Australian Indigenous Law Reporter
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The executive summary reproduced below is from a report commission by the Aboriginal and Torres Strait Islander Commission (ATSIC) evaluating the implementation of a number of specific recommendations from the Royal Commission into Aboriginal Deaths in Custody. It is the result of 12 months' research by the authors, Chris Cunneen, from the Institute of Criminology at the Sydney University Law School and David McDonald, from the Australian Institute of Criminology in Canberra.
There has been a failure on the part of governments to adequately implement specific recommendations relating to the administration of the criminal justice system. This failure represents a massive lost opportunity to resolve critical issues which lead to the unnecessary incarceration of Aboriginal and Torres Strait Islander people.
There has been inadequate regard to a key recommendation on the need for negotiation and self-determination in relation to the design and delivery of services. A failure to comprehend the centrality of this recommendation has negatively impacted on the implementation of a range of other recommendations.
There has been a wider socio-political context working against the interests of Aboriginal people receiving fair and just treatment from the legal system. There has been a stronger emphasis on more punitive approaches to law and order in many Australian jurisdictions since the Royal Commission into Aboriginal Deaths in Custody reported. This more punitive approach has been particularly evident in changes to sentencing law, but also affects other areas such as the decriminalisation of public drunkenness.
The recommendations of the Royal Commission into Aboriginal Deaths in Custody in general terms still provide a blue print for reforming key aspects of criminal justice administration. There is still enormous potential to significantly reduce the number of Aboriginal and Torres Strait Islander people in custody through the implementation of the recommendations.
However, there are problems with some of the recommendations in terms of inadequate drafting or inadequate indication of process. There are also problems in terms of the reporting mechanisms by governments.
The nature of the research which has been undertaken has enabled us to make a number of specific findings in relation to the implementation of recommendations. These recommendations are dealt with below in the same groupings as they have been reported upon in the body of this report.
The failure to provide adequate information systems significantly inhibits accountability Governments are able to prevent accurate scrutiny of their claims in a number of key areas designed to reduce over-representation. The problem is particularly apparent in relation to policing and recommendations relating to the use of summons, the use of protective custody, the use of particular charges, the use of arrest and the use of cautions.
These recommendations are poorly implemented and inhibit government accountability.
The group of recommendations which have been examined in this section have not been implemented to the degree envisaged by the Royal Commission into Aboriginal Deaths in Custody. Full implementation still provides the potential for significant improvements in Aboriginal/police relations and reductions in police (and ultimately, prison) custodial levels.
There are several reasons for this failure. However, they can be reduced to a number of key points.
There needs to be greater police commitment to improvements in the areas of training, discipline and policy development. There remain widespread complaints about violent, racist and inappropriate police behaviour.
There needs to be greater commitment to the development of effective community policing strategies which takes seriously the demand to negotiate with Aboriginal communities about suitable processes and outcomes. The ideas embedded in recommendation 188 concerning self-determination are still poorly understood and complied with.
There needs to be a greater commitment to funding for the development and support of locally devised community policing strategies including community police, night patrol and cell visitor programs.
These recommendations have been poorly implemented, and in some cases not implemented at all. These failures are based on lack of political will, the refusal to allocate the necessary resources and, in some settings, community opposition to sobering-up facilities. Anomalies and discriminatory practices abound in the operation of public drinking legislation, appealing to racist elements in the community and in local government.
Some States (Victoria, Queensland and Tasmania) have failed to decriminalise public drunkenness.
There is a failure in all States and Territories to establish sufficient sobering-up facilities and adequate procedures for their use.
There has been inadequate and sometimes no negotiation to develop mutually acceptable local plans in relation to alcohol consumption.
Adequate implementation of these recommendations would have a massive impact on reducing the levels of Aboriginal detentions by police and the levels of over-representation in police custody. There would also be some slight reduction prison custodies.
These recommendations could be implemented with far greater commitment and could lead to reduced levels of police custody. Indeed, some of these recommendations currently have no more than government lip service paid to them.
Throughout Australia, Aboriginal people are being arrested, placed in police custody and, in some cases, imprisoned on the basis of behaviour that the police find offensive and which has been precipitated by police actions.
The use of arrest as a last resort was one of the keys to achieving the national goals of reducing over-representation in custody. The continuing high level of arrest of Aboriginal people, rather than dealing with problems by other means, demonstrates the lack of implementation of this recommendation.
There is still a heavy focus in police strategies on the maintenance of law and order, rather than on the more modern approaches of community policing and focusing on the prevention and resolution of problems. More systematic application of the police services commitments to planning and negotiating with Aboriginal and Torres Strait Islander communities, and avoiding automatic criminal justice system responses to perceived problems, would be instrumental in reducing custody levels.
Recommendations relating to bail issues need greater implementation including police notification of Aboriginal Legal Services, and adequate level of service provision - particularly in the establishment of bail alternatives such as bail hostels.
The recommendations in this section are concerned with diverting Aboriginal and Torres Strait Islander people away from prison. They seek to achieve this end by changes in sentencing legislation and practices which ensure imprisonment is a sanction of last resort; by the provision of adequate non-custodial alternatives; and by getting people out of prison who are already there at the earliest possible opportunity.
It is our view that some of the recommendations were poorly drafted. However, even taking this into account, it is clear that there has not been adequate attention given to the intent of the recommendations, and that in many cases they have been poorly implemented or not implemented at all. There is still enormous room to reduce Aboriginal imprisonment rates.
At the level of sentencing it is clear that alternatives to the use of short term imprisonment orders could be effectively utilised. There are specific offence categories in some jurisdictions, such as motor vehicle related offences and `fail to appears' where alternatives to imprisonment could be found.
The recommendations designed to reduce or eliminate the use of police custody and / or imprisonment of Aboriginal people for fine default, breach of bail conditions and community service orders have not been adequately implemented.
There is significant room for improvements in police practices in relation to the execution of warrants which could result in reduced numbers and length of custodies.
The need to resource Aboriginal organisations and expand the actual availability of non-custodial options is paramount. It is an indictment of governments' commitment to the Royal Commission into Aboriginal Deaths in Custody recommendations that, some five years after the Commission, so few Aboriginal-run alternatives exist on the ground.
More punitive approaches to `law and order' in some jurisdictions have had, and continue to have, a profoundly negative impact on Aboriginal people. The trend in sentencing has been to keep people in gaol longer - particularly those serving shorter sentences - and this has impacted directly on Aboriginal people.
The recommendations in this section cover a range of issues including the expungement of criminal records, cross-cultural training, the use of Justices of the Peace, the use of interpreters and the improvement of legal representation for Aboriginal people.
The most positive implementation of these recommendations has been in regard to cross cultural training, particularly for the judiciary.
However many of the other recommendations have not been adequately implemented. These recommendations are quite basic in their intent. They involve relatively straightforward matters such as Aboriginal and Torres Strait Islander people being able to understand and communicate in the court, and lawyers having sufficient time to actually understand and take instructions from their clients. The results of the failure to implement these types of recommendations are also relatively straightforward. They lead to situations where there are gross miscarriages of justice and Aboriginal and Torres Strait Islander people are imprisoned for offences of which they are innocent.
The recommendation covering the expungement of criminal records has not been taken seriously by many governments.
The recommendations relating to the use of interpreters has not been adequately implemented and there is widespread condemnation of the unavailability of Aboriginal and Torres Strait Islander interpreters.
Aboriginal Legal Services are still not adequately funded for the various tasks they are expected to perform.
It has been widely recognised that the high criminalisation and incarceration rates of Indigenous young people is a disastrous time bomb which will seriously affect the life chances of another generation of Aboriginal and Torres Strait Islander people. The recommendations in this section deal with young people and the reduction of custody levels. The recommendations require that Aboriginal communities and organisations should be negotiated with to find the best solutions to the problem of over-representation. They should also be resourced to provide adequate non-custodial community-based alternatives. Another section of the recommendations deals primarily with police practices involving the adequate use of diversionary facilities for Aboriginal and Torres Strait Islander young people.
There is still enormous scope for improved implementation of these recommendations.
Despite formal commitment by governments, the recommendation requiring negotiation with Aboriginal communities and organisations to reduce incarceration levels has not been adequately implemented. There is also a strong apprehension that the current political climate in relation to juvenile offending is one which is going to see more Aboriginal and Torres Strait Islander young people in custody.
There has been a general improvement in the extent to which Aboriginal organisations can contribute in relation to decisions about individual young people appearing before the courts. However, it is also clear that there are variations between States and different regions within States as to the extent to which the recommendation has been implemented on the ground.
It is clear that greater resourcing is needed for community-based and devised strategies for young people. No matter what non-custodial options are available in juvenile justice legislation, the central issue is the extent to which they can be utilised in practice.
All jurisdictions claim to have implemented the recommendation requiring the use of summons rather than arrest for juveniles. However, because of inadequate monitoring it is difficult to know what the standard operational practice might be. We also do not know whether decisions are applied equitably to Aboriginal and Torres Strait Islander young people.
The use of cautioning varies considerably between States. Those jurisdictions that restrict cautioning to first offenders only, effectively limit the availability of the option to Aboriginal and Torres Strait Islander young people. Few jurisdictions have picked up on the need for proper evaluation. Indeed for many jurisdictions it is impossible to know the frequency with which cautioning is used for Aboriginal young people compared to non-Indigenous youth.
The recommendation requiring that juveniles not be held in police cells unless there are exceptional circumstances is poorly implemented by State and Territory Governments. Indigenous young people are still held in police lock-ups across the length and breadth of the country. The Federal Government has sought exemption from complying with the international instrument which seeks to achieve the same end as the Royal Commission's recommendation.
[1] Recommendations 42, 43, 44, 47
[2] Recommendations 60, 61, 214, 215, 232, 220, 221, 222, 223, 224, 225.
[3] Recommendations 79, 80, 81, 82, 83, 84, 85.
[4] Recommendations 86, 87, 88, 89, 90, 91.
[5] Recommendations 92, 94, 101, 104, 216, 217, 218, 109, 111, 112, 113, 114, 115, 118, 119, 102, 103, 117, 120, 121, 95.
[6] Recommendations 93, 96, 97, 98, 99, 100, 105, 106, 107, 108, 234.
[7] Recommendations 62, 235, 236, 238, 239, 240, 241, 242, 243, 244, 245.
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/1997/51.html