Indigenous incarceration

15 April 2016 marked the 25th anniversary of the Report of the Royal Commission into Aboriginal deaths in custody. In NSW, where recommendations of the Royal Commission have been implemented, good outcomes have been achieved. For example, there have been no Aboriginal deaths in police custody in NSW since the introduction of the Aboriginal Legal Services NSW/ACT custody notification service. The Law Society strongly supports the ongoing funding of this service.

However, the Law Society notes with concern that the rates of incarceration of Aboriginal people have worsened since the Report of the Royal Commission into Aboriginal Deaths in Custody was released 25 years ago. The NSW Bureau of Crime Statistics and Research has reported a 13 per cent increase in NSW prisoners to 12,995 in the past two years, which has been largely attributable to a rise in the number of people on remand. The latest BOCSAR statistics also showed the rate of Indigenous people on remand (11.4 per cent) had grown at more than double the rate of the average remand population (6.3 per cent) over the past 12 months to March 2017.

This reflected broader figures which show that Indigenous people make up 24 per cent of the NSW adult prison population. Indigenous Australians make up 27 per cent of the prison population but only about 3 per cent of the wider population.

The Law Society recognises that significant drivers of Indigenous incarceration in NSW are laws that incarcerate people for default on driving related fines; the lack of non-custodial sentencing options in rural, regional and remote regions; and the impact of breaches of justice related procedures such as bail and AVOs. Mandatory minimum penalties are also another key driver of high Indigenous incarceration rates, particularly where they involve alcohol related offences.

At the Access to Justice Conference in Sydney on 18 June 2015, BOCSAR director, Don Weatherburn outlined a number of short-term and long-term measures for reducing the over-representation of Indigenous people in custody. They include short-term measures such as properly resourced driver license programs that are accessible to Indigenous people, particularly in rural and remote areas; a graded response to non-compliance with community correction orders and the re-introduction of earned reduction of sentences.
In the long-term he recommended improved ante-natal care for Indigenous women; more work to increase Indigenous school attendance and completion rates; and a rigorous federal program to pay employers to employ Indigenous people.

The Law Society of NSW strongly supports these evidence-based measures, and urges the NSW Government to take the lead in setting justice-specific Close the Gap targets. Specifically, Indigenous incarceration continues to be a priority area for the Law Society’s Indigenous Issues Committee.

Recent Law Society submissions on the issue of Indigenous incarceration include:

• Law Society of NSW, Submission to the Inquiry into driver licence disqualification reform, 22 July 2013
• Submission to the NSW Attorney General dated 6 November 2014 on Indigenous incarceration rates
• Letter to the NSW Attorney General on Koori Courts in NSW
• Australian Law Reform Commission’s inquiry into the incarceration rate of Indigenous Australians – draft terms of reference
• Indigenous incarceration rates and justice targets