LAWS305 FINAL

A R R E S T I N G
I M P R I S O N M E N T
T A C K L I N G H I G H I N D I G E N O U S
I N C A R C E R A T I O N R A T E S I N N E W
S O U T H W A L E S ( N S W )
Danii-Elle Svendsen | 43692788
Amazon.com

Final report Danii-elle Svendsen: 43692788
2
Overview
The statistical over-representation of Indigenous people in the criminal justice system in
Australia has been a prevalent issue that current policy makers are struggling to address. The
state of New South Wales is one state out of many that endure the great costs associated
with such an issue. Sentencing can be viewed as a point at which the problem of the over-
representation of indigenous people could be addressed. Therefore, this report seeks to set
out a realistic policy roadmap that builds upon the ideas published by various scholars while
seeking to achieve long-term results that take into consideration Indigenous social and
cultural identities.
The report begins with a brief outline about the urgency of the issue that is faced today in
NSW highlighting the need for swift, effective policy action. It then goes on to indicate the
root causes of high Indigenous incarceration rates in the state depicting that much of the
issue arises due to social and economic disadvantage including a few legal constraints.
Following this, the report elaborates on past and current policy initiatives that have been put
in place, particularly paying close attention to why such policy initiatives have failed to
address the issue.
Moving on, the report recommends a set of policies that the state should implement in order
to reduce the number of indigenous offenders being incarcerated and lower the reoffending
rate. The recommendations include the establishment local, community controlled justice
centers, bail hostels, compulsory post-release rehabilitation sessions, the decriminalization
of petty crimes and initiatives to address fine default. Allpolicy recommendations ensure that
indigenous cultural and social identity in the context of disadvantage are taken into account

3
to ensure maximum cooperation and results that benefit all. If the state government choses
to adopt the policy recommendations, present and future governments will be able to meet
the goal of reducing incarceration and recidivism rates amongst the indigenous community
in NSW whilst easing the costs associated with it.
Politicians have voiced their concern about the over-representation of Indigenous people in
the criminal justice system and the urgent need for it to be addressed. By working together
with the Indigenous community in NSW, all we need are a few, clear recommendations and
reforms to create a big difference. This report provides it.

4
Table of Contents
1 INDIGENOUS INCARCERATION RATES IN NSW PRISONS 5
1.1 CAUSES CONTRIBUTING TOTHE ISSUE 6
2 POLICY INITIATIVES AND ITS EFFECTIVENESS 8
2.1 THE 1991ROYAL OMMISSION RECCOMENDATIONS 8
2.2 CIRCLE SENTENCING AND ABORIGINAL ‘ SHAMING’ COURTS 9
2.3 BAIL LAWS 10
3 POLICY RECCOMENDATIONS 11
3.1 LOCAL, COMMUNITY CONTROLLED JUSTICE CENTERS 11
3.2 BAIL HOSTELS 12
3.3 POST-RELEASE REHABILITATION 13
3.4 DECRIMINALISATION OF PETTY CRIMES 14
3.5 ADDRESSING FINE DEFAULT 14
4 CONCLUSION 15
5 REFERENCE LIST 17

5
1 Indigenous incarceration rate’s in NSW prisons
The statistical over-representation of Indigenous people in NSW prisons has reached
alarmingly high levels and is continuing to rise as current policy initiatives continue to fail to
address the issue.
It has been reported that in November 2015, indigenous incarceration rates in NSW had
increased by 18 percent(Myles 2015). Shockingly, there were 289 juvenile offenders in NSW
prisons in 2015 where 150 of them were Indigenous(Wayne 2015). Furthermore, the high
rates of recidivism amongst Aboriginal people is a major contributing factor to high
incarceration rates(Wayne 2015). The re-conviction rate within two years in NSW is 86% for
aboriginal people compared to 74% for non-Aboriginal people(Myles 2015). It is reported that
the economic costs of imprisonment are substantial. It is reported that on average it costs the
Australian government f $292 per day, in a system that costs the nation $2.6 billion (after
expenses) in 2013-14(Thomas 2015). Aboriginal and Torres Strait Islander Social Justice
Commissioner, Mick Gooda, noted that by reducing the number of incarceration rates
amongst the aboriginal population alone could save the government $800 million a year. In
turn, this money could be efficiently allocated into programs which can address the issue of
recidivism.

6
1.1 Causes contributing to the issue
There are a wide number of root causes contributing to the high incarceration rates amongst
aboriginal people in NSW. It is noted that there is a large population of indigenous individuals
who are serving their sentence in jail for minor offences(Weatherburn 2014, p.90). For
example, in 2010, the NSW Local Court had announced that 5.6 percent of indigenous
offenders were given a prison sentence for a kind of public order offence (e.g. swearing at a
police officer) and this was their primary offence(Weatherburn 2014, p.90). It is additionally
stated that in 2012, 7.8 percent of the Indigenous offenders in NSW were serving time in jail
for driving without a license(Weatherburn 2014, p.90; Wayne 2015, p.10).
Don Weatherburn and Jessie Holmes(2010, p.561) argue that there are four main
causes for the overrepresentation of indigenous people in Australian prisons. Their study
suggests that Aboriginal offenders are more likely than non-indigenous offenders to be
imprisoned if convicted. Secondly, they state that indigenous people are more likely to be
convicted ifcharged with acriminal offence and that Indigenous offenders are alsomore likely
to be refused bail. These reasons are supported by 2008 NSW Bureau if Crime Statistics and
Research. The statistics clearly indicate that out of the 19,477 of indigenous offenders in
court, 15.8 percent were refused bail, 77.9 percent were convicted and 21.4 percent were

7
imprisoned. As Table 1 indicates, a majority of these percentages were significantly higher
than non-indigenous offenders.
Table 1
Indigenous status Number in
Court
% bail refused % convicted % imprisoned
Indigenous 19,477 15.8 77.9 21.4
Non-Indigenous 102,360 6.6 83.6 7.6
Source: Weatherburn and Holmes(2010, p.561)
The authors alsoargue that there may be “bias in the treatment of Indigenous people at some
earlier stage of criminal justice processing, such as at the point where police decide whether
or not to arrest a suspected offender or at the point where courts decide whether or not to
grant bail”(Weatherburn & Holmes 2010, p.563). The Royal Commission noted that
indigenous offending was a result of indigenous disadvantage. Indigenous people experience
vast disadvantage compared to non-indigenous people in areas such as unemployment,
school retention, drug abuse and alcohol abuse. It is noted that drug and alcohol dependent
offenders often resort to crime in order to fund their addictions. For example, burglary

8
amongst heroin users were 4.7 percent higher than non-users(Weatherburn & Holmes 2010,
p.565). Additionally, drug and alcohol abuse increases the risk of child neglect, which in turn
increases the risk of the child leaving school early and juvenile involvement in
crime(Weatherburn & Holmes 2010, p.566). Studies have also indicated a strong positive
correlation between long-term unemployment and crime(Weatherburn & Holmes 2010,
p.568).As highlighted earlier, recidivism is one of the largest contributors to the high rate of
incarceration amongst the indigenous community in NSW, having a reconviction rate of
86%(Wayne 2015). Some studies suggest that addressing recidivism is more effective in
reducing incarceration rates than targeting other root causes(Weatherburn & Holmes 2010).
2 Policy initiatives and its effectiveness
2.1 The 1991 Royal Commission Recommendations
In 1991, the Royal Commission into Aboriginal Deaths in Custody, was a key event that
increased the need for appropriate policies to be implemented in order to address the issue
of the over-representations of Indigenous people in the Australian criminal justice system. As
a result, the Royal Commission was established and had constructed a final report which
included 300 recommendations to reform the criminal justice system and to address
historical, cultural, social, economic and political factors that could give rise to the
issue(Jeffries & Stenning 2014, p.459). Though such initiatives took place, incarceration rates
of Indigenous individuals continued to rise substantially than ever before(Jeffries & Stenning
2014; Weatherburn 2014; Weatherburn & Holmes 2010). During this time, the Keating
government accepted the findings reported by the Royal Commission and set aside 43 million
dollars to stimulate through the Commonwealth Development Employment Program and
71.6 million dollars in order to combat drug and alcohol abuse(Weatherburn & Holmes 2010,

9
p.570). However Weatherburn and Holmes (2010, p.570) go on to state that a majority of the
funds were allocated into programs that had little hope of reducing incarceration rates
amongst the Indigenous community in Australia. For example they note that 50 million dollars
was allocated for legal aid alone, only 20 million dollars was allocated to improve indigenous
education and only 10 million dollars was set aside for preschools for indigenous children in
remote areas. There was no funding to reduce child neglect, one of the root causes of
incarceration rates amongst Indigenous juveniles(Weatherburn & Holmes 2010, p.570). In
addition to this, research indicated that the states of NSW and Queensland had clearly failed
to implement fully the Royal Commission recommendation of using arrest and imprisonment
as last resorts(Weatherburn 2014, p.28). It is argued that such policy initiatives that have
taken place in the wake of the the Royal Commission’s investigation were limited in scope
and availability and are generally not designed or monitored by the Indigenous communities
or organizations(Cunneen 1998, p.242).
2.2 Circle sentencing and Aboriginal“shaming” courts
Since the Royal Commission into Aboriginal Deaths in Custody, more culturally supportive
sentencing initiatives have taken place. One such initiative is the practice of circle sentencing.
The process of circle sentencing brought together representatives, where they tried to come
up with an appropriate sentence that did not include jail time(Jeffries & Stenning 2014,
p.456). Representatives included Aboriginal Elders,members of the prosecution or police and
a magistrate. Circle sentencing was implemented in February 2002 on a trial basis in NSW in
order to address the issue of over representation of indigenous people in the NSW criminal
justice system and the inconsistent rate of recidivismamongst aboriginal offenders (Smith &
Welch 2008). Sadly, studies indicate that offenders were no less likely to reoffend than if they

10
were sentenced in a normal court system(Fitzgerald 2008; Jeffries & Stenning 2014, p.470). It
was also noted that they were usually likely to reoffend in less that 15 months after their
“circle” hearing(Fitzgerald 2008).
Moreover, 50 Aboriginal “shaming” courts were established in 1999 around the
country, including NSW, in order to curb aboriginal reoffending rates but this too has
failed(Guilliant 2010). It was further reported that two-thirds of those appearing in the courts
reoffended within 12 months, which was roughly the samerate as inthe normal court system.
It can be understood that such methods which take into account cultural considerations and
practices that avoid a jail sentence can be seen as ‘a slap on the wrist’ for major offences
which hence put the public at risk when the offender is released back into the community.
2.3 Bail laws
As previously noted, NSW’s bail laws are a factor which have contributed to the increased
number of Indigenous individuals in prisons. David Pheeney (2012, p.3) indicates that recent
amendments of the bail laws in NSW has steadily eroded an accused persons right to bail and
“fails to preserve the legal principals to the disadvantage and detriment of Aboriginal
offenders who come before the criminal justice system”. For example, the introduction of
section 22A provisions limit the number of bail applications juveniles can make, which has
increased the number of offenders in remand(Pheeney 2012, p.5). It is important to note that
NSW is one out of three states where cultural considerations are not taken into account when
sentencing an individual(Jeffries & Stenning 2014, p.461).

11
3 Policy recommendations
The aim of the policy recommendations is to enforce the principal that imprisonment should
be the lastresort when itcomes to aboriginal offenders. The policy recommendations address
two aims, to reduce the number of indigenous people being incarcerated and to reduce the
rate of recidivism amongst them.
3.1 Local, community controlled justice centers
The establishment of local, community controlled justice centers, especially in highly
indigenous populated areas, can be seen as an effective method when trying to address
recidivism amongst the indigenous community in NSW. This recommendation is best suited
for offences such as domestic violence (depending on its severity), theft and drug related
crimes. Community justice can be understood as a form of restorative justice whereby all
parties involved and those who have interest in a particular offence, come together to decide
on how to deal with the outcome of the offence and its repercussions for the future(Chua &
Foley 2014, p.139). It is understood that a community has the ability to reflect the ideology
that methods of punitive punishment are ineffective and can lead to more problematic social
outcomes. It is also argued that the community has better interest in the reintegration of the
offender into the community and is an effective way of reducing recidivism(Chua & Foley
2014, p.140). Such an approach would ensure that the causes and consequences of the
offence are dealt with holistically and would in turn assist with the re-entry of the offender
into the community(Lawrie & Matthews 2002, p.17). By engaging the aboriginal community,
they have the ability to impose sanctions on the offender’s behavior and demonstrate that
they are intolerant to such offences. It is argued that by doing so, this would have a more

12
meaningful impact on aboriginal offenders than existing criminal justice processors(Lawrie &
Matthews 2002, p.17,18). Furthermore, the NSW criminal justice system fails to take into
account aboriginal disadvantage(Charles 2014, p.42). Canadian criminal justice system has
successfully implemented culturally appropriate sentencing environments through more
indigenous involvement, which is said to have been more successful in reducing recidivism
rates than the usual criminal justice process(Jeffries & Stenning 2014, p.460). Therefore,
through the establishment of centers that are run by indigenous communities ensures that
such aboriginal culture and social identity is taken into account.
Through the establishment of justice centers, it is compulsory that offenders take part in
holistic healing programs with the aim of providing restitution for the victim, the community
and for themselves. Such programs will be discussed amongst the community and should be
decided upon by an elder. It is important that the design of the healing program depicts the
community’s strengths when dealing with particular offences by utilizing their own healing
skills and thus, assisting in the overall well-being of the aboriginal communities and self-
determination in the process.
3.2 Bail hostels
One of the most significant reasons as to why an indigenous offender is more likely to be
refused bail is because they are less to have stable living arrangements(Wayne 2015, p.10;
Sibree 2015, p.10). Due to this, it is deemed a smarter option to monitor an offender behind
bars, in remand, rather than running the risk of the offender moving about. As mentioned
earlier, this costs the government $292 per day to keep a person in jail. Therefore, the
establishment of bailhostels can be seen as a more effective and efficient option when aiming
to save the government money. Bail hostels would not only save the government money but

13
reduce the number of people in remand and also ensures that the defendant is provided
sufficient accommodation if he/she doesn’t have any permanent accommodation of his or
her own. Furthermore, bail hostels are a good way of providing supervision and any
necessary treatment which thus would increase the likelihood of bail
compliance(Weatherburn 2014, p.95). Bail hostels were deemed highly successful in the
United Kingdom when addressing high incarceration rates and recidivism(Weatherburn 2014,
p.95; Sibree 2015, p.10).
3.3 Post-release rehabilitation
Various commenters who pay particular interest in this issue call for more evidence based,
culturally sensitive rehabilitation programs to be available to all offender post-release in
order to assist them with the reintegration into their communities and help reduce
recidivism(Baldry & Mccausland 2009; Sibree 2015; Weatherburn & Holmes 2010). Studies
have highlighted that it is far more effective to reduce the reoffending rate than reducing the
number of people becoming in contact with the criminal justice system(Weatherburn 2014;
Weatherburn & Holmes 2010). It is further noted that a reduction of 20 percent in the rate of
recidivism of indigenous offenders in NSW can reduce the NSW prison population by 600
inmates(Weatherburn & Holmes 2010, p.571). Therefore it is highly recommended that
prisoners not only receive compulsory culturally sensitive rehabilitation programs during
prison but more importantly after they have been released back into their community.
Further supporting this, Baldry and Mccausland (2009, p.294) indicate that longer term,
coordinated post release support increases the chances of treatment or rehabilitation
received whilst in prison will be more successful. Additionally, it is important to note that this
method is crucial when addressing juvenile offenders as this group is at extreme risk of ending

14
up in an adult prison later on in life(Weatherburn & Holmes 2010, p.571). Therefore, it can be
argued that this method can help break the cycle of recidivism, providing a long term solution
to the issue.
3.4 Decriminalization of petty crimes
As previously noted, petty crimes such as driving without a license and public order offences
(such as disorderly conduct) have been a large contributor to high incarceration rates
amongst the indigenous population in NSW. It is noted that through the decriminalization of
these two offences alone could lead to the number of indigenous prisoners in NSW alone to
fallby more than 13 percent(Weatherburn & Holmes 2010, p.90). This goes to show that there
is undoubtedly some value in reducing the number of indigenous Australians who come in
contact with the criminal justice system. Therefore, it is highly recommended that the state
of NSW decriminalizes petty crimes in order to dramatically reduce the percentage of those
being in contact with the criminal justice system.
3.5 Addressing fine default
Imprisonment for fine default has been another prevalent issue that is contributing to
incarceration rates amongst Indigenous people. A majority of indigenous people come from
communities that are economically disadvantaged, enduring high levels of unemployment. It
was noted that in 2013, 1,358 people were imprisoned due to fine default (they could not pay
their fine) in which 16 percent were indigenous. To curb the number of indigenous people
going into prison due to fine default, it is vital that their economical circumstances and other
factors that contribute to their disadvantage are taken into account and the option of

15
payment plans are available to them. In conjunction to this, the option of participating in
community service instead of a financial penalty should too be offered.
The NSW Criminal Assets Recovery Act 1990 states that it is an “Act to provide for the
confiscation of interests in property that are interests of a person engaged in serious crime
related activities; to enable proceeds of serious crime related activities to be recovered as a
debt due to the Crown; and for other purposes.” It is recommended that this act be extended
to allow courts to temporarily confiscate a person’s assets for a period of time as an
alternative to fines or imprisonment. This could not only be used to address issues such as
fine default but other offences such as fraud and drug related offences. It is argued that this
could be an effective deterrent and alternative to imprisonment and fines(Sibree 2015, p.11).
4 Conclusion
It is with no doubt that the issue of high incarceration amongst the indigenous offenders in
NSW is a prevalent and urgent issue that needs to be addressed. As the report has indicated,
previous initiatives have failed to consider the incarceration of Indigenous offenders as a last
resort. Furthermore, such initiatives have been limited in scope and availability. Most
importantly, they have failed to consider indigenous socialand cultural identity in the context
of disadvantage. The policies that this report has recommended has built on the faults of the
past and the ideas of various scholars. Most importantly, the recommendations encourage
Indigenous community involvement that depict their strengths when dealing with particular
offences by utilizing their own skills and thus, assisting in the overall well-being of the
aboriginal communities and self-determination in the process. As the report indicates, this
would also drive down the rate of recidivism. Furthermore, some of the recommendations
provide more options for offenders so that they can avoid imprisonment. The policy

16
recommendations have the ability to improve the lives of the indigenous people in the state
and give them a fair go in the criminal justice system. If it is successful in achieving the goals
to reduce the rate of Indigenous incarceration and recidivism, then the state of NSW is one
step closer to closing the gap, improving the lives of our first peoples and setting the standard
in Indigenous affairs for the nation.

17
Reference list:
Baldry, E & Mccausland, R 2009, ‘Mother seeking safe home: aboriginal women post-
release. (Australia)’, Current Issues in Criminal Justice, vol. 21, no. 2, pp. 288–301.
Charles, C 2014, ‘Considering Aboriginal disadvantage in sentencing decisions’, Bulletin (Law
Society of South Australia), vol. 36, no. 9, pp. 40–42.
Chua, SXY & Foley, T 2014, ‘Implementing restorative justice to address indigenous youth
recidivism and over-incarceration in the ACT: navigating law reform dynamics.
(Australian Capital Territory)’, Australian Indigenous Law Review, vol. 18, no. 1, pp.
138–152.
Cunneen, C 1998, ‘Reforming juvenile justice: creating the space for indigenous self-
determination’, Youth Issues Forum, no. Winter 1999, pp. 241–246.
Fitzgerald, J 2008, ‘Does circle sentencing reduce Aboriginal offending?’, Crime and Justice
Bulletin, no. 115, pp. 1–11.
Guilliant, R 2010, ‘Aboriginal courts fail to deter offenders | The Australian’, The Australian,
accessed June 14, 2016, from <http://www.theaustralian.com.au/national-
affairs/aboriginal-courts-fail-to-deter-offenders/story-fn59niix-1225942469876>.
Jeffries, S & Stenning, PC 2014, ‘Sentencing Aboriginal Offenders: Law, Policy, and Practice
in Three Countries’, Canadian Journal of Criminology and Criminal Justice, vol. 56, no.
4, pp. 447–494.
Lawrie, R & Matthews, W 2002, ‘Holistic community justice: a proposed response to family
violence in aboriginal communities. (Forum: Family Violence in Indigenous
Communities; Breaking the Silence?)(Australia)’, University of New South Wales Law
Journal, vol. 25, no. 1, pp. 228–232.
Myles, M 2015, ‘Indigenous incarceration rates in NSW up 18 percent’, NITV, accessed June
14, 2016, from <http://www.sbs.com.au/nitv/nitv-
news/article/2015/11/04/indigenous-prison-nsw-18-percent>.
Pheeney, D 2012, ‘“Do you reckon I'm gunna get bail?"’: the impact and consequences of
New South Wales bail laws on Aboriginal juveniles.’, Indigenous Law Bulletin, vol. 7,
no. 30, pp. 3–7.
Sibree, A 2015, ‘Alternative sentencing options on the table’, Bulletin (Law Society of South
Australia), vol. 37, no. 8, pp. 10–11.
Smith, A & Welch, D 2008, ‘Circle Sentencing not effective: Study’, Sydney Morning Herald,
accessed June 14, 2016, from <http://www.smh.com.au/news/national/circle-
sentencing-not-effective-study/2008/07/16/1216162959979.html>.

18
Thomas, J 2015, ‘How much does it cost to keep people in Australian jails?’, News, accessed
June 14, 2016, from <http://www.sbs.com.au/news/article/2015/02/02/how-much-
does-it-cost-keep-people-australian-jails>.
Wayne, M 2015, ‘Indigenous Incarceration Rates: Strategies for much needed reform’, Brief,
vol. 42, no. 5, pp. 8–13.
Weatherburn, D 2014, Arresting Incarceration, Aboriginal Studies Press, Canberra.
Weatherburn, D & Holmes, J 2010, ‘Re-thinking Indigenous Over-representation in Prison’,
Australian Journal of Social Issues, The, vol. 45, no. 4, pp. 559–576.

LAWS305 FINAL

Recommended

Recommended

More Related Content

Similar to LAWS305 FINAL

Similar to LAWS305 FINAL (19)

LAWS305 FINAL