Punishing disadvantage will only exacerbate over imprisonment

Aboriginal and Torres Strait Islander women are the fastest growing prisoner demographic in Australia. Last month, the Australian Bureau of Statistics showed us that in the past 12 months alone, Aboriginal and Torres Strait Islander women’s imprisonment rates have gone up 18 per cent. While Aboriginal and Torres Strait Islander women comprise just two per cent of the general population, they now make up around one third of the women’s prison population.

We’ve known for a long time that this is a problem. We’ve also known for a long time that Aboriginal and Torres Strait Islander women are more likely to be victims of sexual and physical violence and family violence. They are also less likely to have access to education or employment, are more likely to have their children removed, and are more likely to live in over-crowded housing.

Like imprisonment rates, these problems are largely getting worse. This is unsurprising given there is a cycle of poverty related to imprisonment. By removing women from their families, communities and culture, prison is likely to compound these factors.

Last month the Prime Minister spent time in Yirrkala, a Yolngu community in the North East of the Northern Territory. The Northern Territory locks up more people per capita than any other state or territory: their incarceration rates more closely resemble the United States and are among the highest in the world. Around 85 per cent of the Northern Territory’s adult, and around 95 per cent of the youth prison populations are Aboriginal. Shockingly, the Northern Territory Government recently announced plans to detain young people in the worst parts of Berrimah Prison – a prison built around 30 years ago; considered unsuitable for adults; and deemed only fit for a bulldozer by the Northern Territory Corrections Commissioner. During his time on community, the Prime Minister no doubt heard about the detriment caused to community and culture by high imprisonment rates and poor prison facilities.

Likewise, last month the United Nations Human Rights Council in Geneva – the world’s peak human rights forum – heard about Australia’s appalling record when it comes to the over-imprisonment of Aboriginal and Torres Strait Islander peoples. Indeed, the UN and its member states have condemned Australia before, in no uncertain terms, for the poor rights protections afforded to Aboriginal and Torres Strait Islander peoples.

Clearly, Australia’s current system isn’t working and hasn’t done so for a long time.

Despite this, the Federal Government has recently announced significant funding cuts to the Aboriginal Legal Services, and to the Aboriginal Family Violence Prevention Legal Services. The former is the only nationwide culturally specific legal service providing criminal, civil and family law representation, and legal education services; and the latter is the only nationwide culturally and gender specific legal service providing family law and family violence related legal assistance, in addition to community legal education. Both play different yet critically important roles in ensuring Aboriginal and Torres Strait Islander people have equal access to justice.

Funding cuts will mean less services for the most marginalised of communities; less time with the most vulnerable of people; and less opportunities to address the underlying reasons many Aboriginal and Torres Strait Islander peoples get caught up in the criminal justice system in the first place.

While these services alone are not enough to address over-imprisonment, they are a critical component of the solution. Importantly, the philosophy upon which they are based: self-determination; Aboriginal community ownership and inclusion in service provision; strong community support; and high levels of cultural competence, should inform all other responses to the social crisis of over-imprisonment. In other words, we should be building the capacity of culturally specific services, not dismantling them.

Equally, just as the reasons for growing imprisonment rates are complex, so too are the solutions. While it would be misguided to suggest that there is a silver bullet, we do know that some things work. Koori Courts in Victoria, for example, have had numerous positive evaluations, whilst specialist, therapeutic courts like drug courts have worked in many jurisdictions across Australia.

Using restorative justice conferencing – a mediated, structured conference between the victim and the offender – has proven so effective in New Zealand, that it is due to be introduced as an option in most courts across the country. Similarly, in the United States, justice reinvestment – which involves channeling funds from prisons to community based services aimed at addressing the underlying causes of offending – has a proven track record at significantly reducing imprisonment rates in notoriously punitive states such as Texas.

Although none of these solutions can be applied to Aboriginal and Torres Strait Islander communities in a cookie-cutter fashion, and while all will require substantial community consultation and buy-in to ensure cultural compatibility, they do provide a strong foundation from which over-imprisonment and the associated social issues can begin to be addressed. Indeed, the evidence suggests that such tools will work to both keep communities safe and reduce imprisonment rates – numerous Government reports have even said as much.

So given we know what works, and given there is international pressure and growing Australian public concern for respecting the rights of Aboriginal and Torres Strait Islander peoples, what will it take for this imprisonment trajectory to change course?

Shane Duffy, the Chair of the National Aboriginal and Torres Strait Islander Legal Services, says that all Australian governments must seize the opportunity to provide the necessary leadership that it will take to address the complex issues at play. In developing effective responses Governments must demonstrate respect for Aboriginal and Torres Strait Islander communities and organisations, and proper commitment to investment in early intervention strategies that tackle the root causes of peoples’ contact with the criminal justice system.

In short, we need a significant policy shift within all Australian governments that looks to stop imprisoning, and to start addressing, disadvantage.

Ruth Barson is a Senior Lawyer at the Human Rights Law Centre. She’s on twitter @RuthHRLC