Issues affecting Aboriginal and Torres Strait Islander people have received little media coverage during this election campaign, but Bill Shorten’s solo appearance on Q&A on 13 June thrust Indigenous affairs briefly into the spotlight. Though coverage focused on Shorten’s support for a formal treaty, his emphasis was actually on the incarceration rates of Aboriginal and Torres Strait Islander people.
“I actually think it is a disgrace of some mammoth proportions that a young Aboriginal man in this country who’s aged 18 is more likely to go to jail than to go to university,” Shorten said.
Shorten’s comments were timely, as last month marked 25 years since the Royal Commission into Aboriginal Deaths in Custody. This anniversary is a reminder of the worsening situation.
Indigenous people today constitute 27% of the Australian prison population, a significant rise from the 14% recorded in 1991. This is despite Aboriginal and Torres Strait Islanders constituting a mere 3% of the population.
Discussion of the issue is sorely needed in the ACT. Despite constituting a mere 1.5% of the ACT populace, Indigenous people constitute 27% of prisoners in the ACT system. According to the Australian Bureau of Statistics, this figure has increased by about 10% in the past year, in spite of the progressive legal framework in place in the ACT.
Determining the reasons is complicated, but Wayne Applebee, a local Aboriginal Elder who sits on the Galambany Circle Sentencing Court, believes the main contributors are the lack of funding for legal services and the limitations of the legal system.
The Galambany Circle Sentencing Court is specifically set-up for sentencing Indigenous offenders within the ACT Magistrate’s Court. It is designed to address Indigenous incarceration inequality by providing culturally appropriate sentencing options for Indigenous offenders.
Applebee believes that the court exacerbates the issue rather than alleviating it.
He argues that offenders must plead guilty in order to appear before the circle court, which often results in a criminal record. Considering the high rate of reoffending— twice as likely for Indigenous people — that criminal record will typically lead to a jail sentence. Applebee says that there is a certain inevitability that when people plead guilty they will eventually go to jail.
Despite expressing their commitment to Aboriginal and Torres Strait Islander affairs, the Abbott and Turnbull Governments have made continuous cuts to the Aboriginal Legal Services, along with Legal Aid. The 2014 budget cut $15 million from Legal Aid, along with $43 million from legal advocacy services. After outcry and considerable criticism, the Government restored some of the funding — but not all of it.
The underfunding of the Aboriginal Legal Services and Legal Aid, which only have the resources to provide representation to people who are pleading guilty, contributes to the growing inequality. “They can’t plead not guilty, because no one will defend them,” Applebee says. “The right to defence is mandatory in other countries — why not here?”
Applebee has seen instances where individuals have pleaded guilty just for the opportunity to tell their story to other Aboriginal people.
The court is limited in its alternative sentencing options because resources are so limited, Applebee says. Rehabilitation clinics would be practical, but there aren’t enough. The prevalence of mental health issues among Indigenous people has not been addressed with resources for support in this area. These limit the court’s ability to address the rate of reoffending, because factors that lead to criminal offences are not addressed.
According to Applebee, once offenders leave the court, there is no opportunity for those who determined their sentence to see the outcome. He believes successful sentencing is impeded by an inability to determine the impact of past sentencing.
“What makes us really angry is that we don’t know what happens to them,” he says.
The Galambany Court has tried to cope with its limitations by using a framework of restorative justice to confront the problems posed by criminal behaviour and avert the problems of reoffending. Rehabilitating offenders by engaging them with the impact they have on victims and the community is one such technique. Studies have shown that it has the capacity for a positive impact on victims and offenders.
Applebee recalls one individual who had a history of criminal behaviour since childhood. In an attempt to break the cycle, the court implemented restorative justice. Knowing that the offender was a talented painter, the court instructed him to present his victims with paintings that had stories behind them, forcing him to engage with the impact of his actions. The effectiveness of the engagement was improved when one victim refused to accept a painting, stating that they were too traumatised from the event to be involved. This had a positive impact on the offender, Applebee says, as he was able to see the impact of his actions on the community rather than remaining detached from his victims.
The ACT Government recently announced that it will invest $2.3 million in initiatives aimed at Indigenous people as part of the budget. This will include $694,000 to be spent over four years on legal reforms designed to address the issue of overrepresentation of Indigenous people in prison.
ACT corrections minister Shane Rattenbury has supported an investigation into the alarming increase of Indigenous incarceration. “For a long time we went along with our Indigenous detainees at about 17-19%,” he says. “That has jumped up into 27% in a period of six to eight months … it raises questions about police practice, court practice and how bail is being judged by the courts.”
A quarter-century ago, the Royal Commission into Aboriginal Deaths in Custody determined that the Aboriginal population was grossly over-represented in custody: ‘Too many Aboriginal people are in custody too often,’ the commissioners wrote.
Twenty-five years on, the problem has only gotten worse.