Committee view and recommendations
The work of this committee and the evidence it has received has been
preceded by many other inquiries. The committee acknowledges what one witness
described as 'Aboriginal justice inquiry fatigue'.
However, in the committee's view, these inquiries do serve an important
purpose. While there is, naturally, a focus on the lack of resources for legal
services for Aboriginal and Torres Strait Islander people and the increasing
incarceration rate, the committee has also heard evidence of programs helping
to prevent contact with the criminal justice system, and efforts to divert and
rehabilitate offenders from prison. There is certainly more work to do, but the
committee believes that there is also positive work being done.
Adequacy of resources for legal assistance services
Evidence to the committee reiterates what has been found in previous
inquiries: the funding for legal assistance services is inadequate. This means
not only is more funding needed for the Indigenous-specific services of Indigenous
legal service providers and the Family Violence Prevention Legal Services, but
also for Legal Aid and Community Legal Centres which also offer valuable
assistance to Aboriginal and Torres Strait Islander people.
The current breadth and depth of unmet legal needs for Aboriginal and
Torres Strait Islander people is completely unsatisfactory. As the committee
heard, in large areas of Australia, Aboriginal and Torres Strait Islander
people have no access to any legal assistance for civil and family law matters.
The result is that simple legal matters 'remain unresolved until they escalate
and multiply....legal problems can balloon into more significant issues...and
ultimately to criminal behaviour and imprisonment'.
The broad issue of unmet legal needs, not specific to Indigenous
Australians, was recognised by the Productivity Commission in 2014 and it
recommended additional funding to address pressing gaps in services.
The committee notes that this specific recommendation was not addressed in the
government response. The committee agrees with the rationale expressed by the
PC and believes it is particularly applicable to Indigenous Australians, that 'not
providing legal assistance...can be a false economy as the costs of unresolved
problems are often shifted to other areas of government spending...'
The committee notes the call in the
Redfern Statement for the Australian Government to adequately fund Aboriginal
and Torres Strait Islander community controlled front-line legal services which
would include reversing funding cuts to Aboriginal and Torres Strait Islander legal
services funding due to occur in 2017 and investing in Family Violence
Prevention Legal Services to ensure funding certainty,
Barriers to legal assistance
The committee considered a number of barriers to accessing legal
assistance services. As evidence to this committee demonstrated, a lack of
awareness about legal problems can have significant effects for Aboriginal and
Torres Strait Islander people.
The committee commends the work that is being done by legal service
providers, such as Legal Aid New South Wales (NSW), in forming relationships
with health services to assist in identifying legal problems. The committee
also heard that outreach workers can play a significant role in breaking down
those barriers to accessing legal services.
The committee was concerned by the evidence that it received regarding
the lack of interpreters available to assist Aboriginal and Torres Strait Islander
people to access legal assistance services. It is critical that interpreters be
made available in order for clients to engage with, and for services to
provide, legal advice. In particular, the committee notes the evidence of The
Hon Wayne Martin AC, Chief Justice of Western Australian Supreme Court (WA),
that criminal proceedings are invalid unless the accused person understands the
language in which the process is being conducted.
While it is clear that more money is needed for legal assistance services
generally, the committee is strongly of the view that there needs to be a focus
on funding for community legal education, outreach workers and interpreters. A
focus on more education and early intervention would help prevent people
becoming involved in the criminal justice system.
Imprisonment of Indigenous people
The committee is discouraged to see the continual upward trend in the
incarceration rates of Indigenous people. The committee agrees with so much of
the evidence that it received that the structural biases within the system are
impacting heavily on Indigenous people. As has been borne out in previous
inquiries, and was again highlighted in this inquiry, mandatory sentencing
regimes, harsh bail laws and proactive policing impact on Indigenous
However, the committee also acknowledges that this particular issue is
complicated by the fact that the criminal justice system is the responsibility
of states and territories, and so there are limited actions available to the
Commonwealth Government to address increasing incarceration rates.
Noting the limitation of the Commonwealth, the committee received
concerning evidence about the effect that state laws such as mandatory sentencing
have on Indigenous incarceration rates. The committee notes the persuasive
evidence on this issue from Chief Justice Martin who indicated that the
mandatory sentencing legislation in WA 'will have a significant effect upon
incarceration rates, particularly amongst juveniles'.
The data available on Indigenous incarceration rates lacks granularity.
While broad trends are discernible, there is a lack of disaggregated data and
the collection of data by states and territories is inconsistent. In
particular, the committee agrees with the observations about the limitation of
data in respect of the imprisonment of Indigenous women.
The committee notes that, pursuant to the current National Partnership
Agreement on Legal Assistance Services there has been increased action by the
Commonwealth Government, particularly within the Attorney-General's Department,
regarding data on legal assistance services. However, the committee believes
that more should be done regarding the collection of consistent and
standardised data on incarceration rates for Indigenous people. While the
committee received evidence that it is difficult to have a 'single, logical
owner' of such a task,
it seems obvious to the committee that the Council of Australian Governments
(COAG) Law, Crime and Community Safety Council is the body to drive policy and
actions in this area. The committee therefore recommends that the Commonwealth
Government take all necessary steps to have the development and implementation
of a plan for the collection of consistent national data on all aspects of
Indigenous incarceration placed on the agenda for the next meeting of the Law,
Crime and Community Safety Council.
The committee notes the strong support for justice targets to form part
of the Closing the Gap measures. The committee also notes the Coalition parties,
despite supporting such targets prior to the last election, have, in
government, backed away from that commitment.
The committee accepts the Minister for Indigenous Affairs' statement that
the Commonwealth Government is going to work with states and territories, which
have the responsibility in this area, to assist them to put in place justice
targets and the measures to meet those targets. However, the committee notes
that the communiqué
from the most recent COAG meeting, does not demonstrate sufficient action or
urgency by the Commonwealth Government to specifically address the development,
implementation and meeting of justice targets by the states and territories.
The committee recommends that the Commonwealth Government outline the explicit
steps that it is taking to assist the states and territories on justice
Fetal Alcohol Spectrum Disorders
The committee notes the release of the Australian Guide to the diagnosis
of FASD which includes the Australian FASD Diagnostic Instrument.
In the committee's view, the release of the Guide and Diagnostic Instrument should
be accompanied by a communication plan to inform those in the criminal justice
field working with offenders who may have FASD of its release.
The committee anticipates that the release of the Guide and Diagnostic
Instrument will result in an increase in the diagnosis of FASD, particularly
among those coming in contact with the criminal justice system. To this end,
the committee recommends the Commonwealth Government to work with the states
and territories to develop guidelines for the appropriate management of
offenders with FASD.
Obviously, with FASD, prevention is better than cure. In this respect,
the committee was disappointed that there appears to be limited ongoing promotion
of the National Health and Medical Research Council's guidelines that for women
who are pregnant, planning a pregnancy or breastfeeding, not drinking alcohol
is the safest option. In the committee's view, the Commonwealth Government
should continue to fund community-wide promotion and education of this message.
The committee was impressed with two of the initiatives being carried
out in NSW, namely the Work and Development Order (WDO) and the Custody
Notification Service (CNS).
In the committee's view, the WDO operating in NSW offers a way in which
to address minor indiscretions, without exacerbating poverty and disadvantage.
While the committee acknowledges that the non-payment of a fine in NSW, in and
of itself, does not lead to imprisonment, the WDO could still represent a
workable alternative in other jurisdictions where unpaid fines can result in
With regards to the CNS, the committee understands that some form of CNS
operates in all states and territories. In NSW, the committee notes that since
its introduction in NSW in 2000, until July 2016, there had been no deaths of
Aboriginal people in custody. The committee notes the tragic outcomes in July 2016
when 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.
The committee considers that this underscores the critical importance of this
Diversion and rehabilitation
Part of the committee's focus in this inquiry was to look at what is
working – those projects demonstrating positive outcomes either in diverting
Aboriginal and Torres Strait Islander people from prison or assisting them
post-release so that they do not return to prison.
In particular, the committee was interested in those programs being run
by Aboriginal controlled or operated organisations. To this end, evidence about
the Yiriman project in the Fitzroy Crossing region of WA and the work of the Wirrpanda
Foundation through its Moorditj Ngoorndiak Program were certainly positive
stories. However, the committee is also cognisant that one of the challenges
for these programs is the uncertainty of funding, which in turn means that
successful programs are ad hoc and can lose traction.
The committee is impressed by the work being done on the justice
reinvestment project in Bourke. The Bourke project is clearly an example of the
positive outcomes which can be achieved with a community-led process.
The committee believes, that following from the progress seen at Bourke,
the Commonwealth Government should assist in the development of similar
programs at trial sites in all states and territories. The committee is
cognisant that there is no 'plan' from Bourke which can be used to model other
sites, however, the process developed for Bourke can be rolled out to other
trial sites. The committee understands that it would take some time to develop
similar programs at other sites, as the community needs to be given sufficient
time to consult, develop and implement a program.
While the committee understands that funding for the project at Bourke is
predominantly from non-government sources, the committee also notes that the
Commonwealth Government provided one-off additional funding of $20,000 to
support the Bourke justice reinvestment project.
The committee recommends that the Commonwealth Government adequately
support legal assistance services, and that specifically funding should focus
community legal education for Aboriginal and Torres Strait
outreach workers to assist Aboriginal and Torres Strait Islander
interpreters for Aboriginal and Torres Strait Islander people in
both civil and criminal matters to ensure that they receive effective legal
The committee recommends that the Commonwealth Government take all
necessary steps in the development and implementation of a plan for the
collection of consistent national data on all aspects of Indigenous
incarceration placed on the agenda for the next meeting of the Council of
Australian Governments Law, Crime and Community Safety Council.
The committee recommends that the Commonwealth Government, prior to the
next Council of Australian Governments meeting, explicitly state the measures
it is putting in place to assist states and territories to develop, implement
and meet Indigenous justice targets.
The committee recommends that the Department of Health prepare a
communication plan for those working in areas such as the criminal justice
field, to accompany the release of the National Fetal Alcohol Spectrum
Disorders (FASD) Diagnostic Tool.
The committee recommends that the Commonwealth Government, through the
Council of Australian Governments, work with states and territories, to develop
and implement guidelines for the appropriate management of offenders diagnosed
with Fetal Alcohol Spectrum Disorders.
The committee recommends that the Commonwealth Government continue to
fund initiatives which promote the National Health and Medical Research
Council's guidelines that for women who are pregnant, planning a pregnancy or
breastfeeding, not drinking alcohol is the safest option.
The committee recommends that the Commonwealth Government contribute to
the development of justice reinvestment trials at sites in each state and territory.
The committee recommends that much greater attention is given to
Aboriginal led, managed and implemented justice reinvestment programs such as
the Bourke Project and Yirriman, and that the Commonwealth Government support Aboriginal
led justice reinvestment projects.
The committee recommends that the Commonwealth Government work with the states
and territories in supporting programs which strengthen families and
communities through a focus on early intervention and support.
The committee recommends that administrative responsibility for Family
Violence Prevention Legal Services be returned to the Attorney-General’s Department.
The committee recommends that the Council of Australian Governments task
the Council of Australian Governments Law, Crime and Community Safety Council
to review state laws such as mandatory sentencing which have a disproportionate
effect on Indigenous Australians in order to quantify the effects and report to
the Council of Australian Governments.
Since the committee concluded the evidence gathering period of the
inquiry, the committee notes that on 28 July 2016, the Prime Minister announced
that there will be a Royal Commission into the Child Protection and Youth
Detention Systems of the Northern Territory. The committee welcomes this
decision and the appointment of two Royal Commissioners, The Honourable
Margaret White AO and Mr Mick Gooda.
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