SMH: Aboriginality should be a factor in granting bail, inquiry recommends

The powers of NSW’s independent police watchdog should be expanded to include responsibility for investigating deaths in custody and the state’s bail laws should be amended to require police and courts to take into account a person’s Aboriginality, an inquiry into Indigenous deaths in custody has recommended.

In a report released on Thursday, 30 years to the day since the findings of the Royal Commission into Aboriginal Deaths in Custody, a NSW parliamentary committee examined the “unacceptably high” level of First Nations people in custody and made 39 urgent recommendations for change.

Among the key recommendations were raising the age of criminal responsibility from 10 to 14, giving greater funding to the NSW Coroners Court, requiring police and courts to consider a person’s Aboriginality in bail decisions, raising the threshold for offensive language and expanding the role of the independent police watchdog, the Law Enforcement Conduct Commission (LECC), to include investigating all deaths in custody.

It also recommended the NSW government immediately implement all remaining recommendations from the royal commission, and for research to be conducted to identify why growing numbers of First Nations women are being held in custody. The Attorney-General should also give consideration to appointing “significantly more” suitably qualified First Nations people to the judiciary, the report says.

Labor MP Adam Searle, who chaired the inquiry, wrote in a foreword that “sadly we are no closer to addressing the over-representation of First Nations people in the criminal justice system” than 30 years ago.

A Deloitte analysis in 2018 found that 64 per cent of the royal commission recommendations had been implemented in full, while 36 per cent had been implemented partially or not at all.

Mr Searle said the current arrangements for reviewing deaths in custody lacked a “lead body to co-ordinate an effective approach” and First Nations families lacked confidence in the system.

After considering a range of options, including a new First Nations-led independent body, the committee recommended that the powers of the LECC should be expanded to “undertake full investigations in relation to deaths in custody, with appropriate resourcing and support”.

“Alongside this, the appointment of a First Nations senior officer will ensure the Commission is genuine and culturally safe in its approach,” Mr Searle said in his foreword.

Upper house Greens MP David Shoebridge, who was deputy chairman of the committee, said there was a “fundamental breakdown in trust between First Nations communities and the criminal justice system and that message was sent loud and clear in almost every submission to the inquiry”.

“Fundamental to re-establishing trust is the recommendation that all deaths in custody must be investigated and oversighted by the Law Enforcement Conduct Commission, an independent statutory body, independent of the police and corrective services,” Mr Shoebridge said.

He said “one important reform was to raise the threshold for prosecution for offensive language that will prevent First Nations people being dragged before the courts for what is known as the ‘trifecta’ of offensive language, assault police and resist arrest”.

Among other recommendations was a call to set up the proposed Indigenous Walama Court inside the NSW District Court, a long-standing plan that has the backing of the District Court and the legal profession but has yet to be funded by the state government.

The report also recommends the successful Drug Court, which sits in the Sydney CBD, Parramatta and the Hunter region and focuses on supervision and rehabilitation, be expanded to Dubbo and other priority regional and remote areas.

The committee also recommended a number of legislative changes, including amending the Coroners Act to require coroners to make findings on whether the implementation of the royal commission’s findings would have reduced the risk of death in custody in all cases involving a First Nations person.

Other legislative changes include amending the Young Offenders Act to allow young people to be given a greater number of cautions.

Cheryl Axelby, co-chairwoman of First Nations-led justice coalition Change the Record, welcomed the report and said its recommendation to raise the age of criminal responsibility “was one simple step governments could take today to fundamentally change the lives of our children and future generations”.

Ms Axelby said the inquiry’s push to expand the powers of the LECC was also a positive step.

”For many years, Change the Record and other First Nations legal and human rights organisations have been calling for real accountability and oversight of police and prisons. There cannot be any justice, accountability or trust so long as police are able to investigate and look after their own,” she said.

Ms Axelby urged the NSW Attorney-General to “act now” and said the recommendations “must not sit on a shelf for the next 30 years”.

The parliamentary committee comprised six members, including two MPs each from the government and the Labor opposition, a Greens MP and a One Nation MP.

Most of the report’s 39 recommendations had the unanimous support of the committee. One Nation upper house MP Rod Roberts objected to a handful, including the push to raise the age of criminal responsibility.

On Thursday, the federal Labor opposition pledged $90 million over four years for justice reinvestment reforms aimed at diverting at-risk Indigenous people from custody, should it win the next election.

Justice reinvestment is focused on a range of areas including school retention and family violence in order to tackle the causes of crime and recidivism.

NSW Attorney-General Mark Speakman said theNSW government would carefully consider the report’s findings and recommendations.

“The NSW government is a signatory to the 10-year National Agreement on Closing the Gap, developed jointly by all Australian governments and the Coalition of Peak Aboriginal and Torres Strait Islander Organisations,” he said.

“The agreement takes a holistic approach to the systemic change needed to improve justice, health, education and employment outcomes. We are committed to meeting the agreement’s targets, including reducing the rate of incarceration of Aboriginal and Torres Strait Islander adults and young people.”

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