarceration on what he called the “lifestyles” of Aboriginal people.

Tony Abbott also talked of Indigenous “lifestyle choices” last March when he supported a decision by Colin Barnett, the WA premier, to close 150 of that state’s 274 remote Indigenous communities. Yet Eddie Cubillo and Priscilla Collins believe moves to close remote traditional communities in Western Australia and the Northern Territory would send more young people to urban fringes, making them more vulnerable to poverty, high crime rates and the justice system’s vagaries.

The rising rate of young Indigenous people in detention almost twenty-five years after the royal commission suggests that policy-makers, for all their good intentions, have failed to respond to what Amnesty calls “this national crisis.” The royal commission was a government response to a domestic outrage. But Amnesty’s report has now exposed the same issue to an international human rights spotlight. The indifferent response so far from Australian governments is chilling.

Julian Cleary, of Amnesty International Australia, says Australia is not unique as a country where people in poverty are more likely than others to end up in jail. But the lingering legacies of poverty and land dispossession for Aboriginal Australians have played big parts in the story. Amnesty’s report highlights misguided government policies, such as mandatory sentencing and bail laws, that have only made things worse.

The population of young Indigenous Australians is growing at a faster rate than that of the country as a whole. This sends a signal that incarceration rates will keep rising, too, unless new ways are tried. As Eddie Cubillo observes, “Aboriginal people seem to be the last to be engaged when it comes to finding new approaches.” That could change if the justice reinvestment venture at Bourke, initiated by Indigenous leaders, lives up to its promise. “We reckon it’s the springboard to overcome legacy issues,” says Alistair Ferguson. •

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