Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Robyn Ayres
[Note: This is a summary of a paper delivered at the Australian Institute of Criminology's Aboriginal Justice Issues II Conference in Townsville on June 14,1994.]
The approach of the WA Government to the implementation of the recommendations of the Royal Commission Into Aboriginal Deaths In Custody (RCIADIC) is deceptive. Whilst making a public commitment to the implementation of the recommendations, the policies, programs and legislative action of the current government demonstrate initiatives totally contrary to the RCIADIC recommendations.
In analysing the implementation of the recommendations the Aboriginal Legal Service (ALS) of WA (Inc) has firstly compared the experience of our clients and staff with the recommendations of the RCIADIC. Are the recommendations being carried out in practice and has anything changed at the local level? Secondly, we have compared the policies, programs and legislation of both State and Commonwealth governments with the RCIADIC recommendations to determine whether at a policy level there has been any change.[1]
The information provided by State and Commonwealth governments in their implementation reports has been inadequate.[2] The government bureaucrats have put the best possible gloss on any action taken by their agencies. One has to weed through the rhetoric to find the reality. In some instances the information reported by governments is quite dated. For example, the WA Government's report in some instances relies on statistics that are 18 months to 2 years old.
Governments have also provided as little hard information as possible so that individuals or organisations attempting to monitor the recommendations need to make innumerable requests to government agencies for further and better information. For example, both police and prison departments have claimed implementation of recommendations by way of internal rules without revealing the content of the rules.
Information in the WA Government report could in some instances be better termed 'misinformation'. To give one example, Rec. 99 is concerned with the provision of interpreters. The Government states that the Recommendation has been implemented through the development and implementation of guidelines.[3] However, the guidelines are of little use while there continue to be no interpreters in Aboriginal languages available to the courts.
Finally, when the ALS has requested further information from Government agencies, in some instances the Government refused it or in many cases the information provided is totally inadequate.
The recommendations canvassed below provide a summary of some of the main issues arising in the daily practice of the ALS, particularly in the criminal justice area. The lack of implementation of the recommendations indicates that there are many areas in which the action taken by governments to date is totally inadequate and far greater efforts are needed.
Fifty-five recommendations from the RCIADIC are devoted to diverting Aboriginal people from custody. These recommendations are aimed at reducing the massive level of over-representation of Aboriginal people in police lock-ups, prisons and juvenile detention centres.
In WA the actual number of Aboriginal people in police and prison custody appears to have remained much the same since the RCIADIC reported.
Thee figures from the Australian Institute of Criminology's National Police Custody Surveys show that in August 1988, 2920 Aboriginal persons were detained in police custody in WA,[4] while in August 1992 there were 2803.[5]
In WA prisons, the number of Aboriginal prisoners received in 1989 was 2536, and in 1993 the number was 2537.
However, more revealing are the levels of over-representation of Aboriginal people in all forms of custody in WA. These levels are the highest in Australia and in some cases levels of over-representation have actually gott worse since the RCIADIC.
In 1988, Aboriginal people were 43 times more likely to be in police custody than non-Aboriginal persons. In 1992, the level of over-representation had increased to 51.9.
In 1989, Aboriginal persons were 26.3 times more likely to be in prison than non-Aboriginal persons, and in 1993 this had increased slightly to 27 times.
In 1993 WA Aboriginal youth were 48.4 times more likely to be detained in a juvenile detention centre than non-Aboriginal youth.
The RCIADIC recommendations dealing with diversion from police custody are mainly concerned with ensuring that intoxicated persons are not locked up for being drunk (Recs.79-82, 85), that laws regulating public drinking are re-negotiated to reduce their impact on Aboriginal people (Recs.83-84), and that police practices relating to over-policing, arrest and bail are changed so that Aboriginal people are less likely to end up in police custody (86-91). These recommendations have not been implemented in WA in any comprehensive way.
Drunkenness was decriminalised in WA in 1990 prior to the Final Report of the RCIADIC (Rec.79). The RCIADIC acknowledged that decriminalisation of drunkenness had to be accompanied by the establishment of alternative facilities for intoxicated persons (Rec.80), that police must be required to use alternative facilities (Rec.81), and that decriminalisation had to be closely monitored to ensure that it did not result in increased numbers of people in police custody for both intoxication and alternative minor charges such as offensive language and public drinking (Recs.85, 86).
Since the RCIADIC, the State Government has expanded the number of sobering-up shelters from two to five for the whole State.
However, data from the WA Alcohol and Drug Authority indicates there has been a 35% increase in the number of persons detained for being intoxicated. With five sobering-up shelters operating, only about 50% of intoxication custodies are likely to be diverted from police custody. With 90% of all persons detained for intoxication being Aboriginal, many Aboriginal people continue to be held in police cells simply because they are intoxicated. Clearly more sobering-up shelters are needed in WA.
To date, the Police Department has insisted that there be no legislative duty on police officers to consider alternative places of care until alternative facilities are available throughout the State (cf Rec.81).
The monitoring of the decriminalisation of drunkenness has also been inadequate. The WA Government has asserted that the preliminary evidence suggests that intoxicated persons are not being picked up for other offences[6] without providing a shred of evidence to back this claim. Whilst figures provided in the Annual Reports of the Office of Racing and Gaming are not broken down by race, a comparison of offences under the Liquor Licensing Act 1988 (WA) in 1988/89 (prior to decriminalisation of drunkenness) with 1991/92 show that there has been a 44% increase in the number of persons charged with street or park drinking since decriminalisation.[7] There is no information available from the Police Department as to whether there has been any increase in charges relating to 'offensive language', as these are all absorbed into the category 'disorderly conduct' (cf Rec.86). It is far from clear that alternative charges are not being utilised subsequent to decriminalisation of public drunkenness.
The non-payment of fines is still a major cause of imprisonment for Aboriginal people in WA, despite RCIADIC recommendations directed to decreasing the rate of imprisonment for fine default (Recs 103, 121). In 1992/93, there was a 28% increase on the previous year in the number of Aboriginal prisoners received for fine default only.
The current WA Government has made numerous comments to the effect that the incarceration of fine defaulters is abhorrent. It has been reviewing the current scheme. The ALS has submitted to the Government that the present system should be amended so that Work and Development Orders (WDOs) are available to the offenders as soon as the fine has been imposed, rather than after the person has defaulted on the fine. The Government has ignored these submissions. It intends to implement a fines system whereby non-payment will result in a person's driving licence being suspended until payment. If the defaulter does not have a licence then the sheriff will execute against the defaulter's goods. If the defaulter has neither licence nor goods, then a WDO would be the last option. This policy may well see a further increase in the number of Aboriginal persons imprisoned for driving offences (cf Rec.95).
Aboriginal people in WA are arrested more frequently than non-Aboriginal people and are released on bail less readily. Recommendations 87-91 focus on changes needed to police practices to reduce the number of Aboriginal people held in police custody. They highlight the changes needed to operational policing, arrest practices and bail laws.
The RCIADIC recommended that arrest should be the sanction of last resort (Rec.87(a)), yet the most recently available statistics reveal there has been very little improvement in arrest rates since the RCIADIC. In 1992, of all persons brought before the courts, 86.4% of Aboriginal people were arrested compared with 72% of non-Aboriginal people, with 13.6% and 28% respectively being summonsed.
The RCIADIC also recommended that police officers should not be paid allowances which could be used as incentives to increase the number of arrests (Rec.87(c)(i)). The WA Police Department refuses to abolish the meal allowance scheme, which provides police officers with flat payments for meals for detainees. Detainees are regularly fed kangaroo meat, shot by police officers during work hours using police issue rifles, police bullets, and which are then cooked by the detainees themselves.
In WA, there is no qualified right to bail, as the Bail Act 1982 (WA) only provides a right to have bail considered. Recent amendments to the Bail Act have made bail more difficult for young people to obtain as juveniles under the age of 17 must have a responsible adult to sign an undertaking before they will be released on bail. ALS solicitors and court officers have also noted an increase in the number of conditions that are being attached to bail, such as increased securities, curfews and non-associating conditions.
Of course, the other major policing issue confronting Aboriginal communities throughout WA is the issue of over-policing. In 1991 Commissioner O'Dea reported on the staffing levels of Police stations in selected WA towns, and not surprisingly found a high ratio of police strength to population in towns with significant Aboriginal populations. For example, Wiluna has a very high ratio of police to population, with one police officer to 74 citizens, and it also has a large Aboriginal population, of 63%. Similarly, Roebume has a large Aboriginal population (47%) and the ratio of police to population is 1 to 127 citizens. By contrast, for the whole of WA, the ratio of police to population is one police officer to 395 citizens.[8] Despite the WA Government's assertion that there is on-going implementation of Rec.88, requiring Police Services to consider, in negotiation with Aboriginal organisations and people, the issue of over-policing and inappropriate policing, Aboriginal people in WA have absolutely no say about the way in which their communities are policed, and in some communities, particularly those in more remote locations, the police have almost total control over the operation of the justice process.
The RCIADIC made 20 recommendations directed towards improving the relationship between Aboriginal people and the police in the criminal justice system (Recs.214-233), fifteen of which are relevant to WA. These recommendations, like Rec.88 discussed above, place an emphasis on the Police Department negotiating and consulting with Aboriginal organisations and people as to the way in which their communities should be policed.
Not only have the majority of these recommendations been completely ignored, the Police Department is yet to come to any sort of understanding as to what consultation and negotiation with Aboriginal people is all about. The only recommendation in the area of Aboriginal - Police relations that the Police Department and the Aboriginal Affairs Planning Authority appear to have embraced in any way is Rec.220, endorsing Aboriginal community policing schemes. Although the ALS supports such initiatives, which come from, and have the support of, the community, it is also of the view that such schemes need to be adequately resourced, have access to training and informed advice about legal responsibilities, and be appropriately assisted by Government to avoid burn-out of volunteer staff (see Rec.221). The Police Department's enthusiasm for these schemes is viewed with scepticism given the potential they also have to reduce the police workload.
With clients of the ALS currently having 95 complaints against the Police Department underway, Rec.226 is regarded as a key recommendation of the RCIADIC. It provides a detailed outline on the establishment of an independent body to investigate complaints against the police. In WA, the Internal Investigations Branch of the Police Department still conducts the initial investigation of the complaint. After forty-two days, if the complainant is not satisfied with the outcome of the police investigation, he/she may request the Ombudsman to investigate the matter further.
The current system fails to satisfy Rec.226 in many ways, but primarily in that complaints against the police continue to be investigated by the police. It is also a very lengthy process, with some complaints taking years for the Ombudsman to finalise. The Police Department has been known to 'conciliate' complaints informally, through a police officer paying a 'friendly visit' to a complainant. This is clearly unacceptable.
The RCIADIC emphasised the urgent need for governments and Aboriginal organisations to recognise the widespread problems facing Aboriginal young people and the potentially disastrous repercussions for the future and the need to negotiate to find strategies to reduce the rate at which Aboriginal young people are involved in the welfare and criminal justice systems (Rec.62). The WA Government continues to implement policies, programs and legislation which are totally contrary to this recommendation.
The most recent initiative is the introduction into Parliament of the Young Offenders Bill (see also Stephen Hall's article, this issue, pp). This major piece of legislation has been introduced without any consultation or negotiation with the Aboriginal community and the ALS. It should be noted that discussion papers on the Bill were circulated in strictest confidence to a select few agencies such as the Aboriginal Affairs Planning Authority and the Legal Aid Commission several months ago. Despite requests by the ALS to the Director-General of the Ministry of Justice in November 1993 and January 1994 asking to be included in the negotiations on the proposed legislation, the ALS has been excluded.
The ALS has some major concerns about the proposed legislation, as it fails to address the way in which the juvenile justice system currently operates to the detriment of Aboriginal youth.
Whilst the Bill rejects the Crime (Serious and Repeat Offenders) Sentencing Act 1992 (WA), allowing it to lapse on June 8 1994, the Government has come up with its own version of sentencing for repeat serious offenders. The Special Court Order allows for the adding on of an additional 18 months detention to the sentence already imposed by the court.
The Bill does not include provisions to safeguard the rights of young people in custody, particularly the right to have an independent adult present at police questioning, the right to make a telephone call to a family member or friend before being questioned by the police, and the right to make a telephone call to a legal adviser before being questioned by the police. These provisions are essential as the government is developing a whole new diversion scheme which deals with young people only if they admit guilt to the police.
The police have total control of the discretionary process built into the new legislation. They control access to the cautioning scheme and access to juvenile Justice Teams. Currently only 15% of youth who receive cautions or who are referred to the juvenile justice Teams are Aboriginal. This contrasts with 65% of all youth in detention centres being Aboriginal.
There is nothing in the legislation which is likely to empower Aboriginal families or the Aboriginal community in dealing with their youth. The scheme basically coerces the parents or responsible adults of a young person to participate in the juvenile justice Teams (otherwise the matter will go to court); however, it does not give the parent or responsible adult the right to be part of the decision-making process.
The legislation will abolish the Children's Panel, despite the fact that Aboriginal children have lesser access to it as a diversionary measure than non-Aboriginal children (cf Rec.241). The currentt systemic discrimination against Aboriginal youth in the operation of these diversionary processes will be perpetuated by the new legislation.
The new legislation also makes provision for 'boot camps', euphemistically referred to as 'work camps' in the Attorney-General's second reading speech. By way of contrast, another recent initiative of the WA Government was the cessation of funding to the Lake Jasper Project. This is onee of the few non-Government programs established by Aboriginal people to provide an alternative to custody for young Aboriginal offenders. Again, the direction the WA Government is taking in relation to juvenile justice is contrary to the recommendations of the RCIADIC (see Recs.62, 235-245 and also see Stephen Hall's article, p.21 this issue).
The criminal justice system in WA continues to have a grossly disproportionate impact on Aboriginal people, with the levels of overrepresentation increasing rather than decreasing.
Recommendation .1 of the RCIADIC calls on governments to consult with Aboriginal organisations on the implementation of its recommendations. Recommendation 188 directs governments to negotiate with Aboriginal organisations and communities to ensure that the principle of self-determination is applied in the design and implementation of policies and programs affecting Aboriginal people.
Recent action by the WA Government in the criminal justice arena shows little commitment to implementation of these recommendations despite its claims to 'on-going implementation'. The words 'consultation' and 'negotiation' imply an attitude of respect in the relationship. This attitude is still to be incorporated into the government's approach to working with Aboriginal organisations in WA.
[1] The WA ALS (Inc) has published two reports on implementation of the recommendations of the RCIADIC in WA. For further information see Striving for Justice Vol.1: Report to the Western Australian Government on the. Implementation of the Recommendations of the RCIADIC, Perth, 1993, and Striving for Justice Vol.2: Report to the Commonwealth Government on the implementation of the Recommendations of the RCIADIC, Perth, 1994.
[2] Commonwealth of Australia, Implementation of Commonwealth Government Response to the Recommendations of the RCIADIC, First Annual Report 1992-93, ATSIC, Canberra, 1994; and Aboriginal Affairs Planning Authority (AAPA), Govt of WA, RCIADIC Implementation Report, AAPA, Perth, 1993.
[3] AAPA, op cit, p76.
[4] Johnston, E., RCIADIC National Report, AGPS, Canberra, 1991, Vol.1, p19.
[5] McDonald, D., "National Police Custody Survey 1992: Preliminary Report", in Deaths in Custody Australia, No.2, AIC March 1993, Canberra, p3.
[6] AAPA, op cit p70.
[7]Office of Racing and Gaming, 1988/89 Annual Report and 1991/92 Annual Report, Perth.
[8] . O'Dea, D.J., RCIADIC, Regional Report of Inquiry Into Individual Deaths in WA, AGPS, Canberra, p213.
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