Government Senators acknowledge that Aboriginal and Torres Strait
Islander people, particularly Indigenous youth, are overrepresented in the
criminal justice system. The reasons for the high rates of Indigenous incarceration
are complex and multi-faceted but in large part stem from broader issues of Indigenous
The Minister for Indigenous Affairs, Senator the Hon. Nigel Scullion has
reaffirmed that the government is committed to working with jurisdictions to address
areas of disadvantage affecting Indigenous Australians which increase the
likelihood of a person being exposed to the criminal justice system:
I am committed to reducing Indigenous offending, victimisation
and incarceration by tackling the drivers of crime, including alcohol and drug
misuse, poor educational outcomes and disconnection from employment. States and
territories are responsible for their criminal justice systems, including
policing. However, this, like many issues, needs governments to work together to
ensure that we get better outcomes.
Closing the gap
Government Senators note that since the establishment of the 'Closing
the Gap' campaign 10 years ago, there has been progress in improving some Indigenous
outcomes and these are:
...built on the combined efforts of successive governments,
business, community and most importantly, Aboriginal and Torres Strait Islander
people themselves. But it is undeniable that progress against targets has been
variable, and that a more concerted effort is needed.
On 10 February 2016 the Prime Minister, the Hon. Malcolm Turnbull MP
informed parliament that the government is committed to 'Closing the Gap' for Indigenous
The Prime Minister recognised:
The Prime Minister of the day tables the Closing the Gap
report as a report card of our nation on our combined efforts. This shared
responsibility falls to each and every single Australian, Indigenous and
non-Indigenous, every level of government and every business and organisation.
With each report we have an opportunity to assess where we must redouble our
efforts and derive better value from the admittedly finite resources of
government. State and territory governments are necessary partners. Between
this year's report and the next one, I will work to ensure we are better
tracking progress across the jurisdictions so we can target our efforts and
accelerate outcomes. A key driver of progress has to be economic empowerment
through employment, through entrepreneurship and through the use of our human
In his speech on 10 February 2016, the Prime Minister recognised the
issue of Indigenous incarceration:
Indigenous Australians represent three per cent of the
Australian population, yet they represent a staggering 27 per cent of the
prison population. The Indigenous adult imprisonment rate is increasing. When
young Aboriginal and Torres Strait Islander men see jail as a rite of passage,
we have failed to give them a place in our society, in our community, and an
alternative pathway where they can thrive. There is a vicious cycle of young Indigenous
people being placed into prison, reoffending, and then returning to prison. We
know the power of employment—the power of a job—as a circuit breaker in that
dreadful cycle. Senator Scullion, the Minister for Indigenous Affairs, and
Senator Cash, the Minister for Employment, are working across jurisdictions and
portfolios, working with Aboriginal and Torres Strait Islander communities to
develop a blueprint for supporting, and then transitioning, people from prison
to work, to security and to prosperity.
Indigenous incarceration rates
Government Senators are concerned that the imprisonment rate for Aboriginal and Torres Strait Islanders
is 13 times greater than the imprisonment rate for non-Indigenous Australians.
The rates of Indigenous youth in detention as outlined by the Australian
Institute of Health and Welfare are particularly concerning:
Close to half (45%) of young people aged 10–17 under youth
justice supervision on an average day in 2013–14 were Indigenous, despite
comprising only about 6% of young people aged 10–17 in Australia. In detention,
this proportion was even greater, at 58%.
However, the Commonwealth Government recognises its jurisdictional
limitations in the criminal justice area:
Primary responsibility for criminal justice rests with the
state and territory governments, which deliver a range of programmes to reduce
incarceration and re-offending. The Australian Government is working with state
and territory governments to ensure its investment complements their efforts
and leads to real improvements in Aboriginal and Torres Strait Islander people's
While criminal justice is primarily a state issue, as noted above, the government
is committed to working with jurisdictions to reduce the rates of Indigenous
Recognising the reasons for Indigenous
Addressing Indigenous disadvantage is key to reducing imprisonment
rates. The Queensland Association of Independent Legal Services explained how
disadvantage contributes to incarceration:
As identified in the Royal Commission report, one of the
biggest factors contributing to overrepresentation by Aboriginal and Torres
Strait Islander people in prison is disadvantage. People who are or have been
in prison are typically from highly disadvantaged backgrounds and Aboriginal and
Torres Strait Islander people are the most disadvantaged group in Australia.
The committee heard from witnesses such as The Hon Wayne Martin AC, Chief
Justice of Western Australia who noted that:
Aboriginal people are significantly over-represented amongst
the most marginalised and disadvantaged people within our society, and it is
the most marginalised and disadvantaged people within our society who are much
more likely to commit crime.
Dr Don Weatherburn, Director of the NSW Bureau of Crime
Statistics and Adjunct Professor with the School of Social Science and Policy
at the University of New South Wales explained that disadvantage forms a cycle
of exposure to the criminal justice system:
Parents exposed to financial or personal stress, or who abuse
drugs and/or alcohol are more likely to abuse or neglect their children.
Children who are neglected or abused are more likely to associate with
delinquent peers and do poorly at school, which in turn increases the risk of
involvement of crime. Involvement in crime increases the risk of arrest and
imprisonment, both of which further reduce the changes of employment, while at
the same time increasing the risk of drug and alcohol abuse. And so the process
goes on, a vicious cycle of hopelessness and despair transmitted from one
generation of Aboriginal people to the next.
The University of NSW Law Society also outlined that disadvantage increases
the likelihood of criminal offending. This is particularly prevalent with Indigenous
juveniles, who are:
...disadvantaged when it comes to education, health care and
employment and thus more likely to experience domestic violence, to be take
into state care and even to engage in offending behaviours.
In 2009, the then Aboriginal and Torres Strait Islander Social Justice
Commissioner, Dr Tom Calma AO, confirmed the need for a multifaceted approach to
tackle Indigenous disadvantage.
The Australian Justice Reinvestment Project argued that indigenous
incarceration cannot be considered independently of broader targets to minimise
disadvantage as they are intrinsically interlinked.
The Prime Minister's 'Closing the Gap' report showed that improvements in one
area can positively impact another:
For example, providing children with a healthy start to life
will give them the best chance of academic success which will, in turn, have
positive flow-on effects for employment opportunities.
Chief Justice Martin recognised the importance of addressing health
We know the first three years of a child's life are
absolutely critical for their future, so we have to improve health and nutrition
in those important years in Aboriginal children's lives.
The Australian Institute of Health and Welfare outlined that Indigenous
Australians have poorer health than other Australians.
They are more likely to live with poor health, experience disability and the
life expectancy of Indigenous Australians is approximately 10 years less than
The reasons for this disparity include social and economic
disadvantages, health behaviours, such as smoking and poor diet, and access to
health services. The Australian Institute of Health and Welfare expanded on
Indigenous Australians have been disadvantaged across many
areas of life which continue to affect their health today. Disadvantages such
as poor education, unemployment, low income, discrimination and poor quality
housing are often referred to as the 'social determinants of health'. Social
determinants can affect health outcomes both directly and indirectly.
For example, a direct effect might be where a person on a low
income is not able to afford, and therefore benefit from, health services with
high out-of-pocket costs. Indirectly, social factors may increase a person's
likelihood of engaging in risky health behaviours such as smoking and/or
excessive alcohol consumption
Professor Sir Michael Marmot, President of the World Medical
Association, Director of the Institute of Health Equity and a leading
researcher on health inequality issues has commented on the links between
health and criminal offending:
The social conditions in which people are born, grow, live,
work and age are strongly determinative both of risk of ill health and of the
likelihood of engaging in civil disorder.
Health and inequalities in health are closely linked to the
conditions in which we raise our children, the education we get, the
neighbourhoods we live in, the work we do, whether we have the money to make
ends meet, our social relationships and our care for the elderly.
The 'Closing the Gap' Report acknowledges that an early focus on health will
have positive effects later in life:
Ensuring Aboriginal and Torres Strait Islander children have
a positive start to life will strengthen their opportunities later in life.
In 2014 the government established the Indigenous Australians' Health
Programme by consolidating pre-existing health funding streams.
The government established the National Aboriginal and Torres Strait Islander Health
Plan 2013-2023 (The Plan). The Plan was developed to improve overall health
Provid[ing] an overarching framework which builds links with
other major Commonwealth health activities and identifies areas of focus to
guide future investment and effort in relation to improving Aboriginal and
Torres Strait Islander health.
Fetal Alcohol Spectrum Disorders
As noted in the majority report, Fetal Alcohol Syndrome Disorders (FASD)
is an issue in Indigenous communities which may contribute to indigenous
Chief Justice Martin drew the attention of the committee to the issue of
FASD in the criminal justice system:
The disadvantage can start before children are born, when too
many contract Foetal Alcohol Spectrum Disorder (FASD). We know that in the
north of this State FASD is now a significant problem in our criminal justice
A report by the House of Representatives Standing Committee on Social Policy
and Legal Affairs recognised FASD as a contributing factor to incarceration rates
in Indigenous communities and emphasised the need for early intervention:
The Committee is convinced of the necessity and benefit of
early intervention to improve the life outcomes of individuals born with FASD. Without
a diagnosis, or with the wrong diagnosis, the treatment of individuals with
FASD by their families, educators, physicians and society in general can
inadvertently cause great damage and lead to severe secondary disabilities such
as mental illness or substance abuse which may then lead on to incarceration.
Early intervention is critical to unlocking a better future.
The Australian Institute of Health and Welfare also pointed out the
interaction between FASD and the justice system:
A high proportion of young people and adults with FASD come
into contact with the criminal justice system. Memory difficulties, inability
to plan, and failure to recognise the consequences of their actions mean that fines
might not be paid and probation orders and good behaviour bonds breached.
On 25 June 2014, the government announced $9.2 million for the National
Fetal Alcohol Spectrum Disorders Action Plan to address the harmful impact of
FASD on children and families.
The FASD Technical Network was also established in September 2014 to advise the
Department of Health on the activities under the FASD Action Plan.
Professor Elizabeth Elliott AM, Paediatrics and Child Health, University
of Sydney Clinical School, informed the committee that FASD screening and
diagnostic tools were being developed.
In mid-2016 the National FASD Diagnostic Instrument was released. The diagnostic
instrument is designed to assist Australian's health professionals with
identifying and diagnosing FASD.
The government recognises that improving educational outcomes for
Indigenous Australians is another area that will reduce contact with the
justice system. Senator the Hon Minister Nigel Scullion has emphasised this
Without a proper education Indigenous children are more
likely than not to be on a path towards welfare dependency, interaction with
the justice system, poor health, poor housing and little hope for the future
that other Australians enjoy.
The Law Council of Australia also emphasised this link:
A lack of education, or poor school attendance, has also been
identified as a factor that increases the risk of offending later in life.
In 2015 the Australian Government endorsed the National Aboriginal and
Torres Strait Islander Education Strategy:
Under the Strategy, education ministers have agreed to a set
of principles and priorities that will inform jurisdictional approaches to
Aboriginal and Torres Strait Islander education.
Through the Indigenous Advancement Strategy (IAS) the government is
continuing to target Indigenous educational disadvantage:
The Indigenous Advancement Strategy (IAS) Children and
Schooling Programme is providing $222.3 million in 2015-16 for a number of
projects that support Aboriginal and Torres Strait Islander young people to
increase engagement and retention in education, training and employment, and
diversionary programmes to encourage re-engagement.
Further, the government is working to better integrate services to support
vulnerable children and families transition to school:
From 2016-17, the Government is investing $10 million
annually through the Community Childcare Fund to integrate early
childhood, maternal and child health and family support services with schools
in a number of disadvantaged Indigenous communities. The focus is on supporting
Aboriginal and Torres Strait Islander families so their children make a positive
transition to school.
The North Australian Aboriginal Family Violence Legal Service argued
that Indigenous employment opportunities directly affect the rates of criminal offending.
The Public Interest Advocacy Centre Ltd also supported this view:
Poor socioeconomic factors, such as poor education attainment
and consequent unemployment, are strong determinants of Aboriginal offending.
Just Reinvest NSW commented that Aboriginal and Torres Strait Islander Australians
are more likely to be from regional areas where there are fewer opportunities
to gain employment:
Undoubtedly this contributes to re-offending within the cohort
and should be considered against the fact that the rate of prisoners returning to
prison in NSW remained above the national average in 2012-13.
During the election the government announced:
We are committed to creating more opportunities for Indigenous
businesses and, in turn, employment. We want to encourage Indigenous
innovation, which creates a pipeline of opportunity.
Indigenous businesses are 100 times more likely to hire Indigenous
Australians than non-Indigenous businesses, which is why we are creating an
environment where Indigenous business and innovation can grow and prosper.
The plan to improve Indigenous business opportunities involves:
delivering a tax cut for Australia's small businesses
establishing a $115 million Indigenous Entrepreneurs package,
$90 million for an Indigenous Entrepreneurs Fund
$23.1 million for Indigenous Business Australia’s Indigenous
Business Development and Assistance Programme
$1.9 million for the development of the Indigenous business
building on the early success of our commitment to three per cent
of Government procurement coming from Indigenous businesses
building on the Employment Parity Initiative to generate even
greater opportunity for Indigenous businesses.
In February 2016 the Prime Minister hosted the 'Prime Minister's
Reception for Indigenous Innovators and Entrepreneurs'. This event brought
together young Indigenous businesses and innovators with corporate leaders.
In addition, the Indigenous Procurement Policy was launched on 1 July
2015 and in the first 11 months of operation awarded 1070 contracts valued at
$229 million to 284 indigenous businesses.
Community Development Program
In July 2015 the government introduced the Community Development Program
(CDP), to replace the Remote Jobs and Community Programme:
The CDP is an essential part of the Australian Government’s
agenda for increasing employment and breaking the cycle of welfare dependency
in remote areas of Australia.
Minister Scullion commented that early evidence shows that the CDP
program is producing positive outcomes:
The CDP is already proving to be a success, with the number
of jobseekers placed into activities up 50 per cent since the start of the
programme. About 66 per cent of jobseekers have been placed into activities –
up from 45 per cent on July 1.
Building on the increased participation in the CDP program, Minister
Scullion outlined reforms the government is making to enhance the progress
Under these reforms, there will be more local decision-making
by providers who know the jobseekers and have closer connections to what is
going on in communities.
Payments will be made weekly so remote jobseekers have
immediate access to their money and feel the financial impact of not turning up
to activities straight away – not weeks down the track...
...Remote job seekers will also be able to earn more income on
top of their welfare payments. Until they reach the minimum wage, their income
support will depend on their participation in CDP activities, rather than
income thresholds, taper rates and work credits. This simple system will make
it easier to move between income support and intermittent work, which is
typical in many remote areas.
The government is committed to enhancing the CDP programme to assist
The Australian Government will continue to establish economic
development opportunities for Indigenous businesses and native title holders.
Recent amendments to the Government's procurement policy have encouraged
government departments to increase their use of Indigenous businesses in their
supply chain. This new approach has resulted in new contracts with Indigenous
businesses conservatively valued at around $36 million between July and
December 2015. Meanwhile, opportunities for Indigenous land owners and native
title holders to leverage their land assets for economic development will be
explored, in line with the recommendations of the COAG investigation into Indigenous
land administration and use.
Indigenous Advancement Strategy
The government is committed to closing the gap on disadvantage and achieving
better results for Aboriginal and Torres Strait Islander Australians. In 2015,
the government changed the way Indigenous programs are funded through the Indigenous
Advancement Strategy (IAS) which involved the streamlining of more than 150
Indigenous programs into five broad program streams.
The IAS ensures funding is more flexible and better designed to meet the
aspirations and priorities of individual communities. As noted by Minister
Scullion at the time:
If we keep doing as we have done, we will get the same result.
For the first time in decades we have had a holistic look at the myriad of
services and projects being funded to ensure future funding is geared towards
achieving change on the ground that improves the lives of individuals and
The results show the number of Aboriginal organisations funded has
In total, 46 per cent of funded organisations are Indigenous
and 55 per cent of funds under the IAS round is going to Indigenous
...under previous arrangements, fewer Aboriginal organisations
were funded – in fact, only about 30 per cent of grant funded organisations
were Aboriginal and Torres Strait Islander organisations as at December 2014.
The increase in the number of Indigenous organisation receiving support
and funding reflects the government's commitment to ensuring that services are
delivered by Indigenous organisations where possible:
...which we know are more likely to employ Aboriginal and
Torres Strait Islander people. They are also much closer to and in-tune with
the communities they serve.
The government outlined that as a consequence of the IAS:
...in addition to a focus on early childhood education and
learning at school, we have assisted around 50 Indigenous Australians into a
job every day under the Indigenous Advancement Strategy. That is over 1,300 new
employment opportunities each month.
IAS also supports programs focused on improving community safety
- The Australian Government is working with 360 organisations
across the country to improve community safety as part of the Indigenous
Advancement Strategy: Safety and Wellbeing Programme. This includes:
substance misuse and harm through the delivery of alcohol and other drug
prevention, diversion and rehabilitation through the delivery of prisoner
rehabilitation and other justice-related activities
reduction and victim support through the provision of legal services and family
safety activities, particularly for women and children
wellbeing and resilience activities to foster social participation or reduce
antisocial behaviour through social and emotional wellbeing counselling
safe and functional environments through community night patrols.
On 25 March 2015, the Attorney-General and the Minister Assisting the
Prime Minister for Women announced a reversal of the previously announced
funding cuts to the legal assistance sector, guaranteeing funding levels for
the next two years and that the changes that were due to take effect from 1
July 2015 would not proceed. This means the government will contribute over
$1.327 billion to the legal assistance sector from 2013-14 to 2016-17.
In addition, since the 2013 election the government has examined legal assistance
funding to ensure it is directed to front line services where the need is
On 1 July 2015 the National Partnership Agreement on Legal Assistance
Services (NPALAS) commenced. NPALAS provides Australian Government funding to
states and territories to distribute to legal aid commissions and now also community
legal centres. Over five years it will provide $1.3 billion.
...the Australian Government will provide $257.1 million
funding for legal aid services and legal assistance services through the
NPALAS. This is an increase of $6.2 million from 2015–16.
In March 2016, the Attorney-General advised the Senate:
Under the terms of the national partnership agreement, legal
aid funding will increase from $207.95 million in 2015-16, the first year of
the agreement, to $219.941 million in 2019-20.
The Attorney-General has confirmed that:
In addition to the significant funding contribution under the
national partnership agreement, the Australian Government will continue to
directly fund Indigenous legal assistance providers, delivering on the
Government’s ongoing commitment to improving law and justice outcomes for
Government Senators note specific measures to assist Indigenous
The Government has allocated $350 million over five years to
provide culturally appropriate legal assistance services to support Indigenous
people to effectively access justice.
In addition, $15 million from the Australian Government will support 12 specialist
domestic violence units with the first, the South West Sydney Domestic Violence
Unit, being launched on 7 March 2016.
The Government has provided $1.05 million over three years to
establish the South West Sydney Unit to assist women who are experiencing, or
at risk of experiencing, domestic and family violence.
The Unit will help women access legal advice and
representation, as well as other services such as financial counselling,
tenancy assistance, trauma counselling, and emergency accommodation. They will
work closely with the local Women's Domestic Violence Court Advocacy Service
and other legal and non-legal support services.
This pilot program is part of the Government's $100 million
Women's Safety Package, the 12 specialist units are being established in
metropolitan, rural and regional locations across Australia with high rates of
domestic and family violence.
The specialist units will also include targeted assistance to
Indigenous women, and those facing cultural and linguistic barriers.
Government Senators emphasise the constrained financial environment we
need to work within but note that the government is committed to doing what it
can to increase funding levels as evidenced by the $15 million legal assistance
component of the $100 million Women's Safety Package and the restoration of
$25.5 million in funding to the legal assistance sector.
Government senators support justice reinvestment in principle and look
forward to reviewing the outcomes of the trial underway in Bourke. The government
has provided funding for this trial, where during the initial stages:
Several community-led meetings occurred which were well
attended by representatives from the Department of the Prime Minister and
Cabinet, the NSW Department of Premier and Cabinet, nearly all Departmental
heads and senior managers, and peak Government and non-government organisations
who have all committed to supporting and participating actively in the
Maranguka Justice Reinvestment Project.
The first stage of the project has focused on building trust between
community and service providers, identifying community priorities and circuit
breakers and data collection.
At the time the committee spoke with Just Reinvest NSW the project was
still in the planning phase
but government senators note a recent program on Four Corners indicates a
number of programs are underway.
Government senators note the discussion about justice targets in the
majority report and reiterate the point made by Minister Scullion that the
Commonwealth has no legislative jurisdiction over state and territory criminal justice
On this point, however, Government senators note the justice targets set
by the former Northern Territory government in its Aboriginal Affairs Strategy.
Instead, the Commonwealth seeks to contribute by engaging with state and
territory governments, Indigenous communities and other stakeholders about how
to achieve better justice-related outcomes.
On 28 July 2016, the Prime Minister announced the establishment of a
Royal Commission into the Child Protection and Youth Detention Systems of the
Government of the Northern Territory.
On 1 August 2016, The Honourable Margaret White AO and Mr Mick Gooda were
appointed as Royal Commissioners. The Prime Minister indicated:
The Government acknowledges the importance of having
Indigenous voices on the Commission given the high number of Aboriginal and
Torres Strait Islander children incarcerated in the Northern Territory
detention system and who are involved in the child protection system.
On 10 October 2016, the Attorney-General announced a free legal advisory
service for people engaging with the Royal Commission into the Protection and
Detention of Children in the Northern Territory. The legal advisory service
will be delivered by the North Australian Aboriginal Justice Agency (NAAJA),
the Children in Care and Youth Detention Advice Service will receive $1.1
million from the Australian Government in 2016-17.
In relation to the recommendations in the majority report, Government Senators
note that as indicated above, any further funding for legal services is subject
to current budgetary constraints. Also as noted above, the government looks
forward to the outcomes from the justice reinvestment trial in Bourke and will
consider further support based on the evidence that emerges.
Government Senators note the large workload generated by state and
territory criminal law matters for Indigenous legal assistance services and
call on state and territory governments to provide more funding for Indigenous legal
Government Senators support the Indigenous Advancement Strategy process
being managed by the Department of the Prime Minister and Cabinet which is
showing positive results with the number of Indigenous organisations and their
Government senators note that the criminal justice system is the
responsibility of states and territories. Nevertheless, the Commonwealth
Government is committed to working with jurisdictions and Indigenous
communities to achieve better justice-related outcomes.
Government Senators also note the positive work by the government in
relation to FASD. The FASD Action Plan and Diagnostic Tool will facilitate improved
early intervention which will result in better outcomes. Work will continue
under the Action Plan, advised by the FASD Technical Network.
The majority report has not provided any reasoning why the
responsibility for Family Violence Prevention Legal Services should return to
the Attorney-General's Department and accordingly this recommendation is not
supported by Government Senators.
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