Approach to reform

1.11     While the Inquiry examined options for law reform that can reduce the incarceration rate of Aboriginal and Torres Strait Islander peoples, the recommendations and commentary in the Report do not seek to excuse or minimise violent or abusive behaviours for which incarceration is the appropriate response. It is the intention of the ALRC that the recommendations and commentary in this Report should not be read as extending to those who would place community safety or the safety of individuals at risk. Further, the ALRC does not suggest that criminal behaviours should be excused or ignored as a means to reduce the incarceration rate of Aboriginal and Torres Strait Islander peoples.

1.12     The recommendations in this Report are primarily focused on reducing the disproportionate incarceration of Aboriginal and Torres Strait Islander peoples who are cycling through the criminal justice system serving short sentences of two years and under. This group of offenders represent some 45% of all Aboriginal and Torres Strait Islander people entering into prisons.[4]

1.13     Pauline Wright, President of the Law Society of NSW, has suggested that:

Jail is an ineffective tool to deter crime—indeed prisons have been referred to as ‘universities of crime’, so effective they seem at encouraging recidivism. Jailing people is also very costly, so it is time that we tackle the problem and find ways to reduce the record number of people filling our jails. Investing more funds in early intervention, prevention and diversion programs that can help address the underlying causes of crime is likely to achieve safer communities and reduce rates of reoffending. Sadly, despite a reduction in most categories of crime, a lack of resources for non-custodial options, especially in regional NSW, has led to more offenders being sentenced to jail, albeit for short periods, for relatively minor offences.[5]

1.14     A reduction in the number of Aboriginal and Torres Strait Islander offenders serving short sentences of imprisonment would not only see a reduction in the prison population, but would create collateral benefits. The wider Australian community would benefit from safer communities through reduction in crime, as well as through a reduction in the economic cost of incarceration.

Disproportionate representation

1.15     As the Inquiry concerned the over-representation of Aboriginal and Torres Strait Islander peoples in Australian prisons, the ALRC focused on those areas where Aboriginal and Torres Strait Islander peoples are disproportionately represented.

1.16     Aboriginal and Torres Strait Islander adults make up around 2% of the national population, and yet constituted 27% of the national prison population. Aboriginal and Torres Strait Islander incarceration rates increased 41% between 2006 and 2016. In that time, the gap between Aboriginal and Torres Strait Islander and non-Indigenous imprisonment rates has widened: with over-representation of Aboriginal and Torres Strait Islander people in prison increasing from a factor of 11 to 12.5. In 2016, Aboriginal and Torres Strait Islander women constituted 34% of the female prison population, and an Aboriginal or Torres Strait Islander woman was 21.2 times more likely to be imprisoned than a non-Indigenous woman.[6]

1.17     There are also particular areas in which Aboriginal and Torres Strait Islander peoples are disproportionately represented in the prison population. For example, Aboriginal and Torres Strait Islander offenders are more likely to be sentenced to short terms of imprisonment than their non-Indigenous counterparts, with a national median aggregate sentence length of two years, compared to 3.5 years for non-Indigenous prisoners.[7] Hence, Aboriginal and Torres Strait Islander peoples are being incarcerated for lower order offences for which diversion and rehabilitation may be a more appropriate response.

1.18     A full discussion of the disproportionate incidence of Aboriginal and Torres Strait Islander incarceration is provided in Chapter 3.

Contributing factors

1.19     While this Inquiry has considered the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system, it is important to recognise that ‘the majority of Aboriginal and Torres Strait Islander peoples never commit criminal offences’.[8]

1.20     The ALRC also recognises that while laws and legal frameworks are an important factor contributing to over-representation, other social, economic, and historic factors also contribute:

The bigger picture cannot be ignored: the history of colonisation and dispossession has had enduring effects on Aboriginal and Torres Strait Islander communities and individuals. For example, there is a strong correlation between having a family member removed and arrest and incarceration. The high rate of imprisonment is occurring in the context of poor health, inadequate housing, high levels of family violence, and high levels of unemployment.[9]

1.21     Recognising such factors, the Terms of Reference direct the ALRC to have regard to existing data and research concerning ‘the broader contextual factors contributing to Aboriginal and Torres Strait Islander incarceration’ including:

the relationships between Aboriginal and Torres Strait Islander offending and incarceration and inter-generational trauma, loss of culture, poverty, discrimination, alcohol and drug use, experience of violence, including family violence, child abuse and neglect, contact with child protection and welfare systems, educational access and performance, cognitive and psychological factors, housing circumstances and employment.

1.22     The Terms of Reference recognise earlier important research that has touched or focused upon Aboriginal and Torres Strait Islander incarceration, its causes and its devastating effects. In formulating its reform response, the ALRC has considered the recommendations made in these other reports, inquiries and action plans in so far as they address the criminal justice system, including but not limited to:

a.   the Royal Commission into Aboriginal Deaths in Custody,

b.   the Royal Commission into the Protection and Detention of Children in the Northern Territory (due to report 1 August 2017),

c.   Senate Standing Committee on Finance and Public Administration’s Inquiry into Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services,

d.   Senate Standing Committee on Community Affairs’ inquiry into Indefinite Detention of People with Cognitive and Psychiatric impairment in Australia,

e.   Senate Standing Committee on Indigenous Affairs inquiry into Harmful Use of Alcohol in Aboriginal and Torres Strait Islander Communities,

f.    reports of the Aboriginal and Torres Strait Islander Social Justice Commissioner,

g.   the ALRC’s inquiries into Family violence and Family violence and Commonwealth laws, and

h.   the National Plan to Reduce Violence against Women and their Children 2010–2022.[10]

1.23     The reports and inquiries referred to above have highlighted the many social, political and economic factors that contribute to Aboriginal and Torres Strait Islander imprisonment rates. Many of these are recognised in the national ‘Closing the Gap’ targets[11] and the Productivity Commission report Overcoming Indigenous Disadvantage: Key Indicators 2016.[12]

1.24     These reports have identified factors that include: disadvantage caused by a lack of education and low employment rates; inadequate housing, overcrowding and homelessness; poor health outcomes, including mental health, cognitive impairment including Foetal Alcohol Spectrum Disorders (FASD) and physical disability; and alcohol and drug dependency and abuse.[13] The Royal Commission into the Protection and Detention of Children in the Northern Territory has also recognised the cyclical and intergenerational nature of social and economic disadvantage on Aboriginal and Torres Strait Islander peoples.[14]

1.25     The ALRC has noted during the consultation process significant and recurrent factors acting as drivers of incarceration. The ALRC’s work on the Inquiry suggests that there are a number of other factors that contribute to the disproportionate incarceration of Aboriginal and Torres Strait Islander peoples, including Aboriginal and Torres Strait Islander young people’s contact with the juvenile justice system; the background and lived experiences of Aboriginal and Torres Strait Islander children put into out-of-home care; the significant proportion of Aboriginal and Torres Strait Islander prisoners who experience poor physical health, mental illness and cognitive impairment, as well as Aboriginal and Torrs Strait Islander prisoners with backgrounds of physical and sexual abuse. An examination of these factors is beyond the scope of this Inquiry. However, the ALRC believes that the impact of these factors warrants further consideration by governments.

1.26     The ALRC draws attention to research showing the early disproportionate incarceration of Aboriginal children in the juvenile justice system. The Australian Institute of Health and Welfare reported in 2015 that ‘Indigenous young people aged 10-17 were 26 times as likely as non-Indigenous young people to be in detention on an average night in the June quarter of 2015 This was an increase from 19 times as likely in the June quarter of 2011’.[15]

1.27     Dr Don Weatherburn has noted the progression of young Aboriginal and Torres Strait Islander peoples through the criminal justice system in New South Wales:

By the age of 23, more than three quarters (75.6%) of the NSW Indigenous population had been cautioned by police, referred to a youth justice conference or convicted of an offence in a NSW Criminal Court. The corresponding figure for the non-Indigenous population of NSW was just 16.9%. By the same age, 24.5% of the Indigenous population, but just 1.3% of the non-Indigenous population had been refused bail or given a custodial sentence (control order or sentence of imprisonment).[16]

1.28     The ALRC was concerned by the many stories delivered by stakeholders during the Inquiry about the lived experiences and background of deprivation and disadvantage of young people in custody. These experiences were mirrored in the 2009 NSW Young People in Custody Health Survey (YPICHS) Report prepared by NSW Justice Health in conjunction with NSW Juvenile Justice that found:

Over 27% of YPICHS participants had been placed in care as a child; this was significantly higher among young women and Aboriginal young people. Low educational attainment was common with only 38% of participants in school prior to custody and an average age of leaving school of 14.4 years. Nearly half (45%) of participants had ever had a parent in prison and 10% currently had a parent in prison. Aboriginal young people were twice as likely to have ever had a parent in prison compared to non-Aboriginal young people (61% vs 30%).

1.29     One particular contributing factor to adult incarceration rates has been shown to be out-of-home care. This Inquiry focuses on the incarceration of adult Aboriginal and Torres Strait Islander people. However, research has made links between child protection, out-of-home care, and juvenile and adult incarceration.[17] The issue of out-of-home care as a driver of incarceration is discussed further in Chapter 15.

1.30     During the consultation process, the ALRC was advised many times of the negative effects and consequences for Aboriginal and Torres Strait Islander people experiencing intergenerational trauma. Professor Harry Blagg, Dr Vickie Hovane and Dorinda Cox submitted that:

Inter-generational trauma impacts on all Aboriginal families and communities. It impacts on individuals, families, communities and cultures. For Aboriginal people, it is a collective consequence of colonisation rather than simply an individual experience. It is compounded by negative contact with the justice and related systems, such as children’s protection. Because this trauma impacts across all levels of Aboriginal society, there is a need for a holistic and life-span approach to addressing the issue.[18]

1.31     Aboriginal and Torres Strait Islander communities and individuals have been negatively affected by laws, policies and practices implemented by successive government policies, such as assimilation and child removal. The ALRC also acknowledges the physical and psychological harm caused to many Aboriginal and Torres Strait Islander women and children through family violence and abuse.[19]

1.32     As a law reform body, the focus of the ALRC in the Inquiry centred on reform to laws and legal frameworks that could address the over-representation of Aboriginal and Torres Strait Islander peoples in prisons. However, the ALRC acknowledges that law is only one of the many factors in a larger historical, social and economic context that contributes to incarceration.[20]

Rural and remote communities

1.33     Although the majority of Aboriginal and Torres Strait Islander peoples live in cities or regional areas (57% in major cities or inner regional areas), a relatively high proportion live in remote and very remote areas (21%). In comparison, almost 90% of non-Indigenous Australians (over 19 million people) live in major cities or inner regional areas.[21]

1.34     For those Aboriginal or Torres Strait Islander communities in regional and remote areas, disadvantage can be compounded by a lack of access to services and infrastructure. The Productivity Commission stated:

Socioeconomic disadvantage directly impacts on the ability of Indigenous people to access justice. Socioeconomic disadvantage among Aboriginal and Torres Strait Islander Australians is widespread and multifaceted: various analyses show that, on average, Indigenous people experience poorer outcomes than non-Indigenous people in the areas of education, income, health and housing … Socioeconomic disadvantage is linked to geographic isolation, which in itself can represent a barrier in accessing justice.[22]

1.35     The remoteness of many Aboriginal communities, and comparative lack of legal services and community programs—including drug and alcohol rehabilitation programs, adult literacy programs or employment programs—was raised with the ALRC during the consultation process as a contributing factor to incarceration. For example, a lack of services and programs means that there are few community sentencing options for offenders who live in remote communities.

1.36     There are many access to justice issues that arise in this context, including a lack of interpreters as well as limited access to legal representation with a reliance on ‘fly in fly out’ judicial officers and legal practitioners. In some cases this can lead to the provision of compromised advice and representation and a greater incidence of incarceration of offenders.[23]

Aboriginal and Torres Strait Islander incarceration in the federal context

1.37     Much of the criminal law that was the subject of the Inquiry fell within state and territory jurisdictions. The Australian Law Reform Commission Act 1996 (Cth) provides that one of the functions of the ALRC during its inquiry process is to consider proposals for uniformity between state and territory laws and to consider proposals for complementary Commonwealth, state and territory laws.[24]

1.38     During the Inquiry, the ALRC identified state and territory laws and legal frameworks that are key contributors to the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system. Although ALRC heard that in Victoria newly introduced legislation must contain a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2009 (Vic), the ALRC is nonetheless cognisant of the considerable negative impact some laws and legal frameworks have on Aboriginal and Torres Strait Islander peoples across all states and territories. The ALRC has sought to highlight those laws, legal frameworks and practices that have led to the disproportionate incarceration of Aboriginal and Torres Strait Islander peoples as well as those that have worked to reduce the rate of Aboriginal and Torres Strait Islander incarceration.

1.39     Various recommendations contained within this Report make recommendations directed towards state and territory governments. For the purposes of implementation of those recommendations, the ALRC intends that such recommendations extend to individual government departments and government agencies.

International setting

1.40     The ALRC’s approach to reform in this Inquiry is informed by relevant international human rights standards and instruments. The Terms of Reference make specific reference to these. In addition, under its constituting legislation, the ALRC is directed to have regard to ‘Australia’s international obligations that are relevant to the matter’.[25]

1.41     International law requires that Aboriginal and Torres Strait Islander peoples enjoy equality and non-discrimination before the law and throughout the criminal justice process including in relation to law enforcement and the judicial system. Australia has obligations under international law to implement the following human rights treaties:

  • the International Covenant on Civil and Political Rights (ICCPR);[26]

  • the International Covenant on Economic, Social and Cultural Rights (ICESCR);[27]

  • the International Convention on the Elimination of all forms of Racial Discrimination (ICERD);[28]

  • the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);[29]

  • the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);[30]

  • the Convention on the Rights of the Child (CROC);[31]and

  • the Convention on the Rights of Persons with Disabilities (CRPD).[32]

1.42     In addition, the Australian Government endorsed the United Nations Declaration on the Rights of Indigenous Peoples (the Declaration) on 3 April 2009.[33] Although the Declaration is non-binding and aspirational in nature, it presents a series of structured principles that might be utilised to ameliorate disadvantage and discrimination experienced by Aboriginal and Torres Strait Islander peoples.

1.43     Also of note in the international context is that, on 1 July 2016, the United Nations Human Rights Council adopted a resolution reflecting concern that ‘indigenous women and girls may be overrepresented in criminal justice systems and may be more marginalized, and thus experience more violence before, during and after the period of incarceration’.[34]

Economic factors and justice reinvestment

1.44     The implementation of the recommendations in this Report, including the provision of more diversion, support and rehabilitation programs before, during and after incarceration, will cost money. Many of the recommendations in this Report will require funding. However, if implemented they will cost less than the continuing cost to the community of keeping ever increasing numbers of people detained in prisons. The ALRC suggests that when looking at these costs it is important to consider the long-term savings that will be generated through reducing incarceration rates.

1.45     A number of submissions provided information about the cost of keeping an adult in prison per day and per year. The cost differs over time and from jurisdiction to jurisdiction. The Productivity Commission has provided a general indication of these costs:

Nationally, in 2015-16, the total cost per prisoner per day, comprising net operating expenditure, depreciation, debt servicing fees and user cost of capital (but excluding payroll tax and, where able to be disaggregated by jurisdictions, prisoner transport and escort costs and prisoner health expenditure) was $283.[35]

1.46     One example of prison growth and cost is the major expansion of New South Wales Corrective Services’ prison infrastructure. At 30 June 2016, there were 12,629 adult prisoners in NSW prisons, an increase of 7% (832 prisoners) from 2015.[36] In 2016, the NSW Government announced that it will spend $3.8 billion on over a dozen new correctional centres in order to house the increasing prison population.[37]

1.47     PwC has endeavoured to calculate the public costs that can be avoided by a reduction in recidivism and prison numbers, suggesting:

  • Indigenous incarceration is currently costing the Australian economy $7.9 billion per annum (in 2016)

  • These costs are expected to grow to $9.7 billion per annum in 2020 and $19.8 billion per annum by 2040 as a result of a growing incarcerated population.[38]

1.48     Justice reinvestment is based on the concept of saving public money by keeping people out of costly prisons through investment in programs and strategies that prevents offending behaviours within communities. Some of those savings can then be re-invested in programs that will reduce offending and recidivism and thereby slow the continuing growth in, and eventually reduce, prison numbers. However, justice reinvestment requires initial funding in the expectation of reaping greater financial returns in the longer term. The ALRC recognises that it will take a great deal of governmental determination to overcome the administrative inertia and vested interests that may resist the redirection of major spending programs away from prisons. Recommendations and a full discussion in respect of justice reinvestment can be found in Chapter 4.