Indigenous incarceration

Feb 24, 2024
Cropped image of prison office handcuffs on prisoner

More than a quarter of Canberra’s daily average prison population is Indigenous but only 2 per cent of people in the ACT identify as an Aboriginal or Torres Strait Islander person.

The only way people get to prison is to be sentenced there by a court.

Ipso facto the courts are the problem, surely?


Our judges and magistrates deliver justice as best they can. While they should – and in my experience, invariably do, exercise considerable leniency in this jurisdiction, there is only so much that can be done within the confines of the manifold criminal statutes and broad judge-made law that they are bound to uphold.

So the lawyers must be the problem?


My experience of those at the Aboriginal Legal Service is overwhelming one of utter commitment against sometimes impossible odds. They regularly have to deal with up to a dozen matters in a variety of morning lists – seeking bail for various defendants, many of whom may be running up against legislative presumptions against bail and who have no work or place to live or anything positive to put as part of their applications, and also having to take instructions and give advice on substantive, serious charges. It’s no easy task. Not only are they thoughtful and caring, they are lawyers of the first order, too.

There should be more of them: a far better use of our coming ACT Budget surplus than promises to fix roads and footpaths that aren’t broken.

So, court structures must be the issue?


The Galambany circle-sentencing court is 20 years old this year. Comprised of a magistrate and several elders, it has done magnificent work. My appearances in it have been infrequent but, every time, my client has had greater shame, more palpable remorse and so less chance of recidivism. Much better outcomes than when in “regular court”, the rapid-fire sentencing sausage factory of some Local Courts.

Magistrate Anthony Hopkins, who has headed the Galambany Court, has recently been appointed an Acting Justice of the Supreme Court’s Drug and Alcohol Sentencing List.

Acting Justices Hopkins and Rebecca Christensen will hold dual roles as Special Magistrates and Acting Judges.

On his appointment, Acting Justice Hopkins said, “What research and experience tell us is that we must listen deeply to understand the diverse experiences of Aboriginal and Torres Strait Islander peoples across this vast continent to which they belong, and which belongs to them, in order to take steps towards a fuller realisation of justice.

“This holds true at a constitutional, political and institutional level, as it does on a personal level. In the context of the criminal-justice system, this involves listening to understand how the past lives in the present, how intergenerational trauma shapes lives and how intergenerational, community and individual strength can offer a pathway to healing, and out of cycles of offending.”

Certainly, the jails themselves are a problem.

There was widespread graffiti around Sydney in the 1970s: “The jails are the crime.” The reputations of the old Grafton, Goulburn and Parramatta were diabolical. While things have improved, issues remain.

The Justice Reform Initiative is an alliance of people of long experience and expert knowledge of the justice system.

Their website proclaims that Jailing is Failing and they hope to establish a combination of political, economic and social forces to create “an opportunity to genuinely challenge and response to our over-reliance on incarceration.”

This is no collection of cranks nor is it some ivory-tower mob with no idea.

Its patrons in chief are the former governors-general Sir William Deane (also a former High Court judge) and Dame Quentin Bryce.
Its national patrons include former High Court judges Virginia Bell, Mary Gaudron and Michael Kirby, former federal police commissioner Mick Palmer and former Australian Law Reform commissioner, medical professor and one of the most respected former federal ministers for Aboriginal Affairs, Health and Education, Peter Baume.

Even in what might be expected to be the best prison in the country, our purportedly human-rights compliant Alexander Maconochie Centre, there are problems. The Productivity Commission’s latest data shows an Aboriginal person in Canberra is 24.6 times more likely to be imprisoned than a non-Indigenous person. The head of the Winnunga Nimmityjah Aboriginal health service, Julie Tongs, has described the latest data as “shameful”.

“There’s total boredom, widespread drug abuse, mental health issues; there is progress being made on these issues in prisons all around Australia but not in the ACT,” she said.

The comprehensive 2022 Healthy Prison Review by the independent Inspector of Correctional Services noted conditions inside the troubled AMC had declined in the two years since the previous report.

That report was absolutely ignored by the previous minister, Labor’s Mick Gentleman. Hope springs anew that his replacement, Emma Davidson, of the Greens, can achieve her pledge of change.

She will work with her senior Labor colleague Rachel Stephen-Smith, the Indigenous Affairs Minister, as the Jumbunna Institute begins its independent inquiry into the high rates of indigenous incarceration in the ACT.

This review was promised by the Government during the 2020 election campaign but was announced only this week and won’t be completed until after the 2024 election: a palpable chronological commentary on government priorities.

Making things better in prison would be good, but stopping people getting there in the first place is better.

Could the problem be us, the white majority in the comfortable middle class?

When we didn’t employ the indigenous candidate for a job?

When we didn’t challenge an acquaintance or workmate bemoaning some petty pilfering from local businesses by young indigenous people who “the courts just kept letting back out”?

Why didn’t we tell them about Bugmy, the High Court case that established sentencing principles that an offender’s background of deprivation is a relevant factor when determining an appropriate sentence and give some examples of the deprivation too many indigenous offenders have lived through? Like Fetal Alcohol Spectrum, exposure as young kids to physical and sexual violence, interrupted school attendance and suspensions, early exposure to alcohol and other drug abuse and, most sadly, incarceration of a parent or caregiver, that potential infinite cycle.

If we can arrest these issues and the worst of our attitudes (even in homogenous cardiganed Canberra there is a not-so-latent Hansonism just below the surface), we won’t be needing to arrest so many young indigenous people.


Republished from The Canberra Times, February 10, 2024


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