Drumgold, Shane --- "State and Territory Implementation of the Recommendations of the Royal Commission: Australian Capital Territory" [2001] IndigLawB 30; (2001) 5(8) Indigenous Law Bulletin 7

State and Territory Implementation of the Recommendations of the Royal Commission -

Australian Capital Territory

by Shane Drumgold

The effectiveness of the ACT Government’s implementation of the Royal Commission’s 339 recommendations was difficult to measure in the first few years due to a lack of meaningful data. After a decade however, there is at least five years of reliable data on which to base an evaluation.

Since 1995, reports show a steady increase in the number of Aboriginal people coming into custody in the ACT, with a notable drop in the figures in 1999/2000. Contrasted against Indigenous population growth however, the custody rate of Aborigines per thousand population appears to have remained relatively stable at around 82, with a dramatic drop to 68 in 1999/2000.

(caption) Sources: Aboriginal Population Figures derived from Australian Bureau of Statistics, Australian Population Projections 1996-2000. Australia Federal Police – Annual Report of Policing in the Australian Capital Territory. ACT Government 1996-2000.

These figures need to be set against an environment of spiralling drug abuse. The Winnunga Nimmityjah Aboriginal Health Service report that whilst the Aboriginal community only represents 1 percent of the total ACT population, they represent 8 percent of the ACT heroin-using community and a dramatic 27 percent of all fatal overdoses in 2000. They have estimated that 3.4 percent of the Aboriginal community is using heroin

The increased heroin use in the ACT could reasonably be expected to have caused an increase in custody levels, however the above figures suggest that this did not happen. On this basis, it could reasonably be deduced that custody levels in the ACT are showing improvement.

One problem with the implementation of the recommendations is the poor drafting and lack of measurable accountability of the recommended measures. An example of the ‘fuzziness’ of some of the recommendations is the implementation in the ACT of Recommendation 80.[1]

To minimise alcohol-related custody, the ACT Government operated a ‘sobering-up shelter’ between August 1994 and July 1996, when it was closed ‘pending a review of operations’. In its two years of operation only seven Aboriginal people were referred to the facility,[2] yet official police figures show that during 1995/96 alone 52 Aboriginal people were placed in custody for intoxication not related to crime.[3] This would indicate that the police were still choosing custody over the ‘sobering-up shelter’ option, contrary to Recommendation 80.

Another example is the implementation of Recommendation 92.[4] Following this recommendation the ACT Government initiated the use of diversionary conferencing. After initial enthusiasm the use of this measure has apparently faded. In 1996/97 there were a total of 443 diversionary conferences, nine of which involved Aboriginal people.[5] The figures have steadily declined since, with the number of Aboriginal diversionary conferences in 1999/2000 being removed from the report. Since the total number of conferences held in that period had fallen to 58, it is conceivable that the figures relating to Aboriginal conferences were omitted because none were conducted.[6]

There has been some legislative reform in the form of discretionary sentencing practices and bail considerations, however these measures depend upon judicial discretion. In line with Recommendation 96,[7] judicial officers of the Magistrates Court attend cultural awareness training. After working with the Aboriginal Legal Service for 10 weeks spending every day in the Magistrates Court, I have drawn the conclusion that this is largely the reason for the overall improvement in the situation in the ACT.

Magistrates in the ACT appear to have embraced the spirit of custody as a last resort from Recommendation 92 and used judicial discretion to implement it. An example of this is the use of section 22(1)(b) of the Bail Act 1992 (ACT), which includes the interests of the person charged as one of the criteria for granting bail. Another example of this is the discretionary use of our increasingly scarce detoxification and rehabilitation places rather than custody. This has shown a reduction in the incidence of re-offending, which manifests itself in an overall decrease in ACT custody rates. This has also been experienced in the Supreme Court in a number of cases, which has also displayed a shift in focus from attacking the end result to addressing the underlying issues.

In retrospect, education has achieved more than legislation. The majority of legislative reform has been by way of the inclusion of discretion on welfare grounds. Essential to the success of these reforms however, is the education that promotes the appropriate use of the discretion by the police and judiciary.

Shane Drumgold has a B.Bus (econ) and is a final year law student at University of Canberra.

[1] Recommendation 80 – That the abolition of the offence of drunkenness should be accompanied by adequately funded programs to establish and maintain non-custodial facilities for the care and treatment of intoxicated persons.

[2] ACT Government Implementation Report, Implementation of Recommendations of the Royal Commission into Aboriginal deaths in Custody- 1995-96, 111.

[3] ACT Government, Australian Federal Police – Annual Report of Policing in the ACT 1996/97.

[4] Recommendation 92 – That governments which have not already done so should legislate to enforce the principal that imprisonment should be utilized only as a sanction of last resort.

[5] ACT Government, above n 3.

[6] Government, Australian Federal Police – Annual Report of Policing in the ACT 1999/2000.

[7] Recommendation 96 – That judicial officers and persons who work in the court service and on the probation and parole service, and whose duties bring them into contact with Aboriginal people, be encouraged to participate in an appropriate training and development program designed to explain contemporary Aboriginal society, customs and traditions. Such programs should emphasise the historical and social factors which contribute to the disadvantaged position of man Aboriginal people today and to the nature of relations between Aboriginal and non-Aboriginal communities today. The Commission further recommends that such persons should wherever possible participate in discussion with the members of the Aboriginal community in an informal way in order to improve cross-cultural understanding.