Best practice characteristics of prison programs

9.41     The NT Anti-Discrimination Commission noted that prison programs should be ‘culturally appropriate in content and delivery, and be evaluated’.^[79] This sentiment was echoed by other stakeholders,^[80] with many highlighting the need for trauma-informed programs designed by Aboriginal and Torres Strait Islander people.^[81]

9.42     The need for specialised programs targeted, not only at Aboriginal and Torres Strait Islander people generally, but to their specific needs—such as programs targeted at mental health needs—was also raised.^[82] Similarly, the importance of individualised case management, holistic support, and a therapeutic approach that addresses criminogenic needs, and support on release was emphasised.^[83]

9.43     The Prison to Work Report noted a paucity of long-term, evaluated prison programs in Australia—meaning that the evidence base for ‘what works’ in relation to Aboriginal and Torres Strait Islander prisoners is not well-established.^[84] VALS particularly recommended that the Commonwealth Government undertake research into the ‘programmatic needs’ of Aboriginal and Torres Strait Islander female prisoners.^[85]

9.44     With regard to persons held on remand or serving short sentences, the Law Council of Australia observed that facilitating access to programs relies particularly on effective early assessment of a person’s criminogenic needs. It noted that prison can be a ‘circuit breaker for many people from the issues that have led them to being imprisoned or remanded for example, poverty, lack of housing, mental health conditions or lack of employment’.^[86] The Reception Transition Triage operated by Corrections Victoria was identified as a good model that seeks to identify and address immediate needs that ‘without intervention would escalate or compound’.^[87] The NSW Government submission outlined the approach taken by NSW Corrective Services, which includes early identification of Aboriginal and Torres Strait Islander prisoners (as high risk of reoffending) and intervention. NSW Government advised that, in 2016–17, 29% of program attendees in offence-based programs were Aboriginal. The proportion of attendees in offence-based programs is higher than the percentage of Aboriginal and Torres Strait Islander people as a proportion of the prison population.^[88]

9.45     NFVPLS identified the following best practice elements for prison programs for Aboriginal and Torres Strait Islander peoples, particularly women:

• programs for Aboriginal and Torres Strait Islander people need to be designed and delivered by Aboriginal and Torres Strait Islander organisations with relevant experience and expertise;

• programs must take a strengths-based approach that incorporates culturally-based healing and builds resilience and reduces the vulnerability of participants, particularly women who are victims/survivors of family violence;

• programs should focus on building participants’ self-esteem and well-being;

• programs must include a strong local community focus that strengthens friendships, relationships and connections within the community;

• activities should support participants to develop and undertake leadership roles and speak out on issues within their community; and

• programs should increase participants’ access to support and legal services within their community, both mainstream and Aboriginal and Torres Strait Islander specific services.^[89]

9.46     A key element of best practice prison programs is that they are culturally appropriate. In discussing what constitutes a culturally appropriate program for Aboriginal and Torres Strait Islander prisoners on remand or serving short sentences, and for female Aboriginal and Torres Strait Islander prisoners, stakeholders advised that programs should be:

• designed, developed and delivered by Aboriginal and Torres Strait Islander organisations where possible;
• trauma-informed, especially where being delivered to female Aboriginal and Torres Strait Islander prisoners; and
• focused on practical application, particularly for prisoners on remand or short sentence who need the skills on release to reintegrate.

9.47     These characteristics are briefly outlined below.

Design, development and delivery

9.48     Prison programs for Aboriginal and Torres Strait Islander peoples need to be led by Aboriginal and Torres Strait Islander organisations where possible. Stakeholder submissions stressed the importance of prison programs being developed and delivered by Aboriginal and Torres Strait Islander organisations where available.^[90] This was key to the provision of culturally appropriate programs. Kingsford Legal Centre acknowledged research conducted by Queensland Corrective Services that supports the proposition that culturally appropriate programs are effective in reducing recidivism.^[91]

9.49     Legal Aid NSW suggested that Aboriginal and Torres Strait Islander representatives needed to be involved with the development and delivery of prison programs in order to provide approaches that were local, holistic and trauma-informed, noting that many prisoners are descendants of the Stolen Generation and that ‘their trauma is different to that of non-Indigenous population’.^[92]

9.50     ALSWA emphasised the need for Aboriginal and Torres Strait Islander specific programs, and the need for these to be developed in collaboration with peak Aboriginal and Torres Strait Islander organisations such as Aboriginal and Torres Strait Islander legal services and Aboriginal Family Violence Prevention Legal Services. It suggested that programs should provide a ‘one-stop shop’—a culturally appropriate model providing legal and family assistance with holistic support and case management.^[93]

9.51     VALS recommended that the delivery of programs be:

• designed, delivered and managed by Aboriginal and Torres Strait Islander people;
• well resourced and consistent;
• supported by case management by Aboriginal community controlled organisations, both in prison and in transition;^[94]
• supported by prison staff who are trained in cultural awareness; and
• designed around Aboriginal understandings of health, which includes ‘mental health, physical, cultural and spiritual health’, and understands that land is central to wellbeing.^[95]

9.52     The Commissioner for Children and Young People (WA) suggested the implementation of culturally appropriate support for young offenders in custody. For young people, culturally appropriate programs should address underlying issues, take a trauma-informed approach and encourage young people to re-engage with school, learning and community.^[96] The Commissioner also noted the need for a ‘particular focus on Aboriginal young women in the justice system’, who were described as a ‘particularly vulnerable group in the prison population’. It was suggested that women with current or prior experience in the youth justice system be consulted and involved in the design and development of such programs.^[97] The Miranda Project further suggested that programs be developed ‘by Aboriginal women for Aboriginal women to be delivered by Aboriginal women’.^[98]

A trauma-informed approach^[99]

9.53     Understanding the effects of trauma has been identified as a key requirement for prison programs delivered to Aboriginal and Torres Strait Islander prisoners, and in particular, for female prisoners.^[100]

9.54     The Prison to Work Report found that support for Aboriginal and Torres Strait Islander female prisoners could be improved, and recommended that the Commonwealth Government work with states and territories to ‘explore options’ for pilot programs for women while in prison and to provide better throughcare which would accommodate the needs and likely experiences of ‘trauma, abuse and family violence of female Aboriginal and Torres Strait Islander prisoners’.^[101] It also recommended that state and territory governments consider ways to ‘better facilitate women’s access to their children while in prison’.^[102]

9.55     The NSW Government submitted that Corrective Services NSW do take a different, trauma-informed approach to addressing the needs of female Aboriginal offenders than men, citing the Out of Dark program for women who had experienced domestic and family abuse as victims. In 2016–17, 24 women participated, of which 10 (42%) were Aboriginal.^[103]

9.56     In Victoria, the Dilly Bag Program provides ‘intensive assistance’ to Aboriginal women in prison who are recovering from traumatic experiences.^[104] VALS supported the development of such programs for Aboriginal and Torres Strait Islander accused peoples and offenders, noting that the need for

therapeutic and holistic programs for those on remand and serving short sentences is felt most acutely by Aboriginal and Torres Strait Islander people who are more likely to be held on remand and are more likely to be incarcerated for less than 12 months than any other group.^[105]

9.57     CLANT also observed it be ‘essential that rehabilitation programs for women be designed and delivered using a trauma-informed approach’.^[106] Women’s Legal Service NSW sought culturally safe, strength based and trauma-informed programs that respond to the specific needs of Aboriginal and Torres Strait Islander women in prison, including women held on remand. This was echoed by the Queensland Law Society and Change the Record.^[107]

Content

9.58     Stakeholders submitted that programs must:

• address offending behaviours, especially for people on short sentences and female Aboriginal and Torres Strait Islander prisoners serving any term of imprisonment;
• provide practical assistance; and
• provide case management, including beyond the end of a sentence.

Address offending behaviours

9.59     The Sisters Day In programis an example of a program that addresses offending behaviour. It is an early intervention and prevention program to reduce Aboriginal women’s vulnerability to family violence.^[108] The Kunga Stopping Violence program, operated by the Central Australian Aboriginal Legal Aid Service focuses on community reintegration for Aboriginal and Torres Strait Islander women who have been imprisoned for violent offending. National Aboriginal and Torres Strait Islander Legal Service (NATSILS) noted that ‘all Kunga participants have disclosed histories of some form of domestic, family, sexual or community violence’ and that the program has been designed to support women with strategies in relation to: drug and alcohol dependencies; emotional intelligence; intergenerational trauma; domestic and family violence; accommodation; and positive thinking. Women are supported for up to 12 months post release.^[109]

9.60     The Public Health Association of Australian suggested there be an emphasis on programs that target substance misuse.^[110] The Australian Red Cross observed that, in order to achieve one of the aims of imprisonment—to prevent recidivism—it is essential for offenders to be able to address the ‘complex and multiple’ reasons for offending. Accordingly, despite the stated logistical and practical challenges, programs should be available for female Aboriginal and Torres Strait Islander offenders, prisoners serving short sentences, and people on remand, and have a throughcare focus.^[111]

Practical assistance

9.61     Programs that provide practical assistance are also required, and may be especially beneficial for prisoners on remand. The NT Anti-Discrimination Commissioner noted that in the NT Ombudsman Report, women and stakeholders clearly articulated those programs that were required, including programs around basic literacy and numeracy, trauma and grief, and loss.^[112]

9.62     Prison programs that provided practical assistance to support reintegration, such as helping prisoners organise post-release accommodation, finances and employment are needed.^[113] Legal Aid WA submitted that this need superseded that of programs that focus only on offending behaviours.^[114] ALSWA suggested that programs for remandees can be effective if they respond to the ‘underlying needs of the prisoner rather than focusing on the specific offence or offences for which the prisoner is in custody’. These could address ‘practical needs’ such as housing, literacy and financial literacy, employment and training, substance abuse, driver licences and unpaid fines, and programs that help transition back into the community upon release.^[115] The Miranda Project proposed that short-term programs needed to move beyond addressing criminogenic needs, and focus on social and welfare concerns such as housing, social connections and poverty, and legal literacy (identified as particularly important for female offenders).^[116]

9.63     VALS acknowledged the gap in practical services for female Aboriginal and Torres Strait Islander prisoners, and recommended programs that:

• provide tailored service delivery;
• provide transition planning, supported by case management; and
• involve ‘wrap around’ service delivery regarding culture; employment; health, including mental health; education; housing; community and legal services; and child specialist services.^[117]

9.64     NSW Government highlighted the issue of unemployment among prisoners, where only 16% of Aboriginal prisoners in NSW had been employed in the community on entry into prison, compared with 39% of non-Indigenous prisoners; highlighting a need for employment and education programs.^[118]

9.65     The Prison to Work Report noted the practical barriers to employment that prisoners experience on release. It suggested that some barriers that could be easily overcome with assistance, such as opening a bank account or applying for valid identity documents, while others were more difficult to overcome, such as transport and accommodation. The Prison to Work Report also identified ‘intangible barriers’ to employment, such as changing entrenched behaviours, reintegration into civic life, and a lack of agency stemming from institutionalisation. It noted that ‘unrealistic demands and expectations made of ex-prisoners occur when they are at their most vulnerable, which is in the period immediately following their release’.^[119]

9.66     In 2017, the Commonwealth Department of Employment released a consultation paper on the proposed Prison to Work—Employment Service Offer that was developed from the Prison to Work Report. The Employment Service Offer will target Aboriginal and Torres Strait Islander prisoners who wish to participate and provide them with assistance to help prepare for employment post release. It plans to provide all participating Aboriginal and Torres Strait Islander prisoners with employments services from three months before their scheduled release date; an assessment to identify any needs or barriers; a ‘Transition Plan’; and a ‘Facilitated Transfer’ to an employment service provider. The program will be cross-coordinated between government and private providers with demonstrated cultural competence.^[120] Where operating in a women’s prison, the provider should provide a trauma-informed approach.^[121] The Department of Employment has published an intention that sentenced, adult Aboriginal and Torres Strait Islander prisoner serving sentences of over three months will be eligible to participate in the Employment Service Offer.^[122]

Case management and throughcare

9.67     The need for pre-release case management was highlighted, with Legal Aid NSW noting:

We also consider there is a need for improved pre-release case management for prisoners on short sentences. The PLS often speaks to inmates who are serving short sentences with a parole period who do not speak with Community Corrections until very close to their “automatic” release date. In some cases, this may be only a few weeks before their earliest possible release date. The absence of post-release planning for these inmates is particularly concerning where they are referred to short-term temporary accommodation upon release.^[123]

9.68     Many stakeholders supported the inclusion of programs and case management that included plans for post-release housing or housing support, assistance with Centrelink and, even, transportation from prison.^[124] The NT Anti-Discrimination Commissioner suggested that programs be provided by registered providers in modules that could be completed in the community where a prisoner had not finished the program by the time they are released.^[125]

9.69     When a person is sentenced to a term of imprisonment above a prescribed length,^[126] a court generally imposes a non-parole period^[127] as well as a head sentence.^[128] Upon the expiration of the non-parole period, the offender may be conditionally released as a parolee, subject to parole conditions as set by the parole authority. Parolees are supervised by community corrections services, and must follow their reasonable directions. Breach of parole may result in a return to prison.

9.70     Parole does not commence upon the completion of a sentence. Rather, parole is part of the sentence. The Review of the Parole System of Victoria observed there to be a ‘lack of awareness generally that parole represents only conditional release’, and reiterated that ‘a parolee remains under sentence while on parole’.^[129] As was noted by the NSW Law Reform Commission (NSWLRC):

an offender continues to serve his or her term of imprisonment while on parole: parole is an integral part of the original sentence … [P]arole is not a discount or leniency. Instead it is a component of the original sentence. The offender remains subject to conditions and restriction of liberty, and may be returned to prison if parole is revoked.^[130]

9.71     The setting of a parole date is seen to incentivise good behaviour and rehabilitation while an offender is in prison, and parole is seen to facilitate prisoner reintegration back into society.^[131] Parole generally involves case management to provide suitable accommodation, make referrals to required services, and help parolees manage financial, personal and other problems. Research published by the Australian Institute of Criminology in 2014 suggests that prisoners who receive parole have significantly lower rates of recidivism or commit less serious offences than those released unsupervised; and that parole is most effective when it involves active supervision that is rehabilitation focused.^[132]As observed in the Review of the Parole System of Victoria, parole benefits not just the offender, but also the wider community, by ‘recognising that the wider community benefits from the rehabilitation of offenders’ through a decrease in recidivism and crime rates.^[133]

9.72     Some Aboriginal and Torres Strait Islander prisoners who are eligible for parole instead serve out their entire head sentence in prison. The result is that these prisoners spend a greater proportion of their sentence in prison than is required under the relevant legislative schemes; that correctional facilities are put under additional strain due to the increased prison population; and that these Aboriginal and Torres Strait Islander prisoners are then released into the community without supervision at the end of their head sentence.

9.73     This issue was highlighted in the Prison to Work Report, which observed that large numbers of Aboriginal and Torres Strait Islander prisoners either did not apply for or receive parole. This was particularly the case in jurisdictions with high Aboriginal and Torres Strait Islander prison populations. For instance, in WA it was reported that 80% of Aboriginal and Torres Strait Islander prisoners in 2013–14 were not released on parole.^[134] In 2014–15, 53% of prisoners in the NT served their full sentence in prison (meaning they were released unsupervised).^[135]

9.74     The Evaluation of the Aboriginal Justice Agreement—Phase 2: Final Report, revealed that, in 2011, in Victoria, 67% of Aboriginal and Torres Strait Islander offenders released from prison were not released on parole.^[136]

9.75     Stakeholders have articulated two key reasons why eligible Aboriginal and Torres Strait Islander prisoners may not apply for parole. First, eligible Aboriginal and Torres Strait Islander prisoners may believe that they are unlikely to be granted parole by the parole authority; this may be due living arrangements, previous offending, or lack of attendance in prison programs. It may also be related to a complex history in dealing with government representatives. Second, in jurisdictions that do not count time served on parole in the case of revocation, being granted parole creates too great a risk of increased prison time.

9.76     This recommendation aims to encourage eligible Aboriginal and Torres Strait Islanders to apply for parole, which would provide supported transition from prison to community life. As highlighted above, a supported transition into the community reduces the risk of reoffending and further incarceration.

9.77     The granting of parole takes one of two forms: automatic, or court-ordered parole and discretionary parole. Court-ordered parole permits automatic release on parole on the date set by the court without application to the parole authority at the end of the non-parole period. Discretionary parole requires that offenders sentenced to parole-eligible sentences must make an application to the relevant parole authority prior to the expiration of the non-parole period for specific authorisation for parole.

9.78     NSW, Queensland, and SA have legislative frameworks for court-ordered parole.^[137] These jurisdictions operate under a mixed system of parole where prisoners on short sentences receive automatic court-ordered parole and prisoners on longer sentences are subject to discretionary parole.^[138] NSW introduced court-ordered parole in 1983 following the 1978 Nagle Royal Commission into NSW prisons.^[139] SA introduced court-ordered parole in 1984,^[140] and Queensland in 2006,^[141] with the objective of diverting low risk offenders from custody while ensuring post-release supervision.^[142]

9.79     There is a form of court-ordered parole in WA. Parole eligibility is set by the sentencing court, and the Parole Review Board (PRB) determines if an eligible prisoner will be released on parole and under what conditions. There are two categories of prisoners for the purposes of parole: prescribed and others. A ‘prescribed prisoner’ includes personal violent offenders, and prior personal violent offenders who have reoffended.^[143] Statute stipulates that the PRB may make a parole order for prescribed prisoners, and must make a parole order in respect of any other offender.^[144] Meaning that, for all prisoners other than prescribed prisoners, parole is automatic—decided by offence type, not length.^[145] Prescribed offences include assaults, threats, and stalking^[146]—offence types that include a significant number of Aboriginal and Torres Strait Islander prisoners.^[147]

9.80     In the ACT, NT, Tasmania and Victoria,^[148] all offenders who are sentenced to parole-eligible sentences must apply for parole to the relevant parole authority prior to the expiration of the non-parole period, regardless of the length of the head sentence.

Court-ordered parole

9.81     There are advantages to court-ordered parole. Court-ordered parole ensures that greater numbers of low-level offenders are released on parole, thus limiting the number of offenders who are released to the community unsupervised.^[149] Whether release on parole is automatic or by application, only prisoners who accept the conditions of parole—which in SA are set by the parole board—will be released on parole.^[150]

9.82     A large proportion of Aboriginal and Torres Strait Islander prisoners receive a prison sentence that would enable them to receive court-ordered parole if available in all jurisdictions.^[151]

9.83     The Prison to Work Report observed that, in NSW where court-ordered parole is available, a ‘large proportion’ of Aboriginal and Torres Strait Islander prisoners were granted parole on terms set by the court, rather than needing to apply for parole, noting:

Given the role that parole can play in ensuring offenders are supervised and supported during reintegration, the arrangements for granting parole can be a real benefit to Aboriginal and Torre Strait Islander prisoners whose complex needs and history of offending mean that they would not otherwise be granted parole on application.^[152]

9.84     A 2016 review of the parole system in Queensland reported that court-ordered parole had been introduced in that jurisdiction in response to growing prisoner numbers; the ‘extraordinary’ growth in the number of people serving sentences of less than one year; and a decline in number of applications for release on parole that were being approved.^[153] The majority of offenders who received court-ordered parole orders in 2015–16 in Queensland had received a prison sentence of less than 12 months.^[154]

9.85     Stakeholders supported the introduction of court-ordered parole. Legal Aid WA advocated for the introduction of court-ordered parole based on the NSW model, observing that Aboriginal ‘offenders face difficulty in being granted parole due to limited resources and consequential lack of suitable prison rehabilitation programs’. The current system results in unfair outcomes that are outside of the control of the offender, and ‘greater use of automatic parole would assist in reducing the number of Aboriginal people in prison’, and provide for supervised release where currently the offender may be released without supervision. Legal Aid WA suggested a system that combined automatic parole and discretionary parole, depending on the level of seriousness of each offence. It suggested that court-ordered parole be available to offenders sentenced to a term of imprisonment of less than five years, where the offending had not involved sexual offending or serious violence—mixing the approaches of SA and Queensland.^[155]

9.86     ALSWA also supported the expansion of the current WA scheme, suggesting that this would ‘place a far greater onus’ on government to ‘ensure that there are sufficient programs and services available for Aboriginal and Torres Strait Islander prisoners’ as the department will know that each ‘prisoner subject to automatic parole will be released on a specified date’.^[156]

9.87     Jesuit Social Services had similar reasons for supporting court-ordered parole in the NT, where it noted court-ordered parole was ‘urgently needed’. In the NT, it was observed that often relevant programs are not available and parole is not granted, through no fault of the offender. It was also suggested that, if court-ordered parole existed, correctional services would be accountable to provide programs prior to the release.^[157]

9.88     CLANT noted that, in the NT, prison numbers increased by 100% between 2005 and 2015, but grants of parole only increased by 20%, stating

it follows that there has either been a large decrease in the proportion of prisoners who apply for parole, or a large decrease in the proportion of grants of parole to applicants, or both. This is of serious concern, and should be addressed by way of legislative reform.^[158]

9.89     CLANT supported the implementation of the NSW scheme of court-ordered parole, as did the Law Council of Australia.^[159]

9.90     The Institute of Public Affairs did not support court-ordered parole and submitted that court-ordered parole had potential to ‘undermine the concept of corrections’.^[160] The NSWLRC noted that court-ordered parole may affect one of the key functions of parole—the incentive for good behaviour:

Automatic parole … ensures that offenders (who are not sentenced to a fixed term) are supervised for a period and have the opportunity to attempt to reduce their recidivism risk. However, it cannot provide an incentive for good behaviour in custody or for offenders to participate in programs unless there is a means to revoke or override automatic parole for some offenders on this basis.^[161]

9.91     In 2016, a BOCSAR study found that, after parole orders had expired, court-ordered parolees were more likely to reoffend than those released by the State Parole Authority (SPA), and suggested greater supports following parole in order to reduce their chances of reoffending.^[162] BOCSAR suggested that SPA released parolees (ie, those released on discretionary parole) may be less likely to reoffend due to the ‘selective processes of the SPA in choosing who should be granted parole or because SPA parolees are more motivated to participate in rehabilitation programs while in custody’.^[163]

9.92     BOCSAR also noted the likelihood that people serving short sentences may not have qualified for program inclusion due to their exit date from prison and other factors discussed above.^[164] And, although this study appears to favour discretionary parole, the authors expressed favour for release on parole rather than unsupervised release and noted:

The relative rates of re-offending following court-ordered and Board-ordered parole is only one issue of importance in judging the merits of different parole regimes. There is good evidence that offenders subjected to parole supervision are less likely to re-offend than offenders released without any supervision.^[165]

9.93     Nonetheless, in 2016, a review of Queensland’s parole system recommended retaining court-ordered parole as a way to keep down prison numbers and ensure supervised release of those on shorter sentences.^[166] For similar reasons,^[167] the NSWLRC also recommended retention of their scheme in 2014.^[168]

9.94     Eligible Aboriginal and Torres Strait Islander prisoners may not apply for parole because they believe—rightly or wrongly—that they are unlikely to be granted parole by the parole authority. Court-ordered parole permits automatic release on parole on the date set by the court without application to the parole authority at the end of the non-parole period, and provides a solution for the set of circumstances when Aboriginal and Torres Strait Islander prisoners prefer to avoid coming before a parole authority. The ALRC recommends that the regimes in NSW, Queensland and SA be adopted in other states and territories.

Overriding court-ordered parole

9.95     An order for court-ordered parole does not guarantee release on the prescribed date. There are means to revoke the non-parole period when ‘exceptional circumstances’ arise after sentencing, where the prisoner would represent a ‘sufficiently significant danger’ to the community if released on parole such that the grant of parole ought not be made.^[169]

9.96     The Crimes (Administration of Sentences) Regulation 2014 (NSW) sets out the circumstances in which the SPA can revoke an offender’s court-ordered parole while they are still in custody:

• where the offender requests revocation;
• where the SPA decides that the offender is unable to adapt to normal lawful community life; or
• where the SPA decides that satisfactory post-release accommodation or plans have not been made or cannot be made.^[170]

9.97     In NSW, the total number of people released to parole in 2015 was 6598. Of these, 5,625 were court-ordered parole. The SPA revoked 109 parole orders prior to release, of which 85% were court-based orders.^[171]

9.98     The ALRC recognises that corrective services and parole authorities are well-placed to observe and make decisions about the suitability of prisoners for release on parole. The length of time that elapses between the time of sentence and the end of a non-parole period can be substantial, and there are many reasons why a person, once deemed suitable for parole, can present a risk to the community by the time the non-parole period has been served.

9.99     The 2016 Queensland Parole System Review: Final Report provided a summary outlining the importance of including a pre-release override mechanism for automatic parole:

Firstly, it operates to safeguard community safety by allowing an offender’s parole order to be suspended or cancelled on limited grounds before they are released to the community. This approach allows QCS [Queensland Corrective Services] to consider the offender’s behaviour close to release and, where appropriate, make a recommendation that the offender’s parole be amended, suspended or cancelled before they are released into the community. Secondly, the ability to suspend or cancel a parole order because of conduct in custody would, to some degree, aid in the maintenance of prison discipline by providing an offender with an incentive to behave while in custody. Finally, the system retains certainty for the Court, and for the community, as to the length of time in custody that will actually be served by a prisoner unless the offender, by his or her conduct while in prison, demonstrates an unacceptable risk to the community close to his or her release.^[172]

9.100  Of the court-ordered parole jurisdictions, only NSW’s override mechanism has a statutory basis.^[173] Queensland relies on a Court of Appeal decision.^[174] SA appears not to have a pre-release safeguard at all. However, prisoners must accept any parole conditions set before release is granted.^[175]

9.101  Court-ordered parole may be revoked before release due to unsuitable post-release accommodation, or because plans in relation to post-release accommodation have not, or cannot be made. This is a major hurdle for many Aboriginal and Torres Strait Islander prisoners.

9.102  Housing issues—particularly homelessness, inadequate housing, and over-crowding—tend to disproportionately affect Aboriginal and Torres Strait Islander peoples.^[176] The NSWLRC summarised the issue:

Previous Australian research has found that between 7% and 11% of NSW prisoners were living in primary homelessness before their entry into custody. The term ‘primary homelessness’ is generally used to describe the circumstances of people living on the street, sleeping rough or living in cars and squats. People with transient living arrangements—living in refuges, shelters or couch surfing—are described as living in secondary homelessness … Corrective Services NSW reports that, in 2011–12, 5% of receptions in NSW prisons were living in primary homelessness prior to their entry into custody and over 50% were living in secondary homelessness. For those offenders who did have stable housing before entering custody, imprisonment can often mean that such housing is no longer available when the offender is approaching the parole date. Offenders who lived in mortgaged properties or private rental properties are likely to have lost their housing due to inability to pay while in custody. Some offenders will have lost access to their previous residence due to relationship or family breakdown. Offenders who were previously accommodated in public housing will have lost their tenancy after being in custody for more than three months.^[177]

9.103  The NSWLRC further emphasised that:

One of the biggest issues … has been the difficulty that offenders with court based parole orders can have in arranging suitable post-release accommodation. Clause 222(1)(c) of the [Crimes (Administration of Sentences)] Regulation gives SPA the power to revoke a court based parole order before an offender is released if satisfactory accommodation or post-release arrangements have not been made or cannot be made. A lack of suitable accommodation is the main reason for SPA revoking parole prior to release.^[178]

9.104  The Public Interest Advocacy Centre (PIAC) noted issues with court-ordered parole arising from a lack of accommodation as a particular obstacle for Aboriginal and Torres Strait Islander peoples:

Aboriginal and Torres Strait Islander people should not be imprisoned at disproportional rates, and for greater periods of time, simply because of a lack of housing options post-release.^[179]

Ongoing need for prison programs, support and supervised parole

9.105  Stakeholders highlighted the importance of prison programs for people on short sentences and support and supervision while on parole even in jurisdictions with court-ordered parole. Legal Aid NSW noted the need for programs in prison in support of parole. It also stressed the importance of Aboriginal and Torres Strait Islander organisations’ participation in parole processes, and noted the positive impacts on rates of breach and revocation of supervised orders in areas where Aboriginal Client Service Officers are employed by Community Corrections.^[180]

9.106  VALS stressed both a need for extra parole support services and a refocus on support and rehabilitation for parolees instead of ‘overly stringent supervision’:

Services like the VALS’ Reconnect program have proven successful in supporting prisoners on parole by providing a post-release worker who assists them in identifying and achieving goals, transitioning back into the community and meeting their parole conditions. VALS believes any changes to the parole system must be rehabilitation focused and increase funding to programs like Reconnect that have a proven track record of reducing reoffending.^[181]

9.107  VALS noted that since the changes to the Victorian parole regime in 2013, there had been a sharp increase in prisoners ‘maxing out’ their sentences to avoid parole. This increased the prison population and the numbers of recidivists, as people were leaving prison without supervision.^[182]

9.108  The ALRC encourages states and territories to provide appropriate prison programs so that people released on court-ordered parole have been provided with rehabilitative services in prison that aim to address offending behaviours and provide practical assistance.

Parole conditions and revocation of parole

9.109  All jurisdictions require supervision as a standard condition of parole, whether explicitly or in practice.^[183] For example, a person subject to standard parole conditions in NSW must:

• be of good behaviour;
• not commit any offence;
• adapt to normal lawful community life;
• submit to the supervision and guidance of the Community Corrections Officer (hereafter referred to as “the Officer”);
• report to the Officer;
• be available for interview;
• reside at an approved address;
• permit the Officer to visit the offender’s residential address at any time;
• not leave New South Wales without permission;
• not leave Australia without permission;
• enter employment or training arranged or agreed on by the Officer;
• notify the Officer of any intention to change his or her employment;
• not associate with any person or persons specified by the Officer;
• not frequent or visit any place or district designated by the Officer; and
• not use prohibited drugs, obtain drugs unlawfully or abuse drugs lawfully obtained.^[184]

9.110  Additional obligations can be imposed by the relevant parole authority. These may include, for example, electronic monitoring, abstinence from alcohol, psychological assessment and counselling (including drug and addiction counselling), that the offender not be involved in the control of an organisation, that the offender not associate with children, or that the offender not possess firearms.^[185]

9.111  It is observed in the Prison to Work Report that complying with parole conditions can be a difficult task for many parolees, particularly when they are simultaneously searching and competing for employment opportunities.^[186] This difficulty can be amplified for parolees in non-metropolitan communities who are relying on limited public transport options to meet their parole requirements, such as reporting for parole, visiting Centrelink, and attending interviews.^[187]

9.112  The Queensland Parole System Review: Final Report found three key areas of concern in relation to management of parolees through the use of parole conditions:

• first, that parole conditions are sometimes imposed which are not specificto the offending patterns and risks associated with the offender, and which may even be contrary to the offender reengaging with their support networks;
• second, that the number of conditions imposed is sometimes excessive and ‘sets people up to fail’ by making offenders answerable to up to 50 conditions, and that excessive conditions result in offenders focusing their energies on meeting parole obligations rather than searching for a job, getting qualifications, or finding long-term accommodation; and
• finally, that the circumstances of Aboriginal and Torres Strait Islander parolees are not taken into account, for example, by the setting of parole conditions which prevent return to community, or which restrict access to family members and support networks because they also have criminal histories.^[188]

9.113  Breach of standard conditions by parolees appears to be common. For example, about half of revocations in NSW during 2011–12 were reportedly for technical breach of parole conditions—where no reoffending or criminal conduct had taken place. This included failures to reside at an approved address, to report, and to abstain from alcohol. ^[189] As was noted in the Prison to Work Report:

[P]risoners (and many service providers) commented on the difficulties involved with complying with as many as sixty parole conditions, particularly when it comes to associating with other people with criminal records, which often includes family members. A significant number of prisoners said that they had chosen to serve out their full sentence, as they were convinced they would be breached as soon as they were paroled.^[190]

9.114  Standard conditions of parole can be difficult for Aboriginal and Torres Strait Islander people to comply with, especially where conditions of release clash with cultural obligations and prevent reconnection with family and community.^[191]

9.115  Factors that particularly impact on Aboriginal and Torres Strait Islander parolees have been identified to include: remoteness; substance abuse issues; mental health issues; poor literacy skills; lack of access to appropriate programs; difficulty in obtaining suitable long-term housing; difficulty in finding stable employment; and issues around family violence, particularly for women.^[192]

9.116  Legal Aid NSW stressed the need for parole conditions to be culturally appropriate and designed to support rehabilitation and reintegration: ‘parole conditions can be overly strict, rigid, and focused on monitoring. Most parole breaches are for a failure to reside as required by the parole conditions’.^[193]

Treatment of time on parole upon revocation

9.117  Stakeholders drew attention to the operation of some parole revocation schemes that require time served on parole to be served again in prison if parole is revoked. The decision to return a parolee to prison usually sits with the parole authority, and not all breaches of parole will result in a return to prison. Where breaches of parole result in a return to prison, the length of the remaining prison term can be affected depending on the parole revocation scheme operating. There are two options:

• Option 1: Time spent on parole, beginning on the date of release on parole and ending on the date of breach (or date of revocation), counts towards the head sentence (as in NSW, Queensland, SA, and WA);^[194] or
• Option 2: Time spent on parole, beginning on the date of release on parole and ending on the date of breach (or date of revocation), does not count towards the head sentence, and must be served again in prison upon the parolee’s return (as in the ACT, the NT, Tasmania and Victoria).^[195]

9.118  Option 2 has potential adverse consequences. It extends the time a person serves under sentence^[196] and it operates as a disincentive for eligible people to apply for parole,^[197] increasing the prison population and the number of people released from prison without supervision. Further, as noted by Legal Aid ACT, the provisions are also ‘unnecessarily punitive. In effect, they impose an ‘additional sentence’ on offenders, for small contraventions that are often of a civil rather than criminal nature’.^[198]

9.119  The Attorney-General and Minister for Justice of the NT reported that the rate of eligible people declining parole was growing, and that up to 47% of people who declined parole between January 2016 and February 2017 did so because conditions on parole were considered too onerous and parole was too hard.^[199]

9.120  The NT sought to address this by amending the Parole Act (NT) in August 2017 so that an offender whose conduct breaches the conditions of their parole may be reimprisoned for a short term as a sanction. This term of imprisonment does not revoke parole, so that when completed, the person picks up their parole where they left off. If the breach is serious or repetitive however, the person still returns to prison and any parole period is not counted as time served (except for any previous term of imprisonment as a sanction).^[200] CLANT noted that, while these amendments are likely to decrease the severity of the current regime, it still supported the recommendation to abolish the repayment of ‘street time’ in the NT.^[201] Aboriginal Legal Service NSW/ACT supported amending parole in the ACT to recognise ‘time served’ under sentence in the community if parole is later revoked.^[202]

9.121  Stakeholders expressed strong concerns over parole revocation schemes that discounted ‘street time’ on revocation, and the affect these may have on Aboriginal and Torres Strait Islander prisoners.^[203]

9.122  VALS expressed strong support for this abolition of street time regimes, noting:

Under the current system in Victoria parolees can have parole revoked for a minor breach, such as being minutes late to a curfew, and be back in prison serving the full remainder of their sentence. Recognising time spent on parole is a way of recognising and rewarding the positive actions of parolees towards rehabilitation and is in stark contrast to the current system in Victoria, which is a punitive approach that provides little incentive for parolees to comply with parole conditions and severe punishment, such as a separate criminal conviction, for breaches of parole.^[204]

9.123  Statutory provisions that stipulate that time spent on parole does not count as time served if the parolee returns to prison due to a breach can greatly increase a person’s time under sentence. Accordingly it can act as a disincentive for Aboriginal and Torres Strait Islander people—who can find compliance with standard conditions difficult—to apply for parole. The ALRC recommends the immediate abolition of the relevant provisions, and the adoption of regimes that count time on parole as time served if parole is revoked.

9.124  Incarceration leads to a disruption in a person’s life, including loss of employment, and potentially a loss of housing, relationships and social supports. Release from prison without support to transition into the community can lead to a cycle of reoffending. This was highlighted by stakeholders to this Inquiry.

9.125  Legal Aid NSW drew a picture of release without support:

Our solicitors report that clients have been released without accommodation, arrangements for transport, at night in a country town when there is no train until morning, without medications or prescriptions, and without any treatment for their substance addiction. It is not uncommon for inmates to be released from the Sydney Central Law Courts or the Downing Centre Court complex in their prison greens and with no accommodation arrangements, having received no treatment in custody for their substance abuse and/or mental health issues and at potential risk of reoffending within a short time. The sense of hopelessness that stems from having nowhere to go when released, no plan or purpose, can undermine any attempts to improve an offender’s mental health while in prison.^[205]

9.126  Legal Aid WA observed there to be a gap in the case management and transition into the community of prisoners with mental health and cognitive impairments.^[206]

9.127  NSW Council of Social Service noted that finding ‘safe, stable and affordable housing’ was the greatest challenge faced by prisoners on release and community organisations working in the area of reintegration and transition.^[207] ALSWA strongly supported the provision of resources for culturally competent throughcare services for Aboriginal and Torres Strait Islander prisoners.^[208]

9.128  Women’s Legal Service NSW submitted that return to community without support can be particularly harmful when women have made their first disclosure of family violence, sexual assault or child abuse in custody. It highlighted that support such as the mentoring program previously run by Women in Prison Advocacy Network (now Women’s Justice Network) have had positive impacts of supporting women post-release—the key being a decrease in reoffending.^[209]

9.129  The National Association of Community Legal Centres (NACLC) noted the importance of culturally safe transition support services that are alert to issues about returning to community and any additional cultural, family and community factors. ^[210]

9.130  Homelessness following prison has been demonstrated to play a role in reoffending.^[211] PIAC noted the need for more community-managed, supported transitional accommodation for ex-prisoners, more crisis accommodation, more affordable accommodation, and more social housing.^[212]

The provision of throughcare

9.131  Throughcare aims to support the successful reintegration of offenders returning to the community at the end of their head sentence—ie, of prisoners released without parole. The Prison to Work Report described the concept of ‘throughcare’ in the following terms:

Prisoner through care projects provide comprehensive case management for a prisoner in the lead up to their release from prison and throughout their transition to life outside. Projects aim to make sure prisoners receive the services they need for successful rehabilitation into the community … Good through care ‘starts in custody well before walking out of the prison gate’, and provides hands on, intensive support, especially at the moment of release.^[213]

9.132  This definition emphasises the importance of intervention, service coordination, and support at all critical points—not just release. Throughcare programs generally involve intensive one-to-one rehabilitation support; individual structured assessments; and individual case plans, created before release and followed through in the community. Throughcare models are more likely to be successful for Aboriginal and Torres Strait Islander people if they are culturally competent, strength based, and utilise Aboriginal and Torres Strait Islander controlled organisations and/or ex-prisoner organisations.^[214] In relation to women, Dorinda Cox highlighted the need to reconceive the design of throughcare models for Aboriginal and Torres Strait Islander women in prison who have experienced family violence, stating:

The current through care models offered to Aboriginal women are founded in mainstream psychology and are individualist in their approach. They are built on the premise that post release Aboriginal women are able to function based on the work done through cognitive skills courses. But sadly, the reality is that many return to families and communities that are not able to support women recently released from prison, nor are the mainstream agencies able to case manage the social and cultural obligations that Aboriginal women have in family and community contexts. At systemic level we set Aboriginal women up to fail, we expect them to live separately from their support mechanisms and their cultural obligations – not engaging the families and communities in their journey back into society, thus creating a revolving door for Aboriginal women in the justice system.

Mapping the journey into, through and post release from the justice system is critical in understanding the challenges, barriers and experiences to build a new system that enables diversionary away from the current high levels of Aboriginal women in prison and to be responsive to the transmission of intergenerational trauma of Aboriginal people and communities.^[215]

9.133  Agencies responsible for throughcare include corrective services; other law and justice agencies (such as parole authorities); government departments; and service providers who focus on specific areas such as accommodation, employment, addiction, mental health and vocational skills. The diversity and number of organisations involved means that close interagency collaboration is a key factor in the success or failure of any throughcare initiative. Close collaboration can provide for continuity of service provision as the offender moves from incarceration to supported transition to life in the community.^[216]

9.134  The ALRC recognises that throughcare is a growing area and that various forms currently exist. There are challenges in the provision of throughcare for Aboriginal and Torres Strait Islander peoples, including the difficulty of finding suitable housing;^[217] and the limited availability of services in remote communities.^[218] The following section provides a brief summary of throughcare programs highlighted by stakeholders.

9.135  YWCA Darwin provides a voluntary transitional program for female offenders; which provides 6 months pre and 12 months post-release support. The program provides women with case management support, learning opportunities and practical assistance to re-engage with the community,^[219] including reconnection with children, family and community, accommodation and education and employment pathways and help with transport. It focuses on personal development, and parenting, life and social skills. Women are eligible whether they are on remand, sentenced or under a community corrections order. An independent evaluation of this program is currently underway.^[220]

9.136  NATSILS noted the Western Australian, Fairbridge Bindjareb program provides workplace training to operate machinery. Those placed in the program are relocated to Karnet Prison Farm and travel to Fairbridge Village daily to participate. This includes training, qualifications, lifestyle and personal development training, the inclusion of mentors and Elders, and the provision of temporary accommodation where required.^[221]

9.137  The Community Restorative Centre (CRC) drew attention to their post-release programs in NSW, and recommended that best practice reintegration support should start prior to release and be community-based, long-term, and be staffed by skilled and dedicated workers able to incorporate system advocacy on behalf of their clients.^[222]

9.138  ACT Corrective Services provides an Extended Through Care Program (ETCP) to all sentenced detainees as well as female detainees on remand.^[223] Detainees are identified for the ETCP four months prior to release. A case manager works with each detainee to develop a release plan. Detainees are referred to partner service providers that provide support in particular areas of need. A lead service provider is identified for each detainee and is provided with brokerage funding to support the client during the extended throughcare process. Aboriginal and Torres Strait Islander detainees have a choice of providers depending on their individual needs and preferences, and may choose between Aboriginal and Torres Strait specific services or mainstream services in some areas. The ETCP case manager also assists detainees with basic needs upon release by providing a release pack and assistance with clothing, basic household items and food.^[224]

9.139  The ALRC supports the Aboriginal and Torres Strait Islander led development and delivery of throughcare to Aboriginal and Torres Strait Islander prisoners exiting the prison system as a means of lowering the likelihood of repeat offending within the community.

8.1        Evidence suggests that mandatory sentencing increases incarceration, is costly and is not effective as a crime deterrent. Mandatory sentencing may also disproportionately affect particular groups within society, including Aboriginal and Torres Strait Islander peoples—especially those found guilty of property crime.

8.2        The ALRC recommends that Commonwealth, state and territory governments should repeal sentencing provisions which impose mandatory or presumptive terms of imprisonment upon conviction of an offender, and that have a disproportionate impact on Aboriginal and Torres Strait Islander peoples. This chapter does not provide an exhaustive list of such provisions because complete data is not available. Instead, this chapter highlights those mandatory sentences attached to offences that have been identified by stakeholders as having a disproportionate impact on Aboriginal and Torres Strait Islander peoples and suggests that states and territories do further work to identify and repeal mandatory sentence provisions that in practice have a disproportionate impact on Aboriginal and Torres Strait Islander peoples.

8.3        Mandatory sentencing laws require that judicial officers deliver a minimum or fixed penalty (for the purposes of this Report, a term of imprisonment) upon conviction of certain offences on an offender.^[1] While, mandatory sentencing laws are found in most Australian jurisdictions in various forms,^[2] they are a departure from the standard approach to legislating the sentence for criminal offences in Australia. The standard approach is to provide a maximum penalty that may be imposed upon conviction, based on the parliament’s assessment of the relative severity of the offence. This approach leaves sentencing courts to assess and determine the appropriate sentence in each individual case up to, and including, the maximum.^[3]

8.4        The removal of the usual discretion of the court to consider mitigating factors or to utilise alternative sentencing options to deal with an offender are defining features of such provisions. Mandatory sentencing laws may apply to certain offences, or to particular types of offenders—for example, repeat offenders.

8.5        Presumptive minimum sentences can have a similar effect to mandatory minimum sentence, so much so, that stakeholders to this Inquiry generally grouped issues relating to mandatory and presumptive sentencing together.^[4] While mandatory sentencing provisions tend to entirely limit judicial discretion in relation to sentencing, offences with presumptive penalties allow for judicial discretion in sentencing, but only if ‘there is a demonstrable reason—which may be broadly or narrowly defined’.^[5] Aboriginal Legal Service of WA (ALSWA) raised the presumptive penalty in relation to s 61A of the Restraining Orders Act 1997 (WA), which related to repeated breach of violence restraining orders (VROs).

8.6        ALSWA noted that:

The sentencing court can deviate from the presumptive penalty if imprisonment or detention would be ‘clearly unjust’ given the circumstances of the offence and the person, and the person is unlikely to be a threat to the safety of a person protected by the order or the community generally.^[6]

8.7        Parliaments have tended to regard fixed or minimum penalty provisions as a means of addressing community concerns that sentences handed down by the courts are too lenient when sentencing offenders.^[7] The arguments put in favour of mandatory or presumptive sentencing provisions include that they:

• promote consistency in sentencing;
• deter individuals from offending;
• denounce the proscribed conduct;
• ensure appropriate punishment of the offender; and
• protect the community through incapacitation of the offender.^[8]

8.8        There is evidence that mandatory sentencing increases the incarceration rate. For example, the Senate Legal and Constitutional Affairs Reference Committee noted that:

The Chief Magistrate of the Northern Territory provided the committee with evidence of incarceration rates as a result of the imposition of mandatory sentencing in the Northern Territory during the period 1997 to 2001. The Chief Magistrate noted that the imprisonment rate was 50 per cent higher during this period than following repeal of the laws. Non-custodial orders such as home-detention and community work were almost unused for property offences during the mandatory sentencing era.^[9]

8.9        Stakeholders also noted that mandatory or presumptive penalty provisions:

• are ineffective—there is little evidence that mandatory sentences act as deterrents;
• constrain the exercise of judicial discretion;
• heighten the impact of charging decisions that are within the discretion of police and prosecutors;
• contradict the principles of proportionality^[10] and ‘imprisonment as a last resort’;^[11] and
• reduce incentives to enter a plea of guilty, resulting in increased workloads for the courts.^[12]

8.10     The North Australian Aboriginal Justice Agency (NAAJA) submitted that, mandatory sentencing law focus ‘on punitive and retributive aspects of sentencing and the fallacy of crime prevention through deterrence.’^[13] The National Association of Community Legal Centres (NACLC) submitted that mandatory sentencing laws ‘are arbitrary and undermine basic rule of law principles by preventing courts from exercising discretion and imposing penalties tailored appropriately to the circumstances of the case and the offender.’^[14]

8.11     Similarly, Kingsford Legal Centre noted that:

Mandatory sentencing undermines the fundamentals of the Australian legal system such as the Rule of Law and is inconsistent with the separation of powers, by allowing the executive branch of government to direct the exercise of judicial power and to limit judicial discretion. Mandatory sentences also contradict a number of sentencing principles, such as that Courts must have regard to the gravity of the offence, the impact on the victim, and the circumstances of the offending and the accused when imposing a sentence. In particular, mandatory sentences which impose a sentence of imprisonment go against the presumption that imprisonment should be a measure of last resort and only where no other sentencing option is sufficient.^[15]

8.12     The Criminal Lawyers Association of NT (CLANT) and NT Legal Aid, referred to Mildren J’s description of prescribed mandatory minimum sentences as the ‘very antithesis of just sentences’ in the NT Supreme Court matter of Trennery v Bradley.^[16] Mildren J went on to say that

if a court thinks that a proper just sentence is the prescribed minimum or more, the minimum prescribed penalty is unnecessary. It therefore follows that the sole purpose of a prescribed minimum mandatory sentencing regime is to require sentencers to impose heavier sentences than would be proper according to the justice of the case. ^[17]

8.13     While increasing incarceration, there is no evidence that mandatory sentencing acts as a deterrent and reduces crime.^[18] In fact, Victorian Aboriginal Legal Service (VALS) suggested that:

As opposed to providing a deterrent, the impact of mandatory minimum sentences and terms of incarceration for youth means a rise criminogenic behaviour learned within the prison system.^[19]

8.14     The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) submitted that such regimes can result in ‘serious miscarriages of justice’:

Mandatory sentencing regimes are not effective as a deterrent and instead contribute to higher rates of reoffending. In particular, [they] fail to deter persons with mental impairment, alcohol or drug dependency or persons who are economically or socially disadvantaged. They also have no rehabilitative value, disrupt employment and family connections … and diminish the prospects of people re-establishing social and employment links post release. Significantly, mandatory sentencing prevents the court from taking into account the individual circumstance of the person, leading to unjust outcomes. This is an arbitrary contravention of the principles of proportionality and necessity, and mandatory detention of this kind violate a number of provisions of the International Convention on Civil and Political Rights.^[20]

8.15     Stakeholders noted that many mandatory and presumptive sentencing provisions disproportionately impact upon vulnerable groups, including Aboriginal and Torres Strait Islander peoples.^[21] In 2008 and 2014, the UN Committee Against Torture, in its regular reviews of Australia’s compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, recommended that Australia abolish mandatory sentencing due to its ‘disproportionate and discriminatory impact on the [I]ndigenous population.’^[22] Kingsford Legal Centre explained that:

a number of the crimes in Australian jurisdictions to which a mandatory sentence is attached are ’crimes of poverty’ relating to property offences and theft. As a result, mandatory sentences have a discriminatory impact on people of a low socio-economic status and particular racial groups, including Aboriginal and Torres Strait Islander people.^[23]

8.16     The NT Anti-Discrimination Commissioner urged the ‘repeal of mandatory sentencing provisions as they do not make our communities safer and have disproportionate impact on Aboriginal and Torres Strait Islander people.’^[24] The NACLC submitted that:

Of particular concern is the disproportionate impact on Aboriginal and Torres Strait Islander peoples in light of the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system.^[25]

8.17     There are principled reasons for opposing mandatory sentencing, including those set out above. In fact, the ALRC has previously recommended against the imposition of mandatory sentences in relation to federal offenders.^[26] Nevertheless, the Terms of Reference for this Inquiry are focused on those aspects of the criminal justice system that are contributing to the over incarceration of Aboriginal and Torres Strait Islander people. Accordingly, this recommendation requires a focus on those particular offence provisions with a mandatory or presumptive term of imprisonment which have a disproportionate impact on Aboriginal and Torres Strait Islander peoples. Identifying individual offence provisions with a disproportionate impact is not a simple exercise given the way data are collected.^[27] With a view to abolition, Commonwealth, state and territory governments should review provisions that impose mandatory or presumptive penalties to determine whether they have a disproportionate impact on Aboriginal and Torres Strait Islander peoples.^[28]

8.18     The next section highlights those provisions identified by stakeholders as having a disproportionate impact on Aboriginal and Torres Strait Islander peoples. Most of those identified by stakeholders related to Western Australia (WA) and the Northern Territory (NT) where mandatory sentencing is most common.

Western Australia

8.19     WA legislation imposes mandatory penalties upon conviction in relation to certain types of offenders, and to a number of offences.

Repeat home burglary

8.20     During initial consultations, sentencing for repeat home burglary (known as the ‘three strikes’ rule ) was commonly raised as being of particular concern, and as having a disproportionate impact on Aboriginal and Torres Strait Islander people. The ‘three strikes’ rule provides that an adult offender with two prior convictions for burglary must, upon the third conviction, be sentenced to at least two years imprisonment.^[29]

8.21     Previous reviews concluded that this mandatory penalty ‘had little effect on the criminal justice system’, but did not make any recommendations regarding its retention or otherwise.^[30] The offence of burglary can capture a broad range of conduct and the mandatory minimum sentences may be problematic, given the variance in the nature and gravity of conduct for which individuals are charged. For example, Legal Aid WA submitted that ‘a person who steals a wallet from a table inside a motel unit by reaching through the window, commits a burglary’.^[31]

8.22     Legal Aid WA’s submission offers some insight into the reasons why Aboriginal and Torres Strait Islander offenders may be disproportionately impacted by the repeat burglary provisions:

Most young Aboriginal clients commit offences together. It may be that they are out at night because home is not safe, they are hungry, they are curious or they are simply with the wrong people at the wrong time. Many of them are considered by police as parties to the offences committed by others simply by virtue of agreeing with police that they were ‘a lookout’, without any plan to commit the actual offence.^[32]

8.23     The Aboriginal Legal Service WA (ALSWA) confirmed that this provision impacted a number of their clients and provided the following example:

ALSWA acted for B who was a 20-year-old Aboriginal female from a regional location who came to live in Perth. She commenced a relationship and starting using drugs for the first time. B acted as a lookout while her boyfriend committed various burglaries. She was a repeat offender under the legislation despite having no prior convictions other than an offence of providing false details as a juvenile. The client was sentenced to the minimum mandatory term of 2 years’ imprisonment; the prosecutor stated at sentencing that this case was not the type of case that the amendments to the ‘three strikes home burglary laws’ were aimed at and that the conduct did not warrant imprisonment.^[33]

8.24     In another example, ALSWA described how, but for receiving timely legal advice, a young Aboriginal male may have been mandatorily imprisoned for repeat home burglary after a ‘third strike’, in which the offender entered a home he believed to have been a friend’s house to eat cereal and listen to music.^[34]

Breach of violence restraining orders

8.25     The Restraining Orders Act 1997 (WA) provides the legal framework for the issuing of orders designed to ‘restrain people from committing family violence or personal violence by imposing restraints on their behaviour and activities, and for related purposes.’^[35] The Act provides for a presumptive penalty for repeat breach offenders. Section 61A(5) of the Act provides that an offender convicted of three or more breaches of a violence restraining order (VRO) will be subject to a presumptive term of imprisonment. The legislation allows a court to divert from the presumptive penalty in limited circumstances.^[36]

8.26     ALSWA reported ‘serious concerns’ that ‘consent is not a defence’^[37] to breaching a VRO, and that breaches of this type remain subject to the presumptive sentencing regime.^[38] While most VRO are issued by a judicial officer, the WA legislation also provides for the issuing of a family violence restraining order by police officers.^[39] A breach of a police issued order can result in a relevant conviction for the purposes of the mandatory presumptive penalty. ALSWA noted that police issued orders

do not require the provision of sworn evidence, are not subject to judicial oversight, do not necessarily take into account the views of the victim and are often made by police as a matter of convenience, for example, sometimes police orders are issued against the female victim because the residence belongs to the male and the female is able to access alternative accommodation.^[40]

8.27     The Law Reform Commission of WA examined section 61A in the context of family and domestic violence. It reported that stakeholders in the Kimberly region had raised concerns that police orders were frequently not understood by the person bound by the order; or the person did not recall its existence because it was served on them at the scene, often when they were intoxicated.^[41] Nevertheless, the Commission was of the view that the limited discretion in s 61A should be retained.^[42]

Other offences

8.28     Stakeholders identified the following additional penalties to the offences for consideration:

• assault public officer (Criminal Code Act Compilation Act 1913 (WA) s 318(4))
• breach violence restraining order (Restraining Orders Act 1997 (WA) s 61A )
• reckless driving committed during police pursuit (Road Traffic Act 1978 (WA) s 60B(5))
• dangerous driving causing death or grievous bodily harm committed during police pursuit (Road Traffic Act 1978 (WA) s 59 (4A)); and
• dangerous driving causing bodily harm committed during police pursuit (Road Traffic Act 1978 (WA) s 59A(4A)).

8.29     In relation to driving offences, NATSILS and ALSWA referred to the same case study:

‘John’ was charged with one count of reckless driving, one charge of driving without a licence and one charge of failing to stop. John made a rash and unfortunate decision to drive a motor cycle to work because his employer, who normally picked him up for work, was unable to do so.

When he saw the police he panicked, sped off, drove through a red light and veered onto the wrong side of the road. He had a relatively minor record—his only prior offences were failing to stop, excess 0.02% and driving without a licence. These offences were dealt with in 2010 by the imposition of fines and John had not offended since that time.

… The magistrate indicated that, if it was not for the mandatory sentencing regime, the sentence would have been less or possibly not one of imprisonment at all.^[43]

Northern Territory

8.30     The ALRC understands that the NT Government is in the process of reviewing provisions that impose mandatory penalties. The ALRC welcomes the review. During this Inquiry, stakeholders in the NT identified a number of mandatory sentencing provisions to be particularly problematic in terms of their application to Aboriginal and Torres Strait Islander offenders. NAAJA submitted that:

The following provisions should be prioritised for immediate repeal, as they disproportionately affect Aboriginal people:

• Part 3 Division 6 of the Sentencing Act – Aggravated property offences;
• Part 3 Division 6A of the Sentencing Act – Mandatory Imprisonment for violent offences;
• Sections 120 & 121 of the Domestic and Family Violence Act;
• Part 3 Division 6B of the Sentencing Act – Imprisonment for sexual offences;
• Section 53A of the Sentencing Act – Mandatory non parole periods for offences of murder;
• Section 37(3) of the Misuse of Drugs Act.

The Northern Territory governments should also abolish:

• Provisions which remove the availability of suspended sentences (or other sentencing alternatives) for certain classes of offences or at all.
• Provisions which remove the availability of home detention orders for offences that are not suspended wholly.
• Mandatory minimum fines for traffic offences such as drive unregistered section 33 and drive uninsured section 34 of the Traffic Act.^[44]

8.31     CLANT provided a similar list of offences for repeal.^[45]

8.32     The Sentencing Act (NT) does not simply apply mandatory sentencing provisions based on the offence committed, but on whether or not the offence is a second or subsequent offence by the offender.^[46] This means that there are mandatory terms of imprisonment attached to some offence levels, and mandatory minimums for others.^[47]

8.33     The Sentencing Act (NT) classifies individual offences into one of five offence levels. Kingsford Legal Centre submitted that the mandatory sentences in levels 1, 2 and 4 are of ‘particular concern with respect to Aboriginal and Torres Strait Islander people’,^[48] and called for immediate reform. Level 2 mandates a term of actual imprisonment, for ‘any person who unlawfully causes harm to another.’ The provision does not require a consideration of the gravity of the harm caused.^[49]

New South Wales

8.34     Legal Aid NSW submitted that the mandatory minimum sentence attaching to the offence of assault causing death (while intoxicated) (so called ‘one punch’ laws) was particularly ‘inappropriate.’^[50] In a 2017 review of those laws, the Aboriginal Legal Service NSW/ACT submitted that such laws should be repealed, because of the potential for the offence to have a disproportionate impact upon Aboriginal and Torres Strait Islander communities.^[51]

8.35     One punch laws were reviewed by the NSW Department of Justice in 2017 which found the law to be largely untested having been introduced in 2014.^[52] Nevertheless, the Department stated that it ‘supports the retention of the offences and supports the principle of a lengthy sentence of imprisonment for the aggravated offence’.^[53] The Department recommended that the offence provisions be reviewed again in 2020. The ALRC suggests that such a review should also examine specifically the impact of these laws on Aboriginal and Torres Strait Islander people.