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Aboriginal custody inquiry means little without action

Kate Galloway |  13 February 2017


On 9 February, Attorney-General George Brandis announced the terms of reference for a new Australian Law Reform Commission (ALRC) inquiry into Indigenous incarceration in Australia. The inquiry was announced in October 2016, and the final terms of reference have now been released after receiving submissions about the scope of the inquiry.

Dark skinned hands grip barsThe need for an inquiry has been identified in the face of ever-increasing representation of Indigenous Australians in the prison population.

In 1991, the year of the report of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), Indigenous Australians comprised 14 per cent of the Australian prison population. In 2016, it was 27 per cent. Yet Aboriginal and Torres Strait Islander Australians constitute only 2 per cent of the overall population over the age of 18.

Indigenous incarceration rates are concerning of themselves, but the fact that they continue to increase is alarming. The inquiry therefore recognises and validates widely held concerns.

On the other hand, it represents the abject failure of successive governments around the country to pay heed to what we do know about the incarceration of Aboriginal and Torres Strait Islander Australians — including the failure to implement the recommendations of the RCIADIC.

The frustration felt by many was expressed by the then head of the Prime Minister's Indigenous Advisory Council, Warren Mundine, who said that 'holding another inquiry — rather than acting on the reports that have already been conducted — was a joke and reflective of the poor performance of the government'.

The submissions to the draft terms of reference highlight the complex systems at play in Indigenous incarceration. Even before the inquiry starts, the submissions provide a stocktake of what governments must consider in analysing the problem and formulating solutions. Rather than the sole factor of the state of the criminal law or even of the justice system, the submissions identify myriad factors that contribute to disproportionate incarceration of Aboriginal and Torres Strait Islander Australians.

Many pointed out, for example, the need to inquire into social determinants of incarceration. A person's environment — the circumstances of their community, their access to services, their age or even their gender — may influence the likelihood of entering the criminal justice system.


"The scope of these broader contexts is huge. It is positive that they are included, however the ALRC is to report in December 2017, and this timeframe is far too short to do the inquiry justice."


In addition to understanding the experiences of members of different types of communities across Australia, there were numerous submissions that pointed out that incarceration of women and young people respectively warranted independent investigation. Other submissions pointed out that it is not only a person's progression through the prison system that warrants attention, but also pathways into prison from out-of-home care. Accompanying the increase in Indigenous incarceration is a huge increase in Aboriginal and Torres Strait Islander children taken into community care, and this must be examined as a relevant social factor.

There are diverse non-custodial contexts that increase the chance a person will ultimately be imprisoned. These are also deserving of investigation. Over-policing of Indigenous communities, mandatory detention offences, penalties for unpaid fines, and presumptions of complicity in commission of an offence, all affect the propensity for Indigenous Australians to end up in prison. All of these factors are exacerbated by discrimination — whether through unconscious bias or deliberate.

Health also plays a large role in the lives of Indigenous Australians coming into contact with the criminal justice system. Foetal alcohol syndrome and mental health issues in particular are relevant to understanding the causes of incarceration.

It appears that the final terms of reference have accommodated some of these suggestions. While laws and legal frameworks headline the inquiry's scope, it also extends to laws contributing to incarceration such as unpaid fines, the incarceration of women, and social factors including: 'the relationships between Aboriginal and Torres Strait Islander offending and incarceration and inter-generational trauma, loss of culture, poverty, discrimination, alcohol and drug use, experience of violence, including family violence, child abuse and neglect, contact with child protection and welfare systems, educational access and performance, cognitive and psychological factors, housing circumstances and employment'.

The scope of these broader contexts is huge. It is positive that they are included, as they are too important to be omitted. However the ALRC is to report in December 2017, and many of the submissions pointed out that this timeframe is far too short to do the inquiry justice.

The reality of Aboriginal and Torres Strait Islander affairs in Australia is bleak. Governments continue to defund services that are known to be crucial in supporting Aboriginal and Torres Strait Islander communities, including in preventing incarceration. A recent report was damning of the management of funding in the government's Indigenous Advancement Strategy.

Whatever this latest inquiry uncovers, there are two lessons we should already have learned. First, the RCIADIC shows us inquiries can offer a clear pathway to dealing with complex problems, but if governments at all levels fail to implement the recommendations, the problems will not go away. Second, we can hold as many inquiries as we like and come up with creative solutions but failure to finance frontline community-based service delivery has catastrophic consequences. We can only hope real change will follow this inquiry, backed by genuine commitment at all levels of government.


Kate GallowayKate Galloway is a legal academic with an interest in social justice.



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Submitted comments

"Warren Mundine ... said that 'holding another inquiry — rather than acting on the reports that have already been conducted — was a joke and reflective of the poor performance of the government'." Holding another inquiry is actually the government trying to show itself to be taking action while evading the crucial need to act on the findings of earlier inquiries. The cost of this new inquiry would be better spent if distributed to front-line Indigenous services who have demonstrated success in improving the social reality of their communities. Being Aboriginal is not what causes high rates of Indigenous incarceration. Extreme social disadvantage is the primary cause.

Ian Fraser 15 February 2017

I agree with Ian, and know the long lasting the effects of the Stolen generation,after long being classified as fauna and flora, and given basic citizenship for only 50 years. We have more recent acknowledgement of land rights, while we turn our noses up and blame people for their situation -being the takers of welfare handouts. No real equality.We have the knowledge,through the arts and dialogue, and surely now, as we pride ourselves about being civilised,sophisticated,get it, yet still cannot accept our part.Why is there little understanding for a way to a future?Entrenched poverty is product of our system. Cultural identity is the key.

Catherine 15 February 2017

We ring our hands in despair yet again. The level of cynicism and manipulation by successive governments regarding indigenous people is appalling. If we could depend on mainstream media to report correctly instead of sensationally or ideologically we might have a chance to hold politicians to account for their failed promises, their give with one hand and take with the other policies that reveal a lack of respect for their fellow Australian citizens. We need community action, a consistent barking watch dog to keep them even halfway honest. Nothing else has worked so far.

Julie Kearney 15 February 2017

This is a very good article by Kate Galloway that makes some very important observations. I too agree with Warren Mundine and Ian Fraser. Another inquiry would be a waste of money and would delay the introduction of all the recommendations of the RCIADIC of 1991 - 25 years ago! I had the honour of knowing the commissioner of the at inquiry, retired judge, Elliott Johnson. He died at the age of 93 in 2011 and one of his great disappointments was that very few of the Commission's recommendations were ever implemented. Elliott was a great humanitarian who worked extremely hard throughout his life to support social justice and human rights. He would be devastated to know that the number of black deaths in custody have actually increased to almost double of what they were in 1991. Progressive Australians must demand that the previous recommendations must be implemented and that the government must stop slashing health, education and social welfare funding that will impact negatively on Aborigines and other poorer Australians - especially when it is giving huge tax breaks to wealthy Australians and the larger corporations.

Andrew (Andy) Alcock 15 February 2017

Spot on Kate. And, 1) We need to implement the vast majority of the 339 recommendations of the RCIADIC, yet to be done, 2) rid our land of racist and unjust laws like the NT Intervention and Stronger Futures , the later a 10 year extension of the racist and punitive NT Intervention which IS failing, as yesterday Close the Gap report also demonstrated . 3) Stop defunding and mainstreaming First Nation organisations a. reinstate the $534. million dollars of funding pulled from Aboriginal services 2 yesra ago b. allow First Nation peoples to be front and centre of decision making, from the otsset of policy formation . c. implement the Redfern statement and move to treaty. Self -determination an community control is key in this and we must allow the calls to treaty/ies come to fruition- why the need- worth viewing 8 minute video, https://www.youtube.com/watch?v=nU_H0oIQy60 First Nations people have the solutions, a few days back Yingiya Mark Guyula MP (NT) used the 9th anniversary of 2008 National Apology to the Stolen Generations to issue a warning about the way Indigenous children were being removed from their families today. "That legislation was broken by the Government themselves — they broke their own law and that's why I have stood here and I am standing here to say this must stop. " He also questioned the need for a TREATY , more at http://tasmaniantimes.com/index.php?%2Fpr-article%2Fstolen-generation-continues-the-yolngu-natio%2F

George 15 February 2017

I'm with Warren Mundine:who "holding another inquiry — rather than acting on the reports that have already been conducted — was a joke and reflective of the poor performance of the government." I endorse Ian Fraser's comments above. The solutions to 'closing the gap' are not simple but the unnecessary incarceration of indigenous people, particularly youth, is ensuring that the gap continues and widens.

Peter Johnstone 15 February 2017

I fully agree with Warren Mundine - we know the problems, we need sensible solutions not another expensive inquiry which will only further highlight the same problems. Blaming government won't solve anything, which government do you blame and how many! Surely the $30B spent each year on aboriginal issues could be far better spent in solving problems and not waisted. So far as the recommendations from the RCIADIC most were implemented the rest were to impractical or to far fetched to implement. A former minister in the Carr government, Graeme West, attempted to put in process an excellent programme to keep juveniles out of detention, it was never proceeded with and West resigned. Future thinking wasn't an initiative of the Carr government. Also an interesting question is; will the same continue until the finish of this new inquiry, perhaps the incarceration rate may reach 30% or greater. Let Mundine and a few others fit the problems now and with $30B spent wisely I bet they would achieve positive results.

Brian Goodall 16 February 2017

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