Inquiry into the Transportation of Detained Persons (2010)
Legal
Inquiry into the Transportation of Detained Persons
Submission by the Aboriginal and Torres Strait Islander Social Justice Commissioner
Our Ref: 2009/37
14 May 2010
Hon Brian Ellis
Chairman
Standing Committee on Environment and Public
Affairs
Legislative Council
Parliament House
Perth WA 6000
Dear Mr Ellis
Inquiry into the Transportation of Detained Persons
I welcome this opportunity to follow up on the Australian Human Rights
Commission’s work in the inquest into the death of Mr Ward. Many of the
Commission’s submissions were accepted by the Coroner and reflected in his
findings and recommendations.
In my view, the issues of particular importance to this inquiry are
preventing Indigenous deaths in custody by reducing the rates of incarceration
and recidivism; and establishing a formal system for the consideration and
implementation of coronial recommendations by the Western Australian
government.
Issue 3: The scope and efficacy of government action to reduce Indigenous
incarceration and recidivism rates to prevent further Indigenous deaths in
custody
At present, the incarceration rate of Indigenous people in Australia is
rising rather than falling. The imprisonment rate has increased by 46% for
Indigenous women and by 27% for Indigenous men between 2000 and 2008. Indigenous
juveniles were 28 times as likely to be detained as non-Indigenous juveniles at
30 June 2007.[1] Western Australia is
no exception. As of June 2008, Indigenous peoples in Western Australia were 20
times more likely to be imprisoned than non-Indigenous people. This was the
highest age standardised ratio of any State or Territory in
Australia.[2]
These figures are alarming. In the Commission’s view, the emphasis on
incarceration of a means of dealing with criminal conduct needs to be replaced
by a strategy which targets effectively the causes of crime.
- (i) Laws mandating minimum terms of imprisonment (‘mandatory
sentencing’) and Indigenous people
The retention of
mandatory sentencing in respect of certain property offences appears to be a
significant inhibitor to reducing the rates of Indigenous incarceration and
recidivism in Western Australia. These mandatory sentencing provisions have
increased the rate of Indigenous incarcerations in Western Australia, rather
than reduced them. The Commission has expressed a number of concerns regarding
the operation of mandatory sentencing provisions in Western Australia,
including:
-
that such provisions have a disproportionate impact on Indigenous
people; -
many people receive an unfairly harsh sentence in respect of minor
offences; -
the broad range of human rights violations inherent in the operation of the
mandatory sentencing provisions; and -
the particularly concerning impact of the mandatory sentencing provisions on
Indigenous young
people.[3]
A
number of the United Nations human rights bodies including the Human Rights
Committee, the Committee on the Elimination of Racial
Discrimination,[4] and the Committee
Against Torture[5] have also
highlighted their concern in respect of the mandatory sentencing laws in both
Western Australia and the Northern Territory.
It is a matter of great concern that the scope of the mandatory sentencing
provisions in Western Australia has recently been expanded to apply to an
assault on a ‘public officer’, with a minimum prison term of six
months for an adult and up to 3 months detention for a juvenile 16 years and
over.
In the Commission’s view, if the Western Australian government is
committed to reducing the rate of incarceration and recidivism of Indigenous
people, the mandatory sentencing provisions should be repealed. The mandatory
sentencing provisions are ineffective at deterring crime and rehabilitating
offenders, they are costly, and they can be manifestly
unjust.[6] Further, the manner in
which the mandatory sentencing provisions can breach human rights obligations
are so substantial that the provisions cannot be seen as socially useful or
acceptable.
- (ii) How Justice Reinvestment could help reduce Indigenous incarceration
and recidivism rates in Western Australia
Justice reinvestment
is a localised criminal justice policy approach from the United States that
diverts the funds spent on imprisonment to local communities where there is a
high concentration of offenders. The money that would have been spent on
imprisonment is reinvested in programs and services that address the underlying
causes of crime in these specific communities. Performance outcomes are measured
against the amount of imprisonment money saved, reduction in imprisonment,
reduction in recidivism, and indicators of community wellbeing and capacity.
Justice reinvestment also recognises the limitations of current
individually-focused corrections policy. Even if an offender is put through a
well-resourced rehabilitation program, if the offender returns to a community
with few opportunities, their chances of staying out of prison are limited.
Justice reinvestment still retains prison as a measure for dangerous and serious
offenders, but actively shifts the culture away from imprisonment and starts
providing community services that prevent offending.
The concept of justice reinvestment is discussed in detail in the 2009 Social
Justice Report.[7] Justice
reinvestment acknowledges what Indigenous communities have known for a long time
– taking people out of communities through imprisonment weakens the entire
community.
I note that the Senate Legal and Constitutional Affairs References Committee recommended in 2009 that the federal, State and Territory
governments recognise the potential benefits of justice reinvestment, and
develop and fund a justice reinvestment pilot program for the criminal justice
system.[8] The Commission
supports this recommendation and encourages the Western Australian government to
develop and fund a justice reinvestment pilot program for the criminal justice
system.
Issue 4: Whether the Coroners Act 1996 (WA) should be amended to require
the Government to respond to coronial recommendations within a set
timeframe
The Commission strongly supports this proposed amendment of the Coroners
Act 1996 (WA). The amendment will help give greater effect to the protection
of human rights in Western Australia. It will also be a step towards
implementing those recommendations of the 1991 Royal Commission in Aboriginal
Deaths in Custody (‘RCIADIC’) report which call for a system of
review and response by government departments and agencies.
- (i) Protection of human rights in Western Australia
As
indicated in the inquest into the death of Mr Ward, it is within the
Coroner’s power to inquire into and make findings and recommendations on
violations of a person’s human rights. The Australian Human Rights
Commission has been granted leave to intervene in numerous coronial inquests,
and has made submissions on a range of human rights issues connected with a
person’s death, including identifying required improvements in police
training and practice to properly care for a person while in police custody, and
identifying when a person has been subjected to arbitrary
detention.[9]
The right to life engages a number of positive obligations on the State.
These positive obligations arise out of the duty to both protect life and
prevent death. Some of these positive obligations include a duty
to:[10]
-
conduct a thorough investigation into deaths where the person was in
custody at the time of death, or where agents of the State may have caused the
person’s death; -
prevent and punish killings and deaths caused by negligence or
recklessness in both the public and private spheres; -
carefully regulate and train personnel, such as police officers and prison
guards, to minimise the chance of a violation of the right to life; and -
protect people held in any form of detention, including ensuring
appropriate monitoring and supervision of detainees.
The conduct of
an inquest and the issuing of coronial recommendations alone may not wholly
satisfy the positive obligations engaged by the right to life. Where a Coroner
has found that an agent of the State caused or contributed to the death of an
individual, or that a death in custody could have been prevented, it is
essential that accountability mechanisms are in place to prevent a death
occurring in similar circumstances in the future. The proposed amendment to the Coroners Act 1996 (WA) will help to ensure that these accountability
processes are put in place.
(ii) Implementation of relevant RCIADIC recommendations
The RCIADIC concluded that reform of the coronial inquest system in each
State and Territory was essential in order to properly identify the reasons for
Indigenous deaths in custody and to avoid preventable deaths in the future.
Recommendations 14 – 17 of the RCIADIC report outlined a system of
mandatory reporting by government departments and agencies in respect of
coronial recommendations. Despite the federal government and all State and
Territory government almost unanimously supporting recommendations 14-17 of the
RCIADIC report,[11] that scheme has
still not been uniformly implemented into legislation. In particular, the
recommendations have not been implemented in Western Australia.
I trust this submission is of assistance to the inquiry. If you require
further information from the Commission, please contact me.
Yours sincerely
Mick Gooda
Aboriginal and Torres Strait
Islander
Social Justice Commissioner
T +61 2 9284 9603
M +61 419 971 285
F +61 2 9284 9611
E mick.gooda@humanrights.gov.au
[1]Indigenous Peoples’
Organisations Network of Australia, Submission to the Special Rapporteur on
the situation of human rights and fundamental freedoms of Indigenous people
– Australian mission, (17 August 2009), par 14. At http://www.humanrights.gov.au/social_justice/publications/srip_2009/index.html (viewed 10 May 2010).
[2] Australian Bureau of Statistics, Prisoners in Australia 2008, ABS cat no
4517.0 (2008), p 6.
[3] Aboriginal
and Torres Strait Islander Social Justice Commissioner, Social Justice Report
2009, Chapters 1 and 5. At www.humanrights.gov.au/social_justice/sj_report/sjreport09/index.html (viewed 10 May 2010).
[4] Committee
on the Elimination of Racial Discrimination, Report of the Committee on the
Elimination of Racial Discrimination 2005, UN Doc. A/60/18(SUPP), par 40. At http://ods-dds-ny.un.org/doc/UNDOC/GEN/G05/441/20/PDF/G0544120.pdf?OpenElement (viewed 11 May 2010).
[5] Committee
Against Torture, Concluding Observations of the Committee Against Torture:
Australia, UN Doc. CAT/C/AUS/CO/3, para 23(d). At http://ods-dds-ny.un.org/doc/UNDOC/GEN/G08/421/66/PDF/G0842166.pdf?OpenElement (viewed 11 May 2010).
[6] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2001, Chapter 4, pp 118 – 125, 130. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport01/index.html (viewed 14 May 2010).
[7] Aboriginal and Torres Strait Islander Social Justice Commissioner, above n 3, Chapters 1 and
5.
[8] Senate Legal and
Constitutional Affairs References Committee, Access to Justice (8
December 2009), Recommendation 21. At www.aph.gov.au/senate/committee/legcon_ctte/access_to_justice/report/b04.htm (viewed 11 May 2010).
[9] A full
list of the submissions that the Australian Human Rights Commission has made as
an intervener in coronial inquests is available on the Commission’s
website. At http://www.humanrights.gov.au/legal/submissions_court/index.html (viewed 10 May 2010).
[10] See S
Joseph, J Schultz, M Castan, The International Covenant on Civil and
Political Rights: Cases, Commentary and Material (2nd edition,
2004), Chapter 8, especially, [8.01], [8.09] – [8.18] and [8.39] –
[8.49]. In respect of the obligation to conduct a thorough investigation in
respect of the equivalent right to life under the European Convention for the
Protection of Fundamental Rights and Freedoms, 1950, see eg McCann v
UK (1996) 21 EHHR 97, 163 [161]; Yasa v Turkey (1998) 28 EHHR 408,
447-8 [98]; R (Amin) v Secretary of State [2003] 4 All ER 1264.
[11] Recommendations 14, 15, 17
(and also 18) were unanimously supported by the federal government and all State
and Territory governments. South Australia, Tasmania and the Northern Territory
did not, however, endorse recommendation 16. See Aboriginal Deaths in
Custody: Response by Governments to the Royal Commission (1992), p
59.
Recommendation 16 states that the relevant Ministers of the Crown provide
copies of the government’s response to the State Coroner’s
recommendations to each of the parties; and that the State Coroner be empowered
to call for such further explanations or information as she or she considers
necessary, including reports as to further action to be taken in relation to the
recommendations.