The things that must be done…

Feb 19, 2016

Some Genuine Decision-Making Power: Dealing with the over-representation of Aboriginal people in the prison system

This is an extract from the 2016 Frank Walker Memorial Lecture delivered by the Hon. Bob Debus AM on 16 February 2016. The Hon. Frank Walker QC was NSW Attorney General from 1976 to 1983. He later became a Federal Government Minister and a District Court judge. As a former Attorney General himself Bob Debus believes that Walker’s approach to the affairs of Aboriginal people remains the correct one.

See link for full speech:


“When Frank Walker was in office in the early 1980’s there was no heroin epidemic, no talkback radio law and order campaigns and there were less than 4,000 people in prison in New South Wales.

In June last year there were nearly 12,000 inmates and more than 2,800 or 24 percent of them were Aboriginal. Nationally, there were nearly 34,000 inmates, 27 percent of them Aboriginal. For every 100,000 non-Indigenous Australians there were 146 in prison last year. For every 100,000 Indigenous Australians 2,253 were in prison.

There is some encouragement in the news that there has been a decline in the rate of imprisonment for younger males over the last ten years, but here’s the rub. In the last decade or so overall rates of Aboriginal incarceration have increased by more than 50 percent In New South Wales.

Modern ‘law and order’ politics arrived in New South Wales in the lead up to the 1988 general election when Frank Walker and I both lost our seats. Heroin related rates of street crime — violence and robbery — had begun what was to be a steady 20 year period of increase and there was straightforward, reasonable concern about it in the community.

However, this was also the first election to be conducted in the climate of resentment, revenge and hysteria generated across the tabloid media by the new talkback style of radio. Frank was Minster for Youth and Community Services by then and I recall that his completely sensible juvenile cautioning scheme was attacked for being “soft on crime”. The Liberal’s promise of “Truth in Sentencing” legislation and the restoration of summary offences legislation was a defining, successful election strategy.

Once the cork is removed from this particular bottle it’s very hard in real life to get it back in. Politicians may be indifferent to an increase in levels of incarceration, or they may strenuously try to limit it, but either way they cannot operate in isolation from aroused media and public opinion.

In any event a long wave of more punitive laws concerning sentencing, bail and parole saw a substantial increase in the prison population across Australia and the Common Law world. And these changes had predictable and disproportionate effects upon Aboriginal offenders, in several ways.

Aboriginal legal services, underfunded as they have been, have still made sure that fewer people are verballed or plead to crimes they don’t commit. However problems still reside in the consequences of intensive policing and the high visibility of the kind of street level offences habitually committed in impoverished communities, not least traffic offences.

On 30 June last year there were more than 9,000 Indigenous prisoners in Australia and 7,100 of them had been in prison before. It is quite critical to understand that – as a statistical matter — the higher rate at which Aboriginal people first arrive in prison is much less significant than the rate at which they come back to it.

Substantial possibilities do exist, apart from more adequate funding, for improving the way that the justice system itself deals with Indigenous people. I will mention only a few of the most obvious.

  1. In these days of frequent ideological attack upon the civil service it’s worth reminding you that dedicated, competent public servants can fix some things just by paying attention, by doing the administration of government well.During the year 2009/2010 the average daily number of juveniles in custody in New South Wales reached 485, in part at least because of strict bail condition requirements. Rooms were doubled up and healthy young people were being placed in clinical beds. Officials understood that these circumstances could lead to a riot, incidents of self-harm and the like. Fifty percent of inmates were on remand. A quarter of that remand population were detained for a breach of bail without committing a new offence, typically for breach of curfew. There had also been a number of kids who had been granted conditional bail but could not meet all the required conditions.So special officers were placed in all children’s courts and were also available to provide information to magistrates at any court hearing children’s cases. Their function was not to supplant the lawyer’s role of advocating for bail but rather to provide the court with options and to mobilise resources to support young people having difficulty meeting bail requirements.In 2014/15 the average daily population of Juvenile Justice Centres was stable at an average of 286, a fall of around 40 percent. The proportion of Indigenous inmates remained unchanged at 50 percent, so there are now 20 percent fewer Indigenous kids in full time detention in New South Wales than there were five years ago.
  1. My next example concerns the reduction of recidivism. We know that Indigenous inmates are more likely to be arrested and charged with new offences. We know also that the reduction of reoffending is by some distance the fastest way to reduce the Indigenous prison population. We know from internationally validated data that tailored through-care and back of prison sentence programs assisting inmates to reintegrate into the community are effective in reducing recidivism.We know these three things but here in New South Wales nevertheless, the Government is taking no notice.Prisons are running seriously over capacity. In such circumstances rehabilitation work is always degraded but the situation appears to be worse than that. The Budget Papers show that targeted offender programs and education programs have actually been reduced. When prison numbers rise at the same time as savings are demanded, the funding of custodial programs will always come at the expense of rehabilitation programs. And that is to the detriment of the inmates and the budget in the long term.
  1. My final example concerns diversion from the prison system. There are plenty of established diversion and rehabilitation programs that are more effective and cheaper than prison. Drug Courts reduce offending, cognitive behavioural therapy works. Increased expenditure on all these measures would reduce imprisonment.Circle Sentencing Courts have engaged Aboriginal communities in the sentencing process and improved local relationships with the justice system, but don’t appear to be reducing offending as effectively as many of us expected a decade ago. However evaluations suggest that greater investment in support services, including drug and alcohol services and post sentencing programs linked to circles, would have a measurable effect on reoffending.”

Bob Debus AM was an ALP member of the NSW Parliament and Attorney General, Minister for the Arts and Minister for the Environment. He was also a member of the House of Representatives and Minister for Home Affairs in the Rudd Government.


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