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Best of 2017: ATSI custody needs action not just inquiry


On 9 February, Attorney-General George Brandis announced the terms of reference for a new Australian Law Reform Commission (ALRC) inquiry into Indigenous incarceration in Australia. The inquiry was announced in October 2016, and the final terms of reference have now been released after receiving submissions about the scope of the inquiry.

Dark skinned hands grip barsThe need for an inquiry has been identified in the face of ever-increasing representation of Indigenous Australians in the prison population.

In 1991, the year of the report of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), Indigenous Australians comprised 14 per cent of the Australian prison population. In 2016, it was 27 per cent. Yet Aboriginal and Torres Strait Islander Australians constitute only 2 per cent of the overall population over the age of 18.

Indigenous incarceration rates are concerning of themselves, but the fact that they continue to increase is alarming. The inquiry therefore recognises and validates widely held concerns.

On the other hand, it represents the abject failure of successive governments around the country to pay heed to what we do know about the incarceration of Aboriginal and Torres Strait Islander Australians — including the failure to implement the recommendations of the RCIADIC.

The frustration felt by many was expressed by the then head of the Prime Minister's Indigenous Advisory Council, Warren Mundine, who said that 'holding another inquiry — rather than acting on the reports that have already been conducted — was a joke and reflective of the poor performance of the government'.

The submissions to the draft terms of reference highlight the complex systems at play in Indigenous incarceration. Even before the inquiry starts, the submissions provide a stocktake of what governments must consider in analysing the problem and formulating solutions. Rather than the sole factor of the state of the criminal law or even of the justice system, the submissions identify myriad factors that contribute to disproportionate incarceration of Aboriginal and Torres Strait Islander Australians.

Many pointed out, for example, the need to inquire into social determinants of incarceration. A person's environment — the circumstances of their community, their access to services, their age or even their gender — may influence the likelihood of entering the criminal justice system.


"The scope of these broader contexts is huge. It is positive that they are included, however the ALRC is to report in December 2017, and this timeframe is far too short to do the inquiry justice."


In addition to understanding the experiences of members of different types of communities across Australia, there were numerous submissions that pointed out that incarceration of women and young people respectively warranted independent investigation. Other submissions pointed out that it is not only a person's progression through the prison system that warrants attention, but also pathways into prison from out-of-home care. Accompanying the increase in Indigenous incarceration is a huge increase in Aboriginal and Torres Strait Islander children taken into community care, and this must be examined as a relevant social factor.

There are diverse non-custodial contexts that increase the chance a person will ultimately be imprisoned. These are also deserving of investigation. Over-policing of Indigenous communities, mandatory detention offences, penalties for unpaid fines, and presumptions of complicity in commission of an offence, all affect the propensity for Indigenous Australians to end up in prison. All of these factors are exacerbated by discrimination — whether through unconscious bias or deliberate.

Health also plays a large role in the lives of Indigenous Australians coming into contact with the criminal justice system. Foetal alcohol syndrome and mental health issues in particular are relevant to understanding the causes of incarceration.

It appears that the final terms of reference have accommodated some of these suggestions. While laws and legal frameworks headline the inquiry's scope, it also extends to laws contributing to incarceration such as unpaid fines, the incarceration of women, and social factors including: 'the relationships between Aboriginal and Torres Strait Islander offending and incarceration and inter-generational trauma, loss of culture, poverty, discrimination, alcohol and drug use, experience of violence, including family violence, child abuse and neglect, contact with child protection and welfare systems, educational access and performance, cognitive and psychological factors, housing circumstances and employment'.

The scope of these broader contexts is huge. It is positive that they are included, as they are too important to be omitted. However the ALRC is to report in December 2017, and many of the submissions pointed out that this timeframe is far too short to do the inquiry justice.

The reality of Aboriginal and Torres Strait Islander affairs in Australia is bleak. Governments continue to defund services that are known to be crucial in supporting Aboriginal and Torres Strait Islander communities, including in preventing incarceration. A recent report was damning of the management of funding in the government's Indigenous Advancement Strategy.

Whatever this latest inquiry uncovers, there are two lessons we should already have learned. First, the RCIADIC shows us inquiries can offer a clear pathway to dealing with complex problems, but if governments at all levels fail to implement the recommendations, the problems will not go away. Second, we can hold as many inquiries as we like and come up with creative solutions but failure to finance frontline community-based service delivery has catastrophic consequences. We can only hope real change will follow this inquiry, backed by genuine commitment at all levels of government.



Kate GallowayKate Galloway is a legal academic with an interest in social justice.

This article was originally published on 13 February 2017.

Topic tags: Kate Galloway, Aboriginal incarceration



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