Closing the Gap on Indigenous incarceration

When sorrows come, they come not single spies
But in battalions.

Hamlet Act 4, scene 5.

A recent blog post from NACCHO, the peak body for the Community controlled health organisations brought to my attention that research published in 2011 had found that 94 percent of Indigenous prisoners in the Northern Territory suffered from hearing loss. 94 percent!

Here is a link to the ABC news story earlier this month. Here is a link to an article in the Indigenous Law Bulletin in 2012 reporting the research.

Apart from the obvious issues related to the administration of justice which arise from this level of disability, and which are discussed in the articles linked above, it strikes me as a terrific – or terrible  -  example of how in the Indigenous policy domain, and more saliently for Indigenous people themselves, challenges come ‘in battalions’, not as ‘single spies’.

We all know intuitively that one problem contributes to another. Poor housing, poor sanitation, poor access to fresh fruit and vegetables, poor diet, and poor education and literacy leads to poor health, particularly for vulnerable children. Poor environmental conditions and poor health, particularly amongst children, leads to ongoing chronic disease, and lifelong conditions such as diabetes, kidney disease, eye nose and throat conditions, and hearing loss. Hearing loss leads to learning difficulties, frustration, and ultimately to a loss of interest in attending school. Dispossession leads to social and cultural trauma, and constrains economic opportunity; impacts which are increasingly recognised as having intergenerational impacts. Lack of economic opportunity, poor education and skill deficits lead to loss of self-esteem, boredom, mental health issues, and potentially anti-social behaviour including alcohol, drug and substance abuse. In turn, these conditions can lead to widespread Fetal Alcohol Syndrome (FASD), which in turn limit educational options, predispose individuals to mental health issues and potentially suicide, and adversely affect life opportunities across the economic, social and cultural domains.

I set out this admittedly anecdotal and random snapshot merely to illustrate the overwhelming magnitude of the challenges facing many individuals and the concomitant complexity of the policy challenge which aims to remediate or reverse disadvantage.

One of the consequences of deep seated individual and societal disadvantage is that many individuals breach social and cultural norms, and end up in the justice system. The extent of that problem is enormous, particularly in remote Australia.

An April 2016 post on the Parliamentary Library blog Flag Post (link here), assessing progress over the 25 years since the landmark Royal Commission into Aboriginal Deaths in Custody, reported mixed results: in those 25 years, the absolute numbers of Indigenous deaths in custody were less than the 1991 benchmark in only one year. Encouragingly, rates of Indigenous deaths in custody had declined by more than half, from a high of around 0.45 per 100 prisoners in some years to around 0.1 per 100 prisoners in the most recent statistics, a rate which was below the non-Indigenous rate. This suggests that determined policy action backed by political will is able to make a positive difference.

Yet while rates of indigenous deaths in custody have declined, rates of Indigenous incarceration have increased. In fact, the Parliamentary Library cites data indicating Indigenous prisoners as a proportion of the overall prison population have doubled since the Royal Commission from14 percent to 28 percent of all prisoners.

Under the heading ‘What next?’ the Parliamentary Library concluded with the following assessment:

In the wake of this dramatic increase in incarceration, some have argued that the recommendations of the Royal Commission, particularly on prosecution for minor offences and steps to Indigenous self-determination, were never adequately implemented. Others argue that the Royal Commission did not correctly prioritise the causes of high crime and therefore incarceration rates: substance (abuse, and childhood deprivation, abuse and neglect. The Change the Record Coalition, the Australian Medical Association, the Australian Red Cross, and Save the Children agree that alcohol and drug abuse and poor childhood outcomes are driving Indigenous incarceration, and Indigenous-led programs practicing ‘justice reinvestment’ are needed.

Many stakeholders have called for a new Closing the Gap target to be created for incarceration rates. Introduction of a ‘justice target’ was a recommendation of the 2011 House of Representatives Committee inquiry Doing Time - Time For Doing: Indigenous youth in the criminal justice system. In 2013 setting this target was part of the ALP’s Federal Election Indigenous policy. Minister for Indigenous Affairs Nigel Scullion stated in 2014 that the Government would prioritise acting on Indigenous incarceration through the existing Closing the Gap targets.

A recent May 2017 report by PwC and four partners titled Indigenous incarceration: Unlock the facts (link here, also available at www.pwc.com.au) outlines in a highly accessible format the extraordinary levels of over-representation of Indigenous Australians in prison. The report notes that Indigenous men are imprisoned at 11 times the rate of the general male population; Indigenous women at 15 times the rate of the general female population; and Indigenous youth are imprisoned at 25 times the rate of non-Indigenous youth. In remote regions such as the Kimberley, Indigenous people are 40 times more likely to be incarcerated than the non-Indigenous population (Kimberley Development Commission Regional Investment Blueprint p 40: link here).

The PwC report helpfully identifies and discusses the key drivers of Indigenous incarceration, estimates the substantial cost to the Australian economy of Indigenous incarceration ($8bn) and thus the potential reform dividend available if reform is successful.

Finally, the report goes on to recommend a reform approach involving a suite of five broad policy components which they argue are essential for lasting reform. The five components are:

1.    Self-determination;

2.    System reform;

3.    Law reform;

4.    Increased community awareness; and

5.    Specific initiatives and programmatic responses, particularly Indigenous controlled and led.

It was at this point that I baulked. Reform in complex policy areas requires more than the identification of the problem, and more than an implicit diagnosis of causality. The Parliamentary Library identified a range of diagnoses (albeit embedded in the links to their final paragraphs). But unsurprisingly they stopped short of advocating specific policy interventions. The PwC report, in listing the five elements of lasting reform, implicitly merges their diagnoses with policy prescription: a lack of community ownership and control of policy responses; the continuing persistence of deepseated disadvantage, unspecified reforms to laws; a lack of community support for reform, and an absence or continuing need for specific programs. As policy prescription, this essentially amounts to an exercise in tautology.

PwC do however use the continuing existence of disadvantage to promote one specific policy initiative, the introduction of a ‘justice target as part of the Closing the Gap targets.

The advantage of such a target would be that it would focus policymakers’ attention, both in Canberra and the states and territories, on the issue of Indigenous incarceration and incentivise them to explore a wide suite of initiatives, large and small, which would hopefully drive changes to reduce the rate and levels of incarceration.

The reality is that where policy challenges are characterised by complex causality, it is most often the case that no single initiative or intervention will of itself be decisive in driving positive change. Moreover, policymakers act within contexts and environments which are constrained: by policy capability, by politics, by resources, and so on. The real world policy challenge is to design a set of incentive structures which encourage policymakers across jurisdictions, and at all levels within jurisdictions, to work on a sustained basis toward the desired outcome.

One such innovation was reported on in The Australian last week: ‘Home detention to keep indigenous offenders out of jail’ (link here). While not a panacea, it seems clear that greater use of home detention and community corrections orders offers many advantages apart from the obvious metric of keeping individuals out of prison. The Victorian Auditor General (link here) recently identified significant cost savings from the use of community corrections orders, along with reduced recidivism rates compared to prisoners. He was however also critical of the levels of support which were allocated to supporting community corrections orders, suggesting that implementing such a policy is not necessarily simple.

There will be many other similar opportunities, large and small, across the nation which could assist in lowering Indigenous incarceration rates. Perhaps an innovative policymaker in the NT will devise a way to reduce juvenile hearing loss in an effort to address a key precursor to youth offending!

A new justice target in the Closing the Gap targets would appear on its face to assist in driving desired policy innovation and reform. Of course, the target needs to be well crafted and able to be measured clearly, and needs to be ambitious enough to drive sustained action.

There are strong indications that the Government is prepared to reverse its previous antipathy and consider such a justice target as part of the current review by COAG of the Closing the Gap targets. See this ABC story from March this year (link here).

The ongoing failure to gain traction in what are in most cases relatively modest aspirations appear to have caused a rethink of the current Closing the Gap targets. COAG at its June 2017 meeting (link here) noted:

COAG leaders welcomed the work to refresh the Closing the Gap agenda, focussing on a strength-based approach that supports Indigenous advancement, working in partnership with Aboriginal and Torres Strait Islander peoples. This work will inform efforts to develop a refreshed agenda and targets over the remainder of 2017, implementation principles, as well as advice to COAG’s second meeting of 2017 on an approach for the next phase of Closing the Gap.

A refreshed set of targets would open an opportunity to strengthen the whole of government focus on Indigenous incarceration.

If policymakers responding to a national target design interventions which incentivise the police, the courts, and indeed the community appropriately, there is a prospect that solutions to the crisis in Indigenous incarceration might emerge over time, and progressively reduce the ‘sorrows’ embedded in the current policy settings. That would be a good outcome.