Almost 25 years have passed since the Royal Commission into Aboriginal Deaths in Custody. But again the same issues of social disadvantage are on the agenda. Rates of imprisonment have risen. The law remains inflexible. Outcomes from offenders are just as bad, or worse.

A great meeting of judges, lawyers, academics, welfare people and assorted onlookers assembled late last month at the Bangarra Dance Theatre, next to Sydney Harbour, for a day of jawboning about a shameful and seemingly intractable problem.

This was conducted under the baton of the Law Council of Australia. At the same time another coalition of interested parties, called Change the Record, has come up with a “Blueprint for Change”, with measures to address disproportionate rates of Indigenous incarceration. Among its members are the Human Rights Commission, Amnesty International, the Australian Council of Social Service, the Federation of Community Legal Centres Victoria, and the Human Rights Law Centre.

The rates are certainly disproportionate. Indigenous Australians make up about 2.5 per cent of the population, according to the national census, yet comprise 28 per cent of the nation’s prison inmates and 20 per cent of the deaths in custody.

Aboriginal imprisonment has increased 57 per cent during the past 15 years. That is a modest assessment, as other reports put the rate of increase at 88 per cent in the past 10 years.

Most alarming are the figures for women and juveniles. Since 2000 the imprisonment rate for Indigenous women increased nearly 60 per cent, compared with 35 per cent for males. Indigenous youth are now 31 times more likely to be in detention than non-Indigenous juveniles.

This comes in the face of an overall decrease in crime rates throughout Australia over the past 20 years.

The collection of data occurs at different points in the criminal justice process, which gives us the daily number of prisoners in the system. Professor Stuart Kinner, of the Griffith Criminology Institute, says that what we don’t have is the “churn” through the system.

“Our guess,” Kinner says, “is that we are underestimating the annual number of prisoners by about 25 per cent.” In other words, an underestimation of the over-representation.

This view is supported by Don Weatherburn of the New South Wales Bureau of Crime Statistics and Research.

“Shocking as they are,” he says, “these figures hardly begin to convey the true magnitude of Indigenous contact with the criminal justice system.”

Weatherburn says that by the time an Aboriginal person in NSW has reached the age of 23, more than 75 per cent have been cautioned by police, referred to a youth justice conference or convicted in a criminal court.

The corresponding figure for the non-Indigenous population is 16.9 per cent.

Western Australia has its own problems. Accounting for 3 per cent of the state’s population, Indigenous people make up 40 per cent of its prison population. Dr Hilde Tubex, of the University of Western Australia law school, says this is the highest over-representation
of Indigenous people in Australian prisons.

Dr Fadwa Al-Yaman, of the Australian Institute of Health and Welfare, says the imprisonment rate of Indigenous males in Western Australia is higher than that of black males in the United States.

Fittingly, WA Chief Justice Wayne Martin spoke at the Law Council of Australia symposium, pointing to one of the persistent problems that allows multiple fines to be worked off concurrently in prison. About 16 per cent of Aboriginal prisoners enter prison as fine defaulters.

Martin says this has had disastrous consequences. “It has made it attractive for people to go to prison to work off their fines … What a great idea!”

The death at the South Hedland police station of 22-year-old Aboriginal woman Ms Dhu, who had been detained for fine default, makes the point all too tragically. The coronial inquiry that started in late November saw evidence that she died of pneumonia and septicaemia. Footage aired at the inquest shows her being dragged from her cell and slung into the back of a police wagon while she’s paralysed with pain. An officer tells her to “shut up” moments before her death.

Hours of footage shows Ms Dhu doubled over and moaning in pain – and ignored.

In the 16 months since her death, no moves have been made to change the laws relating to unpaid fines, or even to distinguish between those who will not pay and those, such as Ms Dhu, who cannot pay.

In a paper Chief Justice Martin delivered at a law summer school earlier this year, he outlined some immediate and long-term responses. He also mentioned the high cost of present policies.

The state is spending about $250 million a year incarcerating Aboriginal adults. Last year it cost $300,000 a year to keep a child in detention.

For children who have the greatest number of “intersections” with the WA criminal justice system, based on auditor-general figures, that is running today at about $500,000 a child.

“We could send those children to Geelong Grammar and to a Swiss finishing school and still have change,” Martin said.

Judge Dina Yehia, of the NSW District Court, points to the lack of sentencing options for magistrates. For instance, in the case of repeat driving offences in NSW, magistrates have no choice but to impose a disqualification.

Some disqualifications stretch for a decade or more, with the judge adding:

“If you live in isolated towns, without transport, you can’t attend medical appointments, deal with day-to-day things, maintain employment. It does have, arguably, unjust results – both for Indigenous people and indeed the communities in which those individuals live.”

There are other factors, well known to the law enforcement authorities: mandatory sentencing in some states and territories; truth in sentencing, which abolished remissions and makes parole harder; inflexible bail laws; inadequate legal aid; high rates of recidivism; and a lack of alternatives to prison.

Progress is undoubtedly being made with specialised courts. Judge John Smallwood, of the Koori County Court of Victoria, says that the experiment in his state has been “stunningly successful”.

Offenders, he says, feel they are being treated with respect and are less inclined to reoffend.

Prisoners who have passed through the court have said that for “the first time in their lives, they could remember what had been said in court”.

This is all to the good, because as Justice Tony Fitzgerald said in a 1998 Queensland Court of Appeal judgement: “The [criminal justice system] is a hopelessly blunt instrument of social policy…”

The High Court has gingerly entered the arena, awkwardly trying to soften the bluntness.

In two 2013 cases, Munda of Western Australia, and Bugmy of NSW, the court said that the same sentencing principles apply in every case, irrespective of an offender’s identity, ethnicity or membership of a group. However, it is relevant to take into account the circumstances of an offender’s social disadvantage. Profound deprivation should be given “full weight” in sentencing considerations.

That’s a nice straddle for sentencing judges to work out for themselves.

The Council of Australian Governments began a “closing the gap” initiative in 2008, with the aim of meeting targets that include reducing the gulf in life expectancy and living standards.

However, the Commonwealth government has rejected trying to meet a “justice target” addressing the underlying causes of imprisonment, saying that Indigenous over-representation is a problem for the state and territory governments.

Out of the day-long Law Council of Australia powwow came some noble ideas, suggestions, strategies and solutions. None of them are any surprise, and yet the fact that few have been wholeheartedly embraced shows the level of political indifference and that the prevailing law-and-order agenda still has the upper hand.

The aim is to reduce the rates and length of Indigenous imprisonment for men, women and youths by 50 per cent in five years. The key to this is effective diversionary programs, especially for sentences involving less than six months’ imprisonment.

There has to be Indigenous engagement in achieving alternatives to prison, and there should be a campaign to let the rest of Australia know the extent of the problem.

There also could be helpful responses from governments and parliaments around the country, by more accommodating parole provisions, along with bail and sentencing laws.

And pigs might fly.

A Darwin barrister, John Lawrence, SC, says dealing with politicians has proved worthless. The emphasis should be on directly informing “the great uninformed” about what is really going on.

The current rate of imprisonment for the original Australians does nothing to reduce the level of crime in Indigenous communities or prevent recidivism.

The community is better protected by more emphasis on effective rehabilitation rather than punishment, sometimes called “justice reinvestment”.

The Canadian courts have a legislative mandate to consider “all available sanctions other than imprisonment that are reasonable in the circumstances … with particular attention to the circumstances of Aboriginal offenders”.

None of this should be beyond the wit of an innovation nation, a nation ploughing time and money into securing a spot on the United Nations Human Rights Council.

What seems to be beyond our capacity to resolve is two centuries of disadvantage and marginalisation. It starts before children are born, with foetal alcohol spectrum disorder. Health, nutrition, hygiene, housing, education, substance abuse, employment. Where to start?

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