Other Policy Initiatives and Documents

Inquiry into the Management of Offenders in Custody and in the Community (Mahoney Report) (November 2005)

In 2005, it was announced that an inquiry was to be held into the management of offenders and associated matters by Hon. D. Mahoney under the Public Sector Management Act 1994.  The inquiry came about as a result of public outcry following a number of prison escapes, an assault upon a female prison officer, and a murder committed by a parolee.  The Terms of Reference required, inter alia, the examination of the corrections system; the assessment of the organisational structure, role, and performance of the Department of Justice (as relevant); and the development of a plan of ‘implementable strategies'.

In the final Mahoney Report, recommendations were made with respect to a range of relevant issues, including parole; re-socialisation of offenders; courses and programs; and the management of female and Indigenous offenders.  In terms of the latter, the report goes into some detail in relation to the overrepresentation of Indigenous people within the justice system in Western Australia (as both victims and offenders).  It is noted that there are four ‘Aboriginal prisons' in Western Australia, holding 75% or more of Indigenous prisoners, and that nearly half of the adult prison population, and almost all of the juvenile detention centre population, is Indigenous.

It is noted that Indigenous offenders are not accessing diversionary initiatives such as the Drug Court or Justice Mediation Program, and that employment of Indigenous staff and/or more culturally appropriate programs may be of assistance in this regard. Indigenous offenders are accessing the Geraldton Alternative Sentencing Regim (1) (GASR), however, but only at under 50% of the total number of those who utilise the Regime.  Comment is also made in relation to the Indigenous Diversion Program (IDP) (a diversionary program developed under the COAG Drug Diversion Initiative) operating from within the WA Drug and Alcohol Office.  IDP is an early intervention court diversion program that specifically targets persons who have committed minor offences and who have alcohol or other drug problems, and is provided in Broome and Carnarvon as part of court proceedings, but with only two workers employed at the time of writing.  This, it is suggested, must impact on output.  It is suggested that more needs to be done in terms of accessibility of government diversionary programs.  Government must also ensure that programs are community-owned, rather than simply community-based. In this way, there is some assurance that the programs will be culturally appropriate, where Indigenous people are involved in the planning, delivery and evaluation of relevant services, as has occurred with the GASR. 

Other key Indigenous-specific recommendations are set out in the Inquiry's report.  They include implementation of an Indigenous employment strategy; greater attention to be given to contracting Indigenous groups to provide relevant services; and establishment of standing Indigenous justice-related groups to work in partnership with government agencies at the local, regional and state-level. With respect to the latter, it is recommended that Regional Indigenous Justice Advisory Groups (RIJAG) should be established, reporting to the Attorney General.  They would (a) assume the role of the former ATSIC in implementation and monitoring of the AJA; (b) provide policy and project advice in relation to Indigenous overrepresentation; (c) explore opportunities for (i) whole-of-government responses to Indigenous offenders needs and (ii) Indigenous community groups to enter into commercial and non-commercial agreements to provide ‘community-owned' corrections-related services; and (d) establish Women and Young Offenders sub-Committees.  From these RIJAGs, a State Indigenous Justice Advisory Group could be developed (Recommendations 81 & 82).

The Inquiry recommended that corrections and the Attorney General's departments be separated into two distinct departments (as has subsequently occurred).  Further, the Corrections Act should require the Department to specifically contemplate the unique cultural needs of Indigenous offenders in the development, delivery and evaluation of policies, programs and services (Recommendation 85); and, in light of the high proportion of Indigenous offenders in custody, planning for all custodial facilities should ensure appropriate consideration is given to the needs of Indigenous offenders (Recommendation 86).  Each Prison Superintendent should establish a standing Indigenous Services Committee to coordinate and monitor the implementation of the Department's Indigenous strategies (Recommendation 87).  The current classification system is not always appropriate for Indigenous offenders (for instance, an Indigenous prisoner may not be motivated to escape other than to resolve urgent family matters, but this may not be taken into account in classification), and it should be reviewed to determine its appropriateness for the management of Indigenous offenders (Recommendation 88).  The Department should consider increasing the use of low security facilities for Indigenous offenders, such as work camps (including women's work camps), in all areas.  In this regard, Government should consider recommendations of the Inspector's Directed Review (Recommendation 94) (see below). Planning for future infrastructure in predominantly Indigenous areas should be based on a ‘Regional Prison' model, where such prisons contain prisoners of all levels of classification and determine the facilities and services according to the needs of Indigenous offenders (Recommendation 8).

In terms of management and treatment of Indigenous inmates, the final report indicates that conditions endured by inmates is ‘appalling' in ‘Aboriginal prisons', both in physical terms and in terms of rehabilitation opportunities provided.  It was recommended that future regional custodial facilities with predominantly Indigenous prisoners should be specifically constructed to meet the needs of Indigenous offenders and to provide for the delivery of services to prisoners at all classification levels so that the need to transfer prisoners to other facilities out of their ‘country' due to overcrowding is minimized (Recommendation 89).  At least one new custodial facility should be established in the Kimberley immediately (currently only a minimum security facility) and the Eastern Goldfields Regional Prison should be replaced as a matter of priority due to poor conditions (Recommendations 90 & 91).  Indigenous inmates should be provided with culturally appropriate courses of literacy, numeracy, healthcare, anti-drug and other courses to address criminogenic and non-criminogenic needs.  The programs and educational courses delivered to offenders, and particularly those directed to re-socialisation, should be adapted to suit Indigenous offenders.  The Aboriginal Visitors Scheme is favourably endorsed.

Rates of re-offending amongst Indigenous offenders is high, and more needs to be done in terms of development, planning, delivery and evaluation of therapeutic and non-therapeutic offender programs and services in both prisons and community correction systems.  In a Departmental review of programs, there were no Indigenous-specific programs, and, since 1998 only the Indigenous Sex Offenders Program (ISOTP) and the Indigenous Men's Managing Anger and Substance Abuse Program (IMMASU) have been provided.  Mainstream programs are available to Indigenous offenders, but referrals and completions of such programs by these offenders are low.  The Prison Division and Community and Juvenile Justice are developing a Family Violence Program in Broome. In response to the Gordon Inquiry, the Department is implementing three initiatives - (i) providing therapeutic programs to violent offenders, victims and other members of remote communities; (ii) expanding Community Supervision Agreements; and (iii) expanding Victim Support Services for Indigenous victims (to be provided by Court Services).  It is recommended that the Department should significantly increase its expertise and capacity in the Programs Branch to develop, deliver and evaluate programs for Indigenous offenders, particularly to meet the needs of women and young offenders (Recommendation 92).

In terms of remote communities, the Department of Justice committed in their Gordon Implementation agreement with the Department of Treasury in 2003 to develop Indigenous-specific program materials for violent offenders, their victims and other members of remote communities, to be delivered on those communities.  This has not occurred. It was suggested that the management of the initiative was lacking; that the initial intention and scope of the project was too ambitious; a strategic business plan for the project was not developed; and there was insufficient project management or coordination. However, a draft set of program materials have now been developed, which are non-therapeutic.  The Department has developed three new Community Supervision Agreement Officer positions in the Kimberley, Pilbara and the Goldfields.  Whilst this has had a greater impact on the ground, compared to the remote communities education strategy, there is room for improvement, particularly in ensuring communities have the capacity to sustainably provide this service. The Department of Corrections should enter into commercial and non- commercial agreements with Indigenous community groups for the provision of correctional services to Indigenous offenders such as work camps, Women's Pre- Release centres, juvenile correction camps, community supervision agreements, offender programs and other services (Recommendation 93).

In terms of female Indigenous prisoners, almost all are Indigenous in regional areas (and primarily mothers), and more need to be placed nearer to, or in, ‘their country'.  The specific needs of female Indigenous prisoners are noted in the report. For instance, the Department should undertake research to determine the causes of the high failure rate of Indigenous women in relation to community-based orders (Recommendation 109).  Any Departmental Indigenous policy or strategy should include separate reference to the needs of Indigenous women, and not simply as a subset of those for women in general or those for Indigenous men (Recommendation 110).

Further, and more generally, more will be achieved with a greater application of performance indicators and benchmarks in policies, strategies and plans.

Kimberley Aboriginal Reference Group's initial recommendations toward the Kimberley Custodial Plan (October 2005) - Stage One Report

In 2005, the Minister for Justice established the Kimberley Aboriginal Reference Group (KARG).  This initiative provides an example of effective community engagement in relation to justice issues.  KARG consulted widely with Aboriginal people throughout the Kimberley to provide to Government initial recommendations in its Stage One Report (2005).  A further report (see below) was produced for input into a final Kimberley Custodial Plan.  

KARG's recommendations were as follows:-

1. Building one large prison is not appropriate, given that Aboriginal prisoners

emanate from both the East and West Kimberley.  One prison would mean isolating one group from their support networks.

1. A ‘full prison' is required in both the East and West Kimberley, in order to

accommodate prisoners of all security classifications. These facilities should include opportunities for community-style living; visitor and family accommodation; a ‘structured-day' regime; education and skills development programs and facilities; and reparation, rehabilitation and re-entry programs and facilities.  KARG looks to the WA Boronia Pre-release Centre for Women, the design of the Malmsbury Juvenile Detention Facility in Victoria and Canadian healing lodges as possible examples of appropriate facilities.

1. The two existing work camps ought to be upgraded in terms of accommodation and access to services and programs and three new work camps ought to be developed, with full access to prisoner services and programs (with the possibility of a further mobile work camp so that remote communities, and offenders from remote communities, can also benefit). 

1. Many communities are willing to provide community-based alternatives to  

prison, although some might require capacity building in order to do so.  A number of communities were also willing to consider ownership and management of a work camp custodial facility as an economic development opportunity.  Communities should be contracted to provide community-based custodial alternatives.

1. Security classification must be reviewed to ensure that otherwise eligible prisoners are not disqualified for work camp participation because of a technical and empirical assessment.  Local Department of Justice staff and local Aboriginal people ought to be able to advise in terms of eligibility.

1. Women ought to be accommodated in a separate custodial facility, or in separate facilities within a custodial facility. The main features of the female facility should be mainly Aboriginal staff; facilities that enable children to be with their mothers and the prisoners to conduct a normal life under supervision and direction; a ‘structured day' regime; opportunity for reparation and rehabilitation; and re-entry and post-release support programs. Consideration ought to be given to establishing community-based facilities for women, given their low numbers, and a work camp for women (which offered cultural programs, education and rehabilitation programs and the opportunity for practical community reparation).

1. There is no support for a separate juvenile custodial facility in the Kimberley, and juveniles ought to be held in home or community detention in preference to custody.

1. Services and programs ought to be designed specifically for Kimberley Aboriginal prisoners, and be planned in partnership with the Kimberley Aboriginal community and Aboriginal service providers.

1. A Kimberley Regional Prisons Board should be established to advise and monitor the design, implementation and management of the Kimberley Custodial Plan.  Membership would be drawn from Aboriginal and non-Aboriginal community leaders and experts in the administration of justice and the management of custodial facilities, services and programs.

1. Kimberley Aboriginal service providers should be contracted, on a commercial basis, to deliver custodial facilities and services and programs. 

1. Although Aboriginal elders are currently invited to sit on the Bench at Magistrate Courts in the Kimberley, this practice requires more consistency.  Aboriginal advocates should be appointed to advise the bench and court officers (in the East and West Kimberley), and be paid and trained to do so.

The Kimberley Custodial Plan - An Aboriginal Perspective - Stage Two Report - Prisoner Programs (February 2006)

KARG notes that the Stage One Report informed and supported the Mahoney Inquiry and the Directed Review (see above).  This Stage Two Report focuses on prisoner
programs.  Effective programs are absolutely essential to reduce incarceration and recidivism, according to KARG.  At the time of writing, Aboriginal prisoners made
up almost 100% of the prison population in the Kimberley, and had no access to rehabilitative programs, and did not appear to be involved in any structured preparation for release or return to their communities. 

The following recommendations are made:

1. Kimberley facilities and services ought to be designed to meet the unique needs of Kimberley Aboriginal prisoners, through, for instance, a partnership between the Department of Justice and a Kimberley Regional Prison's Board (or extension of the KARG) (with prisoner representation).

1. Prisoner programs are essential, and they must be designed and delivered in partnership between non-Indigenous and Indigenous leaders and professionals. Design of the programs should also lead the design of the physical custodial facilities. 

1. A prison-based therapeutic community must be set up.  

1. The prisoner program/prison-based therapeutic community model must also be administered under the through-care concept, as most Aboriginal prisoners average only 5 months in prison.

Aboriginal Customary Laws: The Interaction of WA Law with Aboriginal law and culture (Law Reform Commission of Western Australia (2006))

In 2000, the Western Australian Law Reform Commission (WA LRC) was asked to inquire into and report upon Aboriginal customary laws in Western Australia and to consider whether, and, if so, how Aboriginal customary laws should be recognised within the Western Australian legal system.  In 2005, after consultation, the Commission published a Discussion Paper detailing opportunities for recognition of Aboriginal customary laws in Western Australia and called for submissions.  The Commission finally reported in 2006, setting out 131 recommendations.

Broadly, the WA LRC recommended establishing an Office of the Commissioner for Indigenous Affairs to report on progress of implementation of this report and the RCIADIC, as well as on outcomes directed towards reducing Aboriginal disadvantage generally and overrepresentation in the justice system.  Chapter 5 of the report focuses on the criminal justice system and makes a number of recommendations in relation to Indigenous over-representation. The WA LRC identifies particular difficulties experienced by Indigenous people within the justice system.  It addresses, and makes specific recommendations in relation to these issues throughout the report (including recommending cultural awareness training for staff and volunteers within the Corrective Services (Recommendation 12), and for lawyers (Recommendation 11), and a review of programs and services for Aboriginal people by the Departments of Attorney General and Corrective Services).

A major recommendation of the LRC concerns Aboriginal community justice groups. There are initiatives being undertaken, or planned, in this area under the AJA, according to the report, with the development of regional and local justice plans and (proposed) local justice groups, and under the Mahoney Inquiry, as well as some community action groups.  The Commission recommends that an Aboriginal Justice Advisory Council should be established to support community justice groups, which would operate at a local level. The LRC recommends that community justice groups ought to be able to set community rules and sanctions (within the constraints of Australian law). They would be able, potentially, to assist with sentencing and bail matters, providing information to courts about an accused, as well as providing evidence or information about Aboriginal customary law and culture.  They may also assist with diversionary programs, participate in the supervision of offenders subject to court orders, and play a role in the establishment of Aboriginal courts (Recommendation 17).

In the LRC's Discussion Paper, it was recommended that an Aboriginal Court be established in both regional and metropolitan locations, and for both adults and children. An Aboriginal Court has since commenced at Norseman in February 2006, and was due to commence in Kalgoorlie in November 2006 (with an Aboriginal Family Violence Court in Geraldton).  The LRC recommended that the Courts be established under formal government policy in order to ensure long-term sustainability, and sets out procedures and a structure for the relevant Courts (Recommendation 24).  It was also suggested that Aboriginal people should be involved in the design and delivery of community-based sentencing options, with community-owned programs and services as part of this.

The LRC also focused on ways to increase diversion for Aboriginal youth, including through amendments to relevant legislation.  It was strongly recommended that youth who have committed minor offences be dealt with by community justice groups, without recourse to the criminal law at all.  Where a matter does come to the attention of Police, it is suggested that they refer an offender to a pilot diversionary scheme which utilises community justice groups.  Those groups need to be resourced to develop and operate diversionary programs (Recommendations 50 & 51).  Aboriginal liaison officers ought to be employed in all courts to provide assistance to Aboriginal people giving evidence in court, and to ensure that due regard is given to customary law in court (Recommendation 127).  Judicial officers ought to be provided with cultural awareness training (Recommendation 128).

Background Paper - Law Reform Commission (Morgan, N and Mottram J (2004) Indigenous People and Justice Services: Plans, Programs and Delivery, Background Paper No 7, Law Reform Commission of Western Australia, Perth)

This document reviews the direction of programs and services in the context of Aboriginal people, with reference to the concerns of the Aboriginal Customary Laws project.  The paper sets out legislative and policy initiatives addressing Indigenous contact with the criminal justice system (beginning with the RCIADIC), and then considers initiatives from within the Department of Justice's Aboriginal Policy Services and Corporate Services directorates, Court services, prisons etc.  There is a thematic review of the material provided. 

Reports, plans and policy documents (2000-2004) include the Aboriginal Justice Plan (2000), Reducing Imprisonment Strategy (2001-2002) (not available) (noting that Aboriginal prisoners were especially disadvantaged by short prison sentences, including fine default terms.  Money could be better spent in strengthening community based initiatives and in developing stronger strategies to reduce offending); Re-entry (2002) (a Government policy paper underlying a commitment to reduce offending by focusing on the re-entry of prisoners into the community (not referencing Indigenous issues); and Prisons Division Strategic Plan for Aboriginal Services (2002-2005).  The Gordon Inquiry (2002) and Kimberley Regional Justice Project (commencing in 2000, with community consultations in 2002-2003) are also considered.  The latter aimed to better meet the justice needs of Aboriginal people in rural and remote communities, and three objectives were identified after the consultations, including that of diverting offenders from imprisonment to alternative sanctions in the community and a reduction in the representation of Aboriginal people in the justice system.  This was followed by the AJAs (2004), which differed from the Aboriginal Justice Plan (AJP) in that it only encompassed justice-related agencies (whereas the AJP also focused on family, health and education), and the AJA also focused on a range of justice issues (not just over-representation).

The Aboriginal Policy Services and Corporate Services' initiatives include the Aboriginal Visitors Scheme (established in 1998 as a result of the Vincent Enquiry into Aboriginal Deaths in Custody, and evaluated in 2002).  Court Services Directorate initiatives include those relating to the Gordon Inquiry recommendations, and the Family Violence Court  -set up at Joondalup in 1998 by the Department of Justice, with only 5% of clients being Aboriginal.  The Department advised that this may be because few family violence matters involving Aboriginal people are reported to the police, and few Aboriginal females are using the courts for the issuing of restraining orders, and a low number of Aboriginal people living in the Joondalup area.  The Geraldton Alternative Sentencing Regime, the cross border justice project, and the Yandeyarra Circle Court are also discussed, as are the Community Courts operating in a number of remote locations, the latter being an initiative of the Gordon Inquiry. (2)   The objectives of the Courts are to establish forums that meet the needs of local Aboriginal communities, to involve the different groups living in these areas in court processes, and to reduce offending in these areas. The initiative is in the early stage of development and the working arrangements of the Community Courts are yet to be finalised. The Community Courts are to be formally gazetted to administer the laws of Western Australia in a format that is culturally accepted by the community and based on community specific justice models. The justice models will be determined by community consultations and community requirements. Service delivery will be determined by the community's needs and the community's capacity to become involved in the justice system. It is envisaged that community elders will provide an advisory role to the magistrate. The project will involve modifications to existing justice facilities and the installation of new facilities to create multi- functional justice facilities in each location. The facilities will contain courts, police and other justice agencies. They will have a permanent police presence but this is expected to decrease as the communities develop their own justice models. The courts will be designed and conducted in a culturally appropriate manner to encourage access and participation.

In terms of prison services, a number of programs that are either Indigenous-specific, or, in most cases, may be modified for an Aboriginal audience, are discussed.  The Indigenous-specific programs are the Sex Offender Indigenous Medium Program, the Noongar Alcohol and Substance Abuse Services, Indigenous Men Managing Anger and Substance Abuse program designed for remote area populations. Details are provided of rates of Aboriginal participation in mainstream programs.

For Community and Juvenile Justice Services, it is acknowledged by the Department that there are no Indigenous-specific family and domestic violence perpetrator programs/services - however, such programs may be Indigenous-focused where they operate within areas with large Indigenous populations.  Indigenous participation is low, and most participants are mandated offenders.  There are difficulties in delivery in remote and rural areas (such as finding trained contractors and/or individuals to provide training), and the program needs to be modified to suit such areas.  Community Service Orders may be carried out under Community Service Agreements (CSA), established with specific Aboriginal communities and projects for the benefit of Aboriginal people.  The Gordon Inquiry recommended an expansion of CSAs in remote communities. These agreements allow the community, in which the offender resides, to oversee the management of the offender to ensure the completion of the sentencing and release order. In an effort to reduce the rate of Aboriginal imprisonment, more CSAs are to be made available to the judiciary as a valid sentencing option and as an alternative to detention. Three Gordon Inquiry funded officers will assist communities participating in this initiative.  Participating communities will be paid a fee for service. A Young Offenders Act Amendment Bill 2004 (WA) has been tabled in Parliament to give statutory backing arrangements to allow juvenile offenders to be managed in a similar way to adult offenders.

In their thematic review, the authors criticized the lack of availability of relevant information upon which evidence-led policies have been formulated.  Further, a number of significant policy documents, such as Re-entry, did not mention Aboriginal persons and/or issues at all. The gap between ‘paper promises' and ‘bottom line statistical measures of victimisation or incarceration rates' is noted.  At times, Government has relied upon the existence of a particular policy to deflect criticisms, and for Aboriginal people ‘policy documents have less meaning…. than action'.  A significant number of initiatives (for instance, in relation to prison treatment programs) are not yet operational, or they are ‘Indigenised' or simply have no or little Aboriginal specific focus.

Aboriginal Cultural Awareness Benchbook for West Australian Courts - Court Services 

The Aboriginal Cultural Awareness Benchbook for West Australian Courts was an initiative of the National Indigenous Cultural Awareness Committee of the Australian Institute of Judicial Administration. Relevant recommendations of the RCIADIC are set out, including the need to recruit Aboriginal court staff and interpreters, and for sentencing authorities to consult in remote communities with Aboriginal authorities/organisations.  Further appropriate cross cultural training was recommended for those within courts and in probation and parole services who come into contact with Aboriginal people.  The latter recommendation gave rise to the Cultural Awareness Committee, and, ultimately, the Benchbook, which is to serve as a model for other jurisdictions.

The document sets out information concerning contemporary and traditional Aboriginal culture (including law) and history and Aboriginal language and communication with specific details relating to Aboriginal people in Western Australia, and concerning.  It then goes on to deal, in some detail, with aspects of the criminal justice system which present as areas of concern with respect to Indigenous people and their interaction with the system (along with relevant case law). 

(a) In terms of pre-trial procedure, the difficulties which a committal may create for Aboriginal people includes anxiety due to a lack of understanding of the nature of such proceedings, and the fact that a dispute arising from the alleged offence may have been resolved by the time of the substantive hearing.  Further, in terms of bail, an Aboriginal accused is more likely than a non-Aboriginal person to be detained in custody in Western Australia, and remand in custody may present particular difficulties for Aboriginal people (for instance, as Aboriginal people are ‘socio-centric', separation from family and support persons, particularly far from home). Bail legislation may operate in a discriminatory way in relation to Aboriginal offenders.  They may be less likely to be able to meet conditions (such as a requirement of surety), and may find complying with bail conditions difficult (for instance, there may be difficulties in understanding bail conditions, or in meeting conditions due to simple impracticalities (such as lacking transport to report)).  The question of fitness to stand trial includes an assessment of physical or mental impairment.  The document suggests that the incidence of hearing impairment from middle ear disease within Aboriginal communities is high, and may therefore give rise to such an impairment. There are also issues relating to the use of interpreters.

(b) During criminal proceedings, issues such as the efficacy of a plea of guilty or confessions arise due to factors such as coercion or a lack of understanding (Anunga guidelines are discussed). A further issue is the cultural background and gender of jurors, and whether an Aboriginal person has a right to have Aboriginal jurors hearing a case, and whether a jury of a particular gender ought to be empanelled where appropriate.  Communication issues which may be of relevance to the adducing of evidence are discussed (for instance, traditional Aboriginal body language).  The particular difficulties for Aboriginal female victims/witnesses and child victims/witnesses are discussed (such as shame, community pressure against reporting).

(c) The inherent limitations in focusing only on sentencing to address overrepresentation are noted.  The underlying causes of Indigenous offending must be addressed.  However, a sentencing judge may influence how an Aboriginal offender will be treated in the justice system.  A number of relevant RCIADIC recommendations are set out, including the use of prison as a sanction of last resort, and that a range of non-custodial sentencing ought to be available for Aboriginal offenders.

Footnotes