NATIONAL JUSTICE POLICY

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1 NATIONAL JUSTICE POLICY February 2013

2 Acknowledgements The National Congress of Australia s First People s (Congress) acknowledges the valuable contributions made throughout the development of this policy from the following: Congress Members and Delegates Congress Partner Organisations Individuals and organisations who submitted comments during the public consultation period Congress is the national representative body for Aboriginal and Torres Strait Islander Peoples, and it is only with the support and efforts of people like you that Congress is able to develop policies which make a real difference to the lives of Aboriginal and Torres Strait Islander Peoples. National Justice Policy Version 1, February 2013 National Congress of Australia's First Peoples Ltd.

3 Contents Policy Objectives... 1 Policy Scope... 1 Policy Principles... 1 Executive Summary... 3 Overview of Recommendations... 4 Introduction Justice targets Recommendations Funding for Aboriginal Justice NGOs Recommendations Prevention, early intervention and diversion Recommendations Conditions in detention Recommendations A National Partnership Agreement for Safe Communities Recommendations References... 59

4 Policy Objectives The objectives of the National Justice policy are to identify: barriers to justice experienced by Aboriginal and Torres Strait Islander Peoples resolutions to such barriers that are specific, measurable and attainable The National justice policy is not an aspirational document. The Congress National Justice Policy provides a solid platform for Congress to affect positive real life outcomes for our Peoples. Policy Scope Congress acknowledges the experiences and needs of Aboriginal and Torres Strait Islander Peoples within the Australian justice system are highly complex and interrelated. This policy is primarily concerned with criminal justice and related factors. Other justice issues such as intellectual property, native title, civil law and family law will be the subject of separate policies. Policy Principles Congress adopts the following principles to guide its national policy work on justice issues: 1. Justice issues for Aboriginal and Torres Strait Islander Peoples in Australia must be understood within a historical context that has seen the law used as a tool of dispossession, oppression, family dislocation and racial discrimination. 2. Access to justice is a fundamental right under Australia s justice system, underpinned by Australia s commitment and obligations under international human rights law and recognised by Commonwealth, State and Territory Governments in the National Indigenous Law and Justice Framework. 3. The removal of all forms of racial discrimination in laws, policies and practices and the amelioration of past discrimination through substantive equality and positive discrimination is a precondition to achieving justice for Aboriginal and Torres Strait Islander Peoples. 4. Strategies to address inequality in the criminal justice system must address the socio-economic determinants of crime and the factors that can make communities safer, with a strong emphasis on prevention, early intervention and diversionary approaches. 1

5 5. Aboriginal and Torres Strait Islander organisations must be preferred and provided with adequate funding and resources to deliver the services and programs needed to achieve just outcomes, including legal representation for Aboriginal and Torres Strait Islander people as needed, as well as access to appropriate early intervention and prevention programs. 6. Governments must be held accountable for progress, through the development of and monitoring against justice targets around the over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system, in conjunction with a broad range of indicators measuring the determinants of justice affecting Aboriginal and Torres Strait Islander people. 7. Within a sector of limited resources, prevention, early intervention and diversionary strategies must be prioritised. Such strategies are essential to achieving better outcomes for Aboriginal and Torres Strait Islander Peoples and it is within this context, that culture should be understood as a preventative measure. 8. Aboriginal and Torres Strait Islander cultures and traditional lores must be acknowledged and respected in the development and implementation of legislation and policy. Further, Aboriginal and Torres Strait Islander Peoples must be consulted in legislative changes and initiatives which specifically affect them. 9. It is also imperative that people working in the justice sector are sufficiently trained to work in a culturally sensitive way. 10. Governments must also acknowledge the diversity of Aboriginal and Torres Strait Islander Peoples and ensure that national strategies are built on a foundation of equal partnerships between governments and Aboriginal communities, demonstrated at the local level through tailored, community-based solutions, led by local community people. 11. Congress will take an active approach to advocacy on national justice issues, supporting the work of member organisations. 2

6 Executive Summary The National Congress of Australia s First Peoples (Congress) is the national representative body for Aboriginal and Torres Strait Islander Peoples. With input from expert advisors in our Justice Working Group, Members and Delegates, Congress proposes five evidenced based recommendations for national reform of the justice system in response to the experiences of Aboriginal and Torres Strait Islander Peoples who come into contact with the Australian justice system. Aboriginal and Torres Strait Islander adults are incarcerated at 14 times the rate of non- Aboriginal and Torres Strait Islander adults; 1 and Aboriginal and Torres Strait Islander young people are almost 24 times more likely to be in youth detention than non-aboriginal and Torres Strait Islander young people. 2 This over-representation in the criminal justice system is a national disgrace and an international embarrassment, requiring urgent action. Aboriginal and Torres Strait Islander people are also more likely to be the victim of crimes (being 23 times more likely to be hospitalised for assault); are more likely to have their children removed under child protection policies; and face barriers in regards to family and civil law including problems with debt, tenancy, employment, discrimination, stolen wages and victims compensation. For Aboriginal and Torres Strait Islander people who find themselves in protective custody, police custody, youth detention or prison, the conditions of detention also often fail to comply with human rights obligations under international law. Aboriginal and Torres Strait Islander legal services and community led preventative, early intervention, diversionary and rehabilitative programs struggle to keep up with demand and are chronically under-resourced and underfunded. Current policies aimed at overcoming these barriers and closing the over-representation gap fail to recognise the complexity of such issues and the links between justice and other social determinants. The multiple forms of disadvantage faced by Aboriginal and Torres Strait Islander people can be addressed or prevented from escalating further through improved legal assistance and by moving from a tough on crime to a smart on crime solution focused approach to justice. This policy identifies a number of areas in which the Commonwealth Government can address these problems in partnership with State and Territory Governments. Although these recommendations are directly relevant to Aboriginal and Torres Strait Islander Peoples, their implementation will benefit the wider community as well. 1 Australian Bureau of Statistics 2011, p8 2 Australian Institute of Health and Welfare 2012(2) p7. 3

7 Overview of Recommendations The key recommendations of the Congress are: 1. The Commonwealth Government and State and Territory Governments commit to Justice Targets included in a fully-funded Safe Communities National Partnership Agreement as part of the Closing the Gap strategy. This commitment should be incorporated into the National Indigenous Reform Agreement and supported by significant improvements to data collection regarding Aboriginal and Torres Strait Islander people within the justice system. 2. Funding for Aboriginal and Torres Strait Islander Legal Services and Family Violence Prevention Legal Services must be increased, to allow them to respond to the full range of legal needs experienced by Aboriginal and Torres Strait Islander Peoples. This should be supported by a new National Partnership Agreement on Aboriginal and Torres Strait Islander Legal Assistance Services. 3. Strategies for prevention, early intervention and diversion of Aboriginal and Torres Strait Islander people in the criminal justice system must be implemented. This is to be supported by the Safe Communities National Partnership Agreement and include standardised national data collection and pilots of Justice Reinvestment strategies in a number of prioritised communities. 4. Conditions for Aboriginal and Torres Strait Islander people in police custody and prison must be improved. To ensure compliance with human rights obligations, Australia must ratify the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as well as develop the required National Preventative Mechanism. 5. The Safe Communities building block of the Closing the Gap strategy should be addressed through a fully funded Safe Communities National Partnership Agreement that incorporates Justice Targets and strategies for prevention, early intervention and diversion. This NPA must take a broad approach to community safety and must recognise the importance of leadership by Aboriginal and Torres Strait Islander communities and organisations. These recommendations are discussed in more detail in sections 1 to 5. 4

8 Introduction Historical background Many of the problems experienced by Aboriginal and Torres Strait Islander people in justice system can be traced to the origins of the system. The Australian legal system was inherited from the British and forced upon Aboriginal and Torres Strait Islander Peoples. This ignored the sophisticated systems of customary law that existed prior to colonisation, as recognised in the landmark 1986 Australian Law Reform Commission (ALRC) Recognition of Aboriginal Customary Laws. While the ALRC made a number of recommendations about the recognition of Aboriginal and Torres Strait Islander customary law across many areas of legislation and procedure, little has been done to implement these recommendations. Other countries that inherited the British justice system through colonisation including the United States, Canada and New Zealand have experienced similar problems to Australia, including increasing prison populations, unsustainable growth in the cost of prison systems, high rates of recidivism and sustained, multi-generational harm to communities. In reality, the system of justice inherited from the United Kingdom has evolved very little, and very slowly over the past few centuries. Urgent action, and a much faster pace of reform, is now necessary in order to address the serious problems detailed in this policy. This will require the commitment of Commonwealth, State and Territory Governments, and all organisations and individuals involved in the justice system. The Australian Constitution was drafted without Aboriginal and Torres Strait Islander input. It fails to recognise the status of Aboriginal and Torres Strait Islander Peoples as traditional owners and continues to allow the Commonwealth Government to discriminate against Aboriginal and Torres Strait Islander Peoples. A particular complication of the system established by the Constitution is our federated system of government. Congress acknowledges that in this system, while the Commonwealth has responsibility under international law for the human rights of Aboriginal and Torres Strait Islander Peoples, the areas of law that have the greatest impact on Aboriginal and Torres Strait Islander people including most criminal law, child protection law and family violence law are primarily the responsibility of State and Territory Governments. This means that national action on any issue requires the agreement and cooperation of nine separate governments. The Royal Commission into Aboriginal Deaths in Custody In August 1987, the Commonwealth Government established the Royal Commission into Aboriginal Deaths in Custody, in response to unacceptable rates of deaths of Aboriginal and Torres Strait Islander people in prison and police custody. The final report, signed on 15 5

9 April 1991, made 339 recommendations. In framing its findings and recommendations, the Royal Commission addressed a broad range of social determinants affecting Aboriginal and Torres Strait Islander Peoples and the criminal justice system including health, housing, land rights, and education. The commitment to the Royal Commission involved Commonwealth, State and Territory Governments. Each State and Territory issued letters patent authorising the establishment of the Royal Commission. In many ways, this commitment carried through into the response to the recommendations of the Royal Commission. Many jurisdictions established Aboriginal and Torres Strait Islander Justice Agreements, which provided an opportunity for Aboriginal and Torres Strait Islander communities to have a say in government policy and in monitoring the implementation of the recommendations. While Justice Agreements and Aboriginal and Torres Strait Islander justice advisory bodies still exist in some jurisdictions, the commitment to addressing Aboriginal and Torres Strait Islander over-representation in the criminal justice system has been lost. The commitment to one of the core recommendations of the Royal Commission that imprisonment should be used only as a last resort has also been lost. Needless, preventable deaths of Aboriginal and Torres Strait Islander people in custody continue to occur, demonstrating a failure to recognise the heightened duty of care that applies when a person has been deprived of their liberty. This indicates that there are deep cultural problems within the criminal justice system that will not be addressed without strong political leadership. National commitment In recent years there has been no coordinated national commitment, strategy or agreement to address the over-representation of Aboriginal people in the criminal justice system. By a national commitment, Congress means a commitment that binds the Commonwealth as well as State and Territory Governments. While there is a National Indigenous Law and Justice Framework, this imposes no particular obligations on governments and despite the issue remaining an agenda item in numerous government forums, action and progress is non-existent. This defies the fact that there is a significant gap between the level of exposure and nature of interactions of Aboriginal and Torres Strait Islander Peoples with the criminal justice system as compared with non-aboriginal and Torres Strait Islander people. The rate of incarceration of Aboriginal and Torres Strait Islander people is 14 times the rate for non- Aboriginal and Torres Strait Islander people. 3 Of even more concern is that this gap is growing: whereas rates of incarceration for non-aboriginal and Torres Strait Islander people 3 Australian Bureau of Statistics 2011, p8 6

10 are relatively stable, the rate of incarceration of Aboriginal and Torres Strait Islander Peoples is increasing. Over-representation of Aboriginal and Torres Strait Islander Peoples in the justice system, particularly in prisons and as victims of violence, has inter-generational causes and effects. Unless Australian governments make it a priority to reduce over-representation in these areas, it will be difficult to make significant progress to close the gaps in other areas of Aboriginal and Torres Strait Islander disadvantage. The impact of law and order approaches One reason why Aboriginal and Torres Strait Islander Peoples are imprisoned more often than non-aboriginal and Torres Strait Islander people is that they are disproportionately affected by an increasingly rigid approach to offending. Current rates of incarceration reflect the cumulative effect of two decades of criminal justice policies, practices and legislation that have been counter to the recommendations of the Royal Commission, including adverse changes in sentencing law and practice, restrictions on judicial discretion, changes to bail eligibility, changes in administrative practices, changes to parole and post-release surveillance, limited availability of non-custodial sentencing options, and judicial and political perception of a need for tougher penalties. 4 At the most extreme end of the spectrum, these approaches include mandatory sentencing laws such as those that exist in Western Australia and the Northern Territory. One study examined that the substantial rise in the Aboriginal imprisonment rate in New South Wales between 2001 and 2008 noted that there had not been a corresponding rise in the conviction rate for Aboriginal and Torres Strait Islander Peoples over this period. As a result, it concluded that the substantial increase in the number of Indigenous people in prison is mainly due to changes in the criminal justice system s response to offending rather than changes in offending itself. 5 The justice system The unacceptable level of over-representation of Aboriginal and Torres Strait Islander Peoples within the criminal justice system clearly shows that the justice system is failing Aboriginal and Torres Strait Islander Peoples. The need to address over-representation through national targets as part of the criminal justice system is the highest priority recommendation in this policy. This will require reform as well as greater consistency and collaboration between States and Territories in relation to their criminal laws in areas such as fines, bail, sentencing and 4 Cunneen 2011, p11. 5 Fitzgerald, J 2009, p6. 7

11 parole. As Congress is a national organisation, making detailed recommendations in these areas is beyond the scope of this policy. Although criminal law reform is a priority, it is also important to take a holistic approach to justice and recognise the needs of victims as well as the family and civil law needs of Aboriginal and Torres Strait Islander Peoples. One of the most severe family law problems affecting Aboriginal and Torres Strait Islander Peoples is over-representation in the child protection system. This flows through into the out of home care system, as reflected in section 4, which in turn acts as a pathway into the youth justice system for many young people. The family law system is also important in providing protection for women and children from violence and resolving disputes about property settlements and care arrangements for children. Civil law problems experienced by Aboriginal and Torres Strait Islander Peoples include problems with debts, tenancy, employment, discrimination, stolen wages and victims compensation, as detailed in section 3. These types of problems can, if unresolved, escalate and ultimately contribute to the risk of offending. If Aboriginal and Torres Strait Islander organisations are resourced to assist Aboriginal and Torres Strait Islander people with these problems at an early stage, the ability of Aboriginal and Torres Strait Islander people to provide a safe and secure environment for children, and to participate in social and economic life is enhanced. Victims of crime, in particular family violence, have distinct needs. Such needs include but are not limited to the need for protection from future violence, safe and secure housing, freedom from financial effects of violence, safe care arrangements for children and access to victims compensation as well as other support services. In order to reduce over-representation in the criminal justice system and respond to the substantive injustice experienced by Aboriginal and Torres Strait Islander Peoples across other parts of the justice system, the responses of Commonwealth, State and Territory Governments need to be grounded in an understanding of the connections between these types of legal problems for individuals and communities. It is also important to recognise that victims and offenders are often closely related. Many offenders have been victims of crime themselves, or are the children of victims. Many victims have had the experience of a family member being incarcerated. The profiles of disadvantage of offenders and victims are very similar, and responses to overrepresentation and victimisation need to recognise this complexity. Social Determinants 8

12 RCIADIC acknowledged that there are many social drivers that lie outside the direct responsibility of the justice sector which impact on justice outcomes. Cross-sectoral research has consistently affirmed that social determinants, which include a person's social and economic position in society, early life experiences, exposure to stress, educational attainment, employment status, and past exclusion from participation in society, can all influence their social and emotional wellbeing and interaction with society throughout life. The impact of social determinants on justice outcomes are highlighted by examples in recently published studies: There is a link between a failure to detect and treat oral language disorders in early childhood (i.e.: relating to listening and talking skills) and an increased risk of delayed language and literacy skills, which in turn increases the risk of youth incarceration 6. A recent study of Aboriginal and Torres Strait Islander people in Queensland prisons found that 72.8% of men and 86.1% of women had at least one mental health disorder, compared to a prevalence rate in the general community estimated at 20% 7. The study concluded that the over-representation of Aboriginal and Torres Strait Islander people in prison, the high prevalence of mental disorder, and the frequent transitioning to and from prison, would inevitably affect Aboriginal and Torres Strait Islander communities. The key conclusion of the 'social determinants' is that are drivers of justice are inter-related with other factors which lie outside the direct responsibility of the justice sector. This therefore requires a collaborative, whole of government approach to reforming the legal system focused on achieving targets under the Closing the Gap Framework. The International Human Rights Law Framework The human rights issues addressed in this policy are referenced to an international framework of international human rights law. Australia is legally bound to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and has signed, ratified or endorsed a number of United Nations instruments relating to the rights of Aboriginal and Torres Strait Islander Peoples, including: The Declaration on the Rights of Indigenous Peoples; The Universal Declaration of Human Rights; The International Convention on the Elimination and all forms of Racial Discrimination; The Convention on the Elimination of all forms of Discrimination of Women; The Convention Against Torture, and other cruel and degrading treatment or punishment; The Convention the Rights of the Child; and 6 Snow and Powell, Heffernan, et al,

13 The Convention on the Rights of Persons with Disabilities. These instruments impose obligations upon Australia to address justice to Aboriginal and Torres Strait Islander people as a right, and provide an international context for why reform of the justice system is needed. When considered against these benchmarks, it is clear that the legislative protections and institutional framework within Australia for ensuring compliance with international human rights obligations are inadequate. 10

14 1. Justice targets Background The COAG Closing the Gap framework In November 2007, the Council of Australian Governments (COAG) committed to closing the life expectancy gap between Aboriginal and Torres Strait Islander and non-aboriginal and Torres Strait Islander people. In October 2008, COAG adopted six targets to support this commitment, which were to: close the gap in life expectancy within a generation; halve the gap in mortality rates for Aboriginal and Torres Strait Islander children under five within a decade; ensure all Indigenous four years olds in remote communities have access to early childhood education within five years; halve the gap in reading, writing and numeracy achievements for Indigenous children within a decade; halve the gap for Indigenous students in year 12 attainment or equivalent attainment rates by 2020; and halve the gap in employment outcomes between Indigenous and non-indigenous Australians within a decade. In November 2008, COAG endorsed the National Indigenous Reform Agreement (NIRA), which committed all jurisdictions to achieving these targets. The NIRA also identified a number of Building Blocks to support the achievement of the targets (Early Childhood, Schooling, Health, Economic Participation, Healthy Homes, Safe Communities, and Governance and Leadership) and performance indicators relevant to each target. There is no target in relation to the justice system either in relation to rates of incarceration or the experience of victims of crime. Information on the Safe Communities Building Block in the National Indigenous Reform Agreement refers to the need to be safe from violence but to the extent that it recognises the role of the justice system, it focuses on policing and a general reference to access to justice. There are no performance indicators in the Agreement in relation to incarceration or victimisation. Consistent with the Closing the Gap framework, the Steering Committee for the Review of Government Service Provision has developed a series of headline indicators, against which the Productivity Commission compiles data for the annual Overcoming Indigenous Disadvantage reports. These include indicators in relation to family and community violence, adult imprisonment, youth detention, youth diversions and repeat offending, but 11

15 these are simply indicators and there is no national commitment to achieving any change in relation to these indicators. The Standing Committee of Attorneys General (now the Standing Committee on Law and Justice) noted the unacceptable rates of incarceration of Indigenous Australians, including the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Doing Time Time for Doing Report and in July 2011, recommended that COAG consider the adoption of justice specific Indigenous closing the gap targets. 8 Unfortunately, this has not been progressed. As of January 2013, Congress understands that this has been referred to the Working Group on Indigenous Reform. What the data tells us As at June 2011, the national age standardised imprisonment rate for Aboriginal and Torres Strait Islander people was 1,868 per 100,000 adults, some 14 times the rate for non- Aboriginal and Torres Strait Islander people. 9 This gap is increasing: from 2000 to 2010, the non-aboriginal and Torres Strait Islander imprisonment rate increased only marginally, whereas the Aboriginal and Torres Strait Islander imprisonment rate increased by 51.5%. 10 While the increase in the imprisonment rate has been overwhelmingly driven by increased imprisonment of Aboriginal and Torres Strait Islander men, it is important to note that the rate of imprisonment of Aboriginal and Torres Strait Islander women has been growing rapidly. Based on non-age standardised data, the imprisonment rate for Aboriginal and Torres Strait Islander women grew by 58.6% from 2000 to 2010, compared to 35.2% for Aboriginal and Torres Strait Islander men. 11 In addition, the gap in incarceration rates for Aboriginal and Torres Strait Islander and non- Aboriginal and Torres Strait Islander young people is greater than the gap in the adult rates: in 2011, the Aboriginal and Torres Strait Islander youth detention rate was almost 24 times the non-aboriginal and Torres Strait Islander youth detention rate. 12 While the most recent data shows that the rate of over-representation has decreased over the four years to , the gap in incarceration rates is still alarming. Taking a long-term view, the numbers of Aboriginal and Torres Strait Islander young people in detention have been growing faster than the numbers of non-aboriginal and Torres Strait Islander young people. From 2001 to 2009, the number of Aboriginal and Torres Strait 8 SCAG Communique, July Australian Bureau of Statistics 2011, p8. 10 Productivity Commission 2011, p Productivity Commission 2011, p Australian Institute of Health and Welfare 2012(2) p7. 12

16 Islander young people in detention increased by 55.2%, compared to 14.4% for non- Aboriginal and Torres Strait Islander young people. 13 The rate of incarceration of Aboriginal and Torres Strait Islander young people is also growing faster than the rate of incarceration for Aboriginal and Torres Strait Islander adults, which suggests that the rate of growth in adult incarceration is likely to accelerate. This becomes clearer when data on the age profile of the Aboriginal and Torres Strait Islander population is considered. As at the 2006 Census, children aged under 15 years made up 38% of the total Aboriginal and Torres Strait Islander population (compared with 19% in the non-aboriginal and Torres Strait Islander population) and young people aged years represented 19% of the Aboriginal and Torres Strait Islander population (compared with 14%). 14 Early data from the 2011 Census indicates that this has not changed significantly, with 36% of the Aboriginal and Torres Strait Islander population being under the age of Population projections indicate that the age profile of the Aboriginal and Torres Strait Islander population will move closer to the age profile of the non-aboriginal and Torres Strait Islander population over time as life expectancy improves and fertility rates decline. In the medium term, however, population trends in recent decades will see a significant increase in the numbers of Aboriginal and Torres Strait Islander people aged 25-34, which by 2021 is expected to have increased by 60%, compared to The looming impact of this population bubble means that there is an urgent need to prevent young Aboriginal and Torres Strait Islander people who are currently in or about to enter their teens from having the same level of contact with the justice system as older generations. Unless the rate of increase in youth detention can be reduced, rates of incarceration across the Aboriginal and Torres Strait Islander population are likely to continue to increase into the future. Data also reveals enormous differences in the gaps in incarceration rates between States and Territories, which Congress attributes to their differing levels of commitment to working with Aboriginal and Torres Strait Islander Peoples to reduce incarceration. In Victoria, successive governments have committed publicly to implementing the recommendations of the Royal Commission into Aboriginal Deaths in Custody and other measures to reduce Aboriginal incarceration, through a long-term Aboriginal Justice Agreement (now in its third phase), with public reporting on progress. 17 Victoria has one of the lowest rates of Aboriginal and Torres Strait Islander incarceration, at 1,137 per 100,000 Aboriginal and 13 Productivity Commission 2011, p Australian Bureau of Statistics 2010(2) p Australian Bureau of Statistics 2012(1), in section on Age Profile. 16 Based on data presented in ABS 2009, p See < +about+the+victorian+aboriginal+justice+agreement+-+home> (accessed 26 June 2012). 13

17 Torres Strait Islander people in In 2013, Victoria also committed to justice targets in order to reduce the over-representation of Aboriginal people under justice supervision and the proportion of Aboriginal people who return to prison within two years of release. By 2031, these targets aim to close the gap between the rate of Aboriginal and non- Aboriginal people: under youth justice supervision under adult justice supervision who are convicted within two years of their previous conviction This compares to Western Australia, where the lack of a systemic commitment to reducing incarceration has led to a rate almost three times that of Victoria, at 3,343 per 100,000 Aboriginal and Torres Strait Islander people. 18 Western Australia, despite having 12.7% of the Aboriginal and Torres Strait Islander population, 19 has 24.5% of the country s Aboriginal and Torres Strait Islander prisoners. 20 The trends around incarceration rates are deeply disturbing and it is important to note that at any point in time, there are approximately 10,476 Aboriginal and Torres Strait Islander people in prison or youth justice detention. 21 This represents 1.9% of the Aboriginal and Torres Strait Islander population. A focused investment should have the capacity to reduce over-representation. Incarceration is not, however, the only aspect of the justice system in which Aboriginal and Torres Strait Islander people are over-represented. Aboriginal and Torres Strait Islander people are also over-represented as victims of violence. Aboriginal and Torres Strait Islander people are much more likely to report having been a victim of physical or threatened violence in the past 12 months (19.5% of Aboriginal and Torres Strait Islander people compared to 10.8% of non-aboriginal and Torres Strait Islander people, and 19.2% of Aboriginal and Torres Strait Islander women compared to 8.2% of non-aboriginal and Torres Strait Islander women). 22 Aboriginal and Torres Strait Islander people are hospitalised for family violence at 23 times the rate for non-aboriginal and Torres Strait Islander people (4.6 per 1,000 Aboriginal and Torres Strait Islander people compared to 0.2 per 1,000 non-aboriginal and Torres Strait Islander people, and 6.5 per 1,000 Aboriginal and Torres Strait Islander females compared to 0.2 per 1,000 non-aboriginal and Torres Strait Islander females) Productivity Commission 2011, Table 4A Australian Bureau of Statistics 2012(2). 20 Based on figures in Productivity Commission 2011, Table A Based on 7,656 in prison and 2,820 in youth detention see Australian Bureau of Statistics 2011 p 49, Australian Institute of Health and Welfare 2012 p6 and Australian Bureau of Statistics 2012(1). 22 Productivity Commission 2011, p Productivity Commission 2011, p

18 The experience of violence is a risk factor for generational violence, and for Aboriginal women there is a strong correlation between the experience of family violence and incarceration. 24 There is currently no regular and consistent approach to national data collection on rates of family violence. Nationally consistent data on rates of assault for crime victims who report to police is not available Indig et al 2010, p31 & Productivity Commission 2011, p

19 Recommendations 1.1 Justice targets Australia needs nationally agreed targets, to drive coordinated government action to address the over-representation of Aboriginal and Torres Strait Islander people in the justice system. There are three main reasons why this requires urgent national action: a) The gap between Aboriginal and Torres Strait Islander and non-aboriginal and Torres Strait Islander people in relation to incarceration is growing and in the absence of coordinated national action, it is likely to grow further. b) Evidence to date recognises that incarceration has strong, intergenerational effects. c) There are significant differences between States and Territories in relation to incarceration rates and their drivers, including the different jurisprudential approaches to law and order issues, such as mandatory sentencing. Poor performance by a few key States and Territories has the potential to undermine the entire Closing the Gap strategy. In order to drive national action, COAG must adopt specific targets in relation to justice as part of the Closing the Gap strategy, in recognition of the fact that gaps between Aboriginal and Torres Strait Islander people and non-aboriginal and Torres Strait Islander people in other areas cannot be closed without coordinated national progress in relation to justice. 1.2 The focus of targets Any justice target proposed for adoption by the Australian Government could also be incorporated in Australia s National Human Rights Action Plan, which is part of Australia s Human Rights Framework. In identifying appropriate justice targets, it is critical to recognise the multiple forms of disadvantage that are associated with involvement in the criminal justice system as a defendant, victim or witness. Congress recommends that the Australian Government, in agreement with State and Territory governments, adopt the following targets, to be achieved by 2020: Closing the Gap target number seven: To halve the gap in the rates of incarceration for Aboriginal and Torres Strait Islander people. Closing the Gap target number eight: To halve the rate at which Aboriginal and Torres Strait Islander people report having experienced physical or threatened violence with in the past 12 months. 16

20 The Closing the Gap targets should be complemented by targets for each of the key indicators which support achieving the justice targets: To halve the gap in the rates of incarceration for young people, men and women To halve the number of Aboriginal and Torres Strait Islander people who have a drivers licence suspended or cancelled To halve the average level of accumulated fine debt for Aboriginal and Torres Strait Islander people to double the rate at which Aboriginal and Torres Strait Islander people participate in diversionary programs and options within the criminal and youth justice systems (including police warnings and cautions) To halve the number of Aboriginal and Torres Strait Islander people on remand To double the number of Aboriginal and Torres Strait Islander people who receive legal assistance in family and civil law matters. 1.3 Implementation of targets The National Indigenous Reform Agreement should be revised to incorporate the proposed justice targets. As other National Agreements and National Partnership Agreements are revised, they should also be reviewed, so as to incorporate actions and performance indicators that will contribute to the achievement of these targets. In doing so, the Commonwealth must commit additional funds in return for additional investment by State and Territory governments. 1.4 Consistent data collection The Justice Closing the Gap strategies in relation to Aboriginal and Torres Strait Islander justice must be supported by a national framework for collection and dissemination of justice-related data, including collection by an independent agency, based on common definitions. Some key priorities for improved data collection are: A nationally consistent approach to identification of Aboriginal and Torres Strait Islander people across all national justice data collection projects, based on identification by the individual rather than subjective assessment by criminal justice system personnel. Nationally consistent data on the length of time taken to finalise criminal matters in court. Nationally consistent data on rates of assault for crime victims who report to police. 17

21 Nationally consistent data collection in relation to family violence, which is recognised as one of the foundations of the National Plan to Reduce Violence Against Women and Their Children. Nationally consistent evidence on the effectiveness of programs for perpetrators of family violence, to inform the development and delivery of these programs. A nationally consistent approach to measuring the effectiveness of diversionary programs, including warnings, cautions, conferences and treatment programs that seek to address drug, alcohol and mental health issues. National consistent data on the health and housing status of people released from prison and youth detention. A nationally consistent approach to Aboriginal and Torres Strait Islander inmate health data, as described in section 5. To provide a more detailed picture of progress towards these targets, the Steering Committee for the Review of Government Service Provision should be asked to review the headline indicators that form the basis of the annual Overcoming Indigenous Disadvantage Reports, to incorporate a broader range of justice-related indicators. Some additional headline indicators that would help to measure progress across the justice system for Aboriginal and Torres Strait Islander people are: the number of Aboriginal and Torres Strait Islander people engaged in Aboriginal and Torres Strait Islander justice groups, in collaboration with government, at the local level; the numbers of Aboriginal and Torres Strait Islander young people who are subject to both child protection orders and youth justice orders; the number and proportion of sentenced Aboriginal and Torres Strait Islander prisoners whose most serious offence is: o a public order offence; o a traffic or vehicle regulator offence; and o an offence against justice procedures, government security and operations. the gap between the average age of Aboriginal and Torres Strait Islander young people and non-aboriginal and Torres Strait Islander young people in youth detention; the rate of Aboriginal and Torres Strait Islander adults and young people who are granted bail, as compared to non-aboriginal and Torres Strait Islander adults and young people; the rate of reoffending by Aboriginal and Torres Strait Islander young people; and 18

22 a range of qualitative measures on the experiences and perceptions of Aboriginal and Torres Strait Islander people in accessing and utilising legal and justice systems, which will help explain movements in the justice targets. 19

23 2. Funding for Aboriginal Justice NGOs Background The Commonwealth Government funds States and Territories for mainstream legal aid services, provided by legal aid commissions. This funding is provided through the National Partnership Agreement on Legal Assistance Services (the NPA). Commonwealth funding for legal aid commissions through the NPA is $194.8 million in The Commonwealth also directly funds legal assistance services for Aboriginal and Torres Strait Islander people in particular: Aboriginal and Torres Strait Islander Legal Services (ATSILS) ($63.6 million in ); and Family Violence Prevention Legal Services (FVPLS) ($19.83 million in ). The Commonwealth also funds mainstream community legal centres ($34.3 million in ), via State and Territory governments. Issues with current funding arrangements Unmet legal needs Despite the range of legal assistance programs funded by the Commonwealth Government (as well as State and Territory governments and other sources), Congress members, delegates and partner organisations have stated there are serious gaps in funding and service provision for Aboriginal and Torres Strait Islander Peoples. In 2012, the Legal Australia-Wide Survey: Legal Needs In Australia (LAW Survey) found that there is extensive unmet legal need right across Australia. One of the most comprehensive studies of its kind, the LAW Survey also found that Aboriginal and Torres Strait Islander Peoples are among the worst affected groups experiencing unmet legal needs. Research on the legal needs of Aboriginal and Torres Strait Islander people has identified that there are a number of areas of family and civil law, in particular, where Aboriginal and Torres Strait Islander people have high needs that are not met by the current system. High priority issues that have been identified include: family law (in particular child protection issues); housing (in particular tenancy issues); discrimination; employment law; and credit and debt problems. 20

24 The same research found that there is also likely to be substantial need that is poorly recognised, as a result of limited community education, in relation to victim s compensation, stolen wages and wills. 26 Other research identified that Aboriginal and Torres Strait Islander respondents were more than twice as likely as non-aboriginal and Torres Strait Islander respondents to have experienced family law problems, but much less likely to seek assistance. 27 The lack of accessible, culturally appropriate legal assistance services is likely to be a significant reason for this. 28 The sorts of legal issues identified above tend not to occur in isolation. Disadvantaged people often experience clusters of legal problems. Family law problems, for example, are often accompanied by problems in relation to housing, family violence and child safety. 29 For this reason, it is important that the legal services they approach are able to provide an integrated response, which addresses the broad range of problems, rather than referring them to a range of different services. Under current funding agreements, the ATSILS have stated they have very limited capacity to provide assistance in family and civil law matters. While the national FVPLS program aims to address the broad range of legal issues with which clients may need assistance, there are only 14 of these services in Australia, covering only 31 regional and remote locations. The Commonwealth Attorney-General s Department funding guidelines restrict the national FVPLS program from providing services in urban areas, limiting service delivery to selected rural and remote locations based on a flawed interpretation of higher need. This is a major concern with the guidelines, given that 33% of Aboriginal and Torres Strait Islander people now live in capital cities. 30. The policy of limiting the program to rural and remote locations fails to recognise the many barriers that Aboriginal women face with trying to access mainstream services providers, and FVPLS experience numerous cases where women who live in rural and remote locations who experience family violence often relocate to urban areas for safety. Specialist services provide a crucial alternative, and oftentimes the only option, for Aboriginal and Torres Strait Islander women victim/survivors of family violence. While the national FVPLS program does not exclusively serve women, the vast majority of clients assisted are Aboriginal and Torres Strait Islander women and children, many of whom are unable to access ATSILS due to conflicts of interest arising from ATSILS criminal 26 Cunneen & Schwartz 2008, p Coumarelos et al 2006, p See Family Law Council 2012, p Family Law Council 2012, p Australian Bureau of Statistics 2012(1), in section on Capital Cities and Rest of State. 21

25 law practices. Aboriginal and Torres Strait Islander women living in urban areas are therefore at a clear disadvantage. If left unresolved, family and civil law problems can affect a person s safety and ability to participate in education, training and employment. They can also make it difficult for a parent to provide a safe and stable environment for school-aged children. There appears to be an assumption in the current funding arrangements that family and civil law legal needs will be met by mainstream legal assistance service providers in particular, legal aid commissions. While legal aid commissions should be required and expected to provide appropriate services to Aboriginal and Torres Strait Islander people who approach them for assistance, there are a range of problems with assuming that legal aid commissions will be the primary providers of these services: There are a number of regional and remote communities with high Aboriginal and Torres Strait Islander populations that are not serviced by legal aid commissions. Some Aboriginal and Torres Strait Islander people, particularly people in vulnerable situations, will feel safer approaching a service provided by an Aboriginal and Torres Strait Islander organisation than a mainstream service provided by a government agency. The process of applying for legal aid is daunting, often involving many steps. This deters many Aboriginal and Torres Strait Islander people from lodging an application or completing the process. In matters that involve more than one party, including family law matters and some civil law disputes, there are often conflicts of interest that prevent one service provider from assisting more than one party to the dispute. The varying degree to which legal aid commissions see service provision for Aboriginal and Torres Strait Islander people as a core priority. The level of cooperation and respect between legal aid commissions and Aboriginal and Torres Strait Islander legal service providers varies significantly between States and Territories. The reliance on mainstream services is a particular problem in relation to child protection matters, where Aboriginal and Torres Strait Islander families are significantly overrepresented. Some 31% of children and young people in relation to whom court orders were in place in the child protection system in 2011 were Aboriginal or Torres Strait Islander children and young people. 31 There is evidence that Aboriginal and Torres Strait Islander people are reluctant to seek legal assistance in relation to these matters, which may be due 31 Australian Institute of Health and Welfare 2012(1), p28. 22

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