Indigenous Incarceration: A New Generation but the Same Inquiry

Thursday 3 November 2016 @ 10.41 a.m. | Crime | Judiciary, Legal Profession & Procedure | Legal Research

Recently (27 October 2016), the Federal Attorney General, Senator George Brandis (the AG) and the Minister for Indigenous Affairs, Senator Nigel Scullion, announced in a joint Media Release  that the Turnbull Government would ask the Australian Law Reform Commission (the ALRC) to ". . . examine the factors leading to the over representation of Indigenous Australians in our prison system, and consider what reforms to the law could ameliorate this national tragedy".

The joint announcement comes 25 years after the final report of the landmark Royal Commission into Aboriginal Deaths in Custody, and has had to admit that still Indigenous Australians are over represented in the Australian prison system - even though it's almost a generation on from when the original report was completed.

The Statistics are Going Backwards

The numbers, as they say, do not lie and it is clear that little if anything has improved since the original Royal Commission. At that time, in 1991, it is reported that Indigenous Australians made up 14 percent of the national prison population and as of 2015 that percentage is reported to have risen to 27 percent. In other words, more than one in four prisoners in Australian prisons are Indigenous, even though Indigenous people as a whole only make up just 2 percent of the total population.

Drilling down into the last 25 years is even more alarming when it is realised that ". . . Indigenous children and teenagers are 24 times more likely to be incarcerated than their non-indigenous peers."  Further, Indigenous women are reported as 30 times more likely to be jailed.

In this respect, Labor senator Patrick Dodson, who was one of the commissioners on the original Royal Commission into Aboriginal Deaths in Custody, is reported as having told a Senate hearing that there was "appalling" ignorance about the years of lobbying to put the Royal Commission's recommendations in place.

Terms of Reference

As yet no terms of reference have been decided with the AG indicating at a recent Australian Bar Association national legal conference that the terms of reference ". . . will be decided after consultation with indigenous groups and the wider community".

Reaction and Comment

Speaking at the Australian Bar Association national legal conference, while giving the opening address, the AG is reported as saying:

"It is a sad reflection on Australia that our first peoples are so grossly over-represented in our nation's prisons, . . . [the] statistics paint a stark picture, a picture of failed initiatives, flawed or incomplete reform efforts which, despite the best intentions, often deliver little in the way of tangible progress."

Labor is reported to have indicated that it would support the inquiry even though  initially, it was reported that the opposition leader had indicated that an inquiry was ". . . not needed because the problems are already 'well identified'. . .". The opposition leader's view was instead that the government should

". . .create a justice target which says we will focus on non-custodial, non-prison options for young black men in this country, . . . It is a fact in this country that your skin colour is one of the more reliable predictors of whether you're going to get a jail sentence but that shouldn't be the case."

The Australian Bar Association president Patrick O'Sullivan QC is reported as agreeing that the Indigenous imprisonment rates are a "national disgrace" and that an inquiry could lead to informed change:

"This announcement [is] a significant opportunity to make informed and practical changes that address this problem and deliver better justice outcomes for Indigenous Australians and the country as a whole, . . ."

Rod Little from the National Congress of Australia's First Peoples is reported as saying that the Government should start by looking at the findings of the original Royal Commission into Aboriginal Deaths in Custody, particularly those things that were or were not implemented:

"If there was a thorough analysis of what had been implemented and not implemented, to see what the success of those would be, it would be a good start point for an inquiry, . . ."

Next for the Inquiry

In the light of the recent issues arising in the Northern Territory with respect to Indigenous youth incarceration and the already ongoing investigations into those matters, the terms of reference of this inquiry, when agreed to, and the actual inquiry, will be a matter that will be followed with interest and the hope that actual favourable change may result sooner than in from the previous Royal Commission.

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