We can all accept imprisonment as the appropriate response for serious and violent crimes. Nevertheless there is a plethora of studies confirming the common sense conclusion that prison is damaging for individuals at a psychological level, especially in the absence of rehabilitative services; that rates of recidivism, however measured, remain persistently over 50 per cent and up to 75 per cent for Indigenous prisoners; that somewhere around half of prisoners have a mental illness or cognitive impairment; that a high proportion the prison population is received from a very small number of socially disadvantaged postcodes; that the over-imprisonment of Indigenous men, women and children is a continuing national tragedy; and critically, that rates of imprisonment are mostly quite unrelated to the rate of crime.

The national rate of imprisonment measured by the Bureau of Statistics census has more than doubled in 40 years. In 1982 the crude rate of incarceration was 89 per 100,000 of the population. It rose to 112 in 1990, 150 in 2000, 172 in 2010 and 221 in 2018. Over the same period,

and despite high profile inquires and interventions, indigenous incarceration worsened: increasing from 19 per cent of the prison population in 2000 to 28 per cent in 2018.

For the first half of those forty years rates of crime were growing, a background to the tabloid campaigns of fear and outrage inseparable from the ‘law and order’ politics of the day. For the second half of that time crime rates in all but a few exceptional categories like sexual assault have been falling dramatically. Nevertheless, the entirely mistaken assumption that punitive policies reduce the rate of crime remains widespread in politics and undiminished in popular media.

Harsh law and order expectations have a continuing effect upon the administration of bail and parole laws. They stifle discussion about rights. They encourage indifference to the circumstances of the mentally ill and cognitively impaired. They sustain populist bias against particular ethnic groups. They are present as the Police budget in New South Wales systematically escapes cuts suffered by other portfolios, while the budget for Legal Aid has not increased since 2007.

The lazy and fearful assumptions of law and order politics will only be diminished if people of goodwill inside and outside of Parliament organise themselves to do far more on a bipartisan basis to counter them – as they are now doing across the political spectrum in the United States.

But of course there are also concrete measures that must be take if we are to stop the endless growth of inmate numbers:

First, we must acknowledge that the proportion of unsentenced prisoners has risen greatly over time. About half are released without having to serve further time.. This is the easiest problem to fix -– through appropriate attention to bail laws, especially as they apply to the cultural circumstances of Indigenous people, to parole conditions and to the resources provided for the administration of justice.

Next, the New South Wales Bureau of Crime Statistics and Research showed us in a famous 2009 paper that the reduction of reoffending is by some distance the fastest way to reduce the prison population. Internationally validated data tells us that tailored, culturally sensitive through-care and back of prison sentence programs to help prisoners to re-join the community are effective in reducing recidivism. But you must invest in them and you can’t run them properly if the system is constantly afflicted with overcrowding. As ours is.

It is also widely understood that at the front end, community supervision combined with well-designed treatment –a substitute for prison — is one of the most effective ways to reduce recidivism. Yet national provision for diversion remains intermittent, underfunded and uneven.

And finally: if the crude national rate of imprisonment per100,000 of the population is at present 220, the rate for the two per cent of the Australian population who are Indigenous is 2480. Inevitably special attention has to be paid to Indigenous and other groups who are over-represented in the justice system. In December 2017 the Australian Law Reform Commission published Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal andTorres Strait Islander Peoples. Commissioner Matthew Myers’ recommendations admirably consolidate and refine decades of research and official inquiry across the technically detailed spectrum of legal issues.

The Law Reform Commission Report more broadly recommends the promotion of substantive equality before the law, for instance by the institution of provisions that consistently take account of systemic background factors affecting Indigenous people as well as the circumstances of an individual offender. It asserts the fundamental importance of Indigenous leadership and participation in the delivery of programs for Indigenous people in contact with the legal system. Its first recommendation however goes to a more far-reaching question: the reduction the number of people coming into the prison in the first place through an approach known as “justice reinvestment”.

We have long understood that a large proportion of offenders come from a small number of disadvantaged communities; that the underlying causes of crime are varied and complex; that individuals who come into contact with the criminal justice system are highly likely to experience multiple and severe social and economic disadvantage including poverty and inter-generational trauma. In the circumstances, the idea that we should generate savings in the justice system by reallocating resources into programs designed to keep people who are at risk of offending out of gaol seems like the most elementary common sense.

Nevertheless in practise that is difficult to achieve through conventional government service delivery — as anybody with experience of in the area will know. Problems of program coordination are intractable and programs need to be implemented consistently with painstaking attention to detail over many years if they are to be successful.

However the program in Bourke, planned by the organisation JustReinvest NSW (http://www.justreinvest.org.au) in partnership with the Tribal Council and supported by the agencies of government shows how these problems can be overcome. Its considerable and measurable success in the reduction of offending behaviour and days spent in custody, achieved by careful work over a number of years, has saved money within the justice system and showed other communities a pathway to improvement.

There can be no reasonable doubt at all that the implementation of the suite of Law Reform Commission recommendations through a purposeful, competent, federally-coordinated government program would cause a dramatic long term reduction in Indigenous incarceration. Neither can there be any doubt about the meaning of the complete absence of response by the Federal Government since the Report was submitted eighteen months ago.

There is not much difference between those within the Federal Government who successfully oppose useful action on climate change and those who believe that special laws for Indigenous people offend the principle of equality before the law. However, the former Chief Justice of the High Court of Australia has recently answered that argument.

“Does the Constitution treat Indigenous people in the same way as everyone else?” asks the Honourable Murray Gleeson. “Hardly. The race power, by its very existence, calls into question the assumption of equality… It has been suggested that it is divisive to treat Indigenous people in a special way. [Yet] the division between Indigenous people and others in this land was made in 1788. Indigenous people did not make it. The race power of the Constitution is now used in practice .to make special laws for them … a response to the consequences of that division.”

The failure to deal with the tragedy of over-imprisonment is a scandal.

Bob Debus is a former Attorney General and Minister for Corrective Services in New South Wales.

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