Indigenous incarceration reform

Fortune, that arrant whore,

Ne’er turns the key to the poor

King Lear, Act 2, scene 2.

Hannah McGlade, an academic and member of the UN Permanent Forum on Indigenous Issues (link here) has recently argued (link here) that the risks of COVID 19 in prisons requires the early release of at risk Indigenous prisoners:

With the over-representation of our people in prison, our lives are on the line.

We are calling for immediate early release, particularly of people who are on remand, women who are victims of family violence and sentenced for lesser offences like fines and public order offences, young people and those most at risk of transmitting Covid-19, like elderly and people with health conditions.

McGlade cites similar calls from the Chair of the National Aboriginal and Torres Strait Islander Legal Services (NATSILS), Cheryl Axelby: see NATSILS media release on the COVID-19 crisis (link here). These statements, by focussing attention on Indigenous incarceration, bring into view the deeper and more longstanding issue of Indigenous over-representation in our prisons. McGlade raises the issue in her article, but she is far from alone.

The issue of Indigenous incarceration is of course politically sensitive and complex. It is prone to political manipulation, and self-righteous appeals to law and order, and the propensity of voters to want simplistic solutions to complex problems. There are crimes that require imprisonment, and there is a case for a prison system aimed at deterrence and rehabilitation. The issue with Indigenous incarceration in Australia, however, is that it appears to operate in a structurally discriminatory manner, contrary to the near ubiquitous notion that justice is dispensed without fear or favour.

On Sunday, the Canberra Times ran a full page article (link here) headlined ‘A national disgrace, nobody cares’. The sub-headline in the print edition was ‘Indigenous incarceration is on the rise and government are failing to act on recommendations’. The author, Philip Lee was for five years from 2005 to 2010 Chairperson of the Sentence Administration Board of the ACT (link here). The gist of Lee’s article are two-fold: first, that the statistics on Indigenous incarceration are disproportionate to the representation of Indigenous people in the community; and second, that the recommendations of the 2017 Australian Law Reform Commission Report Pathways to Justice – Incarceration rates of Aboriginal and Torres Strait Islander (ATSI) Peoples (link here) by Federal Circuit Court Judge Matthew Myers, commissioned by the Federal Government three years ago, and delivered to the Government over two years ago, have not been implemented.

Lee cites extensive statistics from the ALRC and other sources; here is just one key paragraph:

The ALRC Report noted that ATSI men are 14.7 times more likely to be imprisoned than non-indigenous men and that ATSI women are 21.2 times more likely to be imprisoned than non-indigenous women. The report also noted that although ATSI adults make up around 2 per cent of the national population they constitute 27 per cent of the national prison population. 

Lee concludes his article with the following assessment:

The Commonwealth government stands condemned for failing to implement the recommendations of an ALRC report on the rate of Indigenous incarceration which it commissioned almost three years ago.

The tabling of the ALRC report in March 2018 somehow evaded my attention, so there was no blog post to record the event. However, I did put up a post in July 2017 on the issue of a Closing the Gap target (link here). I recommend it to readers. One of its key paragraphs stated:

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.

This blog post was followed in August 2017 by a detailed post (link here) commenting on a Discussion Paper issued by the ALRC. Again, do read it in full. But perhaps the key paragraph for present purposes is reproduced below:

But there is a sense here that the Federal Government may have adopted a strategy of commissioning this inquiry as a substitute for focussed action. Indeed, it is clear from the detailed terms of reference that the policy experts in the Attorney General’s Department already have a pretty good idea of the key drivers of Indigenous incarceration. By commissioning this inquiry, the Government has bought space and time. When the report is finally delivered, it will likely point to the need for joint action by states and territories, and the very complexity of the issues raised will mean that the Commonwealth will be under minimal pressure to drive a coordinated and sustained law reform policy agenda through COAG.

The final ALRC report comprises around 500 pages of detailed analysis, and makes 35 recommendations. It has the benefit of the ALRC’s comprehensive and methodical approach to legal analysis, and draws on the combined expertise of an expert and talented advisory panel of criminological experts. I have not had the opportunity to read it in detail, much less to closely analyse its contents. The data and statistical analysis in Chapter 3 is extremely compelling, and points to deep-seated structural inequities in the administration of justice for First Nations people. I am not able to summarise the level of detail presented in this chapter, but it amounts to a staggering indictment of our treatment of First Nations peoples.

I have made no assessment of the relative importance and significance of the ALRC report’s recommendations, which encompass justice reinvestment, bail, sentencing and aboriginality, community based sentences, mandatory sentences, prison programs and parole, access to justice, Indigenous women, fines and dirvers licences, alcohol, police accountability, child protection and adult incarceration, and criminal justice targets and Aboriginal justice agreements. The Executive summary asserts (pages 35–36) that:

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…. 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.

What is not clear from the report is how Governments should priorities the various recommendations. Nor is there any sustained argument (notwithstanding some commentary within the report) that socio-economic disadvantage is itself a driver of high levels of Indigenous incarceration. Nevertheless, it is clear that the ALRC has delivered a comprehensive and cogent report that deserves serious consideration by the Government that commissioned it.

The elephant in the room then is this: why hasn’t the Australian Government responded in any way to the report and recommendations of the ALRC?  Or to put it even more starkly, why wont governments do anything about the over-representation of Indigenous people in our prison systems?

The ALRC website (link here) indicates that the review’s implementation status is ‘partial’ on the basis that the WA Government has announced that it would introduce a custody notification service, a partial implementation of recommendation 14-3. What is crystal clear is that two years on, the Australian government as well as the states and territories who are primarily responsible for out criminal justice systems have done absolutely nothing.

The potential answers to these questions can be framed in multiple ways. Lack of political will, bureaucratic incapacity, ideology, powerlessness, fractured responsibility, constrained resources, etc etc….The question deserves sustained and detailed attention, and the answers too will be shaped by the viewpoints, ideology, background and political perspectives of the person asking. I cannot in a short blog post do the question, let alone the potential answers, justice. Suffice to say that my own view is that Indigenous incarceration rates in Australia are the product of deep-seated structural exclusion. The arguments for the existence of an exclusionary structures are set out in a 2019 paper I co-authored with Neil Westbury (link here).

Instead, I will make just a few tangential comments.

First, put yourself in the shoes of an Indigenous person looking at this process over the past three years. What should they make of it? What does it say about the commitment for reform generally? Should they place any trust in the nation’s governments that there is any substantive commitment to addressing unfair and discriminatory outcomes in social policy?

Second, what does this outcome say about our democratic system? How is it that these issues do not appear to have been raised in a sustained manner in Parliament?

Third, what does it say about the widespread view amongst Australians that we live in a nation where everyone gets a fair go?

We certainly live in a lucky country. Unfortunately, it appears that ones luck depends in large measure on whether you are Indigenous or not.

The architecture of fundamental service delivery reform in the Indigenous policy domain

They durst not do’t;

        They could not, would not do’t.

         King Lear Act 2, scene 2.

Last week, the Productivity Commission (PC) released a study report into the Expenditure on Children in the Northern Territory (link here). While technically a report about all children’s services funding in the NT, it is overwhelmingly a report about the services to Indigenous children given the over-representation of First Nations children in these programs.

The genesis of this study was the Royal Commission into the Protection and Detention of Children in the Northern Territory (link here). The study report notes (page 3) that the Royal Commission found that expenditure on children and family services is not rigorously tracked, monitored or evaluated to ensure that it is appropriately distributed and directed. It identified a need for greater coordination and transparency of government funding decisions.

The PC study report is a stunning document. It focusses on one strand of government service delivery (children’s services) in one jurisdiction (the NT), and lays out in forensic and stark detail the extraordinary complexity of the funding and service delivery arrangements, the extent of the overlapping funding, the ongoing existence of gaps in funding, the absence of coordination both between jurisdictions and within jurisdictions (see pages 112- 116), the underutilisation of agencies’ regional networks who of course have most direct contact with citizens, and the lack of internal coherence in funding decisions by both levels of government.

I recommend readers have a look at the report, at the summary findings and recommendations and especially at figure 2 on page 8 and figure 2.5 on page 68. What is crystal clear — even from a cursory reading of the report — is that the system for funding and delivering children’s services in the NT is not fit for purpose. What is particularly arresting is the PC’s documentation in various places (eg page 306) of the long history of previous reports and inquiries whose analyses and recommendations have not been taken on board by governments.

I don’t propose to analyse and critique the PC’s study report in detail. Suffice to say that in terms of children’s services, the study report identifies the need for a huge policy reform agenda both within and between the two jurisdictions. The PC’s Findings and Recommendations are well argued and thought out, cogent, and appropriately targeted. While I disagree with some recommendations, and would have framed others with different emphases, it is fair to say that if they were to be implemented, or even substantially implemented, they would make a huge difference to the quality of children’s service provision in the Northern Territory, and would thus lead to better life opportunities for many, if not most, of the NT’s most disadvantaged children.

Instead of taking a deep dive into the detail of the report, I want to take the opportunity to step back and ask the larger and arguably more fundamental question: what are the implications of the findings in this report for Indigenous service delivery more generally? And once we understand, or just have an inkling of those implications, how should governments and policymakers respond?

The first point to make is that this detailed and sophisticated analysis of one thin sliver of the service delivery spectrum suggests that similar issues are likely to arise in every other sliver. Having previously been a senior public servant in both the NT and the Commonwealth, I can attest that the detailed dynamics that pervade the children’s services programs and which have been identified by the PC permeate (to one degree or another) every other service delivery sector. Whether it is health services, education services, local government funding, housing provision, disability services, interpreter services, land management services, or arts and craft support services, the same issues of overlap, duplication, gaps, lack of coordination, poor data collection, poor data analysis, lack of transparency, ineffective contracting arrangements, and so on exist. Not only do these issues exist, they are deeply embedded in the institutional and political cultures of both the Commonwealth and the NT. In other words they are structural issues, not merely deficiencies in day to day administration. This means, too, that good people, working hard, across all parts of the system, contribute to poor outcomes.

Given that these structural dynamics are pervasive across Indigenous service delivery in the NT, and the accumulated impact of these service delivery dynamics is to create to deep-seated disadvantage, what is the point in focussing merely on children’s services. If a child doesn’t have a house, or lives in a grossly overcrowded house, or her education is effectively non-existent, and so on and so on, why are we surprised when neglect or even abuse occurs.

Second, the same points made by the PC about programs can be made regarding many policy settings: if policies regulating the consumption of alcohol are ineffective, or building regulations are ineffective or non-existent, or police are not stationed in larger communities, then why should we be surprised when children end up suffering.

Third, the PC correctly notes that the Commonwealth has a proportionally larger presence in children’s services and Indigenous issues in the NT than in other jurisdictions. However, the same dynamics are evident in other jurisdictions, at least in relation to Indigenous children. How do we know that? Look at the out of home care data (link here), and the over-representation of Indigenous people in the prison population across virtually every Australian jurisdiction (link here). If the Commonwealth decides to implement some or all of the PC recommendations, (a big ‘if’), there is clearly not a  persuasive rationale for limiting it to the NT. Any reform agenda should be rolled out on a national basis.

To sum up the analytic component of this post, the PC analysis is sophisticated, persuasive, and deeply shocking. It effectively tells us that in the NT, disadvantaged children, who are predominantly Indigenous , are being structurally neglected (at best) and structurally abused (at worst) by the service delivery systems that have been put in place to mitigate neglect, abuse and family violence. Those service delivery systems are not fit for purpose. Moreover, the systemic and structural incompetence of governments documented by the PC in children’s service delivery extend to other services, and these flawed dynamics are self-reinforcing and thus systemically drive further deep-seated disadvantage.

Moreover, government failures also extend to policy formulation and the overall policy and program failures extend to all other jurisdictions. The reason for the focus on the NT in the terms of reference for this report is that there is a critical mass of (Indigenous) disadvantage there, reinforced by poor policy and program delivery across the whole spectrum of government activity. This political salience of this critical mass is such that the nation’s political system has been unable to ignore it. Yet in other sectors, and other jurisdictions, similar levels of disadvantage and concomitant despair exist, albeit not in politically salient concentrations. It follows, as day follows night, that any reform agenda must reach beyond children’s services, to other program and policy areas, and must also have a national footprint.

So how to develop a reform agenda?

The fundamental paradox we face in the Indigenous policy domain (and elsewhere) is that governments react when events conspire to put issues on the public agenda, as was the case with the genesis of the Royal Commission in the NT, and then this follow up study by the PC. However, the reaction is invariably an involuntary impulse, a knee-jerk reaction, to establish a review, a commission, or a study, and to ride out the immediate pressure for reform. This is what has occurred here. To its credit, the PC has not produced a white-wash, but laid out a devastating critique of the current ways of doing business.  Notwithstanding the PC analysis, the fundamental challenge is to persuade governments to commit to substantive reform. For this problem, the PC has no persuasive answer. And to be fair, neither do I.

A second challenge that reinforces the paradox above is that comprehensive, step change, structural reform is complex and susceptible to implementation failure, to unconscious degradation as policymakers move on to greener pastures, and to deliberate undermining at critical junctures from interests who see benefit in reversion to the status quo ante. The inherent incremental complexity means that any reform process has to be sustained over time, and concomitantly, it also means that there are numerous potential veto points, where governments (often encouraged by interests in favour of the status quo ante) have the opportunity to change direction, or withdraw support. (The PC makes similar points at page 305). Substantive reform requires sustained political leadership and commitment.

Consequently, notwithstanding circumstances where virtually all stakeholders recognise that the status quo is sub-optimal, and even in the face of evidence of extraordinary government dysfunction, policymakers often fail to drive comprehensive sustained reform aimed at re-engineering the flawed processes for which they, and only they are responsible.

The underlying reasons for this governance incapacity are themselves complex and beyond the scope of this post to explore in any detail. I would point to the central role of dominant interest groups in the operation of our political system, and the progressive weakening of oversight institutions especially the parliament vis a vis the Executive, leading over time to the consequential exclusion of less powerful interests. See the analysis in my 2019 publication with Neil Westbury for a fuller consideration (link here).

So I am extremely conscious of the barriers to any reform, let along comprehensive reform. In the current pandemic crisis environment, these barriers are perhaps even more substantial. Who wants to think about government systems for service delivery when the threat and uncertainty of a global pandemic hangs over us?

Yet it seems to me that it is worthwhile to lay out at a high level some of the structural reform options that flow from the recent PC report and the more expansive analysis of its implications as laid out above.

I see two broad approaches to substantive reform that would be worth pursuing. They are conceptually distinct, but could be pursued as complementary approaches.

The first approach would be  for Indigenous interests to implement a targeted strategy that picks out five or six of the key reforms identified by the PC (of course there may be others), and to make them core principles and advocate continuously for their implementation and ongoing retention at both national and jurisdictional levels. For example, the following recommendations all drawn loosely from the PC study report, might provide a template:

·       Support for long term grant funding contracts (minimum of seven years) and a shift to relational contracting models (rather than mechanistic KPI monitoring);

·       Better data at the regional level (including greater local involvement in data collection and analysis);

·       Use of regional forums representing local communities as key planning and priority setting bodies for funding;

·       Adoption of radically greater transparency by governments in relation to program funding allocations to reduce the risk of political rorting and playing favourites; and

·       Guaranteed support for regional Indigenous institutions to allow for independent advocacy, priority setting, planning and so on.

Each of these reforms, if implemented across the board in Indigenous affairs would be significant. Together, they would amount to a major overhaul of the way governments relate to Indigenous interests. But to be properly effective, they would need to be locked in, not be subject to change, degradation or reversal. So they need  some sort of political and/or legislative reinforcement to be truly transformative.

The second (and much more ambitious) approach would involve a fundamental reconceptualisation of the service delivery funding system to take decisions on grants and contracting out of the hands of politicians and place them in the hands of substantively independent service delivery purchasers (SDPs).

Governments would appropriate block amounts of funding over multiple years to say 20 regional SDPs across the nation for key social services, and provide broad (and public) guidance in terms of overall priorities. In turn, the SDPs would make funding decisions on service delivery within their regions, and report on progress to both the public at large and governments. Of course, any change will meet resistance and this would meet more than most as it involves governments giving up the power to reward particular groups, sporting clubs and the like. But it is not radical. Indeed, there are already precedents in various sectors. For example, the North Australia Infrastructure Facility (NAIF) comes close to this model, although the relevant Minister appoints the members and he or she retains both formal and informal veto powers over decisions. Similarly, in the policy realm, Governments are prepared to outsource substantial discretion to the independent Productivity Commission, again while maintain a veto over whether to take up recommendations. Nevertheless, the core architecture already exists as a precedent.

Clearly, there is a lot of devil in the detail: the advantages of such a model would be maximised if both the states and the Commonwealth signed up; the independence of members will be crucial, and there would be a need to develop innovative selection processes that guarantee this as well as ensuring that the Boards include financial and governance expertise, client representatives, funded organisation representatives, and perhaps even elected representation; and of course, the wider the remit in terms of functional responsibilities, the more likely that potential service delivery synergies would be identified and taken up. While it would be possible to start in one sector (say children’s services) the benefits of going wider to more sectors and deeper to incorporate multi-jurisdictional involvement are significant.

So there is a clear choice to be made: we have a system of service delivery funding across multiple sectors which is not fit for purpose. The system doesn’t work. We have a long record of governments commissioning review after review, study after study, but subsequently failing to implement substantive change. And we have thousands and thousands of citizens’ life opportunities being curtailed, constrained, smashed and destroyed. In these circumstances — where positive outcomes are exceptions and not the rule, and are the result of the perseverance, ingenuity, resilience and sheer courage of individuals who spend their lives working in a system designed to fail — is it rational, or even ethical, not to consider different ways of managing the system of delivering services.

Compared to the way in which the major interest groups in society operate, the voices of disadvantaged citizens, particularly Indigenous citizens, are not well organised, not well funded, not well networked into the corridors of power, and ultimately just not listened to.  

The tragedy of course is that designing and building a system that works is not rocket science; it merely takes a degree of will, and vision. Nor is doing so win/lose; it is win /win. The nation’s failure to receive and digest reports like we have seen from the PC, and then to do nothing, reflects poorly on our political system, poorly on our leaders, and ultimately poorly on all Australians. We should do better.

Forward looking policy responses to the COVID 19 pandemic in relation to First Nations citizens.

Defer no time, delays have dangerous ends.

1 Henry VI, Act 3, scene 2.

Here are two important policy perspectives on the current pandemic and its implications for First Nations.

First, a reader of this Blog with significant and ongoing engagement in remote Australia sent me the following comments / policy suggestions which resonated strongly with me. I set them out in full below.

Second, I also set out the Abstract to a new Topical Issues paper from the Centre for Aboriginal Economic Policy Research at the ANU (where I am a Visiting Fellow), which sets out eight short policy perspectives from researchers associated with the Centre. I am one of those contributors.

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Policy pathways for a COVID 19 response in remote Aboriginal communities

In recent weeks remote and regional Australia has witnessed the three spheres of Australian governments - local, state and Commonwealth - collaborate in an unusually quick and effective way to achieve the mass movement of large numbers of Aboriginal people out of regional towns and back into the many hundreds of Aboriginal Australia that are dotted across the regional landscape. This has been achieved by enlisting the support of Aboriginal leaders and Aboriginal organisations, backed up at times with wider community and industry support.

Almost every remote community across regional and remote Australia has rapidly increased in population size without evidence of the additional resources heading their way necessary to respond to these new circumstances.

Unless there is urgent response, proportionate to the magnitude of the new circumstances in which these remote communities have been thrust, the Aboriginal leadership and organisations who assisted government in delivering on this rushed population movement could understandably make themselves unavailable to subsequent government approaches when local support might be even more desperately sought.

The Federal Government’s previous policy position - implemented resolutely over the last decade - has been to walk away from earlier partnerships with the States, no longer supporting the essential municipal services and housing construction programs needed in these remote Aboriginal communities. That Federal policy position firmed up and has been pursued despite evidence of serious negative impact across Australia.

This implied new policy position of the Federal government - as evidenced by their active support for the mass movement of Aboriginal people - has been hurriedly expressed in terms that it is “for their own good” that in the face of this pandemic, Aboriginal people should move back onto country and reduce the Covid-19 risk to themselves that they are otherwise facing. An unstated objective would appear to be de-risking the regional towns of remote Australia and therefore protecting the wider population.

However, a whole host of other new risks and consequences open up as a result of the assisted sudden demographic shift. Not least of all is the risk of an outbreak of the standard lethal diseases that can too easily take hold of overcrowded populations living in unhygienic conditions.

With COVID 19 at risk of exploding across Aboriginal Australia, acute unprecedented crisis is recognised. To respond to this crisis and save as many lives as possible, rather than simply following mainstream templates, governments will need to urgently adopt innovative pathways tailored to the specific contexts of Aboriginal Australia.

Most pressing is urgent funding to deliver increased shelter, housing and ablution facilities for the remote communities of regional Aboriginal Australia; not only to ensure that Aboriginal people can avoid Covid-19 but also avoid an explosion in the standard lethal diseases; for example, dysentery.

There is a clear and real role here to support the leadership and authority of the Native Title Prescribed Body Corporates; and, in regions like the Pilbara and Kimberley, to bolster the significant Aboriginal owned and run organisations and building companies which - IF SPECIFICALLY FUNDED FOR THE TASK - could immediately step up and use their capacity and experience to deliver shelter, housing and much needed improvements in ablution facilities and protected water supplies.

During the period of this pandemic and beyond, support for on-country economic and employment opportunities for Aboriginal people will need to be embedded into the landscape of regional Aboriginal Australia. These include seed-collection programs for emerging mine revegetation and rehabilitation programs; expanded ranger programs; on-country artist development and support programs; and currently unavailable online technologies that allow Aboriginal Australians who wish to access the mainstream education, training, and employment opportunities that Australia has to offer.

Taken together, these modest policy innovations would allow remote Aboriginal Australians to stay on their communities close to country; assist in facilitating the effective maintenance of social distance and social isolation and thus minimise the risk of disease; provide increased access to employment opportunities on communities; and provide access to remotely delivered education, health and employment opportunities.

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Abstract

This Topical Issue is a compilation of eight short papers that have been written during the rapid escalation of the Australian response to the COVID-19 pandemic.   

First Nations people are being, and will continue to be, affected by this crisis in ways that differ from the effects on other Australians. The pandemic risks exacerbating deep-seated health, social and economic inequities in Australian society, especially the long-standing inequalities between First Nations people and other Australians. The pandemic has also made plain the shortcomings of the relationships between Indigenous people and Australian governments, revealing a governance gap that is difficult to ignore. But despite these inimical conditions, the disruption of the COVID-19 crisis is opening up new opportunities for public policy change. And many First Nation organisations and communities are leading the way. Unprecedented new government expenditure creates space for policy innovation, as the boundaries of what is possible become blurred.  The pandemic is a time of stark risks, but it is also a time when informed policy bravery could create new foundations for a better future. 

Contributions to this Topical Issue focus on employment impacts, social security reforms, Indigenous governance, violence against women, the Indigenous health workforce, school closures, energy security in remote communities, and a proposal for an Indigenous reconstruction agency

The link to the CAEPR Topical Issues Paper is here.