There are many practical steps governments across Australia can take to reduce the over-incarceration of Indigenous people and deaths in custody, the head of the national Indigenous legal peak body says.

National Aboriginal and Torres Strait Islander Legal Services executive officer Jamie McConnachie told National Indigenous Times that in the immediate term governments must consult with and adequately fund the Aboriginal and Torres Strait Islander Legal Services in their jurisdictions.

Ms McConnachie said that while NATSILS welcomed the Commonwealth government announcement of a further $1million for the core operations of NATSILS, Aboriginal and Torres Strait Islander legal services across Australia are not provided additional funding for what is at time comprehensive and resource intensive advice on reviews, submissions and advocacy more broadly.

"It is critical that this changes," she said, noting that the ATSILS holistic approach to justice is a cost-effective one.

Ms McConnachie noted that Change the Record and PWC Indigenous Consulting's 'Unlock the Facts' report found Indigenous incarceration cost the Australian economy $9.7 billion per year in 2020 and that annual cost will hit $19.8 billion by 2040.

Annual savings of nearly $19 billion could be achieved by 2040 if the gap between Indigenous and non-Indigenous rates of incarceration were closed, based on the implementation of evidence-based recommendations including; putting Indigenous self-determination at the heart of the solution; establishing a set of national target against which progress can be measured; improving cultural awareness across the system; investing more in prevention and early intervention; designing better throughcare and reintegration programs to reduce recidivism; and investing more in innovation and evaluation to better identify what really works.

"The deadline to implement the United Nations' anti-torture protocol - OPCAT - and have designated National Preventive Mechanisms (NPMs) in each state and territory was Friday 20 January 2023," Ms McConnachie said.

"Every state and territory has the responsibility within its jurisdiction to nominate, and legislate to enact, NPMs (National Preventative Measures) to oversee police and prison cells, police vehicles, youth justice facilities and other places of detention within their state or territory.

"While Tasmania, Northern Territory, ACT, South Australia and Western Australia have implemented interim or final measures to monitor conditions in detention, Victoria, New South Wales and Queensland have not. Victoria lags well behind other states and territories in not establishing an independent oversight body that could prevent human rights abuses in prisons."

The NATSILS executive officer pointed out that Australia has recently come under fire for its failure to comply with its obligations under UN anti-torture treaties.

"In October the UN Subcommittee on the Prevention of Torture was forced to suspend their visit to Australia, after their team of independent experts were denied access to places of detention in NSW and mental health wards in Queensland. In November, Australia was formally questioned by the United Nations anti-torture watchdog who expressed 'serious concern' with Australia's failure to establish independent monitoring mechanisms across all jurisdictions," she said.

"In August last year, it was uncovered that NSW Police had conducted hundreds of strip-searches on children as young as 13. In November, Four Corners exposed the mistreatment of children as young as 10 which is rife in youth prisons like WA's Banksia Hill and the Aboriginal Legal Service in Western Australia has shown significant leadership in advocating against these atrocities."

Ms McConnachie acknowledged the Victorian government's decision to abolish public drunkenness laws, which are used disproportionately to incarcerate Indigenous people, and said more must be done at a national level to reduce incarceration.

"In 2022, we asked the (federal) government to remedy two major outstanding and urgent funding issues affecting ATSILS (Aboriginal legal services): we called for an increase to base funding of ATSILS of at least 15-20% to achieve salary parity with Legal Aid Commissions for ATSILS staff; and a further overall funding increase to ATSILS of 20% each year over 5 years to meet expected demand for services, commencing in 2022-23 and compounding," she said.

Ms McConnachie said all Australian governments must enact National Prevention Measures that are compliant with the Optional Protocol to the Convention Against Torture, and in particular, that the Northern Territory government address the lack of functional independence of the NPM model proposed there, and that the South Australian government reintroduce laws to effectively implement OPCAT.

WHAT CAN BE DONE: National Aboriginal and Torres Strait Islander Legal Services has identified a series of key measures that must be enacted as soon as possible in every Australian jurisdiction:

- Repealing mandatory sentencing laws and prison sentences for minor offending;

- That jurisdictions with dangerous and discriminatory bail laws repeal those laws and create a presumption in favour of bail, with the onus on the prosecution to demonstrate that bail should not be granted due to there being a specific and immediate risk to the physical safety of another person or the person posing a demonstrable flight risk;

- Raise the minimum age of criminal responsibility from 10 to at least 14 years old;

- The Northern Territory government fully implement all of the recommendations of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory;

- All Australian governments commit to Aboriginal-led oversight over implementing, monitoring and assessing all the recommendations of the Royal Commission into Aboriginal Deaths in Custody;

- End racist policing, require police accountability by ending the practice of police investigating police and legislating for independent investigations of police misconduct complaints deaths in custody;

- Ensure people in all places of detention are safe from extreme temperatures;

- The federal government expand access to Medicare and the Pharmaceutical Benefits Scheme and the NDIS to incarcerated people, and review the Social Security Rules and amend them to ensure that people receiving the Disability Support Pension and access to services continue to receive this support while incarcerated and upon their release;

- The federal government show national leadership on ending torture behind bars through OPCAT implementation, and urgently commit to adequately and jointly fund NPMs with the states and territories; and

- The New South Wales and Victorian governments take urgent action to engage with full and transparent consultations with civil society to implement OPCAT as a matter of priority.