Last week, the New South Wales Government issued its response to a parliamentary inquiry looking into why Aboriginal and Torres Strait Islander people are over-represented in prisons and dying in custody.

Aboriginal and Torres Strait Islander people make up 26 per cent of adults in NSW prisons despite being about 3 per cent of the population. Even worse, almost half of young people in NSW juvenile detention are Aboriginal.

With stark figures like these, you would think the government would be compelled to take urgent action to address discrimination and equity in the system.

Yet the NSW Government’s inquiry response was disappointing. It recognises there is far more to be done to reduce the unacceptable numbers of Aboriginal people in custody, yet seems content to continue with business as usual.

The Government rejected 5 recommendations off the bat and ‘noted’ another 8, failing to promise any action on these. These recommendations will presumably join many solutions from the Royal Commission into Aboriginal Deaths in Custody which have been left lying on the shelf for over 30 years.

We have to ask, if the NSW Government doesn’t make bold reforms, who will? And, if not now, when?

We’ve seen 12 Aboriginal deaths in custody across Australia this year, seven alone in NSW. There is no time for delay.

Yet it took the Government six months to issue a basic response to the report.

One of the most serious failings is in the NSW Government’s refusal to make arrest and imprisonment a measure of last resort. In rejecting this recommendation, the government argues that existing laws strike an appropriate balance between personal liberty and community safety.

This is simply not supported by the facts. There is clear evidence that Aboriginal people are treated inequitably by the legal system.

While crime has decreased overall in NSW over the past five years, the number of Aboriginal people proceeded against by police has risen. Police are also more likely to refuse bail to Aboriginal people than non-Indigenous defendants, even in very similar circumstances.


Government letting down Aboriginal children

The Government’s refusal to make arrest and detention measures of last resort is at odds with its obligations under the Convention on the Rights of the Child. This convention was ratified not to create new standards, but to explicitly recognise inherent standards of human rights that should be beyond debate.

We’re talking about the basic human rights of children as young as 10.

Article 37 of the Convention on the Rights of the Child reads (in part): “No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.

The NSW Government also passed up another opportunity to raise the age of legal responsibility from 10 to at least 14. Shamefully, this occurred in the same week the ACT Government released a roadmap to raising the age in its jurisdiction.

When it comes to upholding children’s rights – the ACT is showing leadership while NSW lags behind.

The NSW Government also declined to exclude children under 14 from NSW Police’s Suspect Target Management Program (STMP). Yet this secretive, discriminatory program needs to be scrapped altogether. The STMP relies on racial profiling, and that is unacceptable no matter the age of the Aboriginal person being targeted.

Another recommendation rejected by government is the repeal of offensive language laws. You might think this was 1921 rather than 2021, when people can still be sucked into the criminal legal system by swearing in public. Offensive language offences are a hangover from another age and these laws are overwhelmingly used to target Aboriginal people. These offences need to be abolished, not amended.


Increased funding welcomed

Amid the disappointment, we did welcome some elements of the Government’s response. For instance, it’s pleasing to see support for a recommendation to increase funding for the Coroner’s Court to better investigate deaths in custody.

Some families wait years after the death of their loved one to have their day in the Coroner’s Court. The waiting leaves families in a state of limbo and increases their trauma. Anything the Government can do to better resource the coronial system to provide prompt and thorough answers for families is welcome.

However, this support needs to extend beyond just the Coroner’s Court to other players involved in delivering a coronial inquest. At the ALS, we are currently representing 17 families who have lost their loved ones in custody or police operations. This area of our work has significantly expanded.

It’s also good to see government support for long-term funding giving women access to support programs upon release from prison. We welcome the announcement of almost $384,000 for expansion of the Miranda Project, but more investment will be needed if programs like these are to reach everyone who needs them.


Research must lead to reforms

The NSW Government is delaying action on some reforms because a parliamentary inquiry into the coronial jurisdiction is underway, while a Corrective Services internal review into deaths in custody has just begun. Meanwhile, the Federal Government has just announced a new Indigenous Justice Research Program that will fund research into reducing Aboriginal deaths in custody.

Aboriginal people have been asked to bare their trauma in so many inquiries and reviews, but they have seen little meaningful reform.

Delaying action due to ongoing inquiries doesn’t pass the pub test. It is not enough to keep rehashing the problems in the system. We need solutions – and we have many of them in the form of the Royal Commission recommendations, findings from countless coronial inquests, recommendations from this latest parliamentary inquiry, and more.

We call on the NSW Government to make a genuine commitment to action and finally treat this issue with the urgency it deserves – because Aboriginal lives matter.


By Nadine Miles

Nadine Miles is the Acting CEO, Aboriginal Legal Service (NSW/ACT) Limited