Much of the evidence the committee received during this inquiry has been
reflective, focussing on underlying issues in the provision of legal assistance
services and the factors driving Indigenous incarceration rates. In contrast,
this chapter focusses on examples of the positive programs operating across the
criminal justice system – from pre-incarceration to post-incarceration – which
are either specifically targeted at Indigenous offenders, or have a high rate
of Indigenous participation.
Fines and infringements
Submissions noted the disproportionate impact that incarceration for
non-payment of fines had on Aboriginal and Torres Strait Islanders people. The
UNSW Law Society, particularly referred to the impact on Indigenous women:
Fine defaulting is a substantial cause for the rising rate of
incarceration for Indigenous women. In Western Australia, the number of
Indigenous women in prison for fine defaults escalated by 576 per cent since
2008. Alarmingly, two thirds of women serving a custodial sentence for fine
defaults are Indigenous. The policy operates disproportionately on those most
vulnerable, particularly Indigenous women and only exacerbates poverty and
disadvantage, It furthermore fails to deter fine defaulting or gather fine
The UNSW Law Society referred to the case of Miss Dhu, an Aboriginal woman
who died while in custody after being detained for an unpaid fine.
At the public hearing in Canberra, Mr Nick Parmeter, Executive Policy
Lawyer, Law Council of Australia, noting the 'sometimes tragic outcomes' of
imprisonment for 'a relatively trivial indiscretion', stated that there are
'obvious alternatives to imprisonment for fine defaults', citing NSW's Work and
Development Order (WDO) program.
At the public hearing in Sydney, Ms Monique Hitter, Executive Director, Civil
Law Division, Legal Aid NSW, explained the WDO program:
What the program involves is: if you are vulnerable and
disadvantaged—essentially, if you are on a benefit of any kind—and you have an
unpaid fine, you can work off that unpaid fine by attending counselling or drug
and alcohol treatment or mental health treatment or doing voluntary work and
paying that fine off at $30 an hour[.]
People can do gardening, cut people's hair or do anything.
They can volunteer or receive counselling or treatment and, while they are
doing that, they are working off their fines. In a sense they are doing
something that is going to benefit them as individuals and, at the [same] time,
they are reducing their fine debt.
In its submission, Legal Aid NSW noted:
Approximately twenty-five percent (25%) of all fines and WDO
advice and minor assistance services to individuals were provided to Aboriginal
clients in 2013-2014.
Ms Hitter stated that the program had led to a huge reduction in unpaid
fines, particularly in some Aboriginal communities in remote and regional
While you are on a work and development order, you also get
your licence back immediately, which is cancelled if your fines are underpaid.
Driving without a licence is also a very common way of Aboriginal people being
incarcerated. This program allows people to work off their fines, get their
licence back, get to work, drive their kids to school and reduce the debt. That
has had a huge impact.
Ms Jemima McCaughan, Executive Director, Civil Law Division, Legal Aid
NSW, explained the relative simplicity in setting up a WDO for a client:
[B]ecause the Work and Development Orders program is a
partnership between Legal Aid, State Debt and the Department of Justice we have
a much more functional relationship with State Debt. There is a State Debt
advocacy line. If I am working out in an Aboriginal community, all I need to do
is ring that phone number and I can get those driver sanctions lifted
immediately and get someone on a time-to-pay arrangement immediately. You can
also get stays while you try and organise a Work and Development Order. So you
might be able to say to a person who is having drug and alcohol issues, 'Let's
get you into a treatment program and then you can work off your fine in that
way.['] In the three months that it takes us to do that, there is a stay on any
enforcement proceedings in that process...
[T]he other incentive is that often the clients are getting
benefits and engaging in support services that they did not know existed.
Because people are making the links to those services, they are getting support
services that they would not have otherwise had. That is a huge benefit to them
and to society.
In terms of the impact of the WDO program on incarceration rates, Ms
[In New South Wales] there is no longer any relationship
between unpaid fines and incarceration in that direct way.
On this issue, Ms McCaughan stated:
The escalation into crime in New South Wales for fines is
around things like, if there are unpaid fines, there are then driver sanctions
and then you get arrested for driving whilst unlicensed or disqualified. And
that happens time and time again. Because you have no way of paying for the
fines...that leads to incarceration. So it is still a criminal offence rather
than the fines that lead directly to the incarceration.
Since the establishment of the WDO program $44 million worth of fines
have been waived, of which $9 million has been in Aboriginal communities.
Custody Notification Service
The Custody Notification Service (CNS) is a 24-hour telephone legal
advice service for Aboriginal people taken into custody by the police in NSW
and the ACT.
The Aboriginal Legal Service (NSW/ACT) (ALS) website explains how the service
Under NSW law, Police must contact the ALS whenever they have
taken an Aboriginal person into custody.
The Police phone our CNS, and the Aboriginal person receives
early legal advice from an ALS lawyer, ensuring their fundamental legal rights
are respected and less Aboriginal people are imprisoned.
The ALS lawyer also asks the Aboriginal person: RU OK? Often,
the answer is no. Threats of self-harm or suicide are common. Concerns about
access to medication are common. Notifications of injuries sustained that need
to be examined by a health professional are common.
Our CNS lawyers are trained to carefully respond to these
concerns, including notifying custody Police who partake in appropriate duty of
Our CNS lawyers can also contact the person's family and an
Aboriginal Field Officer, ensuring parental or family concern for that person's
whereabouts and health are minimised.
The CNS was set up in 2000 as a response to the Royal Commission into
Aboriginal Deaths in Custody. Until July 2016 there had not been an Aboriginal
death in a police cell in NSW since the CNS was established. In July 2016, the
CNS was not notified and an Aboriginal woman died in police custody. An
internal police investigation was launched and the matter will be examined by
the NSW coroner.
At the public hearing in Sydney, Mr David Porter, Senior Solicitor,
Redfern Legal Centre, described the CNS as a 'powerful tool', however:
[I]t still faces opposition by some officers because,
concomitant with notifying the ALS that the person is in custody, that person
gets to speak to an ALS solicitor and they get informed of their legal rights,
which are that they do not need to answer any questions, and that sometimes
frustrates the officer involved.
In terms of the cost of the CNS and the volume of calls received, a
media release from ALS states:
The cost to run the CNS is nearly the same as holding two
juveniles in detention for one year, yet the CNS assists over 15,000 Aboriginal
people each year with early legal advice and an RU OK welfare check.
The CNS receives over 300 calls per week at a per unit cost
of $32 per call with ALS lawyers working 24/7 to provide the service, without
attracting penalty rates.
The phone line costs $526,000 per annum to support six
lawyers working around the clock and one administration officer.
In June 2015, the ALS campaigned to 'Save the CNS' as government funding
had not been renewed for the service.
The Acting Chief Executive Officer of ALS, Mr Kane Ellis, stated that an
application for funding through the Indigenous Advancement Strategy had been
rejected and attempts to gain further grant funding had been 'ignored'.
Mr Ellis continued:
[The CNS] gives vulnerable Aboriginal men, women and children
access to an experienced lawyer for timely legal advice which is crucial given
the already shamefully high rates of Aboriginal over-representation in the criminal
On 1 July 2015 it was reported that the Minister for Indigenous Affairs
committed $263,000, of the annual operating budget but the NSW Government was
resisting the call to fund the remainder of the $500,000 budget. The NSW
Attorney-General stated that 'the Commonwealth has historically funded the CNS
and they are sidestepping their responsibility'.
ALS noted that the funding was sufficient for the CNS to operate for a further
On 1 December 2015, the Minister for Indigenous Affairs announced a
further $1.8 million in funding for the CNS, which enables to service to
operate until 30 June 2019.
Expansion to other jurisdictions
In his media release of 1 December 2015, the Minister noted:
All states and territories have arrangements in place to
notify an Aboriginal legal service when an Aboriginal or Torres Strait Islander
person is taken into custody. But in the case of NSW, this is specifically
mandated under its own statute books and as such, it beggars belief the NSW
Government won't fund the CNS.
In June 2015 it was reported that Western Australia would be introducing
a Custody Notification Service.
In February 2016, the Deaths in Custody Watch Committee noted there was
disappointment at the nature of the CNS which was subsequently introduced into
Aboriginal and Torres Strait Islander people held in prisons
or police lock-ups in Western Australia will be able to request
access to a 24-hour hotline that will connect them with the Aboriginal Visitors
Scheme (AVS), a support and counselling service that is primarily staffed by
The government says the expanded scheme will effectively act
as a custody notification service and will reduce the potential for self-harm
or suicide among in custody.
But long-time campaigners in this area, including relatives
of Aboriginal people who have died in custody, said the announced measure was a
'disappointing reductionist version' of the type of service they had been
Mr Porter, Redfern Legal Service, described the NSW model for the CNS, which
is run by one organisation, which has a state-wide catchment as the 'gold
In prison programs
New South Wales
At the public hearing in Sydney, Dr Anne-Marie Martin, Assistant
Commissioner, Offender Management and Policy, Corrective Services New South
Wales informed the committee:
[W]e have a number of services and program staff—around
300—who provide a range of fundamental support to people who are received into
custody. They do not provide any legal advice, but they enable offenders to receive
legal assistance of some kind, in addition to providing a range of services and
programs to assist in adjusting, understanding their order and addressing
Mr Adam Schreiber, Principal Manager, Aboriginal Strategy and Policy
Unit, Corrective Services New South Wales, spoke about the Yetta Dhinnakkal Centre,
in Brewarrina, which teaches offenders about rural skills, and includes a
Mr Schreiber explained the program has been on hold over the last 12 to 18
months due to uncertainty of the centre:
Now we are actually looking at rewriting the program itself
with the involvement of the local community through some of the roles and
positions we have there. We have two Aboriginal-specific positions. One is in
service provision. It looks at the compendium programs and providing a service
around welfare and reintegration back into the community. The other position is
a cultural position. It is engaging with the local community and providing
advice on what we actually provide for the inmates around the program. That is
just about to be rewritten.
Mr Schreiber also spoke about the Kariong Correctional Centre:
[That centre] is predominantly for young adult Aboriginal
offenders with short sentences. It is looking at programs around addressing
their offending behaviour. Obviously there is a cultural side with that.
Dr Martin explained that the corrections service had recently taken over
the Kariong Correctional Centre:
[W]e have put adults into that centre. The priority group under
our former minister...included young adult Aboriginal inmates—that is, 25 years
and under. We have started a community engagement program around that program.
The nature of that program is an intensive program for inmates with sentences
under two years to be there for up to four months of intensive assessment and
education to try to move people. We have a high churn of people taking up
maximum security beds, particularly young Indigenous men—there is a real
cycling in and out. The aim is to try to work intensively with a group and push
them out more into minimum security areas, where they can then start to do more
community-based programs and work. As it stands, we tend to keep them in
locations where that cannot happen.
Dr Martin continued:
If we can engage them in positive lifestyle-type programs as
well as education, and then push them on into other centres where there is more
meaningful work and activities, we hope that will lead to some sort of skill
development that they value and enjoy, and that they engage in ongoing work
post-release and try to reduce their coming back into custody.
Dr Martin also noted that there were funds for an Elder from the
community to regularly come into the centre and for more Indigenous-based
programs to be run at the centre.
Mr Schreiber also referred to a building and construction program, the
That is predominantly Aboriginal—up to 40 Aboriginal
offenders—teaching building and construction. We are now just engaging with
Aboriginal Housing to provide houses to be built through the year so that there
is a constant flow of work to be done. It will teach them everything from
plumbing and electrical right through. They get those skills and then we look
to getting them into employment on release.
In addition, Corrective Services New South Wales run art programs. As
Mr Schreiber noted, these types of programs are not aimed at addressing
We have the Girrawaa program, which is at Bathurst
Correctional Centre. They do production items so that they can actually earn
some money upon release. On top of that they do their own art work and look at
helping them to set themselves up in their own business upon release—having
their own profiles on the internet and selling their own artwork online.
We have the Nurra Warra Umer program, which is very similar
to that but in a maximum security environment in Goulburn. Again, it involves
production items, and they do their own art. That was originally set up because
of an incident we had there back in [about] 2003...It was to ensure that,
because of the environment Goulburn has, the offenders got out of the yard to
do something and gain some skills. They go from there across to the Girrawaa
program, at Bathurst. Also, we are just now setting one up in Broken Hill. It
can be a flow-on when they come through the classification process.
Mr Schreiber also noted the Aboriginal Elders program, the Pinta Kulpi
[W]hich is an elders program around the state, so each centre
can engage with the local community and the local lands council. We have those
elders come in and provide advice. That is where we can engage with them.
We normally bring them in once a week or once every fortnight
through the centre, and through the centre's budget. They bring them in to
provide cultural advice or any specific advice to management as well as
Corrective Services New South Wales also has a number of mentor
positions made up of people from the local community and involved with the
local land council, who provide cultural advice on what can be done to assist
In March 2015, the Wirrpanda Foundation, in partnership with the
Department of Corrective Services and the Youth Justice Board, launched the Moorditj
Ngoorndiak longitudinal mentoring program (MN), which focuses on reducing
recidivism of Indigenous youth in Western Australia (WA). The Wirrpanda
Foundation's submission explained further:
Moorditj Ngoorndiak (MN) is a pilot program aimed at
re-engaging Aboriginal boys aged 12-19 in contact with the youth justice system
with education, employment and community and ultimately reduce recidivism. The
program delivers intensive individual mentoring which is culturally appropriate
for participants and their families:
The program offers a robust approach to mentoring that
connects participants – pre and post release from detention [at the Banksia
Hill Detention Centre (BHDC) in Perth] – and their families to services.
The pre-release phase of MN aims to development strong relationships
between the participants and their Aboriginal role models. The mentors visit
BHDC twice a week to run a fitness session and a cultural learning session. At
the public hearing in Perth, Mr Walter McGuire, Moorditjj Ngoorndiak Program
Mentor, Wirrpanda Foundation, explained that the pre-release phase of the
program was also used to engage with a participant's family:
Whilst they are inside, we talk to them, we identify their
families, we speak with their families and we also try and help the families
with the issues they have—with employment such as [the Vocational Training and
Employment Centre (VTEC)] that is there, and the Deadly Sista Girlz program
that is there for the young ladies in the schools. We have one of our
Aboriginal Nyungar ladies also working in the program. She speaks to the
grandmothers and mothers at home about any issues. We try to help them and give
them advice or bring them to the people who may help and assist.
Mentors also attend each participant's Youth Admission and Review
Meeting (YARM), prior to release from BHDC:
This is an opportunity for all relevant stakeholders to come
together and discuss the young person's time at BHDC and develop a plan for
their release. When we first [began] attending the YARMs, the young person,
their guardian and the [Aboriginal Welfare Officers (AWOs)] were not present.
We believe it is essential that the young person is present for discussions
regarding their progress and future and just as vital a guardian attends as
they will play a key role in helping the young person with their Supervised
Release Order (SRO). Furthermore the Aboriginal staff at BHDC have a wealth of
knowledge about the young people that are being referred to the program, and
offer great insight into their time in BHDC and the issues they face.
The post-release phase of the program is aimed at continuing to build
capacity in the participants, and reduce the likelihood of recidivism.
Regular and consistent engagement with the participants will
allow for mentors and local community services to focus on each participant and
their family holistically by providing Individual Care Plans.
The Wirrpanda Foundation submission emphasised the importance of developing
participants' connection with their culture through the MN program:
Both [pre-release and post-release] phases aim to build proud
Aboriginal and Torres Strait Islander men with good spirit, by helping them
discover the strong spiritual connection to country and culture many Aboriginal
people have. It is important for our young people to practice culture on
country to build the strength in their Aboriginal identity and be blessed with
the 'good spirit' of the land which gives you a healthy body and mind to make
The Wirrpanda Foundation submission described 'cultural camps' as a way
of building cultural identity:
In these cultural camps, local elders of the region will be
engaged to attend and share traditional stories, knowledge of the land and bush
foods. Participants will be encouraged to challenge themselves, take part in
problem solving, co-operate with others in a team environment and connect to
country. This component is included in the MN program due to our stakeholders
and community elders all affirming the importance of connection to culture and
country in building capacity in young Aboriginal people to partake in positive and
healthy life pathways. The camps are an opportunity for personal healing and
nurturing the strong connection to the land Aboriginal people have.
At the public hearing in Perth, Mr Edward Brown, a MN Program Mentor
with the Wirrpanda Foundation, explained the impact of the cultural camps:
The first question you ask another Aboriginal person is,
'Where are you from,' and 'Where are your family from.' Some of these young men
could not answer that for me and my alarm bells started ringing straight away.
It goes back to that cultural identity and building who they are and where
their families come from. It is very important not just with Aboriginal
identity but also for any human being's identity. During my exposure with the
foundation, I have had the opportunity to take a couple of young men on some
cultural camps—to take them fishing and down to the country where I grew up—and
I could see the brightness on one young man's face when he hooked a fish—just
the simple thing of hooking a fish. He shouted and shouted at me for about five
minutes. I said, 'Pull the fish in then. Don't shout at me, pull it in!'
Mr Dale Kickett, MN Program Manager, Wirrpanda Foundation, emphasised
that MN was not just about reducing recidivism:
This pilot program, for us, is not really about how
successful we can be at keeping these boys out. It will be in the end, but it
is more about finding every little issue, problem, with all the people we are
dealing with—not just the boys who are reoffending but the system that puts
them there and their families.
Mr Kickett provided the following example of some of the issues
confronting the Wirrpanda Foundation as it develops the MN program:
We want more to be done on the educational side of things.
Some of these boys, you have got to understand, have been most of their lives
in and out of a detention centre. Some of them start at 10 or 12. We were in
there yesterday looking at footy photos, and there are the same boys in them
every year—the same ones coming back. A lot of those young men's education is
within the confines of the Banksia Hill Detention Centre. Education does not
seem to be a big deal in there. Nobody is pushing it or making it exciting for
them. Some of these young fellows, or young men—16, 17, 18—have severe numeracy
and literacy problems. That is just another thing that we have got to fix up.
Do we go in and try to change the education system in Banksia Hill? I do not
know. Is it going to be too disruptive for us if we do that or highlight other
issues and problems in there, where we could open a can of worms or someone
could prevent us from getting more access?
Mr Kickett pointed out that the challenges continue once offenders return
It makes it doubly hard when the boys' family homes and
structures are not conducive to getting up in the morning, going to school or
going to work. So it is left to us and our small resources to pick the boys up
most times. We have to walk a fine line to do that as well, because we do not
want them to become dependent on us, as they have done with many other
Mr Kickett indicated that the MN program is evolving all the time and it
will continue to evolve:
We had a designed program that looked a hell of a lot
different even after a couple of hours in Banksia Hill. It continues to change
to this point and it will probably change again after we have stopped talking in
here. When we walk out, we will be saying, 'We'll do this and that.' It will be
forever changing. At this stage for us in this area, with some of the
individual issues and problems, drugs and alcohol could take quite a while in
itself to address. And we talk about literacy and numeracy. Some blokes [are]
10 years behind. The issues and problems of one person are not, 'Okay, he needs
to learn how to read and write. Let's fix that next week.' It is just not that
In terms of the length of the pilot program, Mr Kickett stated:
We get funded just under $300,000 to run our program. There
are four of us in that program. We need the best people to help run this
program with just under $300,000, and we have been told it costs about $300,000
or just over to keep one of these boys in Banksia per year. So you have to
understand we are running on a shoestring, and we have got extra funding for
this through moneys coming from elsewhere...
We are going to have quite a few teething problems throughout
this period, and we are trying not to upset other organisations in what we are
doing, because we want to work closely with them all. Our common goal is to
keep these boys out of prison. As we teach our boys through our fellas, our
culture is a culture of free people, not incarcerated people. On the length of
that program, we have a pilot program that is supposed to run over 12 months.
Corrective services have been very supportive in saying, 'Let's not call this a
pilot program; as long as we keep progressing, let's see how we go.' In length,
it will probably be until we run out of money, which we do not have a whole lot
of. When our money runs out, that will probably determine how long we run this
Aboriginal client service officers
Corrective Services New South Wales has Aboriginal client service
officers (ACSOs) who ensure that post-release offenders engage with services
and programs in the community. There are 18 ACSO positions across New South
Mr Jason Hainsworth, Acting Assistant Commissioner, Community Corrections,
Corrective Services New South Wales, described the role of the ACSOs are 'to
work with the local communities engaging with the families [and] elders'.
The committee also heard that it was possible that ACSOs may engage
members from the Aboriginal Elders program, or the local land council, to be involved
in working with offenders post-release.
Mr Jason Hainsworth, Acting Assistant Commissioner, Community
Corrections, Corrective Services New South Wales, referred to other work by
ACSOs developing and supporting programs within the community:
A lot of things do get coordinated on a local level, so it is
not a formal, head office driven process. We do have circumstances where, for
example, I am aware of a program recently being set up for Indigenous males at
a remote community where we were not able to provide the service, so the client
services officer worked with the local community around establishing somebody
that could come in and provide this support program for the offenders in the
local community there. That sort of stuff happens all the time, but it is very
ad hoc—which I think it needs to be—working with the client service officers
and the local community corrections manager and working out what the local need
is at that particular point in time.
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