Cunneen, Chris --- "Aboriginal Imprisonment During and Since the Royal Commission into Aboriginal Deaths in Custody" [1992] AboriginalLawB 19; (1992) 1(55) Aboriginal Law Bulletin 13

• Aboriginal Imprisonment During And Since The Royal Commission Into Aboriginal Deaths In Custody
• Table 1: Aboriginal Prisoners (Prison Census, 30 June 1987-30 June 1991)
• Table 2: Aboriginal Imprisonment (30 June 1991)
• Table 3: Increase In Aboriginal And Non-Aboriginal Prisoners (30 June 1987 – 30 June 1991)
• Table 4: Number Of Aboriginal Prisoners By State

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Aboriginal Imprisonment During and Since the Royal Commission into Aboriginal Deaths in Custody

by Chris Cunneen[1]

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) was established in 1987. The first major national report of the RCIADIC - the Interim Report by Justice Muirhead - was released in December 1988. It raised serious concerns about the level of Aboriginal imprisonment and argued that imprisonment should be used only as a last resort. Indeed recommendation 1 of the Interim Report states that:

"Government ... [should] enforce the principle that imprisonment should be utilised only as a sanction of last resort."

The National Report of the RCIADIC was released in May 1991. Recommendations 92 to 121 deal with imprisonment as a last resort and the methods involved in reducing the levels of Aboriginal imprisonment. Recommendation 92 of the National Report specifically repeats Recommendation 1 of the Interim Report. Thus one of the basic thrusts of the RCIADIC has been that to reduce or stop Aboriginal deaths in custody there needs to be a reduction in the number of Aboriginal people in custody.

It is therefore important to ask what changes have occurred during the last 4 years in the level of Aboriginal imprisonment. Table 1 shows the number of Aboriginal people in Australian prisons in different jurisdictions at the time of the Prison Census on 30 June 1987 (immediately prior to the RCIADIC), and at the Prison Census on 30 June 1991 (immediately after the release of the RCIADIC's Final Report).

Table 1: Aboriginal Prisoners (Prison Census, 30 June 1987- 30 June 1991)

State	30/6/87	60/6/91	Increase %
NSW	369	664	80
Vic	52	91	75
WA	503	624	24
SA	147	150	2
Qld	354	346	-2
NT	334	328	-2
Tas	7	10	43
Australia	1766	2213	25

There have been dramatic increases in the level of imprisonment of Aboriginal people in NSW, WA and Victoria. Over the 4 year period NSW had the greatest increase in Australia with an 80% rise in the number of Aboriginal prisoners and also the highest increase in real numbers, from 369 to 664 Aboriginal prisoners. Victoria recorded an increase of 75% during the period. While the actual numbers there were comparatively small (an increase from 52 to 91 Aboriginal prisoners), the magnitude of the Victorian increase is disturbing. WA recorded an increase of 24% which is particularly alarming given the number of Aboriginal prisoners in that State. Other States and Territories recorded slight increases or decreases, with the exception of Tasmania. However the Tasmanian figures are so small that the 43% increase should be taken in the context of a rise from 7 to 10 Aboriginal prisoners. As indicated below the actual rate of Aboriginal imprisonment in Tasmania is the lowest in Australia.

Nationally there has been a 25% increase in the number of Aboriginal people in prison during the 4 year period of the RCIADIC. The increase has occurred at a time when it was recognised that overrepresentation of Aboriginal people in custody was a contributing factor to the large number of deaths in custody. NSW must bear the major responsibility for the national increase in Aboriginal prisoners. The increase in that jurisdiction alone contributed over 16% to the national increase of 25%. WA figures are also high, contributing over 6% to the national increase.

Table 2: Aboriginal Imprisonment (30 June 1991)

Sate	Rate per 100 000
NSW	1651
Vic	1125
WA	1050
SA	944
Qld	722
NT	565
Tas	149

Rates of imprisonment of Aboriginal people per 100 000 of the total Aboriginal population (as measured by the 1986 Census) are shown in Table 2. Jurisdictions are listed in order of the magnitude of the rate. Table 2 highlights NSW and WA jurisdictions as having high rates of Aboriginal imprisonment. Not only have these jurisdictions significantly increased the level of Aboriginal imprisonment, they also have the highest rates of Aboriginal imprisonment in Australia.

An issue often neglected in analysing figures on Aboriginal imprisonment is the. specific position of Aboriginal women in prison. The number of Aboriginal women in prison in all Australian jurisdictions rose from 78 in the 1987 Prison Census to 127 in the 1991 Census. Such a change represented a 63% increase in the imprisonment of Aboriginal women during the 4 year period. Between 1987 and 1991 the number of Aboriginal women in NSW prisons rose by no less then 168%. WA saw a rise of 54% in Aboriginal women prisoners during the same period.

It is also worth considering the extent to which the increase in Aboriginal imprisonment over the last 4 years has occurred alongside a more general movement towards the increased use of incarceration. Table 3 shows the percentage increase (or decrease) in the number of Aboriginal prisoners and the number of non-Aboriginal prisoners during the 4 year period.

It is significant that in NSW, WA and Victoria, the increase in Aboriginal imprisonment has far outstripped the general increases in imprisonment figures. Thus the percentage of non-Aboriginal people imprisoned increased by 54% in NSW, while the imprisonment of Aboriginal people increased by 80%. Similarly, in Victoria, the increase in non-Aboriginal prisoners over the 4 year period was 17%, while the increase in Aboriginal prisoners was 75%. In WA the non-Aboriginal prison population increased by 6%, while the Aboriginal prison population increased by 24%.

It is not the purpose of this paper to offer comprehensive reasons for the dramatic national increases in Aboriginal imprisonment. However some issues stand out as being important. Firstly, the RCIADIC has noted that proportionately more Aboriginal people are sentenced to imprisonment for less serious offences:

"It is to be noted that at the less serious end of the scale, there are proportionately more Aboriginal than non-Aboriginal prisoners held for traffic, good order offences, property offences and for the group of offences known as 'justice procedures', which includes breaches of orders and fine default. "[2]

NSW has seen the reintroduction of penal provisions for minor public order offences since the introduction of the Summary Offences Act 1988 (NSW). While it is not known how many Aboriginal people have been imprisoned under this Act, it is known through the work of the Bureau of Crime Statistics and Research that there has been a massive increase in the number of charges for offensive behaviour and offensive language and that in some cases terms of imprisonment have been imposed.[3] There is a substantial body of research covering the last two decades which indicates that it is precisely for these type of public order charges that Aboriginal people are most over-represented. In other words, we have seen the reintroduction of the use of imprisonment as a punishment for minor offences exactly at a time when the RCIADIC in its Interim Report was advocating the opposite. In Victoria there has been a failure to decriminalise public drunkenness, despite the reports of the Victorian Law Reform Commission and the presentation of a bill to Parliament. Under ss 13-15 of the Summary Offences Act 1966 (Vic) it is possible to receive penalties for public drunkenness ranging from a $100 fine to twelve months imprisonment.

Table 3: Increase in Aboriginal and Non-Aboriginal Prisoners
(30 June 1987 – 30 June 1991)

State	Aboriginal Increase %	Non-Aboriginal Increase %
NSW	80	54
Vic	75	17
WA	24	6
SA	2	22
Qld	-2	-12
NT	-2	3
Tas	43	-6

A further point which needs to be considered is the use of imprisonment for less serious offences instead of community-based options. The RCIADIC in its Final Report specifically referred to NSW and WA as two jurisdictions where there has been an under-utilisation of non-custodial sentencing options. It has been suggested that in NSW, non-custodial sanctions have been used as an alternative to other sanctions (such as fines) rather than as an alternative to imprisonment. As a result, the adoption of non-custodial options has not led to a reduction in imprisonment. In WA it has been argued that Aboriginal people specifically do not receive the benefits of non-custodial sentencing options. It is non-Aboriginal offenders who are more likely to receive the benefit of a non-custodial sentencing option.[4]

Another reason for the increase in prison numbers has been the more widespread increase in penalties for certain offences under the NSW Crimes Act. For example under the Crimes (Amendment) Act 1988 (NSW) the penalty for car theft under particular circumstances was increased to 10 years. One could predict similar outcomes in WA with the introduction of the Crimes (Serious and Repeat Offenders) Sentencing Act 1992 (WA). A further factor which is directly relevant to NSW is the impact of the Sentencing Act 1989 (NSW). Research by the Bureau of Crime Statistics and Research and the research unit of Corrective Services both indicate that the average length of time served by prisoners has increased since the introduction of the legislation. The Corrective Services research puts the increase in time served at 19%.

Table 4: Number of Aboriginal Prisoners by State

State	1987	1988	1989	1990	1991
NSW	369	385	415	579	664
Vic	52	65	86	88	91
WA	503	528	558	585	624
SA	147	114	102	124	150
Qld	354	431	412	367	346
NT	334	276	243	286	328
Tas	7	10	9	12	10

More difficult to demonstrate empirically, but no less real in its effects on imprisonment, has been the emphasis placed on a punitive law and order approach. Part of that approach has been translated into greater resources for policing, which has itself resulted in an increase in police numbers. Given the history of Aboriginal/police relations, such an emphasis on law and order leads to a more interventionist role in the lives of Aboriginal people.

In conclusion, it might be appropriate to offer a word of warning to those who might interpret the increase in Aboriginal imprisonment as a result of increased offences. Certainly the Australian Institute of Criminology has documented the increase in reported offences to police during the 1980's. However they note that "the rate of change in the level of crime appears to be similar in the six states and two territories."[5] The evidence in this paper demonstrates that changes in Aboriginal imprisonment do not correspond across jurisdictions with increases in reported offences. It is inadequate and misleading to explain the increase in Aboriginal imprisonment by reference to any increase in alleged criminality. It is far more important to analyse and question the effects of government policy which has promoted the use of imprisonment and which has adversely impacted upon Aboriginal people. Any government commitment to implementing the recommendations of the RCIADIC will be. shallow rhetoric indeed if the overall thrust of criminal justice policy is based upon locking-up an ever increasing number of Aboriginal people.

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[1] Fiona Wright provided research assistance in gathering data for this project. The sources for data were the relevant Corrective Services Departments.

[2] Commissioner Elliot Johnston, Royal Commission into Aboriginal Deaths in Custody, National Report, Vol. 1 (1991), p.208.

[3] According to the Bureau of Crime Statistics and Research figures, the number of persons charged with offensive behaviour rose from 2 808 in 1985 to 13 665 in 1990.

[4] Commissioner Elliot Johnston, op cit, Vol 3, p.95.

[5] Mukherjee, S., and Dagger, D., The Size of the Crime Problem in Australia, (1990), pp.7 and 8.