Proposal 7–1 To reduce breaches of community-based sentences by Aboriginal and Torres Strait Islander peoples, state and territory governments should engage with peak Aboriginal and Torres Strait Islander organisations to identify gaps and build the infrastructure required for culturally appropriate community-based sentencing options and support services.
7.22 A reduction in imprisonment for JPOs could have a considerable impact on the number of Aboriginal and Torres Strait Islander peoples in prison. The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) recommended that non-custodial sentences be available, accessible and culturally appropriate, and that authorities work with Aboriginal and Torres Strait Islander groups in implementing programs. This has also been a key focus of the Victorian Aboriginal Justice Agreements.
7.23 Stakeholders in this Inquiry have suggested that compliance with community-based orders would increase if programs and conditions were relevant and practical to the circumstances of Aboriginal and Torres Strait Islander offenders, and if offenders were supported.
7.24 There are existing models in use across the states and territories that could be expanded and adapted. Some of these are discussed below.
Compliance with conditions through assistance
7.25 The Victorian Government has developed support services and programs in collaboration with peak Aboriginal and Torres Strait Islander organisations to assist Aboriginal and Torres Strait Islander offenders complete community-based sentences. These include the Local Justice Worker Program and the Wulgunggo Ngalu Learning Place, which were developed under the Victorian Aboriginal Justice Agreement.
7.26 The Local Justice Worker Program (LJWP) aims to increase the completion rate of Aboriginal and Torres Strait Islander offenders sentenced to community-based sentences in Victoria. Under this program, the Local Justice Worker links up offenders with services and culturally appropriate worksites; and can connect with the Sherriff’s Office to help set up appropriate options for the repayment of fines, including payment plans, community work permits or Community Correction Orders (CCOs).
7.27 The LJWP includes the Koori Offender Support and Mentoring Program, in which Elders and respected persons are involved to provide support, advice and cultural connection to offenders, as well as to supervise offenders undertaking community work. Where available, Elders are engaged to participate in various activities with offenders, including fishing, traditional dance, arts and craft.
7.28 The LJWP operates from 10 locations across Victoria, chosen based on the daily average number of Aboriginal offenders reporting to Community Corrections Services (CCS) offices in each region.
7.29 The LJWP was independently evaluated in 2013. The evaluation observed a narrowing of the gap between the proportions of Aboriginal and Torres Strait Islander offenders as compared to non-Indigenous offenders who had successfully completed their orders since the program was first piloted. The evaluation further found that ‘statewide data on improved completion rates of orders by Aboriginal offenders suggest that the programs may be making a contribution to these improved rates’. The program was noted to have high Aboriginal and Torres Strait Islander female participation.
7.30 The evaluation suggested that the LJWP may operate to decrease Aboriginal and Torres Strait Islander incarceration through:
decreasing the number of Aboriginal and Torres Strait Islander offenders who breach the conditions of their community-based sentence orders/parole orders resulting in imprisonment;
decreasing the number of Aboriginal and Torres Strait Islander offenders who lose their driver licences as a result of defaulting on fine repayments and then being charged with driving offences;
increasing access via connections to necessary services, such as alcohol programs, housing, parenting workshops, and financial counselling; and
increasing skill based work experience, in combination with mentoring, leading to better employment opportunities.
Culturally appropriate community-based sentencing options
7.31 The ALRC has heard about the existence of culturally appropriate community-based sentencing options that have been developed with or by Aboriginal and Torres Strait Islander organisations. There are examples of culturally appropriate community-based sentencing options in the Victorian Aboriginal Justice Agreement. These include the advent of a sustainable work program based in the grounds of Weeroona Cemetery, which has reportedly contributed to an increase in the rate of successful order completion by Aboriginal and Torres Strait Islander offenders in Victoria.
7.32 Victoria has also introduced the Wulgunggo Ngalu Learning Place, which provides a voluntary residential program for up to 20 Aboriginal and Torres Strait Islander men serving community-based orders. This option usually becomes available when an Aboriginal or Torres Strait Islander man has already breached a CCO, and the only other option is prison.
7.33 In NSW, the Balunda-a (Tabulam)—‘be good now you have a second chance down by the river’—program was developed in 2008 for male offenders aged over 18 years. The program is primarily a diversion program under which offenders in NSW are referred while under a bond prior to sentencing. The program also operates as a place of referral by community corrections staff for male offenders when revocation of parole or a community-based order is being considered, or when during the course of supervision an offender is assessed as requiring intensive residential supervision. Like the Wulgunggo Ngalu Learning Place, this option is only available following a breach where risk of imprisonment arises. It has been described as a ‘last-chance opportunity before [people] enter into custody’.
7.34 The NSW Corrective Services website states:
Following acceptance into the program offenders participate in structured programs within a culturally sensitive framework. Programs address specific areas of risk to assist on improving life skills and reintegration into the community, for example, cognitive based programs, drug and alcohol, anger management, education and employability, domestic violence, parenting skills and living skills. Cultural activities include excursions to sacred sites, music, dance and art. Elders employed by the program provide support and assist residents to recognise, restore and value cultural links with their land and history.
The property is situated on 534 hectares and also operates as a farming and beef cattle property giving the residents the opportunity to develop agricultural skills. The length of stay at the program varies according to individual needs however a minimum period of 6 months is required.
While a focus of the program is to reduce re-offending, and thereby the incarceration rate of Aboriginal people, the program is available to all within NSW.
7.35 The above examples are not an exhaustive list of programs. There may be other culturally appropriate community-based sentencing options that the ALRC has not reviewed. Submissions on other community-based sentencing options are welcomed.
7.36 The ALRC recognises that community-based sentencing options may not be available in every location where they are required. Each state and territory faces different challenges. The Northern Territory (NT) and Western Australia (WA), for example, have numerous remote communities, and implementing community-based sentencing options in some areas would be challenging. To overcome this, a 2016 independent review of NT Corrective Services recommended the appointment of Probation and Parole Officers to remote communities who are from that community to provide local supervision and support to offenders. The recommendation makes clear that this should only be implemented with community agreement. Some stakeholders in this Inquiry have raised the possibility of supervision by community as described in the NT Supreme Court case of DjAmbuy, where the offenders were sentenced to suspended sentences that were to be supervised by the Aboriginal community, instead of Community Corrections.
7.37 In this chapter, the ALRC proposes that state and territory governments—particularly corrective services—work with peak Aboriginal and Torres Strait Islander organisations to identify program gaps, and develop programs and support services to facilitate the completion of community-based sentences by Aboriginal and Torres Strait Islander offenders. One example of such a gap is likely to be programs for Aboriginal and Torres Strait Islander women. The ALRC considers that these programs should be developed by Aboriginal and Torres Strait Islander communities if they are to meet the objective of providing culturally appropriate content and support.
7.38 The ALRC further recognises the facilitative role that the Aboriginal Justice Agreements have had in developing programs and support services in Victoria. Aboriginal Justice Agreements are discussed in Chapter 10.
7.39 The ALRC welcomes submissions on the scope and practical implications of this proposal, and is interested to hear about other options and initiatives that may decrease the rate of non-compliance with community-based orders by Aboriginal and Torres Strait Islander offenders. While this chapter is focused on JPOs relating to a failure to comply with conditions of community-based sentencing orders, the ALRC also welcomes submissions on ways to minimise other justice procedure offending.
Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 5, recs 111, 116.
See ch 10.
See ch 10.
Fines are further discussed in ch 6.
Attorney-General’s Department (Vic), Evaluation of Indigenous Justice Programs Project B: Offender Support and Reintegration—Final Report (2013) 90.
Attorney-General’s Department (Vic), Evaluation of Indigenous Justice Programs Project B: Offender Support and Reintegration—Final Report (2013).
Victorian Government, Victorian Aboriginal Justice Agreement Phase 3 (AJA3): A Partnership between the Victorian Government and the Koori Community (2013) 47.
Criminal (Sentencing Procedure) Act 1999 (NSW) s 11.
Senate Finance and Public Administration References Committee, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) [7.26].
Community Corrections, Department of Justice (NSW), Balund-a (Tabulam) <www.correctiveservices.justice.nsw.gov.au>.
See, eg, Richard Coverdale, Centre for Rural Regional Law and Justice Deakin University, Postcode Justice: Rural and Regional Disadvantage in the Administration of the Law in Victoria (2011) 62.
Northern Territory Government, A Safer Northern Territory through Correctional Interventions: Report of the Review of the Northern Territory Department of Correctional Services, 31 July 2016—Statement of Response (2016) rec 133.
R v Yakayaka and Djambuy (Unreported, Supreme Court of Northern Territory, 17 December 2012); Thalia Anthony and Will Crawford, ‘Northern Territory Indigenous Community Sentencing Mechanisms: An Order for Substantive Equality’ (2013) 17(2) Australian Indigenous Law Review.