The Australian Law Reform Commission (ALRC) has released its report Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, which was tabled in Federal Parliament on 28 March 2018.
The purpose of the Inquiry was to inquire into the overrepresentation of Aboriginal and Torres Strait Islander people in prison and develop recommendations for reform of laws and legal frameworks to reduce their disproportionate incarceration.
“Indigenous incarceration is costing nearly $8 billion annually and will grow to almost $20 billion per annum by 2040 without further intervention,” according to a PwC Australia and PwC’s Indigenous Consulting report released in May 2017, and quoted in the ALRC report.
People as diverse as Indigenous leader Pat Dodson and NSW Bar Association President Arthur Moses, SC have called this situation a “national shame”. Yet, as the ALRC report notes, between 2006 and 2016, the gap between Indigenous and non-Indigenous incarceration rates widened further.
Disproportionate incarceration rate
“Although Aboriginal and Torres Strait Islander adults make up around 2% of the national population, they constitute 27% of the national prison population. In 2016, around 20 in every 1,000 Aboriginal and Torres Strait Islander people were incarcerated. Over-representation is both a persistent and growing problem—Aboriginal and Torres Strait Islander incarceration rates increased 41% between 2006 and 2016, and the gap between Aboriginal and Torres Strait Islander and non-Indigenous imprisonment rates over that decade widened.
“Aboriginal and Torres Strait Islander women constitute 34% of the female prison population. In 2016, the rate of imprisonment of Aboriginal and Torres Strait Islander women (464.8 per 100,000) was not only higher than that of non-Indigenous women (21.9 per 100,000), but was also higher than the rate of imprisonment of non-Indigenous men (291.1 per 100,000).”
What can Australia’s community education sector do?
“Aside from the massive personal, social and communal costs, Australia pays a significant economic cost by the heavy over-representation of Indigenous Australians,” said Dr Don Perlgut, CEO of Community Colleges Australia (CCA).
“The question CCA faces is what can Australia’s adult and community education sector do to help address one of our most pressing national problems? I believe that as one of the world’s wealthiest countries, Australia’s inability to deal with this systematic and systemic injustice is a continuing blot on our national reputation,” Dr Perlgut said.
“The ALRC report – although primarily confined to criminal laws and legal frameworks, as required by the Terms of Reference – gives a number of important guideposts as to how the community can respond,” Dr Perlgut said.
“The area where Australia’s not-for-profit community education sector can make the most immediate and profound difference is in the innovative and award-winning Indigenous drivers education programs first established by Lismore’s ACE Community Colleges in 2005, which has expanded into other parts of New South Wales. This unique program – undertaken in direct collaboration with local Aboriginal communities – breaks the cycle of no-licence- receive-fine-for-driving-illegally, often leading to incarceration. The ALRC report devotes a whole chapter to fines and drivers licenses,” said Dr Perlgut.
“CCA recently released a Statement on Aboriginal Economic Development which details five creative approaches to addressing Indigenous disadvantage. CCA is committed to ensuring that our members maximise the positive impacts they can make in their local Indigenous communities. In doing this, we are building on a strong base. For instance, in New South Wales, 12% of government-funded VET community education students funded are Indigenous, a percentage much higher than either TAFE or the for-profit VET providers,” said Dr Perlgut.
Local Solutions to Local Problems Led by Aboriginal and Torres Strait Islander People
A recurring observation made during consultations and in submissions to this Inquiry was that solutions should be developed and led by Aboriginal and Torres Strait Islander people. Good examples are the Koori courts in Victoria and community justice groups of Elders, which support and assist Aboriginal and Torres Strait Islander people throughout the criminal justice process. The ALRC was told that some of the most effective solutions to local problems (such as diversion programs and post release assistance) have been developed locally by, or in conjunction with, local Aboriginal and Torres Strait Islander people. The corollary is that what works in one community (such as alcohol restrictions) may not be the best solution in another.
Taking a local approach to local problems can create difficulties for Australian governments, which necessarily plan for centrally developed and imposed national, state or territory-wide programs. Without acceptance and participation by the local communities, those programs can fail or, at least, not fully meet their objectives. The ALRC notes the importance of governments working with Aboriginal and Torres Strait Islander organisations and communities to implement the range of strategies recommended to reduce Aboriginal and Torres Strait Islander incarceration. For example, the ALRC has recommended that state and territory governments work with Aboriginal and Torres Strait Islander organisations to: develop and implement culturally appropriate bail support programs and diversion options; develop options to reduce the imposition of fines and infringement notices; and develop prison programs that address offending behaviours and prepare people for release. One way to achieve local involvement is through Aboriginal Justice Agreements.
The Cost of Indigenous Incarceration
The implementation of the recommendations in this Report, including the provision of more diversion, support and rehabilitation programs before, during and after incarceration, will require additional resources.
However, the cost of implementing these recommendations must be considered against the cost of incarcerating Aboriginal and Torres Strait Islander people at disproportionate levels. Incarceration is expensive: it has been estimated that the total justice system costs of Aboriginal and Torres Strait Islander incarceration in 2016 were $3.9 billion. When the costs of Aboriginal and Torres Strait Islander incarceration are broadened beyond those directly related to the criminal justice system to include other economic costs, the estimated cost rises to $7.9 billion. As well as the cost of imprisonment to the State, incarceration can also have a broader social cost, particularly when concentrated in a particular community.
Over-representation increases with the stages of the criminal justice system. In 2016, Aboriginal and Torres Strait Islander people were seven times more likely than non-Indigenous people to be charged with a criminal offence and appear before the courts; 11 times more likely to be held in prison on remand awaiting trial or sentence, and 12.5 times more likely to receive a sentence of imprisonment. This is a cyclical problem, with 76% of Aboriginal and Torres Strait Islander prisoners having been in prison before.
Statutory fine enforcement regimes affect Aboriginal and Torres Strait Islander people unduly and can result in incarceration. Imprisonment is a disproportionate response to fine default, and impacts especially on Aboriginal and Torres Strait Islander women. The ALRC recommends the amendment of fine enforcement regimes so that they do not, directly or indirectly, allow for imprisonment.
The imposition of fines and fine enforcement regimes affect Aboriginal and Torres Strait Islander people disproportionately. Fine enforcement regimes can aggravate criminogenic factors and operate to further entrench disadvantage, especially when the penalty for default or secondary offending includes further fines, driver licence suspension or disqualification, and imprisonment.
State and territory governments should work with relevant Aboriginal and Torres Strait Islander organisations and community organisations to identify areas without services relevant to driver licensing and to provide those services, particularly in regional and remote communities.
Education and employment
The links between lack of employment opportunity, lack of educational attainment, and subsequent entry into the criminal justice system are well established. Aboriginal and Torres Strait Islander people have lower educational attainment than non-Indigenous people. For example, in 2015, only 49% of Year 3 Aboriginal and Torres Strait Islander students living in a remote area reached minimum national standards of literacy, reading and numeracy.40 In 2014, 86.4% of non-Indigenous students nationally completed Year 12 or equivalent, compared with 61.5% of Aboriginal and Torres Strait Islander students. This fell to 41.7% for Aboriginal and Torres Strait Islander students living in remote areas.41 Nationally in 2015, of the potential Year 12 population, 43.8% of non-Indigenous young people achieved an ATAR of 50.00 or above, compared with 8.5% of Aboriginal and Torres Strait Islander young people.
Aboriginal and Torres Strait Islander people also face employment disadvantage. In 2014–15 the unemployment rate for Aboriginal and Torres Strait Islander people aged 15–64 was about three times the rate of the non-Indigenous population.44 Just under half (48.4%) of Aboriginal and Torres Strait Islander people aged 15–64 were employed, compared with 74.8% of non-Indigenous people.
Implementation of the recommendations in this Report will reduce the disproportionate rate of incarceration of Aboriginal and Torres Strait Islander people and improve community safety. These recommendations will:
- promote substantive equality before the law for Aboriginal and Torres Strait Islander peoples;
- promote fairer enforcement of the law and fairer application of legal frameworks;
- ensure Aboriginal and Torres Strait Islander leadership and participation in the development and delivery of strategies and programs for Aboriginal and Torres Strait Islander people in contact with the criminal justice system;
- reduce recidivism through the provision of effective diversion, support and rehabilitation programs;
- make available to Aboriginal and Torres Strait Islander offenders alternatives to imprisonment that are appropriate to the offence and the offender’s circumstances; and
- promote justice reinvestment through redirection of resources from incarceration to prevention, rehabilitation and support, in order to reduce reoffending and the long-term economic cost of incarceration of Aboriginal and Torres Strait Islander peoples.
Reduced incarceration and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system will, in turn, improve health, social and economic outcomes for Aboriginal and Torres Strait Islander peoples.
Commonwealth, state and territory governments should provide support for the establishment of an independent justice reinvestment body. The purpose of the body should be to promote the reinvestment of resources from the criminal justice system to community-led, place-based initiatives that address the drivers of crime and incarceration, and to provide expertise on the implementation of justice reinvestment.
(photo credit: Don Perlgut, used with permission)