Key gaps

9.15     Aboriginal and Torres Strait Islander peoples are more likely to reoffend on release from prison than non-Indigenous people.^[22] While various prison programs address the criminogenic needs of Aboriginal and Torres Strait Islander prisoners, few are available to people held on remand or to prisoners serving short sentences—areas where Aboriginal and Torres Strait Islander peoples are over-represented.^[23] There are also few available programs that address the specific challenges of female Aboriginal and Torres Strait Islander prisoners, whether on remand or serving long or short sentences.

Remand and people serving short sentences

9.16     There are key differences between those prisoners held on remand and those prisoners serving short sentences—namely, the presumption of innocence applies to prisoners held on remand.^[24] The presumption of innocence raises legal and ethical questions about the extent to which prison programs addressing offending behaviours should be made available to prisoners on remand.

9.17     However, as noted in a 2016 South Australian report,

effects associated with remand in custody (particularly for those subsequently not convicted) include: increased likelihood of further offending as a consequence of contact with the prison system; increased risk of suicide and mental distress, disintegration of social supports and family ties; disruption to employment and housing that may increase likelihood of reoffending on release; limited access to supports, programs and services that might address factors underpinning the alleged offence.^[25]

9.18     While the discussion in this section discusses the availability of programs for Aboriginal and Torres Strait Islander remandees and prisoners serving short sentences together, the ALRC cautions that states and territories should take into account legal and ethical considerations arising from the presumption of innocence in designing and delivering programs to Aboriginal and Torres Strait Islander remandees.

9.19     Up to 30% of the Aboriginal and Torres Strait Islander prisoner population are held on remand.^[26] Of those that are convicted, a large proportion are given a sentence not exceeding time served on remand^[27] or are sentenced to a short term of imprisonment that exceeds time served on remand.^[28] In 2016, up to 50% of Aboriginal and Torres Strait Islander prisoners were serving a sentence of 2 years or less.^[29] This can be more pronounced in some jurisdictions. For example, CLANT advised that most prisoners in the NT were either on remand (30%) or serving sentences of less than 12 months (40%).^[30]

9.20     Generally, people on remand or serving short sentences do not have access to prison programs.^[31] For example, while the Sentence to a Job program operating in the Northern Territory (NT) has received positive results but, like many other prison programs, is only available to those serving a sentence of more than three months.^[32] The Criminal Lawyers Association of the Northern Territory (CLANT) noted generally that it was a serious concern that, in the NT, prison programs are only available on a limited basis.^[33] Citing the NT Department of Correctional Services’ 2015–16 Annual Report, CLANT noted that 95% of NT prisoners had not participated in the Sentence to a Job program and that other programs had ceased altogether or were only available to fewer than half the inmates.^[34] CLANT advised that most NT prison inmates were either on remand (30%) or serving sentences of less than 12 months (40%)^[35] meaning access to programs is very limited.

9.21     There may be both policy and practical reasons for limited access in other jurisdictions.^[36] ‘Offence-based’ programs may not be provided to people on remand because the offences charged are yet to be proven.^[37] Further, corrections staff cannot accurately assess when a person held on remand will be released and whether there will be sufficient time to complete a program in prison. People on short sentences are generally not in prison long enough to access and complete a prison program.^[38] These reasons have been articulated by the Australian Institute of Judicial Administration, who noted:

Access to programs also tended to be restricted to prisoners who had been sentenced and who were serving a minimum sentence. Such restrictions are justified based on the premise that people should not be undertaking programs until there has been a finding of guilty and based on the practical realities of delivering programs … Many prisoners also spend less than six months in prison and are often released without addressing their rehabilitation needs. As rehabilitation takes time, it becomes increasingly difficult to rehabilitate prisoner who have complex needs by addressing their offending behaviour in short time frames.^[39]

9.22     By contrast, the Victorian Aboriginal Legal Service (VALS) noted:

prisoners on remand and serving short sentences face the same disruption as those serving longer sentences and require the same level of support and rehabilitation services as those serving longer sentences. Unless people held on remand and serving short sentences are provided with access to positive programs their detention is a purely punitive experience that compounds their disadvantage and increases their likelihood of reoffending.^[40]

9.23     In recognition of the failure to deliver programs across all prisoner groups, states and territories are beginning to focus on the remand population as well as prisoners serving short sentences. For example, in the ACT the majority of cultural programs and some offence-based programs have been made available to prisoners on remand, including female Aboriginal and Torres Strait Islander remandees.^[41] The ACT’s Standard Guidelines for Corrections in Australia (2012) states that the ‘treatment of remand prisoners should not be less favourable than that of sentenced prisoners.’^[42]

9.24     In September 2017, Corrective Services NSW established 10 ‘High Intensity Program Units’ for prisoners to attend upon where they are serving sentences of six months or less^[43] because ‘these inmates tend to reoffend at higher rates than those with longer sentences’.^[44] These facilities ‘focus on delivering rehabilitation services and programs and enhanced release planning’ to these prisoners. Two units—operating in Wellington and the Mid-North Coast—are specifically for ‘short sentenced Aboriginal inmates’.^[45] The programs at these facilities have a ‘strong emphasis’ on education and employment preparation, supported by ‘targeted cultural support and traditional knowledge for Aboriginal inmates’, including a two week ‘cultural strengthening program’ and participation by local community Elders. Two facilities operating over three locations deliver programs and services tailored for female prisoners, using a trauma-informed framework, with a particular focus on returning to secure and safe accommodation.^[46]

9.25     In 2016, the South Australian Government released a policy that aimed to decrease reoffending rates by 10% by 2020. This comprised six strategies, including to prioritise developing programs for women, prisoners on short sentences and individuals on remand, and ensuring that targeted and culturally appropriate services and programs are available to Aboriginal offenders.^[47] This policy was based on the recommendations of the Strategic Policy Panel Report.^[48] The SA government has committed to implementing these by mid-2018 and to evaluate these by 2020.^[49]

9.26     The Efficacy, Accessibility and Adequacy of Prison Rehabilitation Programs for Indigenous Offenders across Australia Report recommended, among other things, that programs be developed for Aboriginal and Torres Strait Islander prisoners sentenced to less than six months imprisonment. The Report noted that there are limitations to the effectiveness of such programs stating that, ‘by their nature, those programs will be limited’. The Report also recommended ‘investigating’ the possibility of extending throughcare to short-term prisoners, and that attention should be given to the development of appropriate rehabilitation programs for remandees.^[50]

9.27     The majority of stakeholders supported the recommendation that corrective services in each state and territory develop culturally appropriate prison programs for Aboriginal and Torres Strait Islander prisoners on remand or serving a short sentence.^[51] Stakeholders described some of the issues that followed from remandees and those on short sentences not having access to prison programs. Of particular concern was the likelihood of reoffending, which was compounded by limited access to parole for prisoners who had not completed programs.^[52] Further, when granted parole, such prisoners are likely to leave prison unsupervised without any further skills or understanding of their criminal conduct.^[53] This problem was highlighted by the Law Council of Australia, who submitted with regard to the lack of remand programs in SA that:

The Society advises that many of remandees are Aboriginal men who alleged to have committed domestic violence offences who have been refused bail under section 10A of the Bail Act 1985 (SA), very many of whom are Aboriginal, serve time in custody on remand, and plead guilty on the first available opportunity. They are often released after a period of weeks or months on remand, with their family lives, their working lives and their social and cultural lives having been completely disrupted. It is those people who particularly need programs directed to cessation of domestic violence.^[54]

9.28     The Human Rights Law Centre noted:

These ‘short termers’ (serving six months or less) account for more than half of prisoners released each year and without access to appropriate programs, are at greater risk of reoffending. A lack of stable housing, work, family and social ties, together with a lack of post-release support, heightens this risk even further.^[55]

9.29     The Aboriginal Legal Service of Western Australia (ALSWA) submitted that the lack of support programs available for remand prisoners and prisoners serving short sentences was a ‘serious flaw’ in the current system:

prisoners on remand may spend several months in custody prior to the disposition of their charges (and even up to 18 months awaiting a trial in a superior court). Depending on the circumstances, the court may impose a sentence of imprisonment and backdate the sentence to the time when the offender first went into custody. Therefore, some offenders will be released from custody at the time or very soon after the sentencing date. For others, even a short period as a sentenced prisoner precludes participation in programs. Such offenders are released into the community with no support and the risk of reoffending is therefore high.^[56]

9.30     Legal Aid WA observed that few programs were available in regional prisons, and where they were available, were often not suitable for Aboriginal prisoners, who may have low levels of English and/or literacy skills.^[57] Legal Aid WA also drew the ALRC’s attention to the consequential and related issue of prisoners being denied parole because they had not attended suitable programs, providing a case study of a 20 year old Aboriginal man on a 22 month sentence who was unable to access programs and therefore was denied parole. This may occur where a person has been held on remand, and, due to time served, receives only a short sentence on conviction, with parole to follow shortly thereafter. However, as there were no programs available on remand, the person does not qualify for parole.^[58]

9.31     Other potential flow-on effects of completing programs in prison when on a short sentence were also raised by stakeholders. For instance, prison programs were described as being ‘the only tool for people in custody to demonstrate to the Department for Child Protection that they are addressing issues or concerns that the Department might have’.^[59]

9.32     Legal Aid NSW submitted that a key barrier to accessing community-based drug and alcohol services for remanded prisoners is a Corrective Services NSW policy, which requires that, in order to be eligible for an assessment report for residential rehabilitation programs, a prisoner must have entered a guilty plea or be on remand awaiting a bail determination in the Supreme Court of NSW. This means, for example, that a remandee who has pleaded not guilty to an offence being heard in the District Court of NSW would be ineligible to access a residential rehabilitation program. Legal Aid NSW suggested that this policy be revised and provided some practical reform options to expand the availability of programs. For instance, it suggested the establishment of a free call service to rehabilitation providers.^[60]

Female Aboriginal and Torres Strait Islander offenders

9.33     The Prison to Work Report highlighted that the drivers of incarceration may be ‘acute’ for Aboriginal and Torres Strait Islander female offenders. They are likely to have experienced victimisation, sexual abuse and family violence as well as poor mental health, substance misuse, unemployment and low education.^[61] The Report noted:

Despite this experience of violence and their complex needs, Aboriginal and Torres Strait Islander women tend to access women’s services and programs in prison less than non-Indigenous women, particularly those aimed at women who have dependent children.^[62]

9.34     Aboriginal and Torres Strait Islander women tend to serve short sentences or be held on remand, meaning they may be unable to access prison programs.^[63] The NSW Government submission noted that ‘short sentences can be problematic for women as they are often incarcerated just long enough to lose their accommodation, links to community support and can serve to complicate and disrupt their lives, resulting in relapse, reoffending and in many cases, homelessness’.^[64] The Prison to Work Report stated that to ‘be female, Aboriginal and/or Torres Strait Islander and a prisoner is to experience a very complex disadvantage’.^[65]

9.35     Even for longer term prisoners, when compared to the range and availability of options offered to Aboriginal and Torres Strait Islander men, women’s prison programs are limited.^[66] Female Aboriginal and Torres Strait Islander prisoners have been described as a group that is ‘invisible’ to policy makers.^[67]

9.36     There are some programs available to female Aboriginal and Torres Strait Islander prisoners. The National Family Violence Prevention Legal Service (NFVPLS) provided examples of programs delivered by their Forum members across Australia. These included:

• Strong Women, Strong Mother (WA): delivered by Aboriginal Family Law Services in WA, the program seeks to educate participants about family violence, healthy relationships, the emotional wellbeing of children and creating stronger children for the community.
• Dilly Bag (Victoria): delivered by the Aboriginal Family Violence Prevention and Legal Service (Victoria), this program works with Aboriginal women in prison and on community-based orders. It uses culture and cultural strength to help women recover from trauma.
• Prison support program (Victoria): delivered by Aboriginal Family Violence Prevention and Legal Service Victoria to Aboriginal women who are survivors of violence or abuse. The program provides culturally safe and holistic support and links women into services and provides community legal education. The program is provided to women on remand and women exiting prison.^[68]

9.37     Legal Aid NSW pointed to the Bolwara Transitional Centre as a model currently only available to female Aboriginal or Torres Strait Islander prisoners serving longer sentences in metropolitan areas, and further identified the below programs for expansion:

• The Miranda Project (NSW);
• Rosa Coordinated Care (based in Nowra);
• WEAVE creating futures justice program; and
• Miruma residential diversionary program.^[69]

9.38     Stakeholders called for better and more accessible prison programs for all female Aboriginal and Torres Strait Islander prisoners.^[70] For example, Legal Aid WA supported the implementation of more programs for female Aboriginal and Torres Strait Islander prisoners, stating that programs should

be linked to the factors contributing to the offending behaviour, including intergenerational trauma. Programs must be culturally and gender appropriate to ensure the best response possible. It is further suggested that the programs use plain English (unless an interpreter is required) and facilitators of the programs should ideally be appropriate community representatives to promote a more engaging program e.g. a female facilitator when speaking to female victims and likewise, a male facilitator when speaking to male offenders about family violence.^[71]

9.39     It has been acknowledged that female Aboriginal and Torres Strait Islander prisoners require particular care, and access to appropriate services that ‘acknowledge their higher levels of need and likely history of victimisation that is entwined with their offending’.^[72] In 2014, the Office of the Inspector of Custodial Services of Western Australia recommended the implementation of specific strategies targeted at reducing recidivism among young female prisoners.^[73]

9.40     The factors that drive ‘female imprisonment and offender complexities are significantly different from male offenders’^[74] Key issues in relation to prison programs for female Aboriginal and Torres Strait Islander prisoners identified by stakeholders include:

• female offenders are likely to be victims of family violence and sexual assault. Programs should acknowledge the role of family violence in Aboriginal and Torres Strait Islander women’s incarceration cycles.^[75]
• female offending can interact with histories of trauma and abuse. This means that prison programs that are able to successfully address these histories in a culturally competent way may be more likely to be successful in reintegration.^[76]
• many female prisoners are parents—up to 80% of Aboriginal and Torres Strait Islander women in prison are mothers.^[77] Female offenders often have children removed from their care, and require programs that facilitate reconnection with children upon release, such as programs that address issues around parenting capability or that model positive engagement with children.^[78]