Jailing is Failing
(Private Member's Statement, 18 February 2021, Legislative Assembly, NSW Parliament)
Australia’s per capita imprisonment rates are at their highest since 1900 and are above those of any western European country or Canada. Prison is a socially and economically costly way to deal with the social challenges that lead to offending. My constituents want the government and Parliament to work to reduce incarceration rates and its impacts on people’s lives.
Jailing is failing the community, from those caught up in the justice system, to victims of crime to tax payers. It costs over $100,000 a year to keep someone in prison, meanwhile, prison fails to address the underlying issues associated with offending, often leading to reoffending. The experience of jail in itself increases reoffending with 50 percent of people imprisoned returning within two years.
We in this house know the damning statistics that show the unfair impact and biases in our justice system. Aboriginal and Torres Strait Islander people make up three percent of the total population but 28 percent of the adult prison population and 59 percent of young people in detention. Most young people in juvenile detention have experienced neglect or abuse or have been placed in out-of-home care. The ‘Family Matters Report’ showed 40 per cent of children in out-of-home care in this state are Aboriginal.
The incarceration rate of women is growing, with a disproportionate amount Aboriginal and Torres Strait Islander. Women prisoners have largely not committed violent crimes but have been victims of horrific domestic abuse. The children of women prisoners suffer from being separated from a loving mother and primary care giver, or even ending up in out-of-home care.
More than half the adults in prison suffer or have suffered from a mental illness and over 80 per cent of young people in custody have been diagnosed with a psychological disorder. It is estimated that as much as 20 per cent of the prison population has an intellectual disability or borderline intellectual disability.
Addressing the high prison population will require better responses to complex social and health challenges associated with disadvantage including homelessness and housing, mental health support, education and employment, and importantly closing the gap with First Nations peoples.
Improving justice outcomes for Aboriginal and Torres Strait Islander people must be a priority. All governments supported the 1991 Royal Commission into Black Deaths in Custody recommendation to make imprisonment a last resort and the New South Wales government committed to reducing the rate of Aboriginal incarceration by at least 15 per cent by 2031 under ‘Closing the Gap’.
The 2018 Pathways to Justice Australian Law Reform Commission report and recommended a specialist Aboriginal and Torres Strait Islander sentencing court with individualised case management, wraparound services, that is culturally competent, safe and appropriate. A specialist Walama court within the District Court was also supported by the Special Commission of Inquiry into the Drug Ice.
The Walama court provides intensive sentencing and post sentencing processes that involve elders and respected community members. Participants get intensive supervision, access to wraparound services and are monitored to ensure they get support. Team meetings are held every day with the presiding judge before a case is heard and the involvement of elders and other Aboriginal and Torres Strait Islander services strengthen cultural understanding, belonging, pride and respect.
The process aims to produce better outcomes, reduce recidivism and address the underlying causes of offending, similar to the Drug Court.
The business case identifies the court would reduce annual costs of Aboriginal incarceration by more than $216 million. This is a no-brainer!
Reducing the number of children in detention must be a priority. It is inconceivable that children as young as 10 continue to be incarcerated. The experience of jail, including the trauma of detention and being apart from parents or guardians at such a young age puts many on a path for a life of offending.
The NSW Children’s Court, the National Children’s Commissioner, the Law Council of Australia, the Royal Commission into the Protection and Detention of Children in the Northern Territory, and the United Nations Committee on the Rights of the Child all recommend raising the age of criminal responsibility to at least 12 years. Raising the age would protect vulnerable children and better reflect the modern understanding of brain development.
Other important reforms include a harm minimisation approach to drug use, with personal use decriminalised, tough bail and mandatory sentencing laws repealed, and rehabilitation, training and education programs in prison expanded.
I welcome the new Justice Reform Initiative, an alliance of people across the political spectrum and I will work with them to push for evidence based policies to reduce the prison population. I start by calling on the government to establish a Walama Court and reduce the age of criminal responsibility.