NATIONAL JUSTICE POLICY

Transcription

1 NATIONAL JUSTICE POLICY February 2013

2 Acknowledgements The National Congress of Australia s First People s (Congress) acknowledges the valuable contributions made throughout the development of this policy from the following: Congress Members and Delegates Congress Partner Organisations Individuals and organisations who submitted comments during the public consultation period Congress is the national representative body for Aboriginal and Torres Strait Islander Peoples, and it is only with the support and efforts of people like you that Congress is able to develop policies which make a real difference to the lives of Aboriginal and Torres Strait Islander Peoples. National Justice Policy Version 1, February 2013 National Congress of Australia's First Peoples Ltd.

3 Contents Policy Objectives... 1 Policy Scope... 1 Policy Principles... 1 Executive Summary... 3 Overview of Recommendations... 4 Introduction Justice targets Recommendations Funding for Aboriginal Justice NGOs Recommendations Prevention, early intervention and diversion Recommendations Conditions in detention Recommendations A National Partnership Agreement for Safe Communities Recommendations References... 59

4 Policy Objectives The objectives of the National Justice policy are to identify: barriers to justice experienced by Aboriginal and Torres Strait Islander Peoples resolutions to such barriers that are specific, measurable and attainable The National justice policy is not an aspirational document. The Congress National Justice Policy provides a solid platform for Congress to affect positive real life outcomes for our Peoples. Policy Scope Congress acknowledges the experiences and needs of Aboriginal and Torres Strait Islander Peoples within the Australian justice system are highly complex and interrelated. This policy is primarily concerned with criminal justice and related factors. Other justice issues such as intellectual property, native title, civil law and family law will be the subject of separate policies. Policy Principles Congress adopts the following principles to guide its national policy work on justice issues: 1. Justice issues for Aboriginal and Torres Strait Islander Peoples in Australia must be understood within a historical context that has seen the law used as a tool of dispossession, oppression, family dislocation and racial discrimination. 2. Access to justice is a fundamental right under Australia s justice system, underpinned by Australia s commitment and obligations under international human rights law and recognised by Commonwealth, State and Territory Governments in the National Indigenous Law and Justice Framework. 3. The removal of all forms of racial discrimination in laws, policies and practices and the amelioration of past discrimination through substantive equality and positive discrimination is a precondition to achieving justice for Aboriginal and Torres Strait Islander Peoples. 4. Strategies to address inequality in the criminal justice system must address the socio-economic determinants of crime and the factors that can make communities safer, with a strong emphasis on prevention, early intervention and diversionary approaches. 1

5 5. Aboriginal and Torres Strait Islander organisations must be preferred and provided with adequate funding and resources to deliver the services and programs needed to achieve just outcomes, including legal representation for Aboriginal and Torres Strait Islander people as needed, as well as access to appropriate early intervention and prevention programs. 6. Governments must be held accountable for progress, through the development of and monitoring against justice targets around the over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system, in conjunction with a broad range of indicators measuring the determinants of justice affecting Aboriginal and Torres Strait Islander people. 7. Within a sector of limited resources, prevention, early intervention and diversionary strategies must be prioritised. Such strategies are essential to achieving better outcomes for Aboriginal and Torres Strait Islander Peoples and it is within this context, that culture should be understood as a preventative measure. 8. Aboriginal and Torres Strait Islander cultures and traditional lores must be acknowledged and respected in the development and implementation of legislation and policy. Further, Aboriginal and Torres Strait Islander Peoples must be consulted in legislative changes and initiatives which specifically affect them. 9. It is also imperative that people working in the justice sector are sufficiently trained to work in a culturally sensitive way. 10. Governments must also acknowledge the diversity of Aboriginal and Torres Strait Islander Peoples and ensure that national strategies are built on a foundation of equal partnerships between governments and Aboriginal communities, demonstrated at the local level through tailored, community-based solutions, led by local community people. 11. Congress will take an active approach to advocacy on national justice issues, supporting the work of member organisations. 2

6 Executive Summary The National Congress of Australia s First Peoples (Congress) is the national representative body for Aboriginal and Torres Strait Islander Peoples. With input from expert advisors in our Justice Working Group, Members and Delegates, Congress proposes five evidenced based recommendations for national reform of the justice system in response to the experiences of Aboriginal and Torres Strait Islander Peoples who come into contact with the Australian justice system. Aboriginal and Torres Strait Islander adults are incarcerated at 14 times the rate of non- Aboriginal and Torres Strait Islander adults; 1 and Aboriginal and Torres Strait Islander young people are almost 24 times more likely to be in youth detention than non-aboriginal and Torres Strait Islander young people. 2 This over-representation in the criminal justice system is a national disgrace and an international embarrassment, requiring urgent action. Aboriginal and Torres Strait Islander people are also more likely to be the victim of crimes (being 23 times more likely to be hospitalised for assault); are more likely to have their children removed under child protection policies; and face barriers in regards to family and civil law including problems with debt, tenancy, employment, discrimination, stolen wages and victims compensation. For Aboriginal and Torres Strait Islander people who find themselves in protective custody, police custody, youth detention or prison, the conditions of detention also often fail to comply with human rights obligations under international law. Aboriginal and Torres Strait Islander legal services and community led preventative, early intervention, diversionary and rehabilitative programs struggle to keep up with demand and are chronically under-resourced and underfunded. Current policies aimed at overcoming these barriers and closing the over-representation gap fail to recognise the complexity of such issues and the links between justice and other social determinants. The multiple forms of disadvantage faced by Aboriginal and Torres Strait Islander people can be addressed or prevented from escalating further through improved legal assistance and by moving from a tough on crime to a smart on crime solution focused approach to justice. This policy identifies a number of areas in which the Commonwealth Government can address these problems in partnership with State and Territory Governments. Although these recommendations are directly relevant to Aboriginal and Torres Strait Islander Peoples, their implementation will benefit the wider community as well. 1 Australian Bureau of Statistics 2011, p8 2 Australian Institute of Health and Welfare 2012(2) p7. 3

7 Overview of Recommendations The key recommendations of the Congress are: 1. The Commonwealth Government and State and Territory Governments commit to Justice Targets included in a fully-funded Safe Communities National Partnership Agreement as part of the Closing the Gap strategy. This commitment should be incorporated into the National Indigenous Reform Agreement and supported by significant improvements to data collection regarding Aboriginal and Torres Strait Islander people within the justice system. 2. Funding for Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services must be increased, to allow them to respond to the full range of legal needs experienced by Aboriginal and Torres Strait Islander Peoples. This should be supported by a new National Partnership Agreement on Aboriginal and Torres Strait Islander Legal Assistance Services. 3. Strategies for prevention, early intervention and diversion of Aboriginal and Torres Strait Islander people in the criminal justice system must be implemented. This is to be supported by the Safe Communities National Partnership Agreement and include standardised national data collection and pilots of Justice Reinvestment strategies in a number of prioritised communities. 4. Conditions for Aboriginal and Torres Strait Islander people in police custody and prison must be improved. To ensure compliance with human rights obligations, Australia must ratify the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as well as develop the required National Preventative Mechanism. 5. The Safe Communities building block of the Closing the Gap strategy should be addressed through a fully funded Safe Communities National Partnership Agreement that incorporates Justice Targets and strategies for prevention, early intervention and diversion. This NPA must take a broad approach to community safety and must recognise the importance of leadership by Aboriginal and Torres Strait Islander communities and organisations. These recommendations are discussed in more detail in sections 1 to 5. 4

8 Introduction Historical background Many of the problems experienced by Aboriginal and Torres Strait Islander people in justice system can be traced to the origins of the system. The Australian legal system was inherited from the British and forced upon Aboriginal and Torres Strait Islander Peoples. This ignored the sophisticated systems of customary law that existed prior to colonisation, as recognised in the landmark 1986 Australian Law Reform Commission (ALRC) Recognition of Aboriginal Customary Laws. While the ALRC made a number of recommendations about the recognition of Aboriginal and Torres Strait Islander customary law across many areas of legislation and procedure, little has been done to implement these recommendations. Other countries that inherited the British justice system through colonisation including the United States, Canada and New Zealand have experienced similar problems to Australia, including increasing prison populations, unsustainable growth in the cost of prison systems, high rates of recidivism and sustained, multi-generational harm to communities. In reality, the system of justice inherited from the United Kingdom has evolved very little, and very slowly over the past few centuries. Urgent action, and a much faster pace of reform, is now necessary in order to address the serious problems detailed in this policy. This will require the commitment of Commonwealth, State and Territory Governments, and all organisations and individuals involved in the justice system. The Australian Constitution was drafted without Aboriginal and Torres Strait Islander input. It fails to recognise the status of Aboriginal and Torres Strait Islander Peoples as traditional owners and continues to allow the Commonwealth Government to discriminate against Aboriginal and Torres Strait Islander Peoples. A particular complication of the system established by the Constitution is our federated system of government. Congress acknowledges that in this system, while the Commonwealth has responsibility under international law for the human rights of Aboriginal and Torres Strait Islander Peoples, the areas of law that have the greatest impact on Aboriginal and Torres Strait Islander people including most criminal law, child protection law and family violence law are primarily the responsibility of State and Territory Governments. This means that national action on any issue requires the agreement and cooperation of nine separate governments. The Royal Commission into Aboriginal Deaths in Custody In August 1987, the Commonwealth Government established the Royal Commission into Aboriginal Deaths in Custody, in response to unacceptable rates of deaths of Aboriginal and Torres Strait Islander people in prison and police custody. The final report, signed on 15 5

9 April 1991, made 339 recommendations. In framing its findings and recommendations, the Royal Commission addressed a broad range of social determinants affecting Aboriginal and Torres Strait Islander Peoples and the criminal justice system including health, housing, land rights, and education. The commitment to the Royal Commission involved Commonwealth, State and Territory Governments. Each State and Territory issued letters patent authorising the establishment of the Royal Commission. In many ways, this commitment carried through into the response to the recommendations of the Royal Commission. Many jurisdictions established Aboriginal and Torres Strait Islander Justice Agreements, which provided an opportunity for Aboriginal and Torres Strait Islander communities to have a say in government policy and in monitoring the implementation of the recommendations. While Justice Agreements and Aboriginal and Torres Strait Islander justice advisory bodies still exist in some jurisdictions, the commitment to addressing Aboriginal and Torres Strait Islander over-representation in the criminal justice system has been lost. The commitment to one of the core recommendations of the Royal Commission that imprisonment should be used only as a last resort has also been lost. Needless, preventable deaths of Aboriginal and Torres Strait Islander people in custody continue to occur, demonstrating a failure to recognise the heightened duty of care that applies when a person has been deprived of their liberty. This indicates that there are deep cultural problems within the criminal justice system that will not be addressed without strong political leadership. National commitment In recent years there has been no coordinated national commitment, strategy or agreement to address the over-representation of Aboriginal people in the criminal justice system. By a national commitment, Congress means a commitment that binds the Commonwealth as well as State and Territory Governments. While there is a National Indigenous Law and Justice Framework, this imposes no particular obligations on governments and despite the issue remaining an agenda item in numerous government forums, action and progress is non-existent. This defies the fact that there is a significant gap between the level of exposure and nature of interactions of Aboriginal and Torres Strait Islander Peoples with the criminal justice system as compared with non-aboriginal and Torres Strait Islander people. The rate of incarceration of Aboriginal and Torres Strait Islander people is 14 times the rate for non- Aboriginal and Torres Strait Islander people. 3 Of even more concern is that this gap is growing: whereas rates of incarceration for non-aboriginal and Torres Strait Islander people 3 Australian Bureau of Statistics 2011, p8 6

10 are relatively stable, the rate of incarceration of Aboriginal and Torres Strait Islander Peoples is increasing. Over-representation of Aboriginal and Torres Strait Islander Peoples in the justice system, particularly in prisons and as victims of violence, has inter-generational causes and effects. Unless Australian governments make it a priority to reduce over-representation in these areas, it will be difficult to make significant progress to close the gaps in other areas of Aboriginal and Torres Strait Islander disadvantage. The impact of law and order approaches One reason why Aboriginal and Torres Strait Islander Peoples are imprisoned more often than non-aboriginal and Torres Strait Islander people is that they are disproportionately affected by an increasingly rigid approach to offending. Current rates of incarceration reflect the cumulative effect of two decades of criminal justice policies, practices and legislation that have been counter to the recommendations of the Royal Commission, including adverse changes in sentencing law and practice, restrictions on judicial discretion, changes to bail eligibility, changes in administrative practices, changes to parole and post-release surveillance, limited availability of non-custodial sentencing options, and judicial and political perception of a need for tougher penalties. 4 At the most extreme end of the spectrum, these approaches include mandatory sentencing laws such as those that exist in Western Australia and the Northern Territory. One study examined that the substantial rise in the Aboriginal imprisonment rate in New South Wales between 2001 and 2008 noted that there had not been a corresponding rise in the conviction rate for Aboriginal and Torres Strait Islander Peoples over this period. As a result, it concluded that the substantial increase in the number of Indigenous people in prison is mainly due to changes in the criminal justice system s response to offending rather than changes in offending itself. 5 The justice system The unacceptable level of over-representation of Aboriginal and Torres Strait Islander Peoples within the criminal justice system clearly shows that the justice system is failing Aboriginal and Torres Strait Islander Peoples. The need to address over-representation through national targets as part of the criminal justice system is the highest priority recommendation in this policy. This will require reform as well as greater consistency and collaboration between States and Territories in relation to their criminal laws in areas such as fines, bail, sentencing and 4 Cunneen 2011, p11. 5 Fitzgerald, J 2009, p6. 7

11 parole. As Congress is a national organisation, making detailed recommendations in these areas is beyond the scope of this policy. Although criminal law reform is a priority, it is also important to take a holistic approach to justice and recognise the needs of victims as well as the family and civil law needs of Aboriginal and Torres Strait Islander Peoples. One of the most severe family law problems affecting Aboriginal and Torres Strait Islander Peoples is over-representation in the child protection system. This flows through into the out of home care system, as reflected in section 4, which in turn acts as a pathway into the youth justice system for many young people. The family law system is also important in providing protection for women and children from violence and resolving disputes about property settlements and care arrangements for children. Civil law problems experienced by Aboriginal and Torres Strait Islander Peoples include problems with debts, tenancy, employment, discrimination, stolen wages and victims compensation, as detailed in section 3. These types of problems can, if unresolved, escalate and ultimately contribute to the risk of offending. If Aboriginal and Torres Strait Islander organisations are resourced to assist Aboriginal and Torres Strait Islander people with these problems at an early stage, the ability of Aboriginal and Torres Strait Islander people to provide a safe and secure environment for children, and to participate in social and economic life is enhanced. Victims of crime, in particular family violence, have distinct needs. Such needs include but are not limited to the need for protection from future violence, safe and secure housing, freedom from financial effects of violence, safe care arrangements for children and access to victims compensation as well as other support services. In order to reduce over-representation in the criminal justice system and respond to the substantive injustice experienced by Aboriginal and Torres Strait Islander Peoples across other parts of the justice system, the responses of Commonwealth, State and Territory Governments need to be grounded in an understanding of the connections between these types of legal problems for individuals and communities. It is also important to recognise that victims and offenders are often closely related. Many offenders have been victims of crime themselves, or are the children of victims. Many victims have had the experience of a family member being incarcerated. The profiles of disadvantage of offenders and victims are very similar, and responses to overrepresentation and victimisation need to recognise this complexity. Social Determinants 8

12 RCIADIC acknowledged that there are many social drivers that lie outside the direct responsibility of the justice sector which impact on justice outcomes. Cross-sectoral research has consistently affirmed that social determinants, which include a person's social and economic position in society, early life experiences, exposure to stress, educational attainment, employment status, and past exclusion from participation in society, can all influence their social and emotional wellbeing and interaction with society throughout life. The impact of social determinants on justice outcomes are highlighted by examples in recently published studies: There is a link between a failure to detect and treat oral language disorders in early childhood (i.e.: relating to listening and talking skills) and an increased risk of delayed language and literacy skills, which in turn increases the risk of youth incarceration 6. A recent study of Aboriginal and Torres Strait Islander people in Queensland prisons found that 72.8% of men and 86.1% of women had at least one mental health disorder, compared to a prevalence rate in the general community estimated at 20% 7. The study concluded that the over-representation of Aboriginal and Torres Strait Islander people in prison, the high prevalence of mental disorder, and the frequent transitioning to and from prison, would inevitably affect Aboriginal and Torres Strait Islander communities. The key conclusion of the 'social determinants' is that are drivers of justice are inter-related with other factors which lie outside the direct responsibility of the justice sector. This therefore requires a collaborative, whole of government approach to reforming the legal system focused on achieving targets under the Closing the Gap Framework. The International Human Rights Law Framework The human rights issues addressed in this policy are referenced to an international framework of international human rights law. Australia is legally bound to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and has signed, ratified or endorsed a number of United Nations instruments relating to the rights of Aboriginal and Torres Strait Islander Peoples, including: The Declaration on the Rights of Indigenous Peoples; The Universal Declaration of Human Rights; The International Convention on the Elimination and all forms of Racial Discrimination; The Convention on the Elimination of all forms of Discrimination of Women; The Convention Against Torture, and other cruel and degrading treatment or punishment; The Convention the Rights of the Child; and 6 Snow and Powell, Heffernan, et al,

13 The Convention on the Rights of Persons with Disabilities. These instruments impose obligations upon Australia to address justice to Aboriginal and Torres Strait Islander people as a right, and provide an international context for why reform of the justice system is needed. When considered against these benchmarks, it is clear that the legislative protections and institutional framework within Australia for ensuring compliance with international human rights obligations are inadequate. 10

14 1. Justice targets Background The COAG Closing the Gap framework In November 2007, the Council of Australian Governments (COAG) committed to closing the life expectancy gap between Aboriginal and Torres Strait Islander and non-aboriginal and Torres Strait Islander people. In October 2008, COAG adopted six targets to support this commitment, which were to: close the gap in life expectancy within a generation; halve the gap in mortality rates for Aboriginal and Torres Strait Islander children under five within a decade; ensure all Indigenous four years olds in remote communities have access to early childhood education within five years; halve the gap in reading, writing and numeracy achievements for Indigenous children within a decade; halve the gap for Indigenous students in year 12 attainment or equivalent attainment rates by 2020; and halve the gap in employment outcomes between Indigenous and non-indigenous Australians within a decade. In November 2008, COAG endorsed the National Indigenous Reform Agreement (NIRA), which committed all jurisdictions to achieving these targets. The NIRA also identified a number of Building Blocks to support the achievement of the targets (Early Childhood, Schooling, Health, Economic Participation, Healthy Homes, Safe Communities, and Governance and Leadership) and performance indicators relevant to each target. There is no target in relation to the justice system either in relation to rates of incarceration or the experience of victims of crime. Information on the Safe Communities Building Block in the National Indigenous Reform Agreement refers to the need to be safe from violence but to the extent that it recognises the role of the justice system, it focuses on policing and a general reference to access to justice. There are no performance indicators in the Agreement in relation to incarceration or victimisation. Consistent with the Closing the Gap framework, the Steering Committee for the Review of Government Service Provision has developed a series of headline indicators, against which the Productivity Commission compiles data for the annual Overcoming Indigenous Disadvantage reports. These include indicators in relation to family and community violence, adult imprisonment, youth detention, youth diversions and repeat offending, but 11

15 these are simply indicators and there is no national commitment to achieving any change in relation to these indicators. The Standing Committee of Attorneys General (now the Standing Committee on Law and Justice) noted the unacceptable rates of incarceration of Indigenous Australians, including the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Doing Time Time for Doing Report and in July 2011, recommended that COAG consider the adoption of justice specific Indigenous closing the gap targets. 8 Unfortunately, this has not been progressed. As of January 2013, Congress understands that this has been referred to the Working Group on Indigenous Reform. What the data tells us As at June 2011, the national age standardised imprisonment rate for Aboriginal and Torres Strait Islander people was 1,868 per 100,000 adults, some 14 times the rate for non- Aboriginal and Torres Strait Islander people. 9 This gap is increasing: from 2000 to 2010, the non-aboriginal and Torres Strait Islander imprisonment rate increased only marginally, whereas the Aboriginal and Torres Strait Islander imprisonment rate increased by 51.5%. 10 While the increase in the imprisonment rate has been overwhelmingly driven by increased imprisonment of Aboriginal and Torres Strait Islander men, it is important to note that the rate of imprisonment of Aboriginal and Torres Strait Islander women has been growing rapidly. Based on non-age standardised data, the imprisonment rate for Aboriginal and Torres Strait Islander women grew by 58.6% from 2000 to 2010, compared to 35.2% for Aboriginal and Torres Strait Islander men. 11 In addition, the gap in incarceration rates for Aboriginal and Torres Strait Islander and non- Aboriginal and Torres Strait Islander young people is greater than the gap in the adult rates: in 2011, the Aboriginal and Torres Strait Islander youth detention rate was almost 24 times the non-aboriginal and Torres Strait Islander youth detention rate. 12 While the most recent data shows that the rate of over-representation has decreased over the four years to , the gap in incarceration rates is still alarming. Taking a long-term view, the numbers of Aboriginal and Torres Strait Islander young people in detention have been growing faster than the numbers of non-aboriginal and Torres Strait Islander young people. From 2001 to 2009, the number of Aboriginal and Torres Strait 8 SCAG Communique, July Australian Bureau of Statistics 2011, p8. 10 Productivity Commission 2011, p Productivity Commission 2011, p Australian Institute of Health and Welfare 2012(2) p7. 12

16 Islander young people in detention increased by 55.2%, compared to 14.4% for non- Aboriginal and Torres Strait Islander young people. 13 The rate of incarceration of Aboriginal and Torres Strait Islander young people is also growing faster than the rate of incarceration for Aboriginal and Torres Strait Islander adults, which suggests that the rate of growth in adult incarceration is likely to accelerate. This becomes clearer when data on the age profile of the Aboriginal and Torres Strait Islander population is considered. As at the 2006 Census, children aged under 15 years made up 38% of the total Aboriginal and Torres Strait Islander population (compared with 19% in the non-aboriginal and Torres Strait Islander population) and young people aged years represented 19% of the Aboriginal and Torres Strait Islander population (compared with 14%). 14 Early data from the 2011 Census indicates that this has not changed significantly, with 36% of the Aboriginal and Torres Strait Islander population being under the age of Population projections indicate that the age profile of the Aboriginal and Torres Strait Islander population will move closer to the age profile of the non-aboriginal and Torres Strait Islander population over time as life expectancy improves and fertility rates decline. In the medium term, however, population trends in recent decades will see a significant increase in the numbers of Aboriginal and Torres Strait Islander people aged 25-34, which by 2021 is expected to have increased by 60%, compared to The looming impact of this population bubble means that there is an urgent need to prevent young Aboriginal and Torres Strait Islander people who are currently in or about to enter their teens from having the same level of contact with the justice system as older generations. Unless the rate of increase in youth detention can be reduced, rates of incarceration across the Aboriginal and Torres Strait Islander population are likely to continue to increase into the future. Data also reveals enormous differences in the gaps in incarceration rates between States and Territories, which Congress attributes to their differing levels of commitment to working with Aboriginal and Torres Strait Islander Peoples to reduce incarceration. In Victoria, successive governments have committed publicly to implementing the recommendations of the Royal Commission into Aboriginal Deaths in Custody and other measures to reduce Aboriginal incarceration, through a long-term Aboriginal Justice Agreement (now in its third phase), with public reporting on progress. 17 Victoria has one of the lowest rates of Aboriginal and Torres Strait Islander incarceration, at 1,137 per 100,000 Aboriginal and 13 Productivity Commission 2011, p Australian Bureau of Statistics 2010(2) p Australian Bureau of Statistics 2012(1), in section on Age Profile. 16 Based on data presented in ABS 2009, p See < +about+the+victorian+aboriginal+justice+agreement+-+home> (accessed 26 June 2012). 13

17 Torres Strait Islander people in In 2013, Victoria also committed to justice targets in order to reduce the over-representation of Aboriginal people under justice supervision and the proportion of Aboriginal people who return to prison within two years of release. By 2031, these targets aim to close the gap between the rate of Aboriginal and non- Aboriginal people: under youth justice supervision under adult justice supervision who are convicted within two years of their previous conviction This compares to Western Australia, where the lack of a systemic commitment to reducing incarceration has led to a rate almost three times that of Victoria, at 3,343 per 100,000 Aboriginal and Torres Strait Islander people. 18 Western Australia, despite having 12.7% of the Aboriginal and Torres Strait Islander population, 19 has 24.5% of the country s Aboriginal and Torres Strait Islander prisoners. 20 The trends around incarceration rates are deeply disturbing and it is important to note that at any point in time, there are approximately 10,476 Aboriginal and Torres Strait Islander people in prison or youth justice detention. 21 This represents 1.9% of the Aboriginal and Torres Strait Islander population. A focused investment should have the capacity to reduce over-representation. Incarceration is not, however, the only aspect of the justice system in which Aboriginal and Torres Strait Islander people are over-represented. Aboriginal and Torres Strait Islander people are also over-represented as victims of violence. Aboriginal and Torres Strait Islander people are much more likely to report having been a victim of physical or threatened violence in the past 12 months (19.5% of Aboriginal and Torres Strait Islander people compared to 10.8% of non-aboriginal and Torres Strait Islander people, and 19.2% of Aboriginal and Torres Strait Islander women compared to 8.2% of non-aboriginal and Torres Strait Islander women). 22 Aboriginal and Torres Strait Islander people are hospitalised for family violence at 23 times the rate for non-aboriginal and Torres Strait Islander people (4.6 per 1,000 Aboriginal and Torres Strait Islander people compared to 0.2 per 1,000 non-aboriginal and Torres Strait Islander people, and 6.5 per 1,000 Aboriginal and Torres Strait Islander females compared to 0.2 per 1,000 non-aboriginal and Torres Strait Islander females) Productivity Commission 2011, Table 4A Australian Bureau of Statistics 2012(2). 20 Based on figures in Productivity Commission 2011, Table A Based on 7,656 in prison and 2,820 in youth detention see Australian Bureau of Statistics 2011 p 49, Australian Institute of Health and Welfare 2012 p6 and Australian Bureau of Statistics 2012(1). 22 Productivity Commission 2011, p Productivity Commission 2011, p

18 The experience of violence is a risk factor for generational violence, and for Aboriginal women there is a strong correlation between the experience of family violence and incarceration. 24 There is currently no regular and consistent approach to national data collection on rates of family violence. Nationally consistent data on rates of assault for crime victims who report to police is not available Indig et al 2010, p31 & Productivity Commission 2011, p

19 Recommendations 1.1 Justice targets Australia needs nationally agreed targets, to drive coordinated government action to address the over-representation of Aboriginal and Torres Strait Islander people in the justice system. There are three main reasons why this requires urgent national action: a) The gap between Aboriginal and Torres Strait Islander and non-aboriginal and Torres Strait Islander people in relation to incarceration is growing and in the absence of coordinated national action, it is likely to grow further. b) Evidence to date recognises that incarceration has strong, intergenerational effects. c) There are significant differences between States and Territories in relation to incarceration rates and their drivers, including the different jurisprudential approaches to law and order issues, such as mandatory sentencing. Poor performance by a few key States and Territories has the potential to undermine the entire Closing the Gap strategy. In order to drive national action, COAG must adopt specific targets in relation to justice as part of the Closing the Gap strategy, in recognition of the fact that gaps between Aboriginal and Torres Strait Islander people and non-aboriginal and Torres Strait Islander people in other areas cannot be closed without coordinated national progress in relation to justice. 1.2 The focus of targets Any justice target proposed for adoption by the Australian Government could also be incorporated in Australia s National Human Rights Action Plan, which is part of Australia s Human Rights Framework. In identifying appropriate justice targets, it is critical to recognise the multiple forms of disadvantage that are associated with involvement in the criminal justice system as a defendant, victim or witness. Congress recommends that the Australian Government, in agreement with State and Territory governments, adopt the following targets, to be achieved by 2020: Closing the Gap target number seven: To halve the gap in the rates of incarceration for Aboriginal and Torres Strait Islander people. Closing the Gap target number eight: To halve the rate at which Aboriginal and Torres Strait Islander people report having experienced physical or threatened violence with in the past 12 months. 16

20 The Closing the Gap targets should be complemented by targets for each of the key indicators which support achieving the justice targets: To halve the gap in the rates of incarceration for young people, men and women To halve the number of Aboriginal and Torres Strait Islander people who have a drivers licence suspended or cancelled To halve the average level of accumulated fine debt for Aboriginal and Torres Strait Islander people to double the rate at which Aboriginal and Torres Strait Islander people participate in diversionary programs and options within the criminal and youth justice systems (including police warnings and cautions) To halve the number of Aboriginal and Torres Strait Islander people on remand To double the number of Aboriginal and Torres Strait Islander people who receive legal assistance in family and civil law matters. 1.3 Implementation of targets The National Indigenous Reform Agreement should be revised to incorporate the proposed justice targets. As other National Agreements and National Partnership Agreements are revised, they should also be reviewed, so as to incorporate actions and performance indicators that will contribute to the achievement of these targets. In doing so, the Commonwealth must commit additional funds in return for additional investment by State and Territory governments. 1.4 Consistent data collection The Justice Closing the Gap strategies in relation to Aboriginal and Torres Strait Islander justice must be supported by a national framework for collection and dissemination of justice-related data, including collection by an independent agency, based on common definitions. Some key priorities for improved data collection are: A nationally consistent approach to identification of Aboriginal and Torres Strait Islander people across all national justice data collection projects, based on identification by the individual rather than subjective assessment by criminal justice system personnel. Nationally consistent data on the length of time taken to finalise criminal matters in court. Nationally consistent data on rates of assault for crime victims who report to police. 17

21 Nationally consistent data collection in relation to family violence, which is recognised as one of the foundations of the National Plan to Reduce Violence Against Women and Their Children. Nationally consistent evidence on the effectiveness of programs for perpetrators of family violence, to inform the development and delivery of these programs. A nationally consistent approach to measuring the effectiveness of diversionary programs, including warnings, cautions, conferences and treatment programs that seek to address drug, alcohol and mental health issues. National consistent data on the health and housing status of people released from prison and youth detention. A nationally consistent approach to Aboriginal and Torres Strait Islander inmate health data, as described in section 5. To provide a more detailed picture of progress towards these targets, the Steering Committee for the Review of Government Service Provision should be asked to review the headline indicators that form the basis of the annual Overcoming Indigenous Disadvantage Reports, to incorporate a broader range of justice-related indicators. Some additional headline indicators that would help to measure progress across the justice system for Aboriginal and Torres Strait Islander people are: the number of Aboriginal and Torres Strait Islander people engaged in Aboriginal and Torres Strait Islander justice groups, in collaboration with government, at the local level; the numbers of Aboriginal and Torres Strait Islander young people who are subject to both child protection orders and youth justice orders; the number and proportion of sentenced Aboriginal and Torres Strait Islander prisoners whose most serious offence is: o a public order offence; o a traffic or vehicle regulator offence; and o an offence against justice procedures, government security and operations. the gap between the average age of Aboriginal and Torres Strait Islander young people and non-aboriginal and Torres Strait Islander young people in youth detention; the rate of Aboriginal and Torres Strait Islander adults and young people who are granted bail, as compared to non-aboriginal and Torres Strait Islander adults and young people; the rate of reoffending by Aboriginal and Torres Strait Islander young people; and 18

22 a range of qualitative measures on the experiences and perceptions of Aboriginal and Torres Strait Islander people in accessing and utilising legal and justice systems, which will help explain movements in the justice targets. 19

23 2. Funding for Aboriginal Justice NGOs Background The Commonwealth Government funds States and Territories for mainstream legal aid services, provided by legal aid commissions. This funding is provided through the National Partnership Agreement on Legal Assistance Services (the NPA). Commonwealth funding for legal aid commissions through the NPA is $194.8 million in The Commonwealth also directly funds legal assistance services for Aboriginal and Torres Strait Islander people in particular: Aboriginal and Torres Strait Islander Legal Services (ATSILS) ($63.6 million in ); and Family Violence Prevention Legal Services (FVPLS) ($19.83 million in ). The Commonwealth also funds mainstream community legal centres ($34.3 million in ), via State and Territory governments. Issues with current funding arrangements Unmet legal needs Despite the range of legal assistance programs funded by the Commonwealth Government (as well as State and Territory governments and other sources), Congress members, delegates and partner organisations have stated there are serious gaps in funding and service provision for Aboriginal and Torres Strait Islander Peoples. In 2012, the Legal Australia-Wide Survey: Legal Needs In Australia (LAW Survey) found that there is extensive unmet legal need right across Australia. One of the most comprehensive studies of its kind, the LAW Survey also found that Aboriginal and Torres Strait Islander Peoples are among the worst affected groups experiencing unmet legal needs. Research on the legal needs of Aboriginal and Torres Strait Islander people has identified that there are a number of areas of family and civil law, in particular, where Aboriginal and Torres Strait Islander people have high needs that are not met by the current system. High priority issues that have been identified include: family law (in particular child protection issues); housing (in particular tenancy issues); discrimination; employment law; and credit and debt problems. 20

24 The same research found that there is also likely to be substantial need that is poorly recognised, as a result of limited community education, in relation to victim s compensation, stolen wages and wills. 26 Other research identified that Aboriginal and Torres Strait Islander respondents were more than twice as likely as non-aboriginal and Torres Strait Islander respondents to have experienced family law problems, but much less likely to seek assistance. 27 The lack of accessible, culturally appropriate legal assistance services is likely to be a significant reason for this. 28 The sorts of legal issues identified above tend not to occur in isolation. Disadvantaged people often experience clusters of legal problems. Family law problems, for example, are often accompanied by problems in relation to housing, family violence and child safety. 29 For this reason, it is important that the legal services they approach are able to provide an integrated response, which addresses the broad range of problems, rather than referring them to a range of different services. Under current funding agreements, the ATSILS have stated they have very limited capacity to provide assistance in family and civil law matters. While the national FVPLS program aims to address the broad range of legal issues with which clients may need assistance, there are only 14 of these services in Australia, covering only 31 regional and remote locations. The Commonwealth Attorney-General s Department funding guidelines restrict the national FVPLS program from providing services in urban areas, limiting service delivery to selected rural and remote locations based on a flawed interpretation of higher need. This is a major concern with the guidelines, given that 33% of Aboriginal and Torres Strait Islander people now live in capital cities. 30. The policy of limiting the program to rural and remote locations fails to recognise the many barriers that Aboriginal women face with trying to access mainstream services providers, and FVPLS experience numerous cases where women who live in rural and remote locations who experience family violence often relocate to urban areas for safety. Specialist services provide a crucial alternative, and oftentimes the only option, for Aboriginal and Torres Strait Islander women victim/survivors of family violence. While the national FVPLS program does not exclusively serve women, the vast majority of clients assisted are Aboriginal and Torres Strait Islander women and children, many of whom are unable to access ATSILS due to conflicts of interest arising from ATSILS criminal 26 Cunneen & Schwartz 2008, p Coumarelos et al 2006, p See Family Law Council 2012, p Family Law Council 2012, p Australian Bureau of Statistics 2012(1), in section on Capital Cities and Rest of State. 21

25 law practices. Aboriginal and Torres Strait Islander women living in urban areas are therefore at a clear disadvantage. If left unresolved, family and civil law problems can affect a person s safety and ability to participate in education, training and employment. They can also make it difficult for a parent to provide a safe and stable environment for school-aged children. There appears to be an assumption in the current funding arrangements that family and civil law legal needs will be met by mainstream legal assistance service providers in particular, legal aid commissions. While legal aid commissions should be required and expected to provide appropriate services to Aboriginal and Torres Strait Islander people who approach them for assistance, there are a range of problems with assuming that legal aid commissions will be the primary providers of these services: There are a number of regional and remote communities with high Aboriginal and Torres Strait Islander populations that are not serviced by legal aid commissions. Some Aboriginal and Torres Strait Islander people, particularly people in vulnerable situations, will feel safer approaching a service provided by an Aboriginal and Torres Strait Islander organisation than a mainstream service provided by a government agency. The process of applying for legal aid is daunting, often involving many steps. This deters many Aboriginal and Torres Strait Islander people from lodging an application or completing the process. In matters that involve more than one party, including family law matters and some civil law disputes, there are often conflicts of interest that prevent one service provider from assisting more than one party to the dispute. The varying degree to which legal aid commissions see service provision for Aboriginal and Torres Strait Islander people as a core priority. The level of cooperation and respect between legal aid commissions and Aboriginal and Torres Strait Islander legal service providers varies significantly between States and Territories. The reliance on mainstream services is a particular problem in relation to child protection matters, where Aboriginal and Torres Strait Islander families are significantly overrepresented. Some 31% of children and young people in relation to whom court orders were in place in the child protection system in 2011 were Aboriginal or Torres Strait Islander children and young people. 31 There is evidence that Aboriginal and Torres Strait Islander people are reluctant to seek legal assistance in relation to these matters, which may be due 31 Australian Institute of Health and Welfare 2012(1), p28. 22

26 to the lack of Aboriginal and Torres Strait Islander-specific services. 32 Lack of awareness and a general reluctance to engage with courts and the legal system generally, due to a mistrust of the system, are also contributing factors. This is a concern because where families are not represented, it may mean that the full range of relevant information about the family situation and, where the child is determined to be in need of protection, kinship placement options, may not be presented to the court. The Family Law Council, in its recent report on Indigenous and culturally diverse clients in the family law system, expressed the view that while mainstream services should provide culturally appropriate services, so as to provide choice to Aboriginal and Torres Strait Islander clients, Aboriginal and Torres Strait Islander services should also be adequately resourced to address family law needs. 33 Insufficient funding for prevention, early intervention and diversion services The focus of the NPA for mainstream legal aid services was on increasing preventative and early intervention services, such as community legal education and legal advice, Aboriginal and Torres Strait Islander organisations received no funding under the NPA and the general funding provided to Aboriginal and Torres Strait Islander organisations is insufficient to meet the level of need for these services. Community legal education is important because unless there is a good understanding of common legal problems and options for addressing them, particularly among community workers who may be able to refer people for legal assistance, many problems will go unrecognised and unresolved. Under current funding arrangements, however, ATSILS and FVPLS units have very limited capacity to provide community legal education. The capacity of FVPLS was further reduced by the decision in the Budget to cut the early intervention component of the national FVPLS program by $4.5 million. This demonstrates a chronic failure to prevent violence against Aboriginal and Torres Strait Islander women. Similarly, ATSILS and FVPLS are sometimes unable to provide legal advice services across all areas of law. The limited capacity of Aboriginal and Torres Strait Islander organisations to provide legal advice services is of concern because it leads to some key gaps in areas that may be contributing to Aboriginal and Torres Strait Islander incarceration and risk of victimisation. For example, as outlined in section 4, many Aboriginal and Torres Strait Islander people are imprisoned for offences against justice procedures, government security and operations. It is likely that many of these offences relate to breaches of court orders, such as domestic violence orders, yet there is very limited access to advice for either defendants or persons in need of protection at the point that these orders are made. Improving access to advice at this early stage could have the effect of ensuring that orders 32 Cunneen & Schwarz 2008, p Family Law Council 2012, p42. 23

27 are appropriate and take full account of the circumstances of the defendant and person in need of protection, as well as ensuring that each party understands the order and the consequences for the defendant of breaching the order. A similar gap exists in relation to provision of assistance with traffic offences in some places. Some ATSILS are unable, due to limited funds, to assist with less serious traffic offences, yet these offences can often be the first steps in a path that involves licence disqualification and escalating penalties, ultimately resulting in incarceration. 34 The funding arrangements that commenced in 2010 did not allocate to Aboriginal and Torres Strait Islander organisations funds for preventative and early intervention services equivalent to the funds allocated to legal aid commissions. In May 2012 it was announced that funds from the early intervention grant component within the Family Violence Prevention Legal Services Program were to be redirected to other programs removing critical holistic prevention and response work of Family Violence Prevention Legal Services nationally. The failure to direct funding and attention to early intervention and prevention services specifically for Aboriginal and Torres Strait Islander people is a significant flaw in these funding arrangements. Good practice example: Sisters Day Out Through the Sisters Day Out program, the Aboriginal Family Violence Prevention and Legal Service Victoria (FVPLS Victoria) conducts wellbeing workshops for young Koori women around Victoria. The cultural aspects of the Sisters Day Out workshops are integral to strengthening the role Koori women have in relation to family and community. The workshops build on self esteem and identity, which reinforce women s entitlement to feel safe and secure in their role as nurturers and leaders in their communities. The workshops are based on general themes and wellbeing activities (including personal presentation and health care), in which are embedded the provision of practical and accessible information, support and referral networks. The workshops allow legal, health and related information to be provided in an informal and interactive format, with an emphasis on creating culturally safe, affirming and confidential spaces. 34 In 2011, 4.4% of sentenced Aboriginal and Torres Strait Islander prisoners in 2011 had a traffic offence as their most serious offence see section 4. 24

28 Limited funding for policy and law reform work Current funding arrangements focus on direct service provision to clients. Despite heavy reliance by the Commonwealth Government and State and Territory governments, parliamentary committees and others on the policy and law reform work of ATSILS, this work is not separately or adequately funded in current funding agreements. Previously, most ATSILS received identified funding for policy, law reform and community legal education work. With the new funding arrangements introduced from , this was rolled into the general pool of funding for organisations. While the pooling of funding was welcome, because it reduced the reporting burden for ATSILS, the significant unmet demand for legal assistance from Aboriginal and Torres Strait Islander people means that ATSILS have struggled to maintain adequate resources for policy and law reform work. In recognition of the fact that Aboriginal and Torres Strait Islander organisations are in a unique position to understand how laws impact negatively on Aboriginal and Torres Strait Islander people, funding arrangements should recognise that law reform and policy work is an extension of case work. This type of work should also be considered preventative in that it can assist in preventing legal problems from escalating, and contribute to reducing the rate of incarceration. The lack of funding for policy and law reform work is a particular concern for the national FVPLS program. While FVPLS units do participate in policy and law reform, the national FVPLS program is not funded for these activities by the Commonwealth Attorney-General s Department. A national secretariat has recently been established but only for the purposes of the review of the National Partnership Agreement and funding has only been secured through to Salary disparities Staff of Aboriginal and Torres Strait Islander legal service providers are paid significantly less than staff of mainstream legal assistance service providers, particularly legal aid commissions. This creates difficulty in recruiting and retaining staff, particularly solicitors. While some Aboriginal and Torres Strait Islander organisations used some of the additional funding that was provided from to increase salaries, there is still a significant gap in salaries in each State and Territory. 25

29 Costs of service provision The costs of providing legal assistance services vary significantly, based on geography. Organisations providing services in regional and remote communities, particularly in regions affected by the resources boom, face additional costs in relation to staff attraction and retention, housing and travel. While many government agencies have strategies to address these cost pressures (for example, housing for government employees), Aboriginal and Torres Strait Islander organisations do not usually have access to these arrangements. The current funding formula does not adequately address the increased costs of service provision in remote areas. Funding for interpreters and other non-legal services The ability of Aboriginal and Torres Strait Islander legal assistance services to assist Aboriginal and Torres Strait Islander people to understand, exercise and protect their legal rights is dependent on adequate funding for non-legal services relevant to clients needs. These include, in particular, interpreter services but also victim support, health and family support services. Funding for standardised notification services The Victorian Aboriginal Legal Service is currently the only Aboriginal or Torres Strait Islander Legal Service to have access to a formal custody notification system, which notifies them when an Aboriginal or Torres Strait Islander person is arrested. Early notification is crucial for ensuring that clients receive the best legal representation. There needs to be a comprehensive review of the Funding Allocation Model (FAM) currently being utilised. Lack of a genuine approach to national partnership Given the centrality of Aboriginal and Torres Strait Islander legal assistance services to addressing Aboriginal and Torres Strait Islander disadvantage and the Closing the Gap agenda, Congress recognises the appropriateness of the Commonwealth Government bearing primary responsibility for funding ATSILS and FVPLS. Although it is imperative that States and Territories are engaged in the Commonwealth processes around funding Aboriginal and Torres Strait Islander organisations, it is important that the Commonwealth Government continue to determine the funding allocation to individual ATSILS and FVPLS in each State and Territory, based on need. It must be acknowledged that although Aboriginal and Torres Strait Islander-specific legal services are almost exclusively funded by the Commonwealth Government, it is State and Territory governments that are responsible for the laws and processes that drive the vast majority of demand for services across criminal, family and civil law. In the area of crime, for example, a change in policing practices, bail laws or public order offences can have a significant impact on the need for assistance from Aboriginal and Torres 26

30 Strait Islander Legal Services. This has been demonstrated in the Northern Territory, where the recent introduction of the offence of breach bail has led to significant increases in offences before the court and in demand for criminal representation. The cost of these changes in demand must, however, be borne by ATSILS and, ultimately, the Commonwealth Government. In reality, these changes can usually only be absorbed by cutting other types of services. Mandatory sentencing laws also disproportionately impact Aboriginal and Torres Strait Islander people, and have placed a significant burden on ATSILS, particularly in Western Australia and the Northern Territory. There is no evidence that these consequences are in any way considered by State and Territory governments when they are considering changes to criminal law and policing practices or any other significant legislative or policy amendments. Another example of the problems this situation creates is that ATSILS are funded for services that may not be supported by States and Territories. In recent years, the Commonwealth provided funding for prisoner throughcare services delivered by Aboriginal and Torres Strait Islander Legal Services. States and Territories were not involved in this decision and some State and Territory correctional authorities made it difficult for staff of ATSILS to gain access to prisons in order to provide services to inmates. This, in turn, led to a perception that some services were not effective, resulting in funding to some organisations being cut. If States and Territories had been more engaged in the earlier stages of the development of these services, they would have had a greater chance of success. If State and Territory governments were engaged in the funding of legal services for Aboriginal and Torres Strait Islander people, this would also encourage a greater understanding of the downstream impacts of changes to the law. This may help assist to reduce Aboriginal and Torres Strait Islander over-representation in the criminal justice system. Overall funding levels Many of the problems described above are symptomatic of a general problem: that the total amount of funding provided to Aboriginal and Torres Strait Islander legal assistance services is simply inadequate. This is further demonstrated by the fact that ATSILS have had to cut services in recent years in order to operate within current funding levels. The Aboriginal Legal Service (NSW/ACT) has had to cut almost all of it family and civil law services and the Aboriginal Legal Service of Western Australia has had to withdraw services from a number of regional and metropolitan courts and has closed a number of regional offices. The Northern Australian Aboriginal Justice Agency (NAAJA) has also reported they are no longer able to provide a family law service or assist defendants in relation to applications for Domestic Violence Orders that are brought against them. 27

31 In the Doing Time Time for Doing report, the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs acknowledged the critical role played by Aboriginal and Torres Strait Islander legal assistance services, in providing culturally appropriate services to victims, offenders and their families. The Committee noted that although there were concerns about underfunding of legal aid, Aboriginal and Torres Strait Islander legal assistance services faced even greater under-resourcing, as a consequence of funding for Aboriginal and Torres Strait Islander organisations growing at a much slower rate than funding for mainstream services. The Committee recognised that this under-funding which it described as chronic resulted in lawyers working for ATSILS carrying higher caseloads. The Committee recommended that this be addressed by increasing funding for ATSILS to achieve parity per caseload with legal aid commission funding. 35 The judiciary recognises the important service provided by ATSILS and the reliance upon that service for the smooth operation of the entire justice system. The legal assistance service and justice system as a whole will not be able to operate effectively for Aboriginal and Torres Strait Islander people until Aboriginal and Torres Strait Islander-specific services are funded to adequate levels, based on objective evidence of need. Recognition of Women-Specific Legal Services There is a clear need for legal services that cater specifically to the cultural needs of Aboriginal and Torres Strait Islander women. The existence of legal services specifically for women has its precedent in mainstream community legal services, where Women s Legal Services are well accepted as a separate area of funding. However Aboriginal and Torres Strait Islander women s legal services have been chronically underfunded and not recognised by governments as an area that requires separate resourcing. At present the Commonwealth government funds a number of Aboriginal and Torres Strait Islander legal services including the Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services. Many Aboriginal and Torres Strait Islander women prefer a service which is specifically interested in their issues as women and where legal practitioners and support staff are attuned to the interests of Aboriginal and Torres Strait Islander women. It is also perceived as culturally appropriate to provide a service that caters to Aboriginal and Torres Strait Islander women in a gender specific way and where the pursuit of legal issues specific to Aboriginal and Torres Strait Islander women is encouraged and voiced in legal proceedings. 35 House of Representative Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011, pp

32 Recommendations While member organisations will contribute more detail to the review of the NPA, Congress makes the following high-level recommendations, in support of member organisations: 2.1 Future funding arrangements Through future funding arrangements, all levels of government should recognise Aboriginal and Torres Strait Islander controlled organisations as the primary providers of legal assistance to Aboriginal and Torres Strait Islander people. 2.2 Commonwealth funding The Commonwealth Government must retain responsibility as the primary funder of legal services provided by ATSILS and FVPLS and ensure they are adequately resourced. 2.3 National Partnership Agreement on Aboriginal and Torres Strait Islander Legal Assistance Funding should be provided through a National Partnership Agreement on Aboriginal and Torres Strait Islander Legal Assistance. The Commonwealth Government should make its funding for mainstream legal aid services conditional on State and Territory governments contributing funding to ATSILS and FVPLS. Any such additional funding should be channelled through a single funding agreement between each organisation and the Commonwealth, to avoid increasing the burden of reporting. 2.4 Adequate Resourcing Funding must be sufficient to allow Aboriginal and Torres Strait Islander organisations to service the full range of legal needs of Aboriginal and Torres Strait Islander people, including: the full spectrum of services provided by mainstream services, including community legal education, advice, minor assistance, case work and law reform work; and the diversity of legal problems commonly experienced by Aboriginal and Torres Strait Islander people, including family and civil law problems. Funding must be sufficient to address the gap in salaries between employees in Aboriginal and Torres Strait Islander controlled services and mainstream services. Funding cycles should be of a sufficient duration (eg. 5 years) to allow organisations undertake the appropriate planning and investment for the delivery of services. 29

33 2.5 Expansion of the FVPLS Program Family Violence Prevention Legal Services (FVPLS) should be a service option for women and children in urban and larger regional centres, to ensure that a culturally appropriate service is available for women escaping violence. Whilst some funding has been provided since January 2012 with one of the objectives to participate and engage in the National Partnership Agreement Review, the Commonwealth Government should provide ongoing funding for a national secretariat for FVPLS. Future funding arrangements should seek to further reduce the reporting burden on Aboriginal and Torres Strait Islander organisations, so that they can devote more of their resources to service provision. 30

34 3. Prevention, early intervention and diversion Background Action to reduce Aboriginal and Torres Strait Islander over-representation in the criminal justice system needs to recognise that the causes of over-representation are multidimensional, cross-generational and interrelated. Some of the key socio economic factors that have been shown to increase the risk for Aboriginal and Torres Strait Islander people of being charged or imprisoned include: financial stress; living in a crowded household; being a member of the Stolen Generations; being unemployed or not having completed secondary school; and drug or alcohol misuse. 36 Research on the factors that have a strong relationship to reoffending has identified a similar range of factors, including: living in a socio-economically disadvantaged area; limited family attachment; and poor mental health. 37 National data on socio-economic factors affecting offending is, however, limited by the data that is collected on an irregular basis. Most of this analysis is based on the Aboriginal and Torres Strait Islander Social Survey. This survey is based on self-reported data and only addresses a limited range of issues. It also fails to identify longitudinal effects of some issues for example, the potential longer term effect of hearing problems such as otitis media, which affect around 10% of Aboriginal and Torres Strait Islander children. 38 A spectrum of interventions Given the many factors that may influence involvement within the criminal justice system, attempts to reduce the gap in incarceration rates cannot focus on the traditional criminal justice system alone; they must be based on a spectrum of potential interventions, encompassing prevention, early intervention and diversion. These terms have different meanings in different areas of service delivery but for the purposes of this policy: 36 Weatherburn et al 2006, p1. 37 Payne 2007, p97. (This research was not specific to Aboriginal and Torres Strait Islander offenders.) 38 Australian Bureau of Statistics 2010(1), in section on Child Health. 31

35 prevention refers to measures that are likely to prevent Aboriginal and Torres Strait Islander people committing crimes or being victims of violence; early intervention refers to measures that are targeted at people very early in their contact with the justice system, with the aim of mitigating the negative impacts of contact with the justice system and reducing the likelihood of repeat contact; and diversion refers to alternatives to traditional criminal justice system responses for offenders (including options such as warnings, cautions, conferencing, specialist courts and court-ordered treatment programs). Unfortunately, the evidence base about effective approaches to prevention, early intervention and diversion is extremely limited. The recommendation in section 1 for an improved national approach to data collection is critical to improving approaches to prevention, early intervention and diversion in the future. Culture as a Preventative Measure The RCIADIC has emphasised the devastating impact that disconnect with Country and culture has on the self-identity, and consequently risk taking behaviours in young people. International research has found a strong relationship between cultural discontinuity and the risk taking behaviours in Canadian First Nations youth 39.The RCADIC and the research both conclude that a connection to culture can serve as a preventative measure against risk taking behaviours. Cultural connection is a particular issue in cities and urban areas. Service providers working in prisoner rehabilitation have commented that people would benefit from revival centres where people can go to reconnect to Country post-release. Such an initiative is the Wulgunggo Ngalu Learning Place in Gippsland, Victoria. A joint initiative of the Victorian Government and the Aboriginal community, it provides a culturally appropriate learning place for Aboriginal men undertaking community based orders. Good practice example: North Australian Aboriginal Justice Agency (NAAJA) Community Legal Education (CLE) working with Elders to reduce crime and improve community safety The CLE team has worked with the Warlpiri senior men and women, the Law and Justice Group (known as Kurdiji ) in Lajamanu for over 2.5 years and for over 6 months in Wurrimiyanga with the Ponki Mediators to form groups which meet regularly to discuss upcoming Court matters and write references to be given to the Court. These letters give Courts an outline of the Elders views on the offender s 39 Chandler and Lalonde,

36 background/life history, character and the offence as well trying to identify the cause of the offending and assist the court by suggesting the appropriate sentence including the most culturally suitable rehabilitative conditions of any sentence. The capacity building benefits of this project are significant. These groups have contributed to increasing sentencing options placed before the Court, giving greater meaning and relevance of the sentence to the offending among defendants. The involvement of Elders/senor community members can provide greater specific and general deterrence to offenders and the community as a whole, as well as boosting the reputation of the Court among traditional offenders and boosting the local authority structures of the Elders among less traditional offenders. Group members gain a greater understanding of the legal process, better public speaking skills, and improved relationships with police, corrections, the night patrol and the local magistrate. These groups are an outstanding demonstration of the ability of Participatory Action Research to build local capacity to engage with the justice system, implement crime prevention strategies, give greater meaning to the criminal justice system and pursue aspirations of what law and justice should look like within that particular community. This activity provides an excellent avenue for senior Elders to engage with local issues of law, justice and governance. This methodology seeks to include Aboriginal communities participation in the legal system while respecting and including the community s cultural perspectives. Analysis of the court lists at Lajamanu over a 15 year period reveals a steady reduction in the number of most types of cases before court and in particular reductions in violent, dishonesty and breach of court order offences. Cross-generational effects While, as demonstrated below, a commitment to prevention, early intervention and diversion requires a focus on young people, it is also important to include adults due to the cross-generational effects of incarceration. As noted by the Productivity Commission, there is evidence to support the suggestion that high adult imprisonment rates can lead to the normalisation of incarceration. 40 In 2008, 10% of Aboriginal and Torres Strait Islander children aged 14 or under were reported to have had the experience of a parent or other family member being incarcerated in the 12 months prior to being surveyed, 41 while another study indicated that in 2001, one 40 Productivity Commission 2011, p Unpublished ABS data, reported in Productivity Commission 2011, p

37 in five Aboriginal and Torres Strait Islander children in New South Wales had a parent in prison. 42 The children of prisoners are often very young: a study by the Western Australian Department of Corrective Services found that 83% of the children of women prisoners were aged 12 years or under, and 30% were under the age of six. 43.The impact of imprisonment of Aboriginal and Torres Strait Islander women on their children was cited as a concern by the United Nations Committee on the Rights of the Child in its Concluding Remarks on Australia s progress in implementing the Convention on the Rights of the Child. 44 Research on New South Wales prisoners indicates that Aboriginal and Torres Strait Islander inmates are three times as likely as non-aboriginal and Torres Strait Islander prisoners to have had a parent spend time in prison during their childhood. Aboriginal and Torres Strait Islander prisoners are also much more likely to be parents themselves: in 2009, 56% of Aboriginal and Torres Strait Islander men (compared to 37% of non-aboriginal and Torres Strait Islander men) and 68% of Aboriginal and Torres Strait Islander women (compared to 43%) in prison had children aged less than Housing Living in a crowded household increases the likelihood of imprisonment. 46 This is a significant problem given the degree of overcrowding experienced by Aboriginal and Torres Strait Islander people. As at 2008, 25% of Aboriginal and Torres Strait Islander people aged 15 years and over lived in an overcrowded dwelling. Overcrowding was an even greater problem for children, with 32% of Aboriginal and Torres Strait Islander children aged 4 to 14 years and 31% of children aged 0 to 3 years living in an overcrowded dwelling. 47 Housing is, however, not just relevant to the risk of first-time offending. Lack of access to appropriate accommodation has been identified as one of the factors driving the high youth remand rate. 48 In other words, some young people who would not otherwise be on remand are spending time in detention due to a lack of suitable accommodation or a bail address. There is also strong evidence of a dynamic relationship between homelessness and involvement in the justice system. People who have spent time in prison are over- 42 Levy, M. 2008, Children of prisoners: an issue for courts to consider in sentencing, presentation to the Federal Criminal Justice Forum, Canberra, 29 September, cited in Brown, D. 2010, The limited benefit of prison in controlling crime, Current Issues in Criminal Justice, vol. 22, no. 1, pp and in Productivity Commission 2011 at Based on data for all prisoners separate data on Aboriginal and Torres Strait Islander prisoners is not available - Department of Corrective Services 2008, p Committee on the Rights of the Child 2012, p Indig et. al 2009, p Weatherburn et al 2006, p Australian Bureau of Statistics 2010(1), in section on Housing Utilisation. 48 Richards, K. and Lyneham, M. 2010, Juveniles in Detention in Australia, , Monitoring Reports, Australian Institute of Criminology, Canberra, as cited in Productivity Commission 2011, p

38 represented in the homeless population 49 likelihood of reoffending. 50 and homelessness, in turn, increases the Housing and homelessness present particular opportunities for reducing incarceration rates because the Commonwealth Government has a commitment to reduce overall homelessness by 2020, supported by the National Partnership Agreement on Homelessness and the National Affordable Housing Agreement, which are due to be renegotiated within the next few years. Out of Home Care As noted above, members of the Stolen Generations are over-represented in the prison system. This effect is paralleled among people who have been placed in out of home care in more recent times. Involvement in out of home care is strongly associated with involvement in the youth justice system. One recent study found that children in care were 68 times more likely to be involved in youth justice matters in the Children s Court than other children. 51 Involvement in out of home care is also strongly associated with later incarceration, particularly for Aboriginal and Torres Strait Islander people. The 2009 New South Wales Inmate Health Survey found that 46% of Aboriginal and Torres Strait Islander male respondents had been placed in care as children (compared to 22% of non-aboriginal and Torres Strait Islander inmates) and 45% of Aboriginal and Torres Strait Islander women had been in care (compared to 27% of non-aboriginal and Torres Strait Islander women). 52 There is also evidence that the effect of being placed in care is cross-generational: the same study found that Aboriginal and Torres Strait Islander women prisoners were nearly three times as likely as non-aboriginal and Torres Strait Islander women prisoners to report that a parent had been in care as a child, and Aboriginal and Torres Strait Islander men were almost twice as likely to do so. 53 These relationships between out of home care and involvement in the criminal justice system are of particular importance because the numbers of Aboriginal and Torres Strait Islander children in out of home care are growing: from 2007 to 2011, the rate of Aboriginal and Torres Strait Islander children and young people in out of home care increased from 36.3 to 51.7 per 1,000 children, whereas the rate for non-aboriginal and Torres Strait Islander children increased only slightly, from 4.2 to 5.1 per 1, Scutella et al 2012, p Payne 2007, p McFarlane Indig et. al 2009, p Indig et. al 2009, p Australian Institute of Health and Welfare 2012(1), p39. 35

39 Unless this cycle is broken, the high risk that the growth in out of home care will drive an increase in incarceration rates for Aboriginal and Torres Strait Islander people in the next few decades will remain. Out of home care presents particular opportunities for early intervention and diversion because Aboriginal and Torres Strait Islander young people who are in care are known to government child protection authorities and have statutory case management arrangements in place. Substance misuse Substance misuse is a concern in any community, given that it impacts on rates of child abuse, family violence and crime. 55 Data comparing alcohol use between Aboriginal and Torres Strait Islander and non- Aboriginal and Torres Strait Islander people is limited. Some data indicates that rates of risky to high-risk drinking among Aboriginal and Torres Strait Islander people are similar to rates among the non-aboriginal and Torres Strait Islander population, and that Aboriginal and Torres Strait Islander people report having had a drink in the past week at lower rates than non-aboriginal and Torres Strait Islander people. 56 Aboriginal and Torres Strait Islander people are, however, hospitalised for alcohol-related incidents at higher rates than non- Aboriginal and Torres Strait Islander people, and the rate of alcohol-related deaths is significantly higher for Aboriginal and Torres Strait Islander people than for non-aboriginal and Torres Strait Islander people. 57 Aboriginal and Torres Strait Islander people report using illicit substances at higher rates than non-aboriginal and Torres Strait Islander people, and are hospitalised for mental and behavioural disorders caused by drug use at higher rates than non-aboriginal and Torres Strait Islander people 58. The proportion of homicides involving Aboriginal and Torres Strait Islander people that occur under the influence of drugs is, however, lower than for homicides involving non-aboriginal and Torres Strait Islander people. 59 It is important that responses to substance use by Aboriginal and Torres Strait Islander people are not limited to policing and punitive responses. Substance misuse needs to be recognised as a risk factor for potential offending (and reoffending) and addressed through prevention, early intervention and diversionary responses in the health and justice systems. 55 Productivity Commission 2011, p10.21 and Productivity Commission 2011, p Productivity Commission 2011, p Australian Bureau of Statistics ( ) National Aboriginal and Torres Strait Islander Health Survey 59 Productivity Commission 2011,

40 Diversion of young people An obvious opportunity for diversion occurs during the early stages of involvement in the criminal justice system by young people. Most jurisdictions provide diversionary options specifically for young people but Aboriginal and Torres Strait Islander young people are diverted from formal criminal processes at about one-half to two-thirds the rate of non-aboriginal and Torres Strait Islander young people. 60 This may help to explain why rates of incarceration of Aboriginal and Torres Strait Islander young people defy the downwards trend for non-aboriginal and Torres Strait Islander young people. Whereas the rate of detention of non-aboriginal and Torres Strait Islander young people dropped by 27.6% from 1994 to 2008, the rate of detention for Aboriginal and Torres Strait Islander young people increased by 1.6%. 61 If the rates of diversion were increased, this could have the effects of reducing the likelihood of reoffending, reducing the rates of incarceration for adults and young people, and decreasing incidents of suicide and self-harm. 62 Diversion of young people is important because the earlier an Aboriginal and/or Torres Strait Islander child comes into contact with the youth justice system, the greater the risk of repeated reoffending. 63 Good practice example: Koori Youth Contact and Cautioning Program The Productivity Commission cites the Victorian Koori Youth Contact and Cautioning Program as an example of a program that was successful at increased use of police cautions for Aboriginal young people in Victoria. The program was built upon a partnership between the Victorian Aboriginal Legal Service and Victoria Police, with a focus on increased involvement of local community and family in the diversion process. Evaluation of the pilot phase of the program found increases in cautioning of 32% and 45%, respectively, across the two pilot sites. 64 This suggests that programs built on strong relationships between police, Aboriginal and Torres Strait Islander service providers and local communities can increase access to diversionary programs for Aboriginal and Torres Strait Islander communities. However, this program has since been defunded. 60 Productivity Commission 2011, p Richards 2011, p6. 62 Productivity Commission 2011, p Weatherburn et al 2007, p7. 64 Productivity Commission 2011, p

41 Young people on remand There is a particular opportunity to address the numbers of young Aboriginal and Torres Strait Islander people on remand. The proportion of Aboriginal and Torres Strait Islander young people in detention who were not sentenced in 2009 was 62.2%, almost three times the adult Aboriginal and Torres Strait Islander non-sentenced rate. 65 This problem has been growing. From 1994 to 2008, the proportion of Aboriginal and Torres Strait Islander young people in detention who were remanded increased from 32.8% to 55.1%. 66 Aboriginal and Torres Strait Islander young people have longer periods of unsentenced detention (with a median duration of 6 days in , compared to 3 days for non-aboriginal and Torres Strait Islander young people) and spend more time on unsentenced detention, on average. 67 Many young people on remand are unlikely to be sentenced to a period of detention. In some cases, the fact that a young person is on remand is due to welfare concerns, homelessness or a lack of appropriate accommodation or a bail address. 68 While the increase in the proportion of Aboriginal and Torres Strait Islander young people in detention on remand mirrors a trend among non-aboriginal and Torres Strait Islander young people, a focused effort to reduce the numbers of Aboriginal and Torres Strait Islander young people on remand would have an immediate impact on youth detention rates and could reasonably be expected to reduce adult imprisonment rates in the future. Remand also presents a good opportunity for Justice Reinvestment 69 because of the immediate cost savings to the justice system of reducing the remand population. This overcomes one of the challenges in implementing Justice Reinvestment: that the savings generated by investment in early intervention and diversion may not be realised in the short term. Good practice example: Halo Leadership Development Agency Halo is a non-profit incorporated career and personal leadership development agency, based in Perth, advancing Hopes, Aspirations and Leadership Opportunities. Using a positive psychology and peer mentoring model, Halo listens to the needs of Aboriginal young people and their families, provides advocacy, programs and networking opportunities that enable individuals to discover who they are, design 65 Productivity Commission 2011, p Australian Institute of Criminology 2011, p4. 67 Australian Institute of Health and Welfare 2012(2), p8. 68 Australian Institute of Criminology 2011, p5. 69 See below for further discussion of Justice Reinvestment. 38

42 their own futures and make a difference in their communities. It focuses not on what needs to be fixed but on what 'can be' and inspires newfound hope, determination, self-belief and action. The programs include opportunities for many young people to connect to their culture, family histories and begin meeting their Community, Cultural, Social Leadership and Reconciliation obligations. The program has inspired and supported young people to give up and stay off drugs, reduced the re-offending rate and transitioned many others into further employment and further education. Targeting particular offences Data on the most serious offences for which Aboriginal and Torres Strait Islander prisoners are incarcerated suggests some other opportunities for diversion: In 2011, 0.9% of Aboriginal and Torres Strait Islander prisoners had been sentenced with a public order offence as their most serious offence (1.5 times the proportion of non-aboriginal and Torres Strait Islander prisoners with the same type of offence); 4.4% had a traffic or vehicle regulatory offence as their most serious offence (1.5 times the proportion of non-aboriginal and Torres Strait Islander prisoners); and 10.6% had an offence against justice procedures, government security and operations as their most serious offence (compared to 9.8% of the non-aboriginal and Torres Strait Islander prisoner population). 70 Together, these categories made up more than 15% of the sentenced population. The latter category includes the offences breach of bail, breach of domestic violence orders, failing to obey a police direction and failing to provide a name to a police officer. It is likely that a significant number of Aboriginal and Torres Strait Islander prisoners in this category have been sentenced for these types of offences. Significant percentages of Aboriginal and Torres Strait Islander prisoners in these offence categories were sentenced for periods of less than six months, indicating that if an appropriate diversionary option were available, they might not have been incarcerated. This was the case for: 35% of Aboriginal and Torres Strait Islander prisoners with a public order offence as the most serious offence; 70 Australian Bureau of Statistics 2011, p55 and for comparative date from previous years, see Productivity Commission 2011, Table 4A

43 28% of Aboriginal and Torres Strait Islander prisoners with a traffic or vehicle regulator offence as the most serious offence; and 25% of Aboriginal and Torres Strait Islander prisoners with an offence against justice procedures, government security and operations as the most serious offence. 71 This is consistent with research by the New South Wales Bureau of Crime Statistics and Research, which indicate two areas where there are significant opportunities to reduce Aboriginal and Torres Strait Islander recidivism: road and traffic and motor vehicle regulatory offences (which account for nearly one quarter of all Aboriginal and Torres Strait Islander appearances in the NSW Local Court); and breaches of justice orders (such as breach of bail, parole and apprehended domestic violence orders) (which account for 11% of all Aboriginal and Torres Strait Islander appearances). 72 The same paper indicates that non-payment of fines is a significant factor, and that initiatives to address the number of Aboriginal and Torres Strait Islander people who lose their licence due to non-payment of fines would reduce the rate of re-appearances in court. A Western Australian study based on 2003 statistics found that Aboriginal prisoners represented 61.5% of all prison receptions for motor vehicle and driving offences. 73 A number of other studies have demonstrated that there is a strong link between nonpayment of fines and subsequent driving offences and imprisonment, due to licences being cancelled for non-payment of fines. 74 For these reasons, reforms to driver s licensing laws and fine regimes present opportunities for prevention, early intervention and diversion. As noted in section C, improved legal assistance in these matters would have a significant impact on incarceration rates. Justice Reinvestment As summarised by the Australian Human Rights Commission, Justice Reinvestment is: a criminal justice policy approach that diverts a portion of the funds that will be spent on imprisonment to local communities where there is a high concentration of offenders. The money that might be spent on imprisonment is reinvested in 71 Based on analysis of figures in Australian Bureau of Statistics 2011, p Beranger et al 2010, p Fernandez et al, Crime and Justice Statistics for Western Australia: 2004, cited in Law Reform Commission of WA, 2006, p See, for example, Beranger et al 2010 and Law Reform Commission of WA

44 programs and services that address the underlying causes of crime in these communities. 75 Justice Reinvestment programs first emerged in the United States, in States with high prison populations. They have proved successful in reducing rates of detention and improving conditions within targeted communities. 76 The concept is simple and is attracting growing support and interest in the United Kingdom and New Zealand. It is focused on targeted crime prevention and diversion (including repeat offending) on a local level. The definition adopted by the United States Government s Bureau of Justice Assistance emphasises the importance of data in the planning and delivery of Justice Reinvestment approaches: Justice reinvestment is a data-driven approach to improve public safety, reduce corrections and related criminal justice spending, and reinvest savings in strategies that can decrease crime and strengthen neighborhoods. The purpose of justice reinvestment is to manage and allocate criminal justice populations more costeffectively, generating savings that can be reinvested in evidence-based strategies that increase public safety while holding offenders accountable. States and localities engaging in justice reinvestment collect and analyze data on drivers of criminal justice populations and costs, identify and implement changes to increase efficiencies, and measure both the fiscal and public safety impacts of those changes. 77 Essential to the reform is the first step, mapping, which requires standardised and efficient data collection about offending and offenders. Currently there are many inadequacies in data collection in the Australian criminal justice system, especially on a national level. The only nationally collected data on prisoner health, for example, is the National Prisoner Health Census, first conducted in 2009 by the Australian Institute of Health and Welfare. Although this is a worthy initiative, it has not yet reached the stage of being able to provide reliable national data on Aboriginal and Torres Strait Islander prisoner health. As discussed in section 1, many other improvements to data collection are also necessary. Despite these challenges, there is sufficient data available to support the mapping that is the first step in developing Justice Reinvestment strategies. Based on this mapping, high-risk communities are identified (based on the number and severity of crimes in communities, and the number of offenders that come from communities), and prevention and diversion programs are then implemented in those communities (with strong local involvement) to address the most serious and common types of offending in those communities. 75 Australian Human Rights Commission 2010, p1. 76 Young and Solonec (accessed 22 August 2012) 41

45 The concept is one with an economic rational approach to it, based on the premise that it costs a lot less to punish and/or treat a person in the community than it does in prison; and the evidence showing people are less likely to repeat offend if they have not been incarcerated. Once the savings are made, they are continually reinvested into identified high-risk communities, so the savings pay for the reform and continued improvement of the justice system. These dual objectives to reduce the cost to government of the corrective services system, and to use these savings to reinvest in strategies to decrease crime and improve community safety are core to the concept of Justice Reinvestment as it has developed in the United States. 78 Consultation with Congress members has indicated that there is a high level of support for trialling Justice Reinvestment approaches in Australia. There are groups involved in attempting to build community support for Justice Reinvestment in a number of States and Territories 79 but these are not well coordinated at a national level and lack government support. In the Doing Time Time for Doing report, the House of Representative Standing Committee on Aboriginal and Torres Strait Islander Affairs expressed support for Justice Reinvestment and recommended that governments focus their efforts on early intervention and prevention programs. 80 In the response to the report, the Commonwealth Government also indicated support: A justice reinvestment approach, as proposed under Recommendation 40, has the potential to significantly improve rates of offending behaviour and victimisation in the long term and is likely to be examined in the context of the Safe Communities Strategy. Place based approaches to address offending and reoffending, diversion and early intervention are an opportunity to identify where significant outcomes may be achieved through redirecting resources across a broader range of activities. 81 Despite the level of community support for Justice Reinvestment and its potential for both reducing the costs of the justice system over time and improving its effectiveness in reducing rates of offending and recidivism, it has so far failed to attract meaningful government support, which is essential for it to move forward. While any approach to Justice Reinvestment will require the support of State and Territory governments, the Commonwealth Government should take the lead in stimulating justice 78 (accessed 22 August 2012) 79 For example, the Smart Justice project in Victoria, the Justice Reinvestment Campaign for Aboriginal Young People campaign in NSW, the Justice Reinvestment Implementation Committee in WA, the work of ANTaR and Project 10% in Queensland and the Justice Reinvestment Forum held in August 2012 in the ACT. 80 House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011, p Australian Government 2011, p36. 42

46 reinvestment programs, by offering funding for pilots in a selection of communities with high rates of Aboriginal and Torres Strait Islander incarceration. Research on disadvantage by region has demonstrated that a significant proportion of prisoners come from a small number of localities. While this research has not focused exclusively on Aboriginal and Torres Strait Islander communities, governments could easily identify a small number of Aboriginal and Torres Strait Islander communities that would benefit from strategic, targeted investment. This investment could assistance to people in the early stages of involvement in the criminal justice system, so as to reduce the risk of reoffending through addressing their social, economic and health-related needs. Whilst there is still much to be done in order to implement justice reinvestment pilots, Congress acknowledges the Senate inquiry into the value of a justice reinvestment approach to criminal justice in Australia is a step in the right direction. Announced in November 2012 and due to report in May 2013, the findings from this inquiry will provide a valuable contribution to the national conversation regarding justice policy in Australia. Aboriginal and Torres Strait Islander Courts Aboriginal and Torres Strait Islander Courts play an important role within the context of community prevention, intervention and diversionary programs. Within NSW and Victoria, commonly known as either Koori or Murri Courts respectively; such programs provide a forum in which court processes are culturally relevant and accessible to Indigenous people the magistrate is solely responsible for sentencing but the process is consultative and participatory. Elders and Respected Persons play a pre-eminent role 82. Programs such as Aboriginal and Torres Strait Islander courts can only be effective when adequate resourced and properly maintained. To date, this has not been the case and as of September 2012, the Murri Court program has been defunded. 82 Bryant, G. (2008) Koori Court: Shepparton, Victoria Indigenous Law Bulletin Vol. 7 (7) p

47 Good practice example: Murri Watch Murri Watch is a community-based organisation that provides services to Aboriginal and Torres Strait Islander people in Queensland who are affected to public drunkenness, detained in watch houses or youth detention centres, or who are homeless or at risk of homelessness. It was initially established in Brisbane in response to concerns about high numbers of Aboriginal and Torres Strait Islander deaths in custody but now delivers programs in Brisbane, Townsville, Palm Island and Mackay. These programs include the Brisbane Diversionary Centre, cell visitor services in a number of locations, a youth bail service in Townsville and the Inner City Homelessness Service in Brisbane. 44

48 Recommendations 3.1 Housing When renegotiating the National Affordable Housing Agreement and the National Partnership Agreement on Remote Indigenous Housing, the Commonwealth Government must include measures to improve access to housing for Aboriginal and Torres Strait Islander people at risk of involvement in the criminal justice system. The renegotiation of the National Partnership Agreement on Homelessness should include specific measures to reduce the number of Aboriginal and Torres Strait Islander people who exit prison or youth detention into homelessness or who become homeless in the six months following exit. This must be supported by improved data collection on the housing status of people released from prison and youth detention. 3.2 Child Protection The Commonwealth Government should, in partnership with State and Territory governments, pilot an intensive case management project for Aboriginal and Torres Strait Islander young people in out of home care who have had contact with the youth justice system. This project should coordinate key Commonwealth services provided or funded through the Department of Human Services, the Department of Education, Employment and Workplace Relations and the Department of Families, Community Services, Housing and Indigenous Affairs with State and Territory agencies with responsibilities in relation to child protection, health, education and youth justice. This approach should be piloted in a selection of communities with high numbers of young people in out of home care and youth detention and aim to improve the coordination of health and welfare services for the participants. There are also the additional aims of stabilising out of home care placements, improved planning for exiting from out of home care and reducing the risk of repeat contact with the youth justice system Deputy Aboriginal and Torres Strait Islander Children s Commissioner Congress supports the call from the Secretariat of National Aboriginal and Islander Child Care (SNAIIC) for a Deputy Aboriginal and Torres Strait Islander Children s Commissioner within the Office of a National Children s Commissioner. 3.3 Fine reform The Standing Council on Law and Justice commit to a national fine reform project with the objective of reducing the number of people who ultimately become incarcerated as a result of not being able to afford to pay accumulated fines. As a first step, this project could 45

49 identify best practice examples from within Australia and overseas of initiatives that seek to address accumulation of fines by people on low incomes, such as: graduated fines, based on a person s income and capacity to pay; and Work and Development orders, which allow people to reduce accumulated fines through approved community work or treatment. Congress recommends that each State and Territory draw upon this analysis, to commit to reforms within its jurisdiction, as part of a National Fine Reform Strategy, supported by public reporting and accountability mechanisms. 3.4 Legal assistance Congress recommends (see section 3) that the Commonwealth Government, through the Review of the National Partnership Agreement on Legal Assistance Service, seek to improve access to the full range of legal assistance services available through ATSILS and FVPLS, including civil and family law services and FVPLS in urban areas. 3.5 Justice Reinvestment Congress recommends that the Commonwealth Government, in partnership with State and Territory governments, commit to standardised data collection of information on offenders and offending and pilot Justice Reinvestment strategies in a selection of high risk communities. 46

50 4. Conditions in detention Background The international human rights framework A number of international human rights conventions and treaties impose obligations on Australia concerning conditions in detention. These include the International Covenant on Civil and Political Rights 83 and the Convention on the Rights of the Child. 84 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment imposes more detailed obligations about the measures that each national government that is a party to the Convention must put in place in order to give effect to the prohibition of torture. Torture is defined as: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity [ ] 85 The obligations in the Convention include: to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction (article 2); to ensure that education and information on the prohibition of torture is included in the training of law enforcement personnel (article 10); to keep rules, instructions and practices for the custody and treatment of people in detention under systematic review (article 11); and to ensure that a person who alleges he or she has been subject to torture has access to a prompt and impartial investigation process (article 13). Whilst all Australia jurisdictions have laws in place which prohibit acts of torture as well as training law enforcement personnel regarding appropriate treatment of suspects and detainees, at this stage, Australia has not ratified the Optional Protocol to the Convention. The optional protocol to the Convention would provide for Australia to participate in a system of international, independent inspection of places of detention and imprisonment, 83 Article 7 of the ICCPR prohibits cruel, inhuman or degrading treatment or punishment. 84 Article 37 prohibits cruel, inhuman or degrading treatment or punishment and provides that arrest or imprisonment should only be used as a last resort and for the shortest appropriate period of time. 85 Article 1. 47

51 as well as requiring the implementation of a National Preventative Mechanism. The Joint Committee on Treaties has considered the Optional Protocol and recommended that it be ratified, and that the Commonwealth Government work with State and Territory Governments as rapidly as possible after ratification to implement a National Preventative Mechanism. 86 Conditions in prisons Overcrowding is a significant problem in many Australian prisons. In a number of jurisdictions, correctional authorities have responded to this problem by refitting single cells, to allow for double bunking. This practice has been linked to increased risk of assault (including sexual assault) 87 and contraction of communicable diseases. 88 Prisons with high densities have been shown to produce higher death rates including from violent deaths, suicides and natural deaths amongst elderly prisoners. 89 Sustained crowding in prisons has also shown to produce higher levels of violence and other non-compliant behaviour, as well as increased psychiatric commitment rates. 90 In addition to overcrowding, the conditions in many Australian prisons fail to comply with the United Nations Standard Minimum Rules for the Treatment of Prisoners. The standard of accommodation has been identified as a catalyst for critical incidents such as riots, selfharm and suicide. 91 In 24 coronial inquests by the Coroner s Court into 26 deaths in South Australian prisons between 1994 and 2008 the Court held that aspects of the prison environment played a part in the unnatural death of prisoners. 92 A further concern arises from the use by some correctional authorities of facilities outside prison to house prisoners. Since 2007 in South Australia for example, 40 cells at the City Watch House have been allocated for use by corrective services. 93 In addition, cells at other police stations and court holding cells are also used periodically for prisoner accommodation 94 and some adult offenders are held in juvenile detention facilities Joint Committee on Treaties 2012, p 48 & Heilpern D, Charles, C 2008, p Paulus, P, McCain, G & Cox, V McCain, G, Cox, V & Paulus, P NATSILS 2011, p NATSILS 2011, p Department for Correctional Services See Australian Broadcasting Commission, Claims of overcrowding in SA Prisons, 10 th March 2008 at and Australian Broadcasting Commission, Police Station Holds Overflow, 6 th November 2008 at 95 See Kenton, G., Overcrowding pressures prisons, The Advertiser, 17 th February 2008 at 48

52 Conditions in police custody There are significant problems with standards of care and treatment in police custody and when being transported by police or correctional authorities. Numerous inquests, reports and reviews have criticised the conditions in police watch houses and prisoner transport. In a 2006 review of conditions for people in custody, the Victorian Ombudsman and Office of Police Integrity identified concerns with overcrowding, non-compliance with duty of care and custodial standards, deficient physical and mental health care and poor internal mechanisms for monitoring conditions. 96 In 2011, the Western Australian Police Commissioner described conditions in police watch houses in that state as archaic and inadequate and indicated that they had not improved significantly since the Royal Commission into Aboriginal Deaths in Custody. 97 Coronial inquests into deaths of Aboriginal and Torres Strait Islander people in police custody demonstrate that the conditions in which people are detained continue to be the cause of unnecessary deaths. Prisoner health Aboriginal and Torres Strait Islander prisoners have been found to be at higher risk of a number of chronic diseases than non-aboriginal and Torres Strait Islander prisoners including cardiovascular disease, kidney disease, diabetes and obesity. 98 Foetal Alcohol Spectrum Disorder (FASD) is another poorly understood and diagnosed issue that influences involvement in the criminal justice system and needs to be better addressed among people in custody. As noted in the Doing Time Time for Doing report, there is evidence that one in 40 Aboriginal and Torres Strait Islander children may be affected by FASD and that in some regions, prevalence among Aboriginal and Torres Strait Islander children may be greater than 50%. One expert estimated that some 60% of young people with FASD have been in trouble with the law. 99 Evidence on the experience of mental illness among Aboriginal and Torres Strait Islander prisoners is particularly alarming. A 2008 study of the prevalence of mental illness among Aboriginal and Torres Strait Islander people in the Queensland prison system found that: 73% of men and 86% of women suffered from at least one mental health disorder in the preceding 12 months; 96 Ombudsman Victoria and Office of Police Integrity 2006, p See Sydney Morning Herald, WA Watchouses abominable : police chief, 13 December 2010: 98 Indig et al 2009, p House of Representative Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011, p

53 two thirds had suffered from a substance misuse disorder; a quarter had suffered from an anxiety disorder; 14% had suffered from a depressive disorder; and 10% had suffered from a psychotic disorder in the previous 12 months. The experience of mental health disorders was, in almost every area, significantly higher for women than for men: Despite these risks to health, which are exacerbated by the conditions of imprisonment, Aboriginal and Torres Strait Islander prisoners frequently report that their health needs are ignored, and that they have difficulty obtaining treatment even when they request it. In a Thematic Review of Offender Health Services published in 2006, the Western Australian Inspector of Custodial Services published identified numerous barriers to health care, including lack of access to Medicare, understaffing, no on-call arrangements for general practitioners at many prisons, poor staff training, and poor coordination with services on the outside particularly Aboriginal Medical Services. 100 Similar observations would be accurate in many prisons across Australia. Efforts to address prisoner health are exacerbated by a lack of nationally consistent data. While the Australian Institute of Health and Welfare has initiated an annual, national report on prisoner health, it is largely based on self-reported diagnoses at the point of admission to prison, which means that many conditions are likely to be underreported. It is based on a national census that commenced in 2009 and, as noted in section 4, New South Wales and Victoria failed to participate in the second census in Although there are many improvements to be made, particularly in the collection of data from Aboriginal and Torres Strait Islander Peoples, it is a move in the right direction and worthy of increased resourcing and State and Territory participation. Effectiveness of the prison system Evidence on rates of reoffending shows that the prison system is particularly ineffective in preventing reoffending by Aboriginal and Torres Strait Islander prisoners. Aboriginal and Torres Strait Islander prisoners are approximately 1.5 times more likely than non-aboriginal and Torres Strait Islander prisoners to have previously been imprisoned as an adult. Among prisoners released between 1994 and 2007, 58% of Aboriginal and Torres Strait Islander prisoners were reimprisoned within ten years, compared to 35% of non- Aboriginal and Torres Strait Islander prisoners. Aboriginal and Torres Strait Islander young 100 Office of the Inspector of Custodial Services

54 offenders have also been found to have higher rates of reoffending than non-aboriginal and Torres Strait Islander young offenders. 101 There is clear evidence that services that are designed specifically to support Aboriginal and Torres Strait Islander people who have been imprisoned can reduce reoffending, through improving rehabilitation and contact with communities. 102 This requires a commitment to throughcare, involving individualised support from the point of reception into prison, through to beyond release into the community. The lack of support for former prisoners as they attempt to integrate themselves back into the community following release has been found to be a major factor contributing to recidivism. 103 Other reasons that the prison system is ineffective in preventing reoffending for Aboriginal and Torres Strait Islander prisoners include: rehabilitation programs (including educational and health programs) are usually not available to prisoners on remand or short sentences; programs are limited or non-existent in many regional and remote prisons; and many programs are mainstream in nature and lack a specific focus on the needs of Aboriginal and Torres Strait Islander prisoners. Improved data collection, as outlined in section 1, would help to improve transparency around these issues and inform improvements to the system for Aboriginal and Torres Strait Islander prisoners. Good practice example: Prisoner ThroughCare To address the extremely high rate of imprisonment in the Northern Territory, the North Australian Aboriginal Justice Agency (NAAJA) has established a prisoner throughcare program comprising both prisoner support and an intensive throughcare casework service. Two Prison Support Officers, based at Darwin Correctional Centre, provide an initial point of contact when a client is first remanded to custody. They provide ongoing support throughout the period of any sentence, referring clients to appropriate services and advocating on their behalf in relation to rehabilitative treatment, medical needs, welfare issues, mediation and parole. Prison Support also serves as a vital point of contact for families and communities, assisting prisoners to maintain support networks and develop workable post-release plans. 101 Productivity Commission 2011, p Productivity Commission 2011, p Productivity Commission 2011, p

55 The Throughcare Project based in Palmerston, provides an intensive advocacy and casework service for prisoners six months prior to release and six months postrelease. Throughcare workers engage in a close partnership with clients, including those in remote and regional areas, seeking to increase independence and selfdetermination. Clients who participate in the Throughcare program have significantly improved post-release outcomes, and demonstrate markedly reduced rates of recidivism The economic benefits of investing in rehabilitation There is a strong economic case for better investment in programs to assist offenders, with a view to reducing recidivism. The NSW Bureau of Crime Statistics and Research has compared the economic benefits of reducing Aboriginal and Torres Strait Islander reoffending, as compared to the benefits of reducing the numbers of new Aboriginal and Torres Strait Islander prisoners. Its research found that a 10% reduction in the rate of Aboriginal and Torres Strait Islander prisoners returning to prison would reduce the number of Aboriginal and Torres Strait Islander prisoners by an estimated 365 inmates, saving the New South Wales Government more than $10 million per annum. In contrast, a 10% reduction in the rate at which new Indigenous sentenced prisoners arrive in custody would reduce the number of Aboriginal and Torres Strait Islander prisoners by 166, saving $4 million. 104 Independent oversight Only Western Australia has an independent statutory body responsible for overseeing the corrective services system the Inspector of Custodial Services, although New South Wales is in the process of establishing a similar body. Given the considerable power imbalances experienced by prisoners in exercising their rights, advocating for health care and even gaining access to their legal representatives, independent bodies with the power to inspect facilities and investigation allegations of improper treatment are critical to the protection of human rights. While these bodies could form part of a National Preventative Mechanism under the Optional Protocol, it is important that they have broader authority to investigate issues across the full range of operations of corrective services systems. These bodies should, for example, have the power to conduct thematic reviews that examine the effectiveness of the prison system in improving the health and rehabilitation prospects of prisoners. Even where these bodies already exist, their powers are limited. In Western Australia, the Inspector does not have powers in relation to custodial facilities managed by police. The legislation establishing the Inspector General of Custodial Services in New South Wales includes similar limitations. 104 Weatherburn et al

56 Recommendations 4.1 Royal Commission into Aboriginal Deaths in Custody Congress recommends that unimplemented recommendations from the Royal Commission into Aboriginal Deaths in Custody are implemented. 4.2 Ratification of the Optional Protocol Congress recommends that the Australian Government ratify the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and introduce a National Preventative Mechanism as a matter of urgency. 4.2 Prisoner health To provide an evidence base for improvements to access to appropriate health care for Aboriginal and Torres Strait Islander prisoners, Congress recommends that the Commonwealth Government, in negotiation with State and Territory governments, improve data collection on the health of Aboriginal and Torres Strait Islander prisoners through a regular, nationally consistent approach to data that includes objective assessment of physical and mental health by qualified professionals. 4.3 Independent oversight Congress recommends that each State and Territory establish an independent statutory body with power to enter custodial facilities and investigate the treatment of prisoners. In Western Australia and New South Wales, the legislation establishing these bodies should be amended to extend their powers to policy custodial facilities. These bodies must be appropriately resourced to carry out their intended function effectively, including the conduct of regular inspections. 4.4 Investment in Healing Programs The Government should actively support and fund Aboriginal and Torres Strait Islander Healing programs as a model for addressing the impact of trauma and grief on justice. 53

57 5. A National Partnership Agreement for Safe Communities Background There is currently no agreed intergovernmental strategy or funding to address the Safe Communities Building Block of the Closing the Gap strategy. In the Doing Time Time for Doing report, the House of Representative Standing Committee on Aboriginal and Torres Strait Islander Affairs recommended that the Commonwealth Government develop a Safe Communities National Partnership Agreement for consideration by COAG. 105 In the Government response to the Committee s report, the Commonwealth Government indicated that: The Australian Government is working towards a National Indigenous Safe Communities Strategy, which will be negotiated with State and Territory Governments. The Strategy will build on existing frameworks, through specific actions to increase community safety and reduced offending and victimisation within Indigenous communities. 106 As at June 2012, discussions between the Commonwealth, State and Territory Governments were at a preliminary stage. It is not clear what the timeframe will be for finalisation of the Strategy, whether Aboriginal and Torres Strait Islander organisations will be consulted, or what might be included in the Strategy. There now appears to be no commitment from the Commonwealth Government to a National Partnership Agreement. Much of the information that has been published to date on Commonwealth Government actions relevant to the Safe Communities Building Block focuses on initiatives that are unique to the Northern Territory and/or child protection initiatives. Safe communities initiatives will have no positive impact, and may in fact do damage to relationships between the Commonwealth Government and Aboriginal and Torres Strait Islander communities if the exercise simply involves presenting a range of existing initiatives under a new banner. The National Indigenous Law and Justice Framework is an example of such an approach. It prescribed little new action on the part of governments, provided no additional resources, included no system for monitoring the compliance of States and Territories and, as a result, has achieved no noticeable positive outcomes for Aboriginal and Torres Strait Islander Peoples. 105 Standing Committee on Aboriginal and Torres Strait Islander Affairs, p Australian Government 2011, p4. 54

58 In the view of Congress, it would be preferable to pursue real community safety strategies in a select number of communities, rather than produce a national strategy with no commitment to, or resources for, new action in partnership with Aboriginal and Torres Strait Islander communities. The failure of previous aspirational but un-funded strategies, including the National Indigenous Law and Justice Framework, indicates that justice outcomes for Aboriginal and Torres Strait Islander people will only be achieved through a fully funded National Partnership Agreement, which binds States and Territories to performance targets and standardised data collection. 55

59 Recommendations 5.1 A National Partnership Agreement The Commonwealth should assume responsibility for negotiating a Safe Communities National Partnership Agreement with the State and Territory governments encompassing standardised data collection and prevention, early intervention and diversionary strategies, including Justice Reinvestment trials. The strategies encompassed within the Safe Communities NPA should be fully funded and linked to the attainment of performance targets under the Closing the Gap Framework to: (i) Halve the gap in the rates of incarceration for Aboriginal and Torres Strait Islander people; and (ii) Halve the rate at which Aboriginal and Torres Strait Islander people report having experienced physical or threatened violence with in the past 12 months. 5.2 Focus of the National Partnership Agreement Given the interconnectedness between experience of child abuse or neglect, experience of violence, socio-economic disadvantage and involvement in the criminal justice system, the focus of a Safe Communities NPA must be broader than child protection and policing responses. It needs to focus on a range of key points in a person s life where improved intervention would be likely to improve their personal safety and decrease the risk of violence towards others, such as: contact with the child protection system; placement in out of home care; exit from out of home care; first contact with police; first contact with the youth justice system; report of a concern about personal safety, or about having been a witness to violence, to police or a social service provider; hospitalisation for injury caused by family violence; and exit from youth detention or prison. It is essential that an NPA address the needs of regional, remote and urban communities. 56

60 5.3 Enhancing services for victims of violence A number of studies have shown that victims who report family violence are more likely to experience and report further incidents of violence. 107 In addition, Aboriginal and Torres Strait Islander people who are incarcerated have experienced violence at much higher rates than other Aboriginal and Torres Strait Islander people, and than non-aboriginal and Torres Strait Islander people. 108 An effective Safe Communities NPA must therefore include strategies to address the impacts of violence on all who experience it, to increase the safety of Aboriginal and Torres Strait Islander women who report family violence to police, and to address the impacts of prior experiences of violence upon people involved in the youth justice and criminal justice systems. 5.4 Recognising that to be safe, communities must be strong The Commonwealth Government must acknowledge that community safety is a community issue, requiring strong national, state and local leadership. If an NPA applies only to government employees in the justice and child protection systems, it will not be effective. The implementation of the NPA must be based on appropriately resourced local or regional action plans that are developed in genuine partnership between Commonwealth, State, Territory and Local Governments, local Aboriginal and Torres Strait Islander communities and the organisations that serve them. Some States and Territories have previously supported local Aboriginal and Torres Strait Islander justice clusters or community justice groups. A renewed commitment to these structures is necessary in order to allow Aboriginal and Torres Strait Islander people to work with governments to improve community safety. 5.5 The Role of Elders If we are to change the cycle of negative interactions Aboriginal and Torres Strait Islander people have had with the justice system, we must prioritise involving Elders in justice processes. Empowering Elders is crucial to reducing incarceration rates, because in working effectively with defendants, it is far more likely that useful strategies will be developed that get to why a person offends, and how to address them and prevent them recurring in the future. Elders also have a crucial role when part of court proceedings in ensuring that defendants and victims understand and have a participatory role in the matters that affect them. 107 See Holder R 2001 p Indig et al 2010, p

61 Enhancing the role of Elders also is critical to improving community safety. Elders are community leaders and they need to be respected that way. If they are treated with dignity and given respect, our Elders will take the responsibility. Good practice example: Mornington Island Peacemaker Project Peacemaker a restorative justice project on Mornington Island was developed as a response to rising numbers of arrests of locals on minor charges, and a belief that the community is far better placed than police to deal with issues on the island. It was developed through a long process of consultation between Elders, police, magistrates and the Queensland Aboriginal and Torres Strait Islander Legal Service. It involves Elders in bringing together families in conflict, using their own mediation rules. Peacemaker has been effective at dealing with public nuisance and assault matters and serious extended family disputes. It has helped to reconcile victims and offenders referred by the Magistrates Court. 58

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