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Growing pressure for governments to address the over-incarceration of Aboriginal and Torres Strait Islander people

Recommendations to reduce the over-incarceration of Aboriginal and Torres Strait Islander people will be in the international spotlight next week when Australia’s human rights record comes under scrutiny at the UN Human Rights Council.

Representatives of the Australian Government are due to appear before the Council in Geneva next Monday (November 9) as part of the Universal Periodic Review (UPR) of Australia’s human rights record (follow #AusUPR for news).

A submission to the Council by a coalition of NGOs says Australia should implement justice reinvestment strategies and justice targets to address the underlying causes of over-representation of Aboriginal and Torres Strait Islanders peoples in the criminal justice system.

The submission also calls for Australia to review all mandatory sentencing laws, with a view to abolishing them. Since Australia’s last UPR, the number of imprisoned disadvantaged people has increased, and the general conditions in prisons around Australia have deteriorated, it says.

A series of fact sheets prepared as part of the submission note that “overcrowding, poor conditions and substandard healthcare characterise Australian prisons”, and that “there is significant under-funding of the legal system and systematic barriers to accessing justice, particularly for vulnerable and disadvantaged people”.

Meanwhile, as part of Croakey’s continuing #JustJustice project, Marie Mcinerney reports on detailed recommendations to address Victoria’s poor performance.

***

Marie McInerney writes:

The Victorian Ombudsman has found that targeted programs for Aboriginal and Torres Strait Islander prisoners in the state are “limited and constantly under pressure”, contributing to high rates of imprisonment and recidivism.

Following a one-year investigation into Victoria’s over-crowded prisons, Ombudsman Deborah Glass has recommended the State look at a range of different supports for Aboriginal and Torres Strait Islander prisoners, before and after they are sentenced.

Her recommendations include justice reinvestment pilots in Aboriginal communities and consideration of a New Zealand Corrections case-management initiative to cut reoffending by 25 per cent over five years.

The Ombudsman said the New Zealand initiative is centred on ‘throughcare’ – from a prisoner’s entry into the system to their eventual release – where prisoners are assigned a non-custodial officer as their case manager, directing their prison support with programs that focus on employment, accommodation, education and training, living skills, health/well-being, whanau, family and community links.

“The position description for New Zealand case managers lists tertiary qualifications as desirable, as well as backgrounds in rehabilitative services, allied health services, psychology or social work, together with knowledge of and experience working with Maori and Pacific Peoples and their communities,” she said in the report.

The NZ approach compares starkly with her findings about the lack of targeted programs and services for Aboriginal and Torres Strait Islander prisoners in Victoria. At Port Phillip prison, she found that a single Aboriginal welfare officer was responsible for supporting 99 Aboriginal and Torres Strait Islander prisoners – three times the recommended caseload – and that a number of roles had been vacant for extended periods of time.

The Ombudsman’s recommendations related specifically to Aboriginal and Torres Strait Islander prison number include to:

  • Pilot justice reinvestment style approaches, including in the Aboriginal community. The report says Victoria can learn from other jurisdictions in Australia which are trialling justice reinvestment (notably Bourke in New South Wales, but emerging programs in South Australia and Western Australia).
  • Review the role and number of staff providing ongoing welfare, advocacy and support to Aboriginal and Torres Strait Islander prisoners.
  • Expand the Koori Courts, which – along with other specialist courts – have overseen a reduction in recidivism.
  • Review cultural programs for Aboriginal and Torres Strait Islander prisoners to meet demand and ensure they are as effective as possible. The report says their efficacy is “well supported” but they are not run consistently across all prisons. The Ombudsman cited the Victorian Aboriginal Legal Services submission as saying “cultural practices and observances are on par with religious observances and should be respected in a similar way”.
  • Provide better post-release support, particularly around housing for women who risk returning to violent or offending households.
  • Continue the acclaimed art program for Aboriginal and Torres Strait Islander prisoners, and consider allowing proceeds of sale of artworks to support the prisoner’s transition to the community. See this recent story on The Torch program that an evaluation found may reduce reoffending rates by up to 53 per cent.

Findings of the report

The Ombudsman’s investigation into the rehabilitation and reintegration of prisoners in Victoria followed a dramatic rise in Victoria’s prison numbers in the wake of tough reforms to sentencing, bail and parole measures, including the abolition of suspended sentencing, introduced by the former Coalition State Government.

She found:

“…the rapid growth in numbers of people in the system and behind bars has overwhelmed the capacity to deliver consistent and effective rehabilitation or reintegration for prisoners.”

The investigation shows the trend is particularly a problem for Aboriginal and Torres Strait Islander prisoners: their numbers are rising the fastest in Victoria, their recidivism rates outstrip those of fellow prisoners, and they increasingly miss out on vital cultural and welfare programs in prison and supports on leaving prison.

Given the disadvantage experienced by Aboriginal and Torres Strait Islander people and their over-representation in custody, she finds a compelling case for more action to reduce both the number of prisoners in the first instance and the re-offending rate.

She quotes Social Justice Commissioner Mick Gooda as saying it is shameful that “we do better at keeping Aboriginal people in prisons than we do in schools.”

“Long-term solutions do not lie within the walls of our prisons or with a single government department. Victoria needs a whole-of-government approach to focus on the causes of crime rather than its consequences,” she said.

You can listen to an extended 3RRR interview with the Ombudsman here – from 19.00 minutes.

Warnings unheeded

The Ombudsman’s findings have been well flagged in Victoria in recent years. Writing two years ago in the Victorian Council of Social Service’s Insight magazine, Queensland academic Chris Cunneen said he was not sure that Victorians would enjoy being compared with the Northern Territory in terms of “prison policy backwardness”.

But he said they certainly had one thing in common: “a dramatic race to the bottom in locking up more and more Aboriginal people.”

In fact, Victoria has ‘won’ the race, according the Ombudsman’s report. Victoria now has the fastest rate of increase in Aboriginal and Torres Strait Islander imprisonment in Australia, doubling in number to 1,435 prisoners over the ten years to 2014, an increase of 114 per cent and just ahead of the Northern Territory on 104 per cent.

Despite making up only 0.7 per cent of the population, Aboriginal people now represent nearly 8 per cent of prisoners in Victoria, and are more likely than the general prison population to return to prison, with a recidivism rate (reoffending within two years of release) of 55 per cent versus 44 per cent for non-Indigenous offenders.

According to Corrections Victoria, the recent growth in the Aboriginal and Torres Strait Islander prisoner population in Victoria has been driven largely by an increase in remand and parole cancellations. Over half the male Koori prisoners received under sentence in 2013-14 came into prison as a result of their parole being cancelled.

The Ombudsman quotes findings from the 2010 Senate Select Committee report on Indigenous incarceration that Aboriginal and Torres Strait islander people come into contact with the justice system at a much higher rates because they are “disproportionately affected by:

  • policing agendas, such as zero-tolerance policing, powers to move people on and search on the spot, due to their traditional practice of gathering and socialising in public space, which increases their visibility to police, and subsequently the justice system
  • increased severities in bail, where bail is often refused or, if granted, conditions make it difficult to ensure compliance
  • lowering of sentencing thresholds in instances where Aboriginal and Torres Strait Islander people have a prior criminal record
  • tougher crime policies in general.

The Ombudsman also looks at big gaps in post-release support for prisoners, particularly housing for vulnerable women who may return to violent or offending environments or go homeless on release. She quotes one service:

‘We’re often called upon to pick up a released prisoner who has come out of prison at a late hour after public transport has finished…(or) on a Friday night. This has the impact of leaving the prisoner vulnerable from the minute they come out of prison.”

The report says only 20 per cent of prisoners get post-release support through Corrections Victoria.

Remand prisoners have doubled

A big area of concern in Victoria is the soaring number of prisoners held on remand, accounting for nearly a quarter of all prisoners and almost doubling since 2011. It is a particular issue for Aboriginal women prisoners.

An alleged offender is remanded in custody if they:

  • have not applied for bail
  • have been refused bail
  • cannot afford to lodge bail
  • are unable or unwilling to meet conditions set out in the bail bond.

Often this an issue for people who are homeless or live in rural and regional areas where they cannot access housing or mental health supports that are part of bail requirements.

High remand numbers are fuelling overcrowding, which Jesuit Social Services said recently was as much behind recent riots as the more widely reported looming smoking ban.

They are also significant in other ways. Importantly for their rehabilitation prospects, remand prisoners, who are unsentenced, have only limited opportunities to access programs to address their offending – for example, mental health or substance abuse programs. They also have very limited ability to demonstrate good conduct following an offence, such as by participating in drug treatment, compared to a person on bail.

The Ombudsman also found that growing numbers of prisoners are choosing not to apply for parole because of “onerous” new conditions. She reported they would “rather spend extra time in prison than be released on parole and risk the chance of breaching parole and being reimprisoned.”

As a result, they do not have to complete programs that might have addressed offending behaviour and re-enter the community without any supervision. Others who want to participate in rehabilitation programs cannot get access (because of rising demand) and are consequently unable to obtain parole, she said.

All 25 of the Ombudsman’s recommendations have been accepted in principle by the Victorian Justice and Regulation Department and the Labor Government.

It will, of course, be what happens in practice that counts.

• For more information about The Torch project (see feature image): www.facebook.com/thetorchproject, www.thetorch.org.au or contact indigenousarts@thetorch.org.au

• Disclaimer: Marie McInerney is a former editor of the VCOSS magazine Insight.

• Previously in this series about Victorian justice concerns: Prison is not the answer. Instead address the needs of traumatised Aboriginal women.

***

You can track the #JustJustice series here.

jj.LOGO

Croakey acknowledges and thanks all those who donated to support #JustJustice.

We also thank and acknowledge our premium sponsors, the Jesuit Social Services, and Frank Meany of One Vision.

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