Lowered Incarceration rates 

Since both the Intervention in 2007 and the Close the Gap campaign in in 2008, not only has there been no improvement in relation to incarceration rates for Indigenous Australians, the rate of Indigenous Australians being incarcerated has continually risen. There is currently no target concerning Indigenous incarceration rates.  Failure to make incarceration rates a Closing the Gap target has been controversial. In 2015, the Closing the Gap Steering Committee proposed that lowering imprisonment rates should be a Closing the Gap target.  The Castan Centre supports this view.

Significant reports have were released in 2017-2018 with respect to issues of Indigenous incarceration. Notable amongst these were the Report on the Royal Commission into the Protection and Detention of Children (RCIPDC) tabled in November 2017, and the 2018 report Pathways to Justice - Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander people.

Indigenous imprisonment is at its highest point for a decade and there is an increasing and inordinate number of Indigenous Australians being incarcerated. This has been recognised as the most significant social justice and public policy issue for the Australian criminal justice systems.

Federal overview

As of 30 June 2019, an average daily number of 12,232 prisoners identified as being Indigenous, representing 28% of the total adult prison population, representing a 4% increase in incarcerated Indigenous males, and a decrease of 5% for Indigenous females since 2018. This is in spite of Indigenous people only making up 3.3% of the total population in Australia. By 2020, the Aboriginal and Torres Strait Islanders prison population is expected to increase to 50%. The rate for Indigenous Imprisonment is also 13 times the rate for non-indigenous Australians and this has increased by 39% since 2007. Incarceration rates for youth are even  higher, with Indigenous Australians making up 53% of all youth in detention.

Northern Territory overview

In the Northern Territory, Indigenous Australians make up 84%, of the prisoner population, which is the highest proportion of any state or territory. Further, the RCDPC’s 2017 report found that Indigenous youth make up 94% of the juvenile detention population. Even prior to the Intervention, the Northern Territory had the highest incarceration rate in Australia. During the first five years of the Intervention however, there was a 41% increase in incarceration rates– this figure includes both Indigenous and non-Indigenous prisoners.

In June 2018, the juvenile detainee population in the Northern Territory was 100% Aboriginal. According to the AIHW (2017), Juvenile Indigenous Australian offenders aged between 10-17 years are 24 times more likely to be in youth detention than non-Indigenous offenders of the same age, which is a significant increase from 2015, and highlights the disproportionate impact our justice system has on Australian youth.

Measures taken

In the first stages of the Intervention in 2007, 18 new police stations were built in the identified Intervention communities (remote Indigenous communities). The Australian Crime Commission (ACC) was granted greater powers for investigations into child abuse in Indigenous communities, removing the right of silence for respondents and the right to freely disclose proceedings. In those early stages the increase in incarceration was largely the result of greater police presence and powers.

The issue of incarceration rates initially gained traction with the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) that began in 1987 with the final reports submitted in 1991, and has gained momentum more recently with the 2017 RCIPDC.

In October 2018, the Federal Government released an independent report carried out by Deloitte looking into the implementation of recommendations from the RCIADIC. The review found that 78% of recommendations have been implemented, 16% were partially implemented and 6% were not implemented. However, the report only looked at what actions were taken to respond to the recommendations, not their effectiveness or appropriateness.

The Universal Periodic Review (UPR) also echoed many of the RCIADIC recommendations. Poor  relations  with police,  alcohol  and substance  abuse,  deficient education,   unemployment, inadequate housing and entrenched poverty are factors that are currently identified as contributing to  the severely disproportionate incarceration rates of Indigenous Australians by the Royal Commission in their final report. Despite this, the most recent Royal Commission into the Protection and Detention of Children, as well as the 2018 ALRC report into incarceration rates, highlight that the Northern Territory and Australia as a whole still have a long way to go in addressing this issue.

Significantly, in 2017, the Northern Territory Government tabled the final report from the Royal Commission into the Protection and Detention of Children in the Northern Territory, which looked into treatment of children in detention, and the effectiveness of the welfare system. The findings of this report indicated that several Youth Justice Centres, including the controversial Don Dale youth detention centre, were not fit for purpose and should be closed. The Commission found evidence of verbal and physical abuse, deprivation of basic human needs, and the use of bribery and humiliation to control children, were common within the detention centres. The Commission also reported that children were being isolated in contravention of the Youth Justice Act (NT) and found that the impacts of this included long-lasting psychological damage. The report also found that the second most frequent sentencing option used in the Northern Territory was incarceration, despite the Royal Commission's recommendation that sentencing be used as a last resort.

Recommendation 10.2 from the Report urged that Don Dale detention centre be closed by February 2018. At time of writing this has not eventuated. However, the Northern Territory Government has committed to replacing the Don Dale and Alice Springs Youth Detention Centre. They have also invested $10.48 million for ‘fix and make safe’ works which have been completed at the Don Dale and Alice Springs Youth Detention Centres. The Northern Territory Government reported in the ‘Territory Families Yearly Report’ that an ‘extensive reform of youth detention’ has been implemented in response to the Commission. The reform includes improve training for Youth Justice Officers, the introduction of a Trauma Informed and Strength Based approach, and Restorative Practice Training with the aim to achieve a ‘better quality of care and outcomes for young people in detention.’

Despite progress made in implementing recommended reforms, in 2017-18, there was an increase in the daily average percentage of Indigenous youth in detention. Whilst there was a reduction in the average number of young people in detention overall, Indigenous youth are still disproportionately involved in the Youth Justice system. In November 2018, more than one year after the release of the Commission report there were reports of riots, fires and violent incidents in Don Dale, demonstrating that incarceration remains a massive issue in the Northern Territory.

Criminal Justice as a Closing the Gap target

Closing the Gap between incarceration rates of Indigenous and non-Indigenous Australians is not one of the specific targets for the Closing the Gap agreement. Recommendation 1.8 of the Social Justice Report in 2012 strongly urged that the COAG Closing the Gap agreement include  incarceration rates under criminal justice targets to ensure renewed commitment to implementation of the RCIADIC recommendations and an overall coordinated and holistic response to the issue. The 2018 ALRC Report noted that although there has been bipartisan support to make criminal justice a Closing the Gap target, no change had been made as of 2018.

The Close the Gap campaign Steering Committee also proposes that urgent, coordinated action from government to address overrepresentation in incarceration rates be included as one of the nationally agreed targets. This is particularly pressing given the prevalence of mental health conditions, substance abuse problems and general health-related impacts in prisons. Incarceration can then severely undermine employment prospects leading to financial and emotional stress on  the person as well as their families. The Government has argued that this may draw attention away from original targets set, and that incarceration is primarily an issue for States and Territories, making it less relevant for the Commonwealth to include in their targets.

In December 2014, a new s 133B was introduced to the Northern Territory Police Administration Act providing for ‘paperless arrest’. This provision significantly broadened the  police power of arrest.  There was no requirement to bring the person before a court as soon as practicable, or that the period of detention be reasonable for questioning the person in relation to a relevant offence. These  provisions have attracted widespread criticism for their likely disproportionate impact on Indigenous people, and were subject to a High Court challenge in 2015.

In February 2015, the chair of the Indigenous Advisory Council, Warren Mundine, stated that he did not believe reducing levels of indigenous incarceration should become a formal Close the Gap target. Labor promised the new target during the election campaign and the Coalition offered bipartisan support but has since been silent on the issue. Indigenous Affairs Minister Nigel Scullion has previously rejected the idea of a criminal justice target, yet then Prime Minister Malcolm Turnbull has said that it would be considered in a current review of the Closing the Gap targets.

The Campaign Steering Committee proposes that a target to reduce incarceration rates would encompass mental health and drug and alcohol services and other reinvestment into services that address underlying causes of crime as measures for implementation.

Incarceration rates are mentioned towards the end of the 2019 CTG Report.  At p. 162, a draft COAG target is noted as being to reduce the rate of Aboriginal and Torres Strait Islander people in detention by 11-19%, and adults held in incarceration by at least 5% by 2028.  This is said to be ‘State-led’ (ie not an area of Commonwealth responsibility).  The COAG targets are the result of a Special Gathering Statement to COAG in February 2018, recommending the priority areas for the next phase of Close the Gap (CTG 2019, p. 157).

The Change the Record Coalition’s ‘Blueprint for Change’ recommended that future targets for Closing the Gap should include closing the gap in rates of imprisonment by 2040; and cutting the disproportionate rates of violence against Aboriginal and Torres Strait Islander peoples to at least close the gap by 2040.  The Castan Centre supports this view.

Results

As the RCIPDC and the ALRC 2018 reports are relatively recent, the impact of their recommendations are largely yet to be seen. However, the Northern Territory Government has established the Safe Thriving and Connected: Generational Change for Children and Families Plan in April 2018, which was in response to the Royal Commission’s aim  to create safer communities within the Northern Territory. In November 2018, the Government released the First Progress report on the Safe, Thriving, and Connected Plan, which outlines what progress has been made since the initial report. The report highlighted that of 227 recommendations made in the Royal Commission, 33 are completed, 169 are under way and 16 are yet to be implemented. However,  one year on from the Royal Commission, the Human Rights Law Centre criticised the ‘broken’ youth justice system in the Northern Territory, and urged the Northern Territory to take more action. They argued that ‘punishment and confinement will not achieve the change we want’, suggesting that there is still a long way to go to repair our damaged incarceration system.

Another significant issue facing the Northern Territory Government is the high rates of recidivism. This was discussed in the ALRC report into Indigenous Incarceration, which was released in December 2017. The ALRC reported that 76% of prisoners have been in prison before, and recommended the redirection of resources into the local communities. The Department of Territory Families indicated that $4.95 million in funding is being provided to 11 agencies in the Northern Territory to improve diversion services in attempt to reduce recidivism. However, no clear data has been obtained to assess the effectiveness of this strategy at this time.