ALRC Discussion Paper on Indigenous incarceration

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Thou shouldst perceive my passion, if these signes
Of prisonment were off me

The Two Noble Kinsmen, Act Three, Scene One

In a recent post (link here), I canvassed a small number of the complex issues contributing to the over-representation of Indigenous people in Australia’s prisons.

Last week, the Australian Law Reform Commission (ALRC) released a Discussion Paper as part of its review of the laws relating to Indigenous incarceration (link here).

The report is over 200 pages and full of interesting analysis, summaries of the key legal issues which influence incarceration rates of Indigenous people, and interesting insights into how the structure of laws and the overall justice system pipeline operates to influence incarceration rates.

The sheer volume of analysis and the complexity of the issues defies easy summary. So I won’t try. The report is structured to allow those interested in particular issues (eg the role of fine defaults in driving incarceration, or the role of alcohol laws) to focus on those particular interests. The report is also a source of interesting information about the approaches of various jurisdictions, both inside and beyond Australia. For example, there is an interesting analysis of the policy history of minimum prison terms in Western Australia, the only jurisdiction to explore this strategy. And an extensive discussion of the Canadian approach to sentencing which allows a much stronger focus on the impact of colonial policies on individuals in the justice system.

The Discussion Paper is structured to elicit feedback from the general community (submissions are due by 4 September) and thus it is not entirely clear what the Commission will ultimately recommend. Nevertheless, this is without doubt an important and highly useful source document for those interested in the issue of Indigenous incarceration rates, and reflects an enormous amount of detailed high quality research work by the Commission.

Notwithstanding this excellent work, I think there are some major shortfalls arising from the Commission‘s work on this topic. Some are specific to the terms of reference, others relate to the role of the ALRC more generally.

My major concerns are threefold:

First, the very volume and complexity of the issues raised in the Discussion Paper (and we can safely assume in the Final Report) work against their implementation. This issue is exacerbated by the reality (acknowledged in the Terms of Reference and the Discussion Paper) that the bulk of the laws under review belong to the states and territories. Of course, complexity is grist for the mill in the work of policymakers, and there is an argument for laying out in a comprehensive and succinct way the key issues which potentially impact on Indigenous incarceration. 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.

Second, the record of Law Reform Commission Reports providing the basis for major reform processes in the Indigenous policy domain is poor. I have in mind the largely unimplemented 1986 Report on Aboriginal Customary Law (link here), which included a draft Bill which was never considered by the Parliament, and the more recent Commission report on native title, ‘Connection to country’ which to date appears to have been relegated to the ‘too hard’ basket (link here and here) This is not a criticism of the Commission, but of the commitment of Governments to follow through once they receive a report. In the light of this sorry history, (and I suspect it is an issue beyond the Indigenous policy domain), there is in my view a requirement on the Commission to structure and shape its advice in ways which make implementation more likely.

Accordingly, I was disappointed that nowhere in the Discussion Paper was there any   discussion of the economic cost of incarceration both on taxpayers and Indigenous people themselves. It may be that this is a matter which will be addressed in the Final Report, but it is in my view disappointing that while the Report manages to discuss issues such as whether the courts might take into account the impact of past dispossession on Indigenous people in the sentencing process, it makes no attempt to consider and discuss at any length measures to counter contemporary structural forces (such as mandatory sentencing laws and broader ‘tough on crime’ policy approaches) which operate to exacerbate Indigenous incarceration. The rapidly rising financial and social costs of incarceration generally and Indigenous incarceration in particular, is a potential countervailing factor. So too are doubts about the effectiveness of imprisonment in encouraging rehabilitation. A recent Victorian Ombudsman report into rehabilitation and reintegration of prisoners in Victorian prisons was critical of the inattention to this issue in the management of prisons generally, and pointed to the significant economic implications of short-sightedness for the state in this area. There is no a priori reason to believe that the Victorian system is any better or worse that other jurisdictions in Australia (link here).

The response to this critique may well be that I have misunderstood the nature and purpose of the ALRC, and that its Terms of Reference mean that it is narrowly focussed on identifying the technical changes to laws and justice processes which might reduce over-representation. My point however is that laws are not made nor administered in a vacuum, and it is underlying political and societal forces which shape them. An effective reform agenda needs to acknowledge, understand and ideally address these structural forces.

My third concern relates to the Chapter on alcohol in the Discussion paper, which fails to mention the potential for taxation law reform to address the supply of alcohol. It is clear that alcohol is a key driver of behaviours which lead to criminal behaviour, and thus to incarceration. The costs of alcohol abuse fall not only on individuals and their families, but also on taxpayers. The tax regime on alcohol is both complex and highly variable in terms of the volumetric incidence of taxation on different products, undermining the capacity of alcohol taxation to effectively drive reductions in consumption of alcohol, notwithstanding the significant health, social and economic costs of alcohol abuse (link here). There is a strong consensus amongst researchers concerned about the implications of alcohol abuse by Indigenous drinkers that tax reform is an underutilised policy lever (link here). It is somewhat surprising therefore that the ALRC chose to ignore completely this issue in its Discussion Paper.

So where does this leave us?

The ALRC will finalise its report to Government by December this year. The likelihood of an election in 2018 suggests that it will not be the ‘right time’ for the Commonwealth to enthusiastically pursue implementation of the report’s findings. Later this year the Commonwealth will likely gain COAG approval for the introduction of an Indigenous incarceration target as part of the Closing the Gap targets, which will be a step forward. The states and territories will continue to struggle to find political narratives and policy responses which effectively balance the contradictory forces at play in this area: increasing community concerns about the impact of crime, the apparently intractable and irresistible pressures towards incarceration once vulnerable individuals enter the justice system, the spiralling costs of prisons and the justice system across most jurisdictions, and the extraordinary statistics demonstrating extreme levels of incarceration for Indigenous people.

In such an environment there is much to be said in favour of incremental reforms driven by policy entrepreneurs in the various jurisdictions. The challenge however is to find the policy space in crowded policy agendas, and to find the political and policy commitment to sustain reform. More often than not, incrementalism degrades into policy stasis.

The argument against incrementalism is based on a growing sense of foreboding that incarceration is being normalised amongst many Indigenous citizens, and that it plays a key role in cementing the alienation and disempowerment of a significant proportion of the Indigenous community. The costs on individuals and their families are considerable. But perhaps just as significant, the existence of an alienated and disempowered segment of Australian society will eventually spill over into the mainstream. It has to be said however that the prospects of a full throated and sustained campaign to address extreme Indigenous incarceration rates seems highly unlikely.

The absence of strategic leadership by the nation’s political elites is the real gap which we need to close.