Australia: Lionel Murphy Memorial Lecture 2015 - Vigilance against Injustice in the Justice System - Part 2

This article is part of a series: Click Lionel Murphy Memorial Lecture 2015 - Vigilance against Injustice in the Justice System - Part 1 for the previous article.

It is this kind of evidence that motivated the Federal Government to trial what are known as 'community constables' in the Northern Territory. We have established eight sworn community engagement officers to work in remote locations such as Maningrida and Wadeye in the Top End and Ali Curung and Papunya in the south.

Their role is to work in communities to assess the source of crime, and, when it arises from a particular individual or family, to link with other services to address the broader issues that are at the heart of that family's dysfunction.

These officers will develop links between police and other services in communities such as schools and health providers to ensure the services work together with the community to improve community safety.

The eight officers commenced working in communities in early July 2011 — so it's very early days. But the initial feedback that I am receiving about the officers' work is very encouraging.

For example, one officer in Papunya has been involved in what is referred to as the 'Walking School Bus'. The local school attendance officer walks the streets beating a drum and stops at houses to collect students. At those houses where the students don't show, the community constable gives them some encouragement. I'm told that this has seen an increase in daily school attendance from about 15–20 to approximately 70 children.

A recent program by drug and alcohol councillors in Ali Curung asked a number of youths to list people who they felt comfortable about talking to if the youths were put in a situation they did not feel comfortable with. I'm told that every youth nominated the local community constable.

While these are very initial signs, I am optimistic that the community constables could have a real impact in these communities. I have met the constables, they are fine police officers and incredibly decent people — they have a real prospect of turning these communities around.

Standing Committee of Attorneys-General: Justice target

But the reality is that Justice Ministers cannot address these broader social issues through their portfolios alone. At the last meeting of the Standing Committee of Attorneys-General (SCAG), 3 my state and territory colleagues and I discussed the unacceptable rates of Indigenous incarceration, and I can report that there is a lot of good will to turn these figures around.

At that meeting, Attorneys-General and Justice Ministers resolved to 'significantly reduce the gap in Indigenous offending and victimisation' (Standing Committee of Attorneys-General 2011:3). In recognition of the need for governments to address these broader social issues as part of the solution, Attorneys-General agreed to refer the possible adoption of justice-specific targets to COAG (Standing Committee of Attorneys-General 2011:3).

But while Attorneys-General and Justice Ministers can have only a limited impact on these broader issues of social disadvantage, what we can do is address specific matters relating to the justice system.

The Doing Time report made a great number of valuable recommendations and it noted that we would get some big impacts in terms of reducing Indigenous incarceration rates if we focused on a few key areas, which I'll briefly mention — the remand population; addressing reoffending; and addressing the rate of incarceration for trivial offences, such as fine defaults and traffic offences.

Remand population

The Doing Time report notes that about half of those Indigenous young people in detention on an average day were on remand (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (2011:219[7.101]).

One of the biggest growth rates in relation to detention for Indigenous juveniles is in remand. These are not children who have actually been convicted of anything but, because they are unable to meet bail conditions, often because they do not have functional homes to go to, they either breach their bail, or do not get bail in the first place. (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011:222[7.109])

Evidence to the Committee also noted that 70 per cent of juveniles in detention are remanded for bail breaches — usually of a minor or technical nature (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011:223[7.114]).

The Doing Time report identified the lack of appropriate accommodation available to young offenders whilst they are awaiting sentencing as the single biggest factor for them being unable to comply with bail conditions (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011:222[7.110]). Magistrates are actually locking Indigenous young people up because those young people don't have any other suitable accommodation. Jail is seen as the only safe option.

So there is a clear need for appropriate accommodation options for Indigenous youth who are granted bail — accommodation that is safe and includes access to services that address their needs.

The Commonwealth has started this process by talking to the Aboriginal Hostels about how their services might meet the needs of Indigenous youth. But this is undoubtedly a big task and one which Commonwealth, State and Territory governments will need to work together to meet.

Addressing reoffending

Another area where the Doing Time report noted that significant gains could be made is by addressing the very high rates of reoffending amongst Indigenous prisoners.

A Queensland study showed that almost 90 per cent of Indigenous youth who complete their first sentence are subsequently arrested. Data from Western Australia shows that recidivism rates for Indigenous juveniles was 8 in 10 for males, and 6.5 in 10 for females (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011:249[7.223]).

The Doing Time report references Dr Don Weatherburn from the NSW Bureau of Crime Statistics and Research who said:

One of the reasons the Aboriginal imprisonment rates is so high is not so much the differential in the rate of arrival for the first time as the huge differential in the rate they come back. ... tiny changes in the rate of return to prison make big differences in the number of people in prison. So, if you are looking for a short to medium term strategy for reducing Aboriginal imprisonment, there could be no better place to start than rehabilitation strategies for reducing the proportion of Aboriginal people who, after release from prison, come back to prison. (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011:247–8[7.215])

And reducing reoffending will necessarily reduce high rates of victimisation. We see too many cases of individuals being imprisoned for violence, only to repeat the violence once their sentence is completed and they return to the community. We absolutely must look at time spent in prison as an opportunity to break this cycle of reoffending and victimisation.

To do this, we will need to increase our focus on providing rehabilitation through in-custody programs — for example, to treat drug and alcohol addiction and provide education and training. There must also be a focus on providing post-release support, such as greater access to accommodation, ongoing drug and alcohol services, and transitions to employment.

To make this change, significant political will and courage is required. The challenge is to link investments in rehabilitation with improvements in public safety. It needs to be clearly articulated that rehabilitation is not a soft-on-crime approach, but a significant step in breaking the cycle of violence and victimisation experienced by too many Indigenous people in this country. To make the argument that the correctional system is supposed to correct and not just punish.

Incarceration for minor offences

We must also make sure that incarceration is being used appropriately and not for minor offences — for example, unlicensed driving and fine defaults. The Australian has reported that in a remote prison in WA, where more than 90 per cent of the inmates are Indigenous, 60 per cent of those inmates are remanded for unlicensed driving (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011:231[7.148]).

In regional and remote communities, where there is very limited public transport available, Indigenous people are more likely to drive without licences. The Committee heard evidence that it is almost normal for Indigenous people to accept that driving illegally is a part of life — something they have to do.

And what is a relatively minor offence of driving unlicensed can snowball into a much bigger problem — it can lead to the imposition of fines that go unpaid, which in turn could lead to custodial sentence for fine default.

The excessive use of fines was also reported to impact on the high rates of incarceration — even minor fines may be defaulted due to the lack of a fixed address, low levels of literacy resulting in being unable to read the penalty notice, or a simple inability to pay because of financial circumstances.

High cost of incarceration

But the reality is that the mindless incarceration of people is an incredibly expensive way to deal with minor offences.

The real net operating cost per prisoner per day was A$207 in 2009–10 (Steering Committee for the Review of Government Service Provision, Parliament of Australia 2011b:8.24). That equates to nearly A$80,000 per prisoner per year. Expenditure on prisons and periodic detention centres totalled $2.9 billion nationally in 2009–10 (Steering Committee for the Review of Government Service Provision, Parliament of Australia 2011b:8.3).

If you accept that in many instances we are taking some communities over the tipping point through extreme rates of incarceration, the question must be asked — from the position of fiscal responsibility, let alone social responsibility — whether this huge expenditure could be better directed to address the causes of crime and make our communities safer.

This realisation has caused a meeting of the minds between the Left and the Right in relation to the criminal justice system. We are beginning to understand that the traditional political dichotomy that you are either 'tough on crime' or 'soft on crime' serves us poorly.

And there is an increased willingness to look at new approaches that show promise of achieving our broader objectives of reducing both crime and victimisation, and creating safer communities.

Justice reinvestment

One such approach is justice reinvestment. It involves funding programs and services that address the underlying causes of crime in these communities, ultimately reducing the expenditure on incarceration.

The rationale for such an approach is that a large proportion of offenders come from a small number of disadvantaged communities and, even, households. The theory is that diverting more energy and funding to these communities and vulnerable people to address the underlying causes of crime will produce better results for the money invested.

There are very promising results coming out of the United States and the United Kingdom that show the potential of such an approach to have a real impact on criminal behaviour in communities, by getting to the source of the problem. For example, in Texas, the Government invested US$241 into local drug and alcohol treatment programs and improved probation and parole services. There was US$210.5 million saved in the 2008–09 financial year from the prison budget, and the Texas prison population has stopped growing for the first time in decades (Aboriginal and Torres Strait Islander Social Justice Commissioner 2009: 19[Case Study 2.1]).

Evaluation of Indigenous programs

While I acknowledge that law enforcement is a matter for the States and Territories, at the Federal Government level we can have a role in influencing policy direction.

So, in an endeavour to shift policy towards a justice reinvestment approach, the Attorney-General's Department has committed A$2 million to conduct an evaluation of successful programs that already exist — be they programs to divert minor offenders away from prison, or programs to successfully rehabilitate those already in the system to prevent reoffending.

I expect to see the first interim report of these evaluations by the end of 2011 and the final report by the end of 2012. The results of this evaluation will be important to ensure that, in future, governments commit funding to programs that are going to succeed in reducing offending and recidivism.

However, we do already know about some programs that are achieving results, and I'd like to touch on just a few to emphasise that it's not all doom and gloom — that there is some really good work being done.

Programs that are already achieving results

The Aboriginal Youth Justice Throughcare Service operating in Perth provides one-on-one support to mentor Aboriginal offenders aged 12 to 18 years who are exiting detention. Individual case plans are developed for each young person that encompass education and training, work experience, employment, financial support and accommodation. Since it commenced in July 2010, the program has assisted 17 young people at high risk of recidivism, with 11 not reoffending.

The Marist Youth Care Darumu Program for Indigenous Youth supports young people detained or in contact with police in Western Sydney. The program employs Indigenous caseworkers and has worked closely with Indigenous consultants to achieve cultural competence. Between July and December 2010, 18 Indigenous young people were provided with support with 16 not reoffending.

Senator Mark Arbib also recently announced funding from the Indigenous Employment Program for a project in the Junee Correctional Centre. The Project will provide transitional services for Indigenous inmates transferring back to community, including job training, mentoring, work experience and links to appropriate support services. This is recognising that one of the best ways to stop reoffending is to ensure inmates who are released have access to employment.

And we are seeing good initial results from a trial of multi-systemic therapy in NSW — an intensive family and community-based treatment program for chronic and violent juvenile offenders, which focuses on their homes and families, schools and teachers, neighbourhoods and friends. Therapists are available 24 hours a day, seven days a week and meetings take place in the young person's home. As of May 2010, 87 families had entered the program, with 90 per cent successfully completing it. Preliminary findings show substantial decreases in rates of offending by juveniles (West 2010).

I think the crucial thing to ensure the success of these programs is that they are developed in partnership with the local communities themselves. Commenting, for example, on the value of Circle Sentencing an Aboriginal lawyer Gail Wallace has reflected:

Circle sentencing allows communities to reclaim some control over their own social problems and establish the mechanisms necessary to solving those problems. It is assisting beyond simply reducing the rate of reoffending; it is educating the whole community about crime. Circle sentencing is teaching us that crime is destroying our families and communities, mainly because it is taking mothers, fathers and our kids away. (Wallace 2010:16)


In Neal v The Queen, Justice Murphy noted that 'Aboriginal sense of grievance has developed over the two hundred years of white settlement in Australia' (at [16]).

Our challenge in considering Indigenous over-representation in the justice system is to likewise set it in its context. To understand the part that disadvantage plays in Indigenous people ending up in prison, but equally the way the number of Indigenous people in our jails contributes to that disadvantage.

In understanding the complex web of problems that have come from the history of Australia since colonial settlement, we can understand there is no one solution. Instead, we need to work on many fronts to address the injustices that still exist.

To date, not enough focus or action has been taken in addressing Indigenous incarceration. This needs to change. We need to address the injustices still in the justice system.

All Australian governments must recognise that Indigenous incarceration is both a symptom and a cause of disadvantage, and commit to making changes that respond accordingly.

There is undoubtedly a strong desire and a lot of good will to address this injustice — but we need to work together, closely with the Indigenous community, and redouble our efforts to get on with constructive programs that make a real difference.


1 I would like to acknowledge the valuable assistance that I have received from Katherine Post in the preparation of this speech and her work more generally in seeking improved justice outcomes for Indigenous Australians.

2 The 2011 Commonwealth Law Ministers Meeting was held in Sydney ,NSWon 11–14 July 2011.

3 The final SCAG meeting was held in Adelaide, South Australia on 21–22 July 2011. On 17 September 2011, the SCAG transitioned to the Standing Council on Law and Justice (SCLJ). The inaugural meeting of SCLJ was held on 18 November 2011 in Launceston, Tasmania.

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