Access to interpreters

10.4     There are many Aboriginal and Torres Strait Islander languages spoken throughout Australia, with some estimates placing the current number of Indigenous languages spoken nationwide at around 120.^[4] In the Kimberley region alone it has been reported that there are up to 30 spoken languages, ranging from those that are commonly used to language groups that are spoken by a very small number of people.^[5]

10.5     Aboriginal and Torres Strait Islander people, particularly in remote and regional areas, are often multilingual. For many people from isolated Aboriginal and Torres Strait Islander communities, English may be a second or third language.^[6] The Productivity Commission reported that approximately 41% of Aboriginal and Torres Strait Islander people who come from remote areas speak an Aboriginal or Torres Strait Islander language as their first language, compared to about 2% of those living in metropolitan areas.^[7] Additionally, Aboriginal and Torres Strait Islander people, particularly in remote and regional areas, may speak ‘Aboriginal English’. As identified by the Kimberley Community Legal Centre, ‘Aboriginal English… transforms the meanings of many English words and mixes English words with these different meanings with words and concepts drawn from Aboriginal languages’.^[8]

10.6     Some Aboriginal and Torres Strait Islander people may find it difficult—if not impossible—to understand legal proceedings without access to an interpreter. In 2016, the Productivity Commission reported that 38% of Aboriginal and Torres Strait Islander first language speakers experience difficulties when communicating with service providers.^[9] A 2002 survey conducted by the Office of Evaluation and Audit reported that 63% of Aboriginal and Torres Strait Islander legal services (ATSILS) practitioners experienced difficulty in understanding what their clients were saying, with 13% of those experiencing difficulty ‘very often/often’.^[10] The issue of ATSILS practitioners experiencing difficulty in taking instructions can be pronounced in some areas. For instance, Wadeye, the largest Aboriginal and Torres Strait Islander community in the Northern Territory (NT), has been identified as a place where ‘almost all’ individuals seeking legal advice require an interpreter.^[11]

10.7     The prevalence of hearing loss makes it equally difficult for many Aboriginal and Torres Strait Islander people to understand and participate in legal proceedings. While there are no formal studies that have looked into the extent of hearing loss among Aboriginal and Torres Strait Islander people engaged with the criminal justice system,^[12] the over-representation of Aboriginal and Torres Strait Islander people with hearing loss in prisons has been identified.^[13] In the NT, 90% of Aboriginal and Torres Strait Islander prisoners in the Darwin and Alice Springs correctional systems have hearing loss.^[14]

10.8     The right to be able to understand legal proceedings is well-established in both domestic^[15] and international law.^[16]

10.9     The right to an interpreter is also well recognised. Domestically, the High Court held in Ebatarinja v Deland that ‘if the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial.’^[17] The right to a fair trial itself has been variously described as ‘a central pillar of our criminal justice system’,^[18] and ‘the central prescript of our criminal law’.^[19] Internationally, art 14 of the ICCPR states that in criminal proceedings, everyone is entitled to ‘the free assistance of an interpreter if he cannot understand or speak the language used in court’. In relation to Aboriginal and Torres Strait Islander people with hearing loss, art 13 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) requires:

effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stage.^[20]

10.10  The obligation to provide an interpreter extends beyond court proceedings and into other points in the criminal justice system. In all jurisdictions except the NT, when police are questioning an Aboriginal and/or Torres Strait Islander person, police have a legislative obligation to arrange for the services of an interpreter ‘where a person’s English is insufficient to enable them to understand the questioning or speak with reasonable fluency’.^[21] In the NT, the police manual incorporates the Anunga rules, which include the requirement for an interpreter during questioning.^[22]

10.11  While the entitlement to an interpreter is clear, practical challenges exist in procuring access to interpreters, both in relation to Aboriginal and Torres Strait Islander languages and where an Aboriginal and/or Torres Strait Islander person experiences hearing loss. The majority of deaf Aboriginal and Torres Strait Islander people do not use Auslan. In the NT alone, there are approximately 55 Aboriginal signing systems, with about eight most commonly used systems. Further, it can often be culturally impermissible to use these signing systems ‘away from country’, meaning deaf Indigenous people may be prevented from teaching community signs to outsiders.^[23]

10.12  There was strong support for the ALRC’s proposal in the Discussion Paper that state and territory governments work with relevant Aboriginal and Torres Strait Islander organisations to map the need for additional interpreter services. Stakeholders—including many Aboriginal and Torres Strait Islander organisations—also identified existing gaps. The NT Anti-Discrimination Commissioner and the North Australian Aboriginal Justice Agency emphasised the need to monitor and evaluate the use of interpreter services through data collection.^[24] The ALRC incorporated this suggestion into rec 10–1.

10.13  With regard to Aboriginal and Torres Strait Islander languages, many jurisdictions with high proportions of remote Aboriginal and Torres Strait Islander populations^[25] such as Queensland, South Australia (SA), and Western Australia (WA) currently operate without state-funded dedicated interpreter services for Aboriginal and Torres Strait Islander people. Stakeholders agreed with the ALRC’s suggestion that the Aboriginal Interpreter Service (AIS) in the NT was a good model. The AIS is an interpreter service that provides assistance to Aboriginal and Torres Strait Islander defendants who face language barriers. The AIS has over 370 registered interpreters, with interpreter services for up to 100 languages and dialects. It offers a range of interpreting services to those involved in the criminal justice system, but also covers a broad range of other areas where interpreters may be required, for example, in health settings.^[26] However, as highlighted by stakeholders, the gaps discussed below also apply to the NT (including the discussion around the need to fund additional interpreters).^[27]

10.14  The failure to incorporate interpreters across all parts of the criminal justice system was also identified. A number of stakeholders stated, for example, that interpreters were not used during police interactions, when orders such as restraining orders or domestic violence orders were served, or when explaining bail conditions, bonds or warrants.^[28] Stakeholders also emphasised the need to use interpreters in delivering prison programs.^[29]

10.15  Australian Lawyers for Human Rights and Josephine Cashman suggested that the use of translation technologies or translated materials could increase the availability of interpreters in particular parts of the criminal justice system. Josephine Cashman recommended funding the AIS to review all court documents (eg, bail, domestic violence orders) and translate them into plain English and the most commonly spoken Aboriginal and Torres Strait Islander languages.^[30] Australian Lawyers for Human Rights canvassed the possibility of developing electronic translation services to communicate matters such as bail conditions.^[31] The NT Government noted that it commissioned the AIS to produce an app which translates the police caution into 18 common Aboriginal languages. The app is available on all police iPads.^[32]

10.16  Stakeholders identified that effective access to interpreters also requires additional funding for interpreter services.^[33] While noting that progress towards funding to increase the availability of interpreter services appears to already be ongoing,^[34] the ALRC draws the Commonwealth Government’s attention to the Law Enforcement and Justice Services Inquiry’s recommendation to fund interpreters.^[35]

10.17  The need for interpreters who are trained to a professional standard and able to interpret in legal contexts was also raised.^[36] The International Commission of Jurists Victoria suggested that interpreter standards should be based on the following criteria, derived from the Canadian decision in R v Tran—continuity, precision, impartiality, competence and contemporaneousness.^[37]

10.18  Stakeholders emphasised the need to provide training and guidance for police, judicial officers, court staff, corrections and others working within the criminal justice system.^[38] On the question of ensuring effective access to interpreters, stakeholders submitted that training should focus on identifying when an interpreter is needed and how to interact with Aboriginal and Torres Strait Islander people through an interpreter.^[39] Legal Aid NSW noted the existence in NSW of internal guidelines on matters such as conducting interviews in the presence of interpreters.^[40]

10.19  More broadly, in order to ensure effective communication, the need for training covering cross cultural communication, cultural awareness and disability awareness was also canvassed. Cross cultural communication includes matters such as ‘gratuitous concurrence’ (which means agreeing to any and every proposition) and the possibility of being misunderstood because important body language cues are missed or not given their full significance by the listener.^[41] Cultural awareness includes an understanding of kinship, the role of individuals within the community, the historical and ongoing impact of colonisation, intergenerational trauma, and ongoing contemporary experiences of Aboriginal and Torres Strait Islander peoples and communities.^[42] Disability awareness refers to matters such as the prevalence of hearing loss and Foetal Alcohol Spectrum Disorder (FASD) among Aboriginal and Torres Strait Islander people. Legal Aid NSW noted, for example, that awareness of FASD requires an understanding that ‘sufferers of FASD may confess or agree to any statement due to high suggestibility and eagerness to please’.^[43]

10.20  There are four discrete but complementary categories of legal services that provide targeted and culturally appropriate legal assistance to Aboriginal and Torres Strait Islander communities, including Legal Aid Commissions, community legal centres, ATSILs in each state and territory, and the Family Violence Prevention Legal Services (FVPLS). Commonwealth, state and territory governments provide the bulk of funding for the four legal assistance services. While the level and mix of funding sources varies between these different service providers, the past three years has seen much uncertainty around the funding of these services following the expiration of the original National Partnership Agreement on Legal Assistance Services—a 4 year agreement between the Commonwealth and the states and territories—and the re-negotiation of a new agreement for 2015–2020. The recent funding history of these legal services was articulated in the Law Enforcement and Justice Services Inquiry Report,^[44] and also comprehensively described in the Access to Justice Inquiry Report.^[45]

10.21  In the Discussion Paper, the ALRC asked ‘in what ways can availability and access to Aboriginal and Torres Strait Islander legal services be increased?’

10.22  Stakeholders overwhelmingly submitted that increasing access to justice fundamentally requires sufficient, sustainable and ongoing funding. In addition to the need for funding for their core work, many innovative service offerings that could increase access are also reliant on additional funding and support.^[46] As discussed above, the adequate resourcing of legal assistance services is a cornerstone of access to justice. The ALRC notes the Commonwealth Government’s commitment of an additional $55.7 million over the next three years for community legal centres and ATSILS. However, as noted by stakeholders, ongoing funding beyond 2020 remains uncertain. The ALRC encourages Commonwealth, state and territory governments to implement recommendations from the Access to Justice and Law Enforcement and Justice Services Inquiries relating to funding legal assistance services.

10.23  More broadly, stakeholders submitted that barriers to access to justice can be reduced by collaborations between non-Indigenous legal assistance providers and Aboriginal and Torres Strait Islander organisations. The importance of collaboration was linked to addressing some Aboriginal and Torres Strait Islander peoples’ reluctance to use mainstream services because of a history of racism and culturally insensitive service provision.^[47]

10.24  On the broader role of legal services in addressing disproportionate rates of Aboriginal and Torres Strait Islander incarceration, stakeholders noted that access to civil or family law assistance may help reduce rates of incarceration.^[48] The role of integrated, holistic wraparound services, and the value of co-locating legal services with other support services was also emphasised.^[49]

10.25  The Legal Education and Assistance Program (LEAP) run by the Women’s Legal Service, Wirringa Baiya Aboriginal Women’s Legal Centre and Western Sydney Community Legal Centre is an example of the role access to civil and family law services can play. LEAP provides culturally appropriate legal services to Aboriginal and Torres Strait Islander women in three metropolitan Sydney correctional services centres. Advice is provided across a range of areas, including civil and family law. Women’s Legal Services NSW stated:

Access to legal services in prison is essential to help reduce the risk of prisoners re-offending and being re-incarcerated. This is because imprisonment often exacerbates civil law and family law issues which are interconnected with the criminal law issues. This can prevent the successful reintegration of people after they are released…. As a statewide service WLS NSW often continues to act for clients after their release. Maintaining this relationship has resulted in women calling us for early legal advice about their safety, arrangements for their children and assistance to avoid parole breaches, for example, by varying reporting conditions. This is particularly important for Aboriginal and Torres Strait Islander women who may have family and community obligations requiring them to move between locations to assist with looking after children and family members.^[50]

10.26  National Aboriginal and Torres Strait Islander Legal Services (NATSILS) submitted that co-locating disability and legal services is an important avenue to improve access to justice. Aboriginal and Torres Strait Islander clients with a cognitive impairment or mental illness could be provided with a range of supports by disability support workers embedded within ATSILS including communication assistance, referrals, family assistance and emotional support. Disability support workers are also in a position to assist lawyers to recognise a client’s support needs, model good communication, and develop support packages that assist a client as they interact with police, prosecution services and the courts, ‘in order to reduce the risk of reoffending’.^[51]

10.27  Melbourne University ran a six month Disability Justice Program trial with NATSILS, Victorian Aboriginal Legal Service (VALS) and the Intellectual Disability Rights Service that embedded disability support workers within a community legal centre setting.^[52] While the trial has ended, NATSILS and VALS have tried to continue the co-location model but face resourcing constraints.^[53] Comments collected as part of the evaluation of the trial demonstrate the crucial role disability support workers can play. For example, in relation to a case where fitness to stand trial was raised with respect to an Aboriginal and Torres Strait Islander client, a lawyer told researchers:

We had a report prepared whereby some of the psychologists said he was in the lowest one per cent of intellect in the population. The question then is how do you ensure he doesn’t come back before the system? And there was a list of treatment options available and [the support person] was going to look at that and help the client engage with those options.^[54]

10.28  The end result was that rather than face possible indefinite detention following a finding of unfitness to stand trial, a diversionary order was made ‘which did not require that he enter a plea’.^[55]

10.29  The ALRC encourages Commonwealth, state and territory governments to support initiatives such as LEAP and the disability support worker program above.

10.30  Criminal offences are divided into two categories: summary and indictable offences. Summary offences are heard in the lower courts (Local or Magistrates courts), whereas indictable offences are generally heard in District/County or Supreme courts. Together, these courts are referred to as ‘mainstream’ courts, and hear the majority of criminal cases prosecuted in all Australian jurisdictions.

10.31  For Aboriginal and Torres Strait Islander peoples, mainstream courts can be inaccessible or alienating. Specialist Aboriginal and Torres Strait Islander sentencing courts were established against the background of ‘the sense of powerlessness and alienation felt by many Aboriginal people caught up in the criminal justice system’ revealed by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC).^[56] Such courts ‘emphasise the importance of giving aboriginal people a meaningful say in the decisions that affect their everyday lives’.^[57]

10.32  The Office of Crime Statistics and Research (SA) described the alienation and disconnection of Aboriginal and Torres Strait Islander defendants as follows:

The overwhelming view that emerged… was that Aboriginal people mistrusted the justice system, including the courts. They felt that they had limited input into the judicial process generally and sentencing deliberations specifically. They also saw the courts as culturally alienating, isolating and unwelcoming to community and family groups. It was clear that Aboriginal people found aspects of the Australian legal system difficult to understand^[58]

10.33  The Australasian Institute of Judicial Administration suggests that the process of some specialist Aboriginal and Torres Strait Islander sentencing courts promote concepts such as validation, respect and self-determination. The establishment of such courts ‘demonstrate respect for Indigenous culture and the Elders who are its authority figures. Their processes, collaborative in nature, promote the resolution of underlying problems that have brought individual offenders to court’.^[59]

10.34  A 2010 evaluation of Murri Courts in Queensland observed its ‘considerable success’ in improving relationships between Aboriginal and Torres Strait Islander communities and Queensland Magistrates Courts.^[60] The study found an increase in appearance rates, an increase in opportunity for those appearing to be linked up with rehabilitative services,^[61] and that the initiative was ‘highly valued’ among Aboriginal and Torres Strait Islander community stakeholders.^[62]

10.35  The ALRC acknowledges that specialist courts are more resource intensive than mainstream courts.^[63] Participants in specialist courts may have to appear multiple times over an extended period (due to case management and judicial monitoring);^[64] and treatment and community resource providers are an obligatory component of many specialist courts.^[65] However, for the reasons set out above, and because of the complex needs that many Aboriginal and Torres Strait Islander defendants face, the ALRC recommends that, where needed, state and territory governments establish (and continue to support) lower level specialist Aboriginal and Torres Strait Islander sentencing courts. Stakeholders expressed strong support for this recommendation.^[66] Submissions reiterated the need to establish such courts in regional areas.^[67] Kingsford Legal Centre submitted, for example, that ‘the effectiveness of specialist courts … is impeded by their… high level of concentration in metropolitan areas’.^[68]

10.36  While such courts have historically existed in all jurisdictions except Tasmania, their establishment and operation ‘has been neither easy nor inevitable’.^[69] State and territory governments have taken the view that ‘reducing recidivism was the main rationale for the use of specialist Aboriginal courts’.^[70] For example, currently, there are no specialist Aboriginal sentencing courts in the NT or WA. WA saw the abolition of two specialist Aboriginal sentencing courts in 2015, both following evaluations of the courts that found that recidivism either did not significantly reduce, or because it in fact increased.^[71] In January 2015, the Barndimalgu Court—a specialist Aboriginal family violence court—was abolished^[72] following a 2014 evaluation that found that while rates of reoffending were lower, the difference was not statistically significant.^[73] The Kalgoorlie Community Court was abolished following an evaluation that found that recidivism rates were higher than in mainstream courts. In Queensland, although they have since been re-established, Murri courts were abolished in 2012 on the basis that they did not reduce recidivism rates.^[74]

10.37  This approach to evaluating specialist Aboriginal and Torres Strait Islander courts can be quite a blunt approach. Recidivism is only one of a number of aims for such courts, including increased attendance rates, and ‘providing a better and more culturally relevant sentencing process’.^[75] Most of the other aims have been achieved to some extent.^[76]

Key elements

10.38  Specialist courts, aim to be inclusive and culturally appropriate. They seek to directly engage people who appear before them, to provide individualised case management, and to address underlying issues in culturally appropriate ways,^[77] including by having Elders participate in the sentencing discussion.^[78]

10.39  Such courts should:

• involve active participation by the defendant and the community;
• provide individualised case management for the defendant and wraparound services that address criminogenic factors;
• be culturally appropriate and competent; and
• have its design, implementation and evaluation led by relevant Aboriginal and Torres Strait Islander organisations.

Active participation

10.40  Specialist courts aim to increase active participation through the inclusion of key community members, such as Elders, and the use of plain English to ensure that processes and requirements imposed by the court are well understood by the person appearing.^[79]

10.41  The Koori Courts in Victoria have a legislated purpose of ‘ensuring greater participation of the Aboriginal community in the sentencing process’.^[80] The legislative aims of NSW Circle Sentencing include increased participation of Aboriginal offenders, victims, and community members in sentencing processes, and to improve community confidence in sentencing processes.^[81]

10.42  Such participation has also been found to correlate with high satisfaction levels by users, and greater engagement with the system.^[82]

Individualised case management of the defendant and availability of wraparound services

10.43  As discussed above, a number of evaluations of specialist Aboriginal and Torres Strait Islander sentencing courts suggest that these courts may have limited short-term success in reducing reoffending. Bennett argues that these findings should be unsurprising, stating:

As a number of the studies have observed, the Aboriginal Courts generally do not have integrated pre- or post-sentence programs to address issues frequently related to Aboriginal offending (anger management, mental health, alcohol and substance abuse). ^[83]

10.44   He also stated that ‘the need for a broader approach combining the Aboriginal Court process with rehabilitative programs to address the major causes of offending has been recommended by a number of studies’.^[84]

10.45  For example, the 2010 study into the Murri Court considered such an approach crucial to meaningfully address reoffending, stating:

Realistically, for the Murri Court to have any impact on reoffending (while not moving away from the philosophy of involving Indigenous community representatives in the sentencing process), strategies are required to enhance the capacity of rehabilitative programs to address those factors recognised as being associated with the disproportionate rate of offending among Indigenous offenders.^[85]

10.46  The NSW Bar Association made similar points regarding circle sentencing in NSW:

whilst circle sentencing gives Aboriginal and Torres Strait Islander people direct involvement in the sentencing of Indigenous offenders… such involvement by itself does not necessarily lead to a reduction in reoffending. Specialist Aboriginal and Torres Strait Islander courts must also have available to them specialist programs, a capacity for continued court monitoring after sentence and the resources to conduct drug testing.^[86]

10.47  The NSW Bar Association submitted that the proposed District Court of NSW Koori Court (the Walama Court) was a good example of a court operating under a model incorporating individualised case management and wraparound services. Under this model, a program would be determined for the defendant during a ‘sentencing conversation’ that includes Elders and a Koori Court officer, among others. In addition to a cultural component, and the content of the program itself (which can incorporate referral to services), it is proposed that the Court would be empowered to engage in individualised case management through the incorporation of the following elements:

• release of the defendant on a suspended sentence to undertake the program;
• phases of low, medium and high supervision, including breath-testing, urinalysis and progress appearances in the Koori Court; and
• sanctions for breach of program requirements.^[87]

10.48  While not a lower level court, the ALRC supports the establishment of the Walama Court.

10.49  The Neighbourhood Justice Centre (NJC) operating in Victoria also provides a useful model.^[88] The NJC is a Victorian Magistrates’ Court of first instance established in 2007, and is Australia’s first community justice centre.^[89] The NJC is co-located with treatment and support services and seeks to resolve disputes by ‘addressing the underlying causes of harmful behaviour and tackling social disadvantage’.^[90]

10.50  Bennett sounded a note of caution around the operation of specialist Aboriginal and Torres Strait Islander sentencing courts, outlining that the incorporation of pre-sentence programs requires an active judicial role in ongoing monitoring to ensure compliance with diversion programs. He cautioned that the adoption of a problem-solving model into specialist Aboriginal and Torres Strait Islander courts requires a careful balance between this additional monitoring role and ensuring that Elders and the community remain central to the process and that it continues to be an Aboriginal and Torres Strait Islander process. The ALRC considers that these issues demonstrate the importance of ensuring that the design of such courts are led by Aboriginal and Torres Strait Islander organisations.

Culturally appropriate and competent

10.51  A 2013 study concluded that a culturally appropriate court process was ‘critical when providing a justice response for Aboriginal and Torres Strait Islander people’.^[91] The Kimberley Community Legal Centre provided some useful guidance in determining what is culturally appropriate, cautioning against making assumptions about ‘what is culturally appropriate or likely to be wanted or supported’ by Aboriginal and Torres Strait Islander people in an area.^[92] It submitted that ‘models such as specialist courts… have lower prospects of being successful unless they are worked through and developed for the particular, local context’.^[93] This requires that the design, implementation and evaluation of these courts be led by relevant Aboriginal and Torres Strait organisations.

10.52  When considering how courts might be appropriately evaluated, Eleni Marchetti emphasised the importance of ensuring that Aboriginal and Torres Strait Islander values and knowledge informs evaluations of specialist Aboriginal and Torres Strait Islander sentencing courts.^[94] The use of ‘positivist methods of evaluation’ mean that existing evaluations of specialist Aboriginal and Torres Strait Islander sentencing courts ‘often focus on measures and criteria that are difficult to apply within a non-mainstream setting and may not reflect Indigenous cultural values and aspirations’.^[95]

10.53  There are other specialist courts that address criminogenic factors, such as drug addiction and mental health issues. These courts are available to Aboriginal and Torres Strait Islander peoples, but are not specific to them. Diversion programs—which divert a defendant or offender out of the criminal justice stream in order to address such factors prior to trial or sentencing—can also assist some Aboriginal and Torres Strait Islander people who come before the courts. Some examples of these courts and diversion programs that were drawn to the ALRC’s attention during this Inquiry are described briefly below.

Specialist courts

The Drug Court of NSW

10.54  The Drug Court of NSW is a specialist court that takes referrals from the NSW Local Court or the District Court of NSW. The Drug Court sits in Parramatta, Toronto and Sydney^[96] and aims to address drug dependencies related to criminal offending.^[97] Issues of drug dependency are addressed through intensive case management between court teams, community agencies, and the judge. It is also achieved through participant sanctions for non-compliance with program conditions—including the sanction of imprisonment, which is used as a last resort. Participants are regularly tested for drugs.^[98] The registrar and Drug Court team considers the number of Aboriginal and Torres Strait Islander applicants in determining the number of places available.^[99]

10.55  In 2008, a NSW Bureau of Crime Statistics and Research evaluation of the Drug Court showed it to be more cost effective than prison in reducing the rate of reoffending among offenders whose crime was drug-related.^[100] This included a 38% decrease in recidivism for a drug offence during the follow-up period, and a 30% decrease in recidivism for a violent offence.^[101]

Victorian Neighbourhood Justice Centre

10.56  The NJC employs Koori Justice Workers to support Aboriginal and Torres Strait Islander clients and provide advice to the Court in relation to culturally specific programs and services.^[102] The NJC also holds a monthly Aboriginal Hearing Day during which all cases involving Aboriginal defendants are heard, in order ‘to provide better support for Aboriginal clients and to increase court attendance’.^[103]

10.57  The NJC was evaluated in 2010. It was found that recidivism rates for participants reduced by 7%. The opening of the NJC also aligned with a reduction in the crime rate in the City of Yarra by 12% in the first two years.^[104] A later 2015 AIC evaluation of the NJC revealed that

[T]he City of Yarra has the highest crime rate of any Victorian Local Government Area (LGA) other than the City of Melbourne, with an aggregate crime rate in 2007–08 of around 18,000 per 100,000 population… In the period after the NJC was established, crime rates in Yarra have fallen, with a 31 percent decline in total crime, largely as the result of a 40 percent decline in property crime. Crime rates have generally fallen in Victoria over the same period… but the decline in Yarra is greater than that observed in comparable inner urban LGAs… or LGAs with high levels of social disadvantage^[105]

Court diversion programs and specialist lists

10.58  Court diversion programs allows judicial officers to adjourn matters while defendants engage in support services. These diversion programs can provide services for people accused or convicted in the summary jurisdiction who require assistance with addiction or mental health issues.

10.59  Diversion programs include, but are not limited to:

• the Australian Capital Territory (ACT) Court Alcohol and Drug Assessment Service, which incorporates drug and alcohol counselling during court proceedings or as part of sentencing orders.^[106]
• the Statewide Community and Court Liaison Service (SCCLS) (NSW) is a service of the Justice Health & Forensic Mental Health Network. This service provides court-based identification and assessment of defendants with mental health issues and cognitive impairments, resulting in a pathway for diversion under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
• the Cognitive Impairment Diversion Program (NSW), which was launched as a pilot in September 2017 in the Gosford and Penrith Local Courts. The program involves expanding the SCCLS to include court-based identification, assessment and diversion of defendants with cognitive impairment, and linking them with the National Disability Insurance Scheme.
• Magistrates Early Referral into Treatment program (NSW and Queensland), which allows people whose offending is related to their substance abuse issues to voluntarily enter into rehabilitation as part of the bail process;^[107]
• the NT Mental Health List, which was established as a pilot in 2016 in Darwin. The list diverts all defendants with possible mental health issues or cognitive impairments to this list. The Court relies on a ‘therapeutic framework that allows for the management and treatment of such offenders’.^[108]
• the Victorian Court Integrated Services Program,^[109] which includes Aboriginal and Torres Strait Islander controlled and mainstream organisations;^[110] and
• the Victorian Assessment and Referral Court list, which provides ‘case management to participants including psychological assessment, referral to welfare, health, mental health, disability, housing services and drug and alcohol treatment’.^[111]

10.60  High rates of cognitive impairment and mental illness have been observed in the Australian general prison population. For example, in NSW, people with a mental illness or cognitive impairment were found to be 3 to 9 times more likely to be in prison than the general population.^[112] This over-representation is particularly pronounced for Aboriginal and Torres Strait Islander prisoners with research finding that Aboriginal and Torres Strait Islander people with mental illness and cognitive impairment are ‘significantly more likely to have experienced earlier and more frequent contact with the criminal justice system’.^[113]

10.61  Where cognitive impairment or mental illness is acute, the issue of a person’s fitness to stand trial may be raised.^[114] If found unfit to stand trial, in jurisdictions without fixed terms, a person may face a particularly stark access to justice issue—the prospect of indefinite detention or detention that far exceeds the maximum sentence for the offence.^[115] As observed in the Indefinite Detention Inquiry:

justice diversion provisions [without limiting terms] have resulted in people with disability being detained indefinitely in prisons or psychiatric facilities without being convicted of a crime, and for periods that may significantly exceed the maximum period of custodial sentence for the offence.^[116]

10.62  Indefinite detention regimes disproportionately affect Aboriginal and Torres Strait Islander peoples. A 2012 study found, for instance, that all nine individuals who were indefinitely detained in WA, following a finding of unfitness to stand trial, were Aboriginal.^[117] Evidence submitted to the Indefinite Detention Inquiry indicated that of the 100 people detained across Australia without conviction under forensic mental health provisions, at least 50 were Aboriginal and Torres Strait Islander peoples.^[118]

10.63  The Australian Human Rights Commission (AHRC) reviewed the status of three Aboriginal men found unfit to be tried and held under indefinite detention in the NT,^[119] and found that:

• the men had been held in a maximum security prison in Alice Springs because no suitable places for forensic patients existed;^[120]
• one of the men had been in detention for six years, despite the maximum penalty of the crime he was accused of committing being 12 months imprisonment under regular criminal processes;
• another of the men had been in detention for over four years, despite a maximum criminal penalty of 12 months imprisonment; and
• the third man had also been in detention for over four years, and remained so at the time of the AHRC’s reporting date.^[121]

Special hearings

10.64  The question of fitness to stand trial is determined by reference to whether the accused person is ‘of sufficient intellect to comprehend the course of proceedings in the trial so as to make a proper defence, to know that he may challenge any of you to whom he may object and to comprehend the details of the evidence’.^[122] Circumstances that may give rise to a finding of unfitness to plead include an inability to understand the charge, the proceedings, the substantial effect of evidence led against the accused, or an inability to instruct counsel.^[123]

10.65  In all jurisdictions except WA and Queensland, if a person is found unfit to stand trial, a qualified determination relating to guilt is made following a ‘special hearing’, during which the prosecution case is tested. Other than under Commonwealth law, such proceedings must be conducted in a manner as near as possible to a criminal trial,^[124] where the criminal standard of proof must be met—beyond reasonable doubt. In most jurisdictions, if a person is found unfit to stand trial, a qualified determination is made about whether that person committed the offence.^[125]

10.66  Stakeholders submitted that a requirement to conduct a special hearing is necessary in order to test the evidence against the defendant.^[126] NATSILS, in particular, submitted that such a process should adopt the Victorian model where proceedings are conducted in a manner as close to a criminal trial as possible. The model requires that where findings are made that an accused ‘committed the offence charged’, such finding must be proven to the criminal standard of proof, ^[127] and be subject to appeal.^[128]

10.67  In Queensland, the Mental Health Court—constituted by judges of the Supreme Court of Queensland and advised by two psychiatrists—is required to determine whether a person charged with a serious offence is unfit for trial.^[129] Where the Court finds that the defendant is permanently unfit to stand trial, proceedings must be discontinued.^[130] The Mental Health Court is then required to make a custodial or non-custodial order relating to that person. Where the court considers it necessary to do so ‘because of the person’s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property’, the court will make a custodial order regardless of whether the person was guilty of the offence charged.^[131] Such a test is broader than the criteria that applies when making a treatment order under the Mental Health Act 2016 (Qld)—where a person may be detained for treatment only if they pose a risk of imminent serious harm to themselves or others.^[132]

10.68  In WA, a judge must be satisfied, by reference to a number of factors including the strength of the available evidence, that it would be appropriate to make a custodial order.^[133] A judge is not required to follow any particular process to satisfy him or herself of the appropriateness of the order. For instance, in Western Australia v Tax, Martin CJ released the defendant unconditionally where the court gave weight to representations by counsel, including in relation to alibi evidence in favour of the defendant and concessions by the State relating to the identification of the defendant.^[134] In another case, McKechnie J made a custodial order on the basis that ‘the prosecution case was “objectively strong” because the High Court had recently ordered a retrial’ instead of quashing the case.^[135]

Fixed term of detention

10.69  A person charged with a serious indictable offence found unfit to stand trial may be ordered to spend time in forensic custody under supervision. Custodial supervision regimes^[136] fall into four broad categories:^[137]

• detention without a nominated end date: the court makes a custodial supervision order of indefinite length. The term of detention rests in the hands of administrative decision-makers who conduct reviews.^[138]
• custody for a nominal term: the court fixes a term for custodial supervision, ^[139] at the end of which, the court initiates, under its own motion, a ‘major review’. The court must release the person, unless satisfied that the person would be a serious risk to themselves or members of the public.^[140] This approach has been described as being broadly consistent with preventative detention regimes applicable to serious sex offenders.^[141]
• custody for a limiting term: the court orders that the person be detained for a period that is the best estimate of the sentence the court would have imposed following a full criminal trial.^[142] However, upon an application, the court may extend the term of detention if the person would present an unacceptable risk of serious harm to others.^[143]
• custody for a fixed term: detention can only be for a specific period.^[144] Under Commonwealth law, this term cannot exceed the maximum term for the offence. In the ACT and SA, the maximum term is the term that the court would have imposed following a ‘normal’ criminal trial. The person cannot be detained for longer than this period.^[145]

10.70  Regimes that can lead to indefinite detention^[146] raise two key access to justice issues: the potential for detention that far exceeds the sentence that may have been imposed for the offence charged; and the concomitant possibility that a person chooses to plead guilty and end up in the criminal justice system instead of being treated as part of the mental health system or assisted through guardianship regimes.

10.71  Indefinite detention regimes enforced after a finding of unfitness have received international criticism. The United Nations Committee on the Rights of Persons with Disabilities criticised the operation of WA’s unfitness to stand trial regime, which resulted in the detention of an Aboriginal and Torres Strait Islander man for nearly a decade.^[147]

10.72  In order to avoid indefinite detention, a person may rely on legal advice to plead guilty.^[148] For example, NATSILS provided the following case study in its submission to the Indefinite Detention Inquiry:

‘Mary’ is a CAALAS client who suffers from a cognitive disability. Mary is from Central Australia, but was found unfit to plead in WA and detained there indefinitely. By agreement between the WA and NT Governments, Mary was released from detention in WA and returned to Central Australia where public housing accommodation had been arranged. Unfortunately Mary was taken back into police custody following the commission of further offences. CAALAS was able to take instructions from Mary in relation to these offences, and the matter resolved to a plea with Mary receiving a term of imprisonment. In CAALAS’ observation, being detained indefinitely due to a question of fitness to plead was far more distressing and traumatic for Mary than receiving a finite term of imprisonment. Whilst indefinitely detained, Mary was extremely frustrated and upset and would frequently ask her lawyer when she was getting out, and when she was going home. CAALAS observed the lack of certainty to be utterly tortuous for her.^[149]

10.73  Where people plead guilty in order to avoid indefinite detention they enter the criminal justice system instead of the forensic mental health system and may not receive necessary treatment or care. This could affect the likelihood of recidivism and runs counter to legal principles that underpin fair trials and access to justice.^[150]

10.74  The ALRC’s recommendations contained in the ALRC’s Report Equality, Capacity and Disability in Commonwealth Laws,relating to detention following a finding of unfitness to stand trial were supported by the Senate Community Affairs References Committee in 2016.^[151] The Law Reform Commission of WA also recommended that custody orders should not be indefinite.^[152] Inquiries by the NSW Law Reform Commission (NSWLRC) and Victorian Law Reform Commission (VLRC) recommended the adoption of limiting terms and indefinite detention regime with rolling five year reviews respectively on the basis that the possibility of detention beyond the end of the nominated term is sometimes necessary for community protection.^[153]

10.75  While many stakeholders expressed support for ‘limiting terms’,^[154] a number noted that the time spent in detention as part of the criminal justice process must be finite.^[155] The Mental Health Commission of NSW submitted, for example, that it ‘remains concerned about the indefinite detention of individuals found unfit to be tried, including by way of extension of court order limiting terms’.^[156]

10.76  NATSILS submitted to the Indefinite Detention Inquiry that the absence of finite orders leads to

the paradoxical result… that there are rightfully limits on the time spent in custody for those convicted of crimes, including those who are mentally impaired, whilst the current legislation allows for indefinite detention, of those mentally impaired accused who are not convicted in law of any crime.^[157]

10.77  NATSILS provided the following case study to illustrate the risk of indefinite detention once a custodial supervision order is made—even where that order is for a term reflective of the sentence that would have been given if ordinarily convicted of the offence:

‘Ronald’ is an Aboriginal man who required criminal law assistance from CAALAS. Ronald was subject to an adult guardianship order. Despite being subject to an adult guardianship order, Ronald was not receiving enough support or resources from the Department of Health and this prompted his guardian to raise the issue of fitness to plead at Ronald’s court hearing. Ronald was assessed as unfit to plead. As a result, Ronald was in custody at the Alice Springs Correctional Centre from August 2007 – July 2013, and at the time of writing remains in the Secure Care facility. Ronald’s period of detention was initially set at a nominal term of 12 months, however when this nominal term has been reviewed, Ronald’s period of detention has been further extended due to a lack of community supports and alternatives. CAALAS estimates that if Ronald had been found guilty of the criminal charges, he would have received a sentence of imprisonment of approximately 4 months. In contrast, he has now been in custody for almost 9 years and it is unclear when he will be released.^[158]

10.78  The Law Council of Australia, in its submission to this Inquiry noted that ‘defendants, once found to lack legal capacity and consigned to a “mental health facility”… have little prospect of demonstrating a change in capacity and effectively remain in custody for an indeterminate period’.^[159]

10.79  The criminal justice system is not the appropriate pathway for the ongoing management of people with mental illness or cognitive impairment. As stated in the ALRC’s Equality Capacity and Disability in Commonwealth Laws Report: ‘if [the person is] a threat to themselves or the public at [the time their set period of detention ends], they should be the responsibility of mental health authorities, not the criminal justice system’.^[160] The ALRC notes that states and territories also have in place disability or guardianship legislation that permits detention of persons with a cognitive impairment who present a risk to themselves or others.^[161]

Regular periodic reviews

10.80  As a matter of broad principle, the ALRC considers that, within the constraints of the fixed term model discussed above, it is important to facilitate the recovery and gradual reintegration of persons held under custodial supervision orders, and that the term of a custodial supervision order should be ‘the maximum period that forensic patients spend in prison’.^[162] The provision of trauma-informed, culturally appropriate services to assist a person while in custody is a crucial step in this process. The ALRC considers that the provision of such services should be supplemented by a regular periodic review while the person is in detention. The purpose of such a review would be to determine both whether the person should be released prior to the expiry of the fixed term, and to monitor and evaluate the services that are made available while the person is under the order.

Judicial discretion—non-custodial supervision orders

10.81  Stakeholders to this Inquiry submitted that the criminal justice system should adopt a health-based, therapeutic approach to the treatment of persons found unfit to stand trial.^[163] In all jurisdictions except WA, the court has the power to make conditional non-custodial orders with regard to a person found unfit to stand trial. In WA, where a person is found unfit to stand trial, the court has two options: a custodial supervision order or unconditional release. It cannot make a conditional non-custodial supervision order. A case study provided by Legal Aid WA demonstrates how the lack of judicial discretion can perpetuate a cycle of contact with the criminal justice system:

A young Aboriginal man from a remote East Kimberley community, suffers Foetal Alcohol Spectrum Disorder, and as a result is severely impaired in his cognitive functioning. Since about the age of 13, he has been repeatedly arrested and charged by Police for committing stealing and burglary offences, always in company with other young people, who are less impaired than him or cognitively able. These offences have never been at the high end of the scale in terms of seriousness. Although his participation in this type offending has seemed to increase as he has grown older, he remains as suggestible and vulnerable to peer direction as he has always been…. [He is repeatedly] found unfit to stand trial, and his matters continue to be dismissed, followed by his unconditional release…. There are no social supports available for him because he cannot be subject to youth corrections orders.^[164]

10.82  The ALRC considers that courts should be given the power to impose a range of orders—including non-custodial supervision orders—a view supported by stakeholders.^[165] Legal Aid WA, in the same case study, demonstrated that such a holistic approach could reduce the likelihood that a person with cognitive impairment and complex needs comes into contact with the criminal justice system again:

Recently, in finalising the last set of charges against him, the young man’s defence counsel and a proactive youth justice officer, worked with the family to explore other options. They supported a referral to a social and emotional wellbeing program run by the local Aboriginal health service. This is a one on one mentor program that is very flexible to adapt to an individual’s needs, and may assist the young man to be proactively engaged in his community and family life, without becoming caught up in antisocial behaviour. This option was not and could not be provided by the criminal justice system—it is a health system program, which may well prevent further involvement in the criminal justice system for a young person with complex mental health needs…. [This case] highlights the need for a more flexible and medically supportive judicial approach to managing FASD sufferers within the structures of the court system.^[166]

10.83  In the above case study, a court with the flexibility to order non-custodial supervision orders would have the power to require the young man attend the mentor program, and could require the program to report to the court on its efficacy.

10.84  A holistic, therapeutic approach should be applied both to non-custodial supervision orders and the custodial orders discussed in the previous section. This approach should extend to the services and assistance available to a person while under a custodial supervision order, and following their release. The principles discussed elsewhere in this Report about the need for flexible, culturally appropriate, trauma-informed approaches should underpin the development of such services.

9.1        Most of the Aboriginal and Torres Strait Islander prison population is either being held on remand or serving sentences of less than two years. Up to 30% of the Aboriginal and Torres Strait Islander prisoner population is imprisoned on remand,^[1] and up to 50% of Aboriginal and Torres Strait Islander prisoners are serving a sentence of 2 years or less.^[2] Chapter 7 of this Report stresses the need to divert Aboriginal and Torres Strait Islander offenders serving short sentences to community-based sentences, where possible. Nonetheless, when in prison, they require assistance to address offending behaviours and to transition back into the community. For female offenders in particular, programs need to be trauma-informed and culturally safe.

9.2        In this chapter, the ALRC recommends that prison programs be developed with relevant Aboriginal and Torres Strait Islander organisations. The programs should be made available to Aboriginal and Torres Strait Islander people serving short sentences or held on remand. Additionally, programs designed for female Aboriginal and Torres Strait Islander prisoners should be developed designed and delivered by Aboriginal and Torres Strait Islander organisations and services.

9.3        The ALRC recognises the critical role that release on parole has in assisting offenders transition out of prison and reintegrate into society. To this end, the ALRC recommends reforms that aim to encourage eligible Aboriginal and Torres Strait Islander prisoners to apply for parole and encourages throughcare programs that provide support for people released.

9.4        Up to 76% of Aboriginal and Torres Strait Islander prisoners in 2016 had been imprisoned previously, as compared with 49% of the non-Indigenous prison population.^[3] Aboriginal and Torres Strait Islander prisoners are more likely to have been in prison at least five times previously, and are less likely than non-Indigenous prisoners to have never been in prison before.^[4] Most repeat offenders had previously received a prison sentence, and generate ‘churn’ in the prison system.^[5]

9.5        Rates of repeat offending vary by jurisdiction. For example, in New South Wales (NSW), the Bureau of Crime Statistics and Research (BOCSAR) found that 87% of Aboriginal and Torres Strait Islander offenders convicted in 2004 were reconvicted in ten years, compared to 58% of non-Indigenous offenders.^[6]

9.6        Prison programs^[7] that address known causes of offending—such as poor literacy, lack of vocational skills, drug and alcohol abuse, poor mental health, poor social and family ties—may provide some of the supports needed to reduce the rates of Aboriginal and Torres Strait Islander repeat offending.^[8] Connection to culture for Aboriginal and Torres Strait Islander peoples is also an important element of prison rehabilitation programs. The reach of such programs may, however, be affected by a number of external factors over which corrective services have little to no control, such as health and housing.^[9]

9.7        The availability and effectiveness of prison programs can also be affected by:

• budget allocations;
• corrective services’ policies on prisoner classifications and prisoner transfers;^[10] and
• the size of the prison population, which has expanded nationwide creating greater demand for programs.^[11]

9.8        There have been recent inquiries into the availability and effectiveness of prison programs. In 2016, the Council of Australian Governments (COAG) published the Prison to Work Report, which highlighted the importance of: cultural competence in programs; coordination in the delivery of throughcare and post-release services; and the need for an increased focus on the delivery of programs to female prisoners. The Report also noted the additional challenges faced by Aboriginal and Torres Strait Islander female prisoners:^[12]

Male and female prisoners face many of the same issues while in prison and in their post-release life. However, female prisoners face additional challenges, such as (usually) poorer access to education and training opportunities while in prison, and problems in gaining access and custody of children when out of prison. Some women also encounter particular difficulties in returning to unsafe environments.^[13]

9.9        While the many prison programs set out below are designed for Aboriginal and Torres Strait Islander prisoners to address their offending behaviours in culturally appropriate ways, the delivery of these types of programs is challenging given the majority are designed for male offenders and rarely delivered to prisoners serving sentences of six months or less.

9.10     The Gundi program provides work experience to prisoners, involving them in the construction of mobile homes for use in Aboriginal and Torres Strait Islander communities, which are then distributed by the NSW Aboriginal Housing Office. The program is run by Corrective Services NSW. Participants are aided in gaining a range of skills and qualifications upon completion, including formal TAFE qualifications up to Certificate III.^[14] The NSW Government advised that over 60 participants completed the program in 2017, with ‘employment options [increasing] for participants through the engagement of local Aboriginal Land Councils, mining companies, energy companies and state-wide construction organisations’.^[15]

9.11     The Torch Project allows for the artwork of Aboriginal and Torres Strait Islander prisoners to be sold in the community, with the proceeds used to fund post-release pathways to a life outside of incarceration for the artists involved. The project elevates culture, and aims to introduce artists to the arts industry and increase self-sufficiency.^[16]

9.12     The Culture and Land Management Program (CALM) allows for Aboriginal and Torres Strait Islander prisoners to engage in gardening and horticulture, build literacy and numeracy skills, engage in arts and crafts, and develop skills in land management. The program is run by ACT Corrective Services. Former prisoners can remain within CALM following release through optional participation in seed collecting, tree planting, and bush regeneration activities.^[17]

9.13     There are other programs available to Aboriginal and Torres Strait Islander prisoners that address various criminogenic needs. Examples include Men’s Cultural Journey, Dilly Bag, and Growing Up Kids.^[18] The NSW Government submission mentioned Yetta Dhinnakkal, a working farm maintained by prisoners, where inmates are offered practical and vocational training and provide culturally relevant intensive case management.^[19]

9.14     Information was provided to the ALRC about the delivery of the Driver Knowledge Test to adults in prisons and young offenders in juvenile justice centres. Corrective Services NSW, Juvenile Justice and Roads and Maritime Services NSW entered into a memorandum of understanding to make the test available to prisoners in NSW. This initiative aims to support a reduction in recidivism for licensing offences and to increase the number of Aboriginal and Torres Strait Islander people with a driver licence.^[20] Another example is the Aboriginal Inmate Birth Certificate Program run by Corrective Services NSW that provides financial assistance to eligible Aboriginal prisoners who wish to obtain a birth certificate for the purposes of obtaining ‘qualifications, completing vocational training or accessing services. In 2016–17—working with the NSW Registry of Births Deaths & Marriages—the program provided 800 birth certificates to inmates across the state’.^[21]

9.15     Aboriginal and Torres Strait Islander peoples are more likely to reoffend on release from prison than non-Indigenous people.^[22] While various prison programs address the criminogenic needs of Aboriginal and Torres Strait Islander prisoners, few are available to people held on remand or to prisoners serving short sentences—areas where Aboriginal and Torres Strait Islander peoples are over-represented.^[23] There are also few available programs that address the specific challenges of female Aboriginal and Torres Strait Islander prisoners, whether on remand or serving long or short sentences.

Remand and people serving short sentences

9.16     There are key differences between those prisoners held on remand and those prisoners serving short sentences—namely, the presumption of innocence applies to prisoners held on remand.^[24] The presumption of innocence raises legal and ethical questions about the extent to which prison programs addressing offending behaviours should be made available to prisoners on remand.

9.17     However, as noted in a 2016 South Australian report,

effects associated with remand in custody (particularly for those subsequently not convicted) include: increased likelihood of further offending as a consequence of contact with the prison system; increased risk of suicide and mental distress, disintegration of social supports and family ties; disruption to employment and housing that may increase likelihood of reoffending on release; limited access to supports, programs and services that might address factors underpinning the alleged offence.^[25]

9.18     While the discussion in this section discusses the availability of programs for Aboriginal and Torres Strait Islander remandees and prisoners serving short sentences together, the ALRC cautions that states and territories should take into account legal and ethical considerations arising from the presumption of innocence in designing and delivering programs to Aboriginal and Torres Strait Islander remandees.

9.19     Up to 30% of the Aboriginal and Torres Strait Islander prisoner population are held on remand.^[26] Of those that are convicted, a large proportion are given a sentence not exceeding time served on remand^[27] or are sentenced to a short term of imprisonment that exceeds time served on remand.^[28] In 2016, up to 50% of Aboriginal and Torres Strait Islander prisoners were serving a sentence of 2 years or less.^[29] This can be more pronounced in some jurisdictions. For example, CLANT advised that most prisoners in the NT were either on remand (30%) or serving sentences of less than 12 months (40%).^[30]

9.20     Generally, people on remand or serving short sentences do not have access to prison programs.^[31] For example, while the Sentence to a Job program operating in the Northern Territory (NT) has received positive results but, like many other prison programs, is only available to those serving a sentence of more than three months.^[32] The Criminal Lawyers Association of the Northern Territory (CLANT) noted generally that it was a serious concern that, in the NT, prison programs are only available on a limited basis.^[33] Citing the NT Department of Correctional Services’ 2015–16 Annual Report, CLANT noted that 95% of NT prisoners had not participated in the Sentence to a Job program and that other programs had ceased altogether or were only available to fewer than half the inmates.^[34] CLANT advised that most NT prison inmates were either on remand (30%) or serving sentences of less than 12 months (40%)^[35] meaning access to programs is very limited.

9.21     There may be both policy and practical reasons for limited access in other jurisdictions.^[36] ‘Offence-based’ programs may not be provided to people on remand because the offences charged are yet to be proven.^[37] Further, corrections staff cannot accurately assess when a person held on remand will be released and whether there will be sufficient time to complete a program in prison. People on short sentences are generally not in prison long enough to access and complete a prison program.^[38] These reasons have been articulated by the Australian Institute of Judicial Administration, who noted:

Access to programs also tended to be restricted to prisoners who had been sentenced and who were serving a minimum sentence. Such restrictions are justified based on the premise that people should not be undertaking programs until there has been a finding of guilty and based on the practical realities of delivering programs … Many prisoners also spend less than six months in prison and are often released without addressing their rehabilitation needs. As rehabilitation takes time, it becomes increasingly difficult to rehabilitate prisoner who have complex needs by addressing their offending behaviour in short time frames.^[39]

9.22     By contrast, the Victorian Aboriginal Legal Service (VALS) noted:

prisoners on remand and serving short sentences face the same disruption as those serving longer sentences and require the same level of support and rehabilitation services as those serving longer sentences. Unless people held on remand and serving short sentences are provided with access to positive programs their detention is a purely punitive experience that compounds their disadvantage and increases their likelihood of reoffending.^[40]

9.23     In recognition of the failure to deliver programs across all prisoner groups, states and territories are beginning to focus on the remand population as well as prisoners serving short sentences. For example, in the ACT the majority of cultural programs and some offence-based programs have been made available to prisoners on remand, including female Aboriginal and Torres Strait Islander remandees.^[41] The ACT’s Standard Guidelines for Corrections in Australia (2012) states that the ‘treatment of remand prisoners should not be less favourable than that of sentenced prisoners.’^[42]

9.24     In September 2017, Corrective Services NSW established 10 ‘High Intensity Program Units’ for prisoners to attend upon where they are serving sentences of six months or less^[43] because ‘these inmates tend to reoffend at higher rates than those with longer sentences’.^[44] These facilities ‘focus on delivering rehabilitation services and programs and enhanced release planning’ to these prisoners. Two units—operating in Wellington and the Mid-North Coast—are specifically for ‘short sentenced Aboriginal inmates’.^[45] The programs at these facilities have a ‘strong emphasis’ on education and employment preparation, supported by ‘targeted cultural support and traditional knowledge for Aboriginal inmates’, including a two week ‘cultural strengthening program’ and participation by local community Elders. Two facilities operating over three locations deliver programs and services tailored for female prisoners, using a trauma-informed framework, with a particular focus on returning to secure and safe accommodation.^[46]

9.25     In 2016, the South Australian Government released a policy that aimed to decrease reoffending rates by 10% by 2020. This comprised six strategies, including to prioritise developing programs for women, prisoners on short sentences and individuals on remand, and ensuring that targeted and culturally appropriate services and programs are available to Aboriginal offenders.^[47] This policy was based on the recommendations of the Strategic Policy Panel Report.^[48] The SA government has committed to implementing these by mid-2018 and to evaluate these by 2020.^[49]

9.26     The Efficacy, Accessibility and Adequacy of Prison Rehabilitation Programs for Indigenous Offenders across Australia Report recommended, among other things, that programs be developed for Aboriginal and Torres Strait Islander prisoners sentenced to less than six months imprisonment. The Report noted that there are limitations to the effectiveness of such programs stating that, ‘by their nature, those programs will be limited’. The Report also recommended ‘investigating’ the possibility of extending throughcare to short-term prisoners, and that attention should be given to the development of appropriate rehabilitation programs for remandees.^[50]

9.27     The majority of stakeholders supported the recommendation that corrective services in each state and territory develop culturally appropriate prison programs for Aboriginal and Torres Strait Islander prisoners on remand or serving a short sentence.^[51] Stakeholders described some of the issues that followed from remandees and those on short sentences not having access to prison programs. Of particular concern was the likelihood of reoffending, which was compounded by limited access to parole for prisoners who had not completed programs.^[52] Further, when granted parole, such prisoners are likely to leave prison unsupervised without any further skills or understanding of their criminal conduct.^[53] This problem was highlighted by the Law Council of Australia, who submitted with regard to the lack of remand programs in SA that:

The Society advises that many of remandees are Aboriginal men who alleged to have committed domestic violence offences who have been refused bail under section 10A of the Bail Act 1985 (SA), very many of whom are Aboriginal, serve time in custody on remand, and plead guilty on the first available opportunity. They are often released after a period of weeks or months on remand, with their family lives, their working lives and their social and cultural lives having been completely disrupted. It is those people who particularly need programs directed to cessation of domestic violence.^[54]

9.28     The Human Rights Law Centre noted:

These ‘short termers’ (serving six months or less) account for more than half of prisoners released each year and without access to appropriate programs, are at greater risk of reoffending. A lack of stable housing, work, family and social ties, together with a lack of post-release support, heightens this risk even further.^[55]

9.29     The Aboriginal Legal Service of Western Australia (ALSWA) submitted that the lack of support programs available for remand prisoners and prisoners serving short sentences was a ‘serious flaw’ in the current system:

prisoners on remand may spend several months in custody prior to the disposition of their charges (and even up to 18 months awaiting a trial in a superior court). Depending on the circumstances, the court may impose a sentence of imprisonment and backdate the sentence to the time when the offender first went into custody. Therefore, some offenders will be released from custody at the time or very soon after the sentencing date. For others, even a short period as a sentenced prisoner precludes participation in programs. Such offenders are released into the community with no support and the risk of reoffending is therefore high.^[56]

9.30     Legal Aid WA observed that few programs were available in regional prisons, and where they were available, were often not suitable for Aboriginal prisoners, who may have low levels of English and/or literacy skills.^[57] Legal Aid WA also drew the ALRC’s attention to the consequential and related issue of prisoners being denied parole because they had not attended suitable programs, providing a case study of a 20 year old Aboriginal man on a 22 month sentence who was unable to access programs and therefore was denied parole. This may occur where a person has been held on remand, and, due to time served, receives only a short sentence on conviction, with parole to follow shortly thereafter. However, as there were no programs available on remand, the person does not qualify for parole.^[58]

9.31     Other potential flow-on effects of completing programs in prison when on a short sentence were also raised by stakeholders. For instance, prison programs were described as being ‘the only tool for people in custody to demonstrate to the Department for Child Protection that they are addressing issues or concerns that the Department might have’.^[59]

9.32     Legal Aid NSW submitted that a key barrier to accessing community-based drug and alcohol services for remanded prisoners is a Corrective Services NSW policy, which requires that, in order to be eligible for an assessment report for residential rehabilitation programs, a prisoner must have entered a guilty plea or be on remand awaiting a bail determination in the Supreme Court of NSW. This means, for example, that a remandee who has pleaded not guilty to an offence being heard in the District Court of NSW would be ineligible to access a residential rehabilitation program. Legal Aid NSW suggested that this policy be revised and provided some practical reform options to expand the availability of programs. For instance, it suggested the establishment of a free call service to rehabilitation providers.^[60]

Female Aboriginal and Torres Strait Islander offenders

9.33     The Prison to Work Report highlighted that the drivers of incarceration may be ‘acute’ for Aboriginal and Torres Strait Islander female offenders. They are likely to have experienced victimisation, sexual abuse and family violence as well as poor mental health, substance misuse, unemployment and low education.^[61] The Report noted:

Despite this experience of violence and their complex needs, Aboriginal and Torres Strait Islander women tend to access women’s services and programs in prison less than non-Indigenous women, particularly those aimed at women who have dependent children.^[62]

9.34     Aboriginal and Torres Strait Islander women tend to serve short sentences or be held on remand, meaning they may be unable to access prison programs.^[63] The NSW Government submission noted that ‘short sentences can be problematic for women as they are often incarcerated just long enough to lose their accommodation, links to community support and can serve to complicate and disrupt their lives, resulting in relapse, reoffending and in many cases, homelessness’.^[64] The Prison to Work Report stated that to ‘be female, Aboriginal and/or Torres Strait Islander and a prisoner is to experience a very complex disadvantage’.^[65]

9.35     Even for longer term prisoners, when compared to the range and availability of options offered to Aboriginal and Torres Strait Islander men, women’s prison programs are limited.^[66] Female Aboriginal and Torres Strait Islander prisoners have been described as a group that is ‘invisible’ to policy makers.^[67]

9.36     There are some programs available to female Aboriginal and Torres Strait Islander prisoners. The National Family Violence Prevention Legal Service (NFVPLS) provided examples of programs delivered by their Forum members across Australia. These included:

• Strong Women, Strong Mother (WA): delivered by Aboriginal Family Law Services in WA, the program seeks to educate participants about family violence, healthy relationships, the emotional wellbeing of children and creating stronger children for the community.
• Dilly Bag (Victoria): delivered by the Aboriginal Family Violence Prevention and Legal Service (Victoria), this program works with Aboriginal women in prison and on community-based orders. It uses culture and cultural strength to help women recover from trauma.
• Prison support program (Victoria): delivered by Aboriginal Family Violence Prevention and Legal Service Victoria to Aboriginal women who are survivors of violence or abuse. The program provides culturally safe and holistic support and links women into services and provides community legal education. The program is provided to women on remand and women exiting prison.^[68]

9.37     Legal Aid NSW pointed to the Bolwara Transitional Centre as a model currently only available to female Aboriginal or Torres Strait Islander prisoners serving longer sentences in metropolitan areas, and further identified the below programs for expansion:

• The Miranda Project (NSW);
• Rosa Coordinated Care (based in Nowra);
• WEAVE creating futures justice program; and
• Miruma residential diversionary program.^[69]

9.38     Stakeholders called for better and more accessible prison programs for all female Aboriginal and Torres Strait Islander prisoners.^[70] For example, Legal Aid WA supported the implementation of more programs for female Aboriginal and Torres Strait Islander prisoners, stating that programs should

be linked to the factors contributing to the offending behaviour, including intergenerational trauma. Programs must be culturally and gender appropriate to ensure the best response possible. It is further suggested that the programs use plain English (unless an interpreter is required) and facilitators of the programs should ideally be appropriate community representatives to promote a more engaging program e.g. a female facilitator when speaking to female victims and likewise, a male facilitator when speaking to male offenders about family violence.^[71]

9.39     It has been acknowledged that female Aboriginal and Torres Strait Islander prisoners require particular care, and access to appropriate services that ‘acknowledge their higher levels of need and likely history of victimisation that is entwined with their offending’.^[72] In 2014, the Office of the Inspector of Custodial Services of Western Australia recommended the implementation of specific strategies targeted at reducing recidivism among young female prisoners.^[73]

9.40     The factors that drive ‘female imprisonment and offender complexities are significantly different from male offenders’^[74] Key issues in relation to prison programs for female Aboriginal and Torres Strait Islander prisoners identified by stakeholders include:

• female offenders are likely to be victims of family violence and sexual assault. Programs should acknowledge the role of family violence in Aboriginal and Torres Strait Islander women’s incarceration cycles.^[75]
• female offending can interact with histories of trauma and abuse. This means that prison programs that are able to successfully address these histories in a culturally competent way may be more likely to be successful in reintegration.^[76]
• many female prisoners are parents—up to 80% of Aboriginal and Torres Strait Islander women in prison are mothers.^[77] Female offenders often have children removed from their care, and require programs that facilitate reconnection with children upon release, such as programs that address issues around parenting capability or that model positive engagement with children.^[78]