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.