Doing Time – Time for Doing, five years on

The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.

DISCLAIMER: Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, NCYLC or the HLRC or the views of King & Wood Mallesons’ clients.

The Doing Time - Time for Doing Report (‘the Report’), released by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in 2011, provided 40 recommendations aimed at reducing the prison rates of young Indigenous people. Since the release of the report, the ratio of Indigenous to non-Indigenous youth imprisonment has continued to improve at an extremely slow rate, with little change from the previous decade. While Indigenous youth were 28 times more likely to be in detention in 2011, in 2013-14 they were still 26 times more likely to be in detention than their non-Indigenous counterparts. This slow rate of improvement is due to a lack of implementation of the 40 recommendations in the Report.

Under the broad themes of justice reinvestment and Indigenous-led solutions, the Report called for a range of reforms, coordinated at a national level. The recommendations were targeted at addressing the inequalities leading to the commission of crimes, sentencing, and outcomes to reduce recidivism. It was recommended that the Federal Government increase funding to support community programs, Indigenous health initiatives, education, workplace participation, and access to justice. The Report also recommended that the Federal Attorney General work with state and territory counterparts to develop state-based solutions for imprisonment rates of young Indigenous people.

Australia faces ongoing criticism from bodies such as the UN Committee on the Rights of the Child and the UN Committee Against Torture for the severe over-representation of Indigenous people, particularly young people, in prisons. With 2016 being the fifth anniversary of the release of the Report, this article discusses the progress that has been made in reducing imprisonment of young Indigenous people, and the continuing major gaps in implementation.

Areas of positive development

There have been some key areas of positive implementation by the Federal Government, mostly involving funding for general Indigenous health and education programs. The most successful programs are those that specifically target children. This article will focus on two examples of successful implementation.

Alice Springs Youth Drug Rehabilitation Services

Recommendation 8 of Doing Time - Time for Doing recommended that the Commonwealth Government, in collaboration with state and territory governments, increase funding for locally based alcohol, anti-smoking and substance abuse programs. This recommendation is based on early intervention on Indigenous health as a key strategy in closing the gap on outcomes in health and reducing the rate of Indigenous youth imprisonment. This recommendation reflects the obligations and standards contained in the UN Convention on the Rights of the Child (‘Convention’), specifically Article 24(1):

States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

On 16 September 2015, the Minister for Indigenous Affairs, Nigel Scullion, announced funding for Alice Springs youth drug rehabilitation services. This funds Bushmob Incorporated, an organisation based in Alice Springs to provide enhanced access to clinical services for young people aged 12-25 years suffering substance abuse. $1.5 million over three years funds the continuing operation of 20 beds at the Bushmob Youth rehabilitation centre. The centre also has a full time doctor and psychiatrist, and runs outdoor activities such as a bush camp, horse program and sport. In addition to the $1.5 million, over $300,000 supports the media room, which promotes literacy and education with clients, by providing access to computers, graphics and music for the youth as they undergo treatment.

This funding is welcomed, particularly as the centre incorporates a multi-disciplinary approach in addressing holistic health, education and sporting arrangements for youth. While this funding does help improve Indigenous youth health and rates of imprisonment, a longer-term investment and a program specifically for Indigenous young people is required in conjunction with a health program for Indigenous youth who enter the criminal justice system (recommendation 15 of the Report). While it is unclear whether this scheme was implemented as a direct result of the Report, it is welcomed. More initiatives such as this need to be supported by federal, state and territory governments to ensure implementation of the Report’s key recommendations.

Remote School Attendance Strategy (RSAS)

As Robert Somerville of the WA Department of Education told the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in January 2011, “With regard to education, there is no doubt that there is an absolute correlation between a child failing at school and a child entering the justice system” (see Committee Hansard, Sydney, 28 January 2011, p. 77). The Report recommends that the Commonwealth Government provide funds and administrative assistance to establish and expand school attendance incentive programs across Indigenous communities. This is consistent with Article 28(1)(e) of the Convention on the Rights of the Child:

States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: …take measures to encourage regular attendance at schools and the reduction of drop-out rates.

In 2014, the RSAS was established by the Federal Government, appointing school attendance officers to ensure all children, particularly in remote communities, attend school every day. RSAS has been implemented in Queensland, Western Australia, South Australia, New South Wales, and the Northern Territory. The strategies in each state and territory are driven by the community to suit local needs. Local teams consist of appointed officers and members of the community who work together to provide practical assistance, such as:

• educating children and families about the importance of regular school attendance;
• providing practical support, such as driving children to school or helping to organise school lunches, uniforms, homework and after-school care; and
• working with the school to monitor attendance and follow up on student absences.

On 25 September 2015, the Minister for Indigenous Affairs, Nigel Scullion, announced that the RSAS will be extended for another three years. The Federal Government has invested $80 million to support the program, which is currently operating in 73 schools across 69 remote Indigenous communities. This program is praised by some, but has also been criticised for its ‘top down’ and punitive approach that does not engage with and support local communities and the underlying reasons why students do not attend school.

Key gaps in implementation

Despite the UN Committee on the Rights of the Child stating in 2012 that Australia’s youth justice system ‘requires substantial reforms for it to conform to international standards’, implementation of the Report continues to progress slowly. The focus of lawmaking continues to be on top-down funding efforts, rather than the community-led initiatives which were at the heart of the Report. Particularly at a state level, legislation continues to be introduced which is specifically contrary to the Report’s recommendations.

Youth Sentencing Framework (Recommendations 27-32)

The Report canvassed a range of problems with Australia’s youth sentencing culture, stemming from the failure of the ‘tough on crime’ approach to reduce recidivism. While it was recommended that the Australian Institute of Criminology study sentencing options for Indigenous youth, and the Attorney-General explore alternative sentencing options, these recommendations have not yet resulted in concrete change.

Across Australia, states and territories continue to impose criminal responsibility on children from 10 years of age, despite consensus from the Committee on the Rights of the Child that 12 is the acceptable minimum age of criminal responsibility.

Specifically in WA, contrary to recommendations from the Committee on the Rights of the Child and the Committee Against Torture, the Western Australian Criminal Code Act 1913 (WA) continues to impose mandatory minimum sentences on some young offenders. Rather than scaling back mandatory sentencing, the range of offences for which a mandatory sentence will be imposed was increased in late 2015, with the passage of the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA).

In order to properly implement the Report, states and territories need to abolish sentencing laws, such as mandatory sentencing, which remove the ability of judges to take into account the particular circumstances of each case.

Funding a national approach to reducing imprisonment (Recommendations 2, 24-6, 39-40)

Longstanding calls for further funding toward Indigenous initiatives have been met with only intermittent support, and where funding has manifested, it has often taken the form of a top-down approach, imposed on local communities, rather than led by them. From 2000-1 to 2010-11, combined real funding per person for the Aboriginal and Torres Strait Islander Legal Services (ATSILS) and Family Violence Prevention Legal Centres (FVPLS) had declined by 20 percent. Following the publication of the Report, and a recommendation of an immediate $200 million annual injection from the Productivity Commission in 2014, these bodies are yet to receive guaranteed long term funding approaching this recommendation.

While funding is crucial for increasing Indigenous access to justice, the real thrust of the Report was to support community-led early intervention to reduce initial contact with the legal system. These initiatives require local expertise, national cooperation, and sustained commitment to real change, rather than just funds. The thrust of these recommendations have been reiterated in recent reports and campaigns, including the Change the Record campaign and Amnesty International’s ‘Community is Everything’ campaign.

Conclusion

Regrettably, the Federal Government has taken limited steps to support local solutions to youth incarceration. Programs which are community-led and created in close collaboration with local members of Indigenous communities appear to be particularly effective. However, despite some instances of success, the majority of recommendations in the Report have not been fully implemented, raising concerns with many of Australia’s obligations under the Conventions on the Rights of the Child.

Amelia Achterstraat and Jordan Gifford-Moore, Summer Clerks, King & Wood Mallesons.