BY AMY MCQUIRE, AUGUST 10, 2011
Originally published in Tracker Magazine.
Indigenous incarceration rates have sky-rocketed under Labor governments.
NATIONAL: You’ll never guess which political party sat and watched while the Aboriginal incarceration rate sky-rocketed.
We heard it on the radio. And we saw it on the television. Report after report, and promises delivered by talking politicians.
But while this was occurring, Aboriginal people wallowed inside this nation’s jails and detention centres, their futures cast by a system that jails them at staggeringly disproportionate rates.
It’s a problem that cripples our families, and our communities, and is as complex as it is troubling.
It’s not an unknown problem. Politicians a plenty have paid lip service to it.
In 2007, Labor leader Kevin Rudd made a raft of promises to Aboriginal Australia prior to the election.
Buried among them were commitments on how his government would tackle Aboriginal deaths in custody, and the skyrocketing Indigenous incarceration rates.
The number of Aboriginal people behind bars has been steadily increasing ever since the Royal Commission into Aboriginal deaths in custody came to a close in 1991.
It is now at its highest in two decades.
As rates soared, and the election approached, Labor didn’t venture far from the familiar script of motherhood statements and bare minimum promises.
In its National Platform, which was later re-drafted after Labor won office, it claimed it was “committed to reducing the over-representation of Indigenous Australians in the criminal justice system”.
“Labor acknowledges that a national whole of government social justice approach, in co-operation with State and Territory governments, is required to tackle the complex underlying causes of such over-representation”.
Not long after the election, the victor, Rudd, stood before the nation and made good one of his promises – “Sorry”.
He told the nation he would do more to eliminate the disadvantage faced by Australia’s first peoples.
In doing so, the Prime Minister unveiled ‘Close the Gap’.
Within this policy were six targets, agreed by the Council of Australian Governments (COAG), and targeting key areas such as health, employment and education.
But there was little focus on Indigenous incarceration.
In fact, there is no COAG commitment to reduce the number of Aboriginal people in the criminal justice system.
This month, there was more talk about the problem, but little concrete commitment from federal, state and territory governments around the country.
For the past two years, a House of Representatives inquiry has been delving into why Aboriginal and Torres Strait Islander youth are so over-represented in juvenile detention.
After receiving 110 submissions, and undertaking 18 public hearings around the country, it finally released its long-awaited report: Doing Time – Time for Doing.
The document highlighted a disturbing lack of progress in reducing Aboriginal and Torres Strait Islander incarceration rates over the decades after the Royal Commission.
Today, 25 percent of prisoners in Australia are Aboriginal or Torres Strait Islander.
That’s a quarter of the total Australian prison population, and comes despite the fact First Nations people make up less than 2.5 percent of the mainstream community.
But this has not always been the case.
Over the past decade, the rate of blackfellas behind bars has increased markedly. The figures are staggering.
The number of Indigenous men incarcerated has jumped by 55 percent, while the number for Indigenous women has jumped by 47 percent.
Our youth are also being jailed at rates that beggar belief.
The detention rate for Indigenous juveniles is 397 per 100,000 people, 28 times higher than their non-Indigenous counterparts, who are 14 per 100,000.
The report says that “in 2007, Indigenous juveniles accounted for 59 percent of the total juvenile detention population”.
These horrific statistics should come as no surprise.
Report after report has shown that we have been locking up our nation’s First Peoples at ever increasing rates, and the number of Aboriginal people who die in custody, whether in watchhouses or prison vans, has ensured this problem has been a mainstay on the front pages of our newspapers.
But when you break it down into how each state and territory is locking up Aboriginal people, the situation is even more startling.
All states and territories, except Tasmania and the ACT, have overseen steep increases in the number of Indigenous people in jails. Over the past decade, the Northern Territory has had the sharpest rise. In the period between 2000 to 2009, there was a 90 percent increase in Aboriginal people in jail.
This record is followed by South Australia, which saw a rise of 65 percent over the same period.
New South Wales is not far behind with a 57 percent increase, while Western Australia climbed by 54 percent.
Indigenous incarceration rates in Victoria rose by 50 percent in the same period, while Queensland had the lowest increase with 23 percent.
Contrary to popular belief, New South Wales jails the most black Australians, with 2,139 Aboriginal and Torres Strait Islanders filling its prisons.
But Western Australia has the highest jailing rate per capita than any other state or territory.
In fact, it jails its Indigenous population at a higher rate per capita than any other country in the world.
WA is so bad it jails black males at a rate more than eight times greater than South Africa did when its Apartheid regime collapsed in 1993.
Currently, at least three Aboriginal Western Australians are in jail for every 100 West Australian residents.
Even more startling is how this rise has continued over the past decade in nearly every state and territory, despite the recommendations of the Royal Commission.
So who has presided over these dramatic rises in Indigenous incarceration rates?
Labor has held the Northern Territory since 2001.
Labor has held Queensland since 1998.
Labor has held South Australia since 2002.
Labor held New South Wales from 1995 until this year.
Labor held Victoria from 1991 to 2010.
And Labor held Western Australia from 2001 to 2008.
Labor, of course, is not solely responsible for the highest Indigenous incarceration rates in the Western world. Successive governments of all political persuasions have played their part.
But in light of the recent parliamentary report – and the staggering increase in the past decade – Labor deserves a special mention.
So why, while Labor has been in power, have we seen such steep increases in incarceration rates in all states and territories?
And what is the Commonwealth doing, to provide “a national whole-of-government social justice approach, in co-operation with State and
Territory governments”?
Last year, it was Australia’s turn to face the United Nations Universal Periodic Review (UPR), where the 152 UN member states scrutinize our human rights record.
It’s the time, every four years, when the eyes of the world are firmly cast upon on Australia.
We did not escape unscathed.
Member states grilled Australia on our treatment of asylum seekers and people with disabilities, and we were of course, taken to task over the shameful Indigenous affairs policies such as the NT intervention, which remain a blight on our international reputation.
Among the recommendations were several on the disproportionate rates of Indigenous prisoners.
Austria called on Australia to implement measures in order to address the over-representation, including looking at non-custodial measures.
Iran raised concerns about the disproportionate rates of Indigenous people in custody, along with the “persistent problems” surrounding deaths in custody.
On that note, New Zealand called for all deaths in custody to be reviewed and investigated by independent bodies.
Australia’ gave short shrift to the recommendations on Indigenous incarceration rates.
So far, our response consists of just one paragraph of a 24-page report submitted to the UPR.
“Indigenous women, men and youth are more likely to enter the criminal justice system earlier than non-Indigenous Australians, and are incarcerated at higher rates than non-Indigenous Australians,” it said.“ Indigenous prisoners are more likely to have had a prior period of imprisonment than non-Indigenous Australians. In November 2009, the Commonwealth and State and Territory Governments endorsed a National Indigenous Law and Justice Framework to tackle Indigenous law and justice issues. The framework represents the first nationally-agreed approach to Indigenous law and justice. It will work to prevent deaths in custody, reduce over-representation in jails and recidivism, and provide full and equitable justice to Indigenous communities.”
And that’s it. Australia’s explanation to the human race about it’s world beating incarceration rates.
At the time, CEO of the Aboriginal Legal Service of WA, Dennis Eggington lashed out, accusing the Gillard government of misleading the UN by stating it had accepted the majority of recommendations of the UPR.
“For the Government to tell the international community that existing laws and policies address the factors leading to the over-representation of Aboriginal and Torres Strait Islander peoples in detention is misleading,” Mr Eggington said.
“If this really was the case, then the number of Aboriginal and Torres Strait Islander peoples being locked up would not be increasing.”
This concern was reiterated this month, with the Doing Time – Time for Doing report casting serious doubt on whether governments will really curb the number of Aboriginal people in jail.
One of its early recommendations addressed the Indigenous Justice Framework, the “first nationally agreed approach to addressing” the deep issues tying Aboriginal and Torres Strait Islanders to the criminal justice system.
The Indigenous justice framework has five goals, ranging from improving Australian justice systems to deliver justice needs to Aboriginal and Torres Strait Islanders, reducing the over-representation of Aboriginal and Torres Strait Islanders in the justice system, ensuring safe communities, addressing alcohol and drug use and strengthening Indigenous communities.
But while it had merit, the inquiry concluded that it was unlikely to lead to any “co-ordinated or sustained activity in this area”.
This was because there is no requirement for the states and territories to implement any of the strategies contained in it.
While the Gillard government felt the framework was sufficient enough to satisfy the concerns raised by our international watchers, the reality is, without cooperation from the states and territories, it is unlikely to work. So the states and territories play a big part in ensuring that we abide by this first “national” framework.
Still, the question remains, can we trust the states and territories to do this?
The report also provides a handy run down of what the states and territories have been doing to tackle the problem.
To their credit, most of them, save for Tasmania and the Northern Territory, have developed their justice agreements and plans. But the harrowing statistics illustrate their lack of success.
For example, New South Wales relied heavily on its justice targets contained in its Two Ways Together strategy, a policy recently outed by its own Auditor-General as being an abject failure wrought on the community for almost a decade.
On leaving office, the Keneally government had made no headway in curbing Indigenous incarceration rates in its state, which jails the highest number of Aboriginal people in the country. The report concluded that while it was commendable that there were a number of justice plans in place, there was still a long way to go.
It recommended that greater detail be provided in the agreements, and to ensure that there was “appropriate Indigenous involvement in the design and implementation of the agreements”.
It also urged states to ensure the agreements were reviewed and updated regularly, and called on Tasmania and the Northern Territory to put in place their own agreements.
Meanwhile, nationally, the report also takes to task COAG’s six targets to “Close the Gap”, which are made up of seven “building blocks” supporting the reforms.
One building block stands out as an anomaly, the report says – the Safe Communities platform, which aims to reduce violence and crime in Aboriginal communities.
But the Safe Communities building block currently addresses no specific justice targets, and has no National Partnership agreement, which commits all states, territory and federal governments to a common goal.
It is the only building block without a National Partnership agreement.
The report quotes the Kimberley Aboriginal Law and Culture Centre’s Wes Morris: “It is almost the perverse irony that most of these building blocks do have national partnership agreements, but of course one does not. The one that does not is the safe communities building block… it happens to be the one with no national partnership agreement and thus no funding.”
It was followed by the Australian Human Rights Commission’s Emilie Priday, who was clearly frustrated there was no criminal justice targets.
“When we are looking at the over-representation that we have, it seems crazy that we are not including that. It is really important for us to put forward to the committees as a Closing the Gap issue and also as a human rights issue.”
The need for clear criminal justice targets, and a partnership tying governments together was also raised by the Australian Children’s Commissioners and Guardians.
And while the Attorney General’s department told the inquiry it was currently working on justice targets, the report said “there is no guarantee that COAG will adopt the target(s) that (it) develops”.
And currently, there are no further developments on those targets.
COAG’s response is that the Safe Communities Building Block is already being addressed through the Indigenous Justice Framework along with the National Council’s Plan to Reduce Violence against Women and their Children 2009-2021 and the National Framework for Protecting Australia’s Children 2009-2020.
But the two latter frameworks are not Indigenous specific, and the report has already expressed doubt the Indigenous Justice Framework will reach its goals.
“The Committee does not accept the view that investment in education, health, housing and employment initiatives are sufficient to close the gap in Indigenous justice outcomes….”
It stated that while it would have an impact, “The idea that initiatives in these areas are all that are needed to be successful fails to recognise intergenerational patterns in which a significant number of Indigenous people are entangled already within the criminal justice system.”
“…(It) is vital that justice targets are included in the COAG Closing the Gap strategy.”
So while the Gillard government is content to claim the framework will hopefully curb worsening Indigenous incarceration rates to the UN, there is little chance of progress unless more effort is made.
The report’s recommendations range from justice re-investment, to engaging Aboriginal communities in formulating strategies to reduce rates.
Without any action, it’s just yet another report.
More empty words on a page.
The Gillard government tried to paper over the cracks, with Attorney General Robert McClelland recently announcing a $3.2 million boost in funding to for Aboriginal and Torres Strait Islander justice programs.
“The rate of incarceration of Indigenous Australians is unacceptable and it needs to be addressed as a national priority,” Mr McClelland said.
“I firmly believe governments of all persuasions – both state and federal – need to renew and redouble our efforts to turn around these alarming statistics.
“The programs funded today will help these key Indigenous programs meet increased costs and demand for services.”
Australians for Native Title and Reconciliation (ANTaR) President Jacqueline Phillips welcomed the Attorney-General’s funding boost, but said funding must continue.
“This should be seen as a down-payment on more significant and long-term investment to address the causes of offending in communities,” she said.
“Piecemeal program funding will have limited effect.
“Funding is also needed to create diversionary and sentencing options so that detention is genuinely an option of last, not first, resort.
“These measures should be funded within an overarching justice reinvestment framework to divert resources over time from prisons into community programs that keep kids out of detention.”
The Law Council of Australia also backed a number of the recommendations made in the report, ranging from cultural awareness training for police, improving interpreting and legal services for Indigenous youth, alternative sentencing options, and the formation of an Indigenous Law and Justice Advisory Body.
It stated it was a critical issue needing “urgent action”.
“The Commonwealth government needs to revisit the findings of the 1991 Royal Commission into Aboriginal Deaths in Custody. High rates of Indigenous imprisonment correlate directly with higher rates of deaths in police custody or prisons.
“To date, many of the Royal Commissions’ findings have yet to be implemented.
“…The Law Council urges the Commonwealth government to formally respond to the report as soon as possible and to begin constructive dialogue with all state and territory governments on implementing the Committee’s recommendations.”
But 20 years after the Royal Commission into Aboriginal Deaths in Custody, is it likely governments will find a way to work together to solve a national crisis?
Will Labor get its act together, and reverse the devastating track record on black incarceration?
In a submission to the inquiry, the Northern Australian Aboriginal Justice Agency (NAAJA) urged lawmakers to get it right.
“This issue has been raised numerous times in numerous reports over the last 20 years, and the core problems remain unaddressed,” NAAJA stated.
“With each new Inquiry/Report a raft of fresh approaches follow that are like a fresh coat of paint over a rotten wall.
“If this Government is serious about dealing with this issue then it must get serious about rebuilding the wall first.”
And until that happens, we’ll still be talking about it on the radio, and watching it on the television.
Amy McQuire 