Reducing the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples

April 5, 2018

Last week, the Australian Law Reform Commission (ALRC) 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 over-representation 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

The ALRC Inquiry reported that:

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. What can Australia’s adult and community education sector do to help address one of our most pressing national problems? 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. I believe that Australian not-for-profit adult and community education organisations have a moral imperative to assist

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. 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.

My employer – Community Colleges Australia – 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, the organisation builds 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 (2016 figures).

(Note: This post has been adapted from a news item that I placed on the Community Colleges Australia website on 4 April 2018. I reproduce it here in order to extend its reach.)

THE INQUIRY

The following extract’s from the Inquiry’s report are taken from the Full Report and the Summary Report (both 28 March 2018).

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.

On fines

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.

Outcomes

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. 

Justice Reinvestment

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)

Advertisements

Indigenous imprisonment one of top 10 blog posts in 2015

December 27, 2015

This falls into the category of “shameless self-promotion”.  My blog post entitled “Indigenous imprisonment in Australia: a crisis of mass incarceration” (Open Forum, 12 March 2015) was one of the “top 10 of 2015” for the Open Forum blogging website.

It’s more than self-promotion, though.  It is a good indication that there is an interest, perhaps a hunger even, for discussion about that topic.  More on Indigenous Australian as well as African-American criminal justice to come in 2016.

 


Indigenous imprisonment in Australia: a crisis of mass incarceration

April 2, 2015

(The following post was originally published on 12 March 2015 on Open Forum.  I am taking the liberty of re-printing it here, and adding an addendum at the end of this post.)

In mid-February of this year, the Australian Prime Minister presented the annual “Closing the Gap” report to Parliament. Although some indicators saw improvement (health), in others – especially in education and employment – there was almost no improvement at all.

Of great concern is the statement on page 28 – of which little fanfare was made at the time – that, “the rate of imprisonment is higher than at any time during the decade”. The decade? In other words, Indigenous imprisonment has been steadily rising and is worse than any time in recent memory. That’s not just “no improvement”; it is a serious step backwards.

For anyone paying attention to the statistics on Indigenous disadvantage, this comes as no surprise. In December of last year, the Productivity Commission’s report, Overcoming Indigenous Disadvantage: Key Indicators 2014, made this point clearly (pp. 4.102-4.104):

  • Nationally at 30 June 2013, the Aboriginal and Torres Strait Islander imprisonment rate was 2039.5 per 100,000 adult population, an increase of around one‑third from the rate in 2000 (1433.5 per 100,000 adult population).
  • Although Aboriginal and Torres Strait Islander adults make up only 2.3 percent of the Australian adult population, they accounted for 27.4 per cent of all prisoners. (Note: the Indigenous population is heavily skewed to younger ages, with the national percentage of population about 3 percent.)
  • After adjusting for differences in population age structures, the rate of imprisonment for Aboriginal and Torres Strait Islander adults was 13 times the rate for non‑Indigenous adults.

Let’s be clear about what these figures say: more than one-quarter of people in Australian prisons are Indigenous, a rate more than ten times (1000%) their population percentage. When age is adjusted (thus comparing “like with like”), the figures are even worse: thirteen times (1300%). But it gets worse.  The report also states that:

  • Between 2000 and 2013, the rate of imprisonment for Aboriginal and Torres Strait Islander adults increased by 57.4 per cent while the non-Indigenous rate remained fairly constant, leading to a widening of the gap (from 8.5 to 13.0 times the rate for non-Indigenous adults).

What this means is that Indigenous imprisonment rates have GONE UP by 50% in the last 13 years, while non-Indigenous rates have REMAINED THE SAME throughout the same period. In other words, the figures for Aboriginal and Torres Strait Islander Australians have gotten worse and not just a little – A LOT worse. You can track the inexorable year by year growth of Indigenous imprisonment through the Australian Bureau of Statistics figures. Although there are some state variations (Tasmania is the best, Western Australia is the worst), this is a systemic national problem which demands a national solution.

Mick Gooda, the Aboriginal and Torres Strait Islander Social Justice Commissioner, calls these figures a “catastrophe in anyone’s language”, pointing out in December 2014 that “we do better at keeping Aboriginal people in prison than in school”. He also noted that almost half of Australians in juvenile detention are Indigenous – so the trend does not look like reversing any time soon.

The Creative Spirits website summarises a number of inter-related factors for these high rates: stolen generations, disconnection from land, police behaviour, offence criminalisation, poverty and unemployment, language difficulties, foetal alcohol syndrome and poor housing. A significant number of Indigenous Australians are incarcerated for trivial offenses that rarely impact non-Indigenous people, including unpaid fines, unlicensed driving, not receiving court mail, not attending court and “disorderly conduct”. One common theme in these offenses is poverty: the poorer you are, the less likely you are to avoid jail for small offences.

These results are terrible in themselves, but three factors arise that underline their significance:

First, this increase in Indigenous imprisonment could have been avoided through a careful analysis of why, where and how Indigenous people are put in prison or into the juvenile justice system (where they now represent up to one-half of participants), and crafting appropriate responses.

Secondly, as the Productivity Commission report drily states (page 4.102), “Imprisonment has a heavy social and economic impact. High rates of imprisonment remove adults from their important roles caring for the next generation and can lead to the ‘normalisation’ of incarceration among community members.”

Thirdly – and most insidious of all – the high rate of imprisonment affects how we non-Indigenous Australians view Indigenous people. Although the comparison is not complete, rates of imprisonment of African-Americans in the USA run six times those of whites in that country. The result there means that, as Professor Heather Thompson (Temple University) points out, there is a “disproportionate policing” of young black men and women, and that in turn “sends a signal to the broader society that there is something inherently criminalistic about black people”. She calls the American rates of imprisonment a “mass incarceration” with unknown outcomes; surely the same applies to Indigenous Australians.

We can do better and improve Aboriginal and Torres Strait Islander rates of imprisonment. For the sake of creating an equal and just Australia, we must.

*****

Addendum:  In order to change the situation of mass incarceration of racial minorities, “we must change the narrative”.  So says, lawyer and social activist Bryan Stevenson, who gives a stirring 53 minute talk about American racial justice and imprisonment, which you can listen to on ABC Radio National’s Big Ideas program podcast (originally broadcast on 19th March 2015).  Stevenson points out that great literature helps to change the narrative of issues so that we can see them in new ways.  We need to “understand how the world is being sustained by things (narratives) that make us indifferent to inequality” and mass incarceration.  He points out that in the USA, this is “the function of 40 years of the politics of fear and anger.  When people are afraid and angry, they will tolerate abuse and violations of rights.”  Deep and insightful words that have a strong resonance here in Australia.

Stevenson’s book, Just Mercy: A Story of Justice and Redemption (published 2014), is also available here in Australia.

Martin Luther King’s frequently quoted statement that, “the arc of the moral universe is long, but it bends towards justice” (from his “God is marching on” speech) may give us some hope.  But complacency has no place in the lack of progress on incarceration of Indigenous Australians.  For, as King also said, ““We are now faced with the fact that tomorrow is today. We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history, there ‘is’ such a thing as being too late. This is no time for apathy or complacency. This is a time for vigorous and positive action.”  (from his “Beyond Vietnam” speech)


Indigenous imprisonment in Australia

March 12, 2015

Aboriginal and Torres Strait Islander imprisonment rates have been steadily rising and are worse than any time in recent memory.  This is a national problem that demands a national solution.

I have just published an opinion piece on this topic in Open Forum, entitled “Indigenous imprisonment in Australia: a crisis of mass incarceration”.

I have also re-posted the full article on this blog, along with a short addition.

I encourage you to read it.


Film appreciation in a time of war

July 20, 2014

Did you ever wonder what it’s like to attend a film festival in a time of war? Tal Kra-Oz’s recent article in Tablet  (18 July 2014) gives a good, insider’s perspective of this month’s Jerusalem Film Festival, where screenings are interrupted by sirens and the obligatory temporary removal to basement rooms filled with old film reels.

Israel’s artistic elite – of which film-makers are a solid part – are notably more left-wing and sympathetic to the Palestinian cause than the majority of the population.  Thus, the pall cast on this year’s Festival is yet another tragic by-product of the Israel-Hamas conflict now taking place.

But, as Kra-Oz writes, the show does indeed go on: “even when the cannons and sirens are heard, the muses are anything but silent”.

And what a show the Israelis had to boast about. In a country of just 7.8 million people, last year the country produced and released 40 feature films.  In the May Cannes Film Festival, seven Israeli films had official screenings: five features, one documentary and one student film.  Compare that to Australia, almost three times as large (population 23,537,000) , which released 26 films in 2013 and had three films in official Cannes categories (The Rover, Charlie’s Country and These Final Hours).

Kra-Oz’s article captures the spirit of the dynamism of Israeli film-making.  How this relates to the country’s on-again, off-again conflict with the Palestinians is clearly complicated and overlaid with more than 100 years of history.

After some 22+ years of unbroken economic growth, is life too good for us here in Australia?  Do we not have enough to worry about to make good films?  It may be no coincidence that Australia’s greatest success at Cannes this year was Rolf de Heer’s Charlie’s Country, in which lead Aboriginal actor David Gulpilil – playing a role in part based on his own life – won the “best actor” award in the “Un certain regard” competition.   Indigenous Australians are among this country’s most vulnerable and disadvantaged, and those living in remote regions – such as Gulpilil’s character – even more so.

David Gulpilil(photo above:  David Gulpilil in Charlie’s Country)


Are Australians the richest people on earth?

October 13, 2013

The Credit Swisse Global Wealth Report 2013 was released on 9 October 2013 and indicates some perhaps not-so-surprising news for Australians:

In US dollar terms, household wealth in Australia grew rapidly between 2000 and 2013, apart from a brief interlude in 2008. The average annual growth rate has been 13%, but about half of the rise is due to exchange rate appreciation. Using constant exchange rates, wealth has grown on average by just 3.3% per annum since 2007. Despite this recent slowdown, Australia’s wealth per adult in 2013 is USD 402,600, the second highest in the world after Switzerland.  Even more strikingly, its median wealth of USD 219,500 is the highest in the world.

You read that one correctly:  in terms of median wealth, we Australians top the world, beating number two Switzerland.

Remember that when it comes to wealth, the median – the halfway point in a distribution – is probably a much more accurate measure than “average”, which takes all figures and divides them.  In other words, one Gina Rinehart – the richest woman in the world, worth estimated between US$17 billion and Aus$22 billion – can make up for a whole lot of poor people when it comes to an average.  But with a “median”, if she is at the top, she is equivalent to the poorest Australian – in other words, one cancels the other out, and median is between them, but the “average” would be approximately one-half of Rinehart’s wealth.

Are these Australian wealth figures wrong?  Probably not.

Yesterday’s (October 12) Australian reports figures from Colliers International that commercial rentals on “Sydney’s Pitt Street Mall have leapfrogged Milan’s Via Monte Napoleone to become the eighth most expensive in the world.”

The only shopping districts ahead of Sydney are New York City’s Fifth Avenue (at number one) and Madison Avenue; Hong Kong’s Queens Road Central, Canton Road and Causeway Bay; and Zurich’s Via Monte Napoleone.

Meanwhile, research due to be released shortly by the Australian National University’s Centre for Aboriginal Economic Policy Research and conducted by Dr Nicholas Biddle concludes that “more than a third of Indigenous Australians (36.6%) live among the most disadvantaged 10 percent” of Australians, and “only 1.7 percent live among the top 10 percent”.  The Australian has graphed this disadvantage, and I reproduce their graph below:

Indigenous disadvantage graph Biddle - The Aust(Graph reproduced from The Australian.)

The smallest gap?  In Sydney’s “lower north”.  More on this in a later post.  But clearly not every Australian is sitting up with the Swiss in median income, or buying their goods on Pitt Street Mall, one of the most expensive in the world.


Indigenous Australian film-makers feature in AACTA winners

February 14, 2013

The second awards ceremony of the Australian Academy of Cinema and Television Arts – known as the AACTAs – was held here in Sydney on 30 January and broadcast on Channel Ten.

Host Russell Crowe and AACTA President, Geoffrey Rush, were joined on stage by Cate Blanchett and Nicole Kidman to honour the year’s best achievements in Australian film and television.

The big story of the night was the virtual awards sweep by the film The Sapphires.  Based on a true story, this film tells the tale of four lively young Aboriginal women who form a musical troupe and travel to Vietnam in 1968 to entertain American troops.  It has been described as “toe tapping”, “uplifting”, “energetic” and “feel-good”, and achieved an astonishing 93 percent positive rating by film reviewers, according to the Rotten Tomatoes aggregation website.

The Sapphires took home a total of eleven AACTA awards, including best film (producers Rosemary Blight and Kylie du Fresne), best direction (Wayne Blair), best adapted screenplay (Keith Thompson and Tony Briggs), best lead actor (Chris O’Dowd), best lead actress (Deborah Mailman) best supporting actress (Jessica Mauboy), and best cinematography (Warwick Thornton).

Of these, Blair, Briggs, Mailman, Mauboy and Thornton are all Indigenous – five major awards won by Indigenous people.  (The Sapphires also won AACTA Awards for Best Editing, Best Sound, Best Production Design and Best Costume Design.)

Indigenous screen stories almost swept the drama awards that night.  In the television drama category, the ABC Aboriginal series Redfern Now won two AACTAs – for Best Screenplay in Television – Aboriginal writer Steven McGregor – and best actress in a Television Drama – Aboriginal actress Leah Purcell.

Thus a total of seven Indigenous screen award winners this year.  Is this an Australian record?  I think so.

The Sapphires