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First Nations People in Custody and Oversight and Review of Deaths in Custody

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First Nations People in Custody and Oversight and Review of Deaths in Custody LEGISLATIVE COUNCIL SELECT COMMITTEE ON THE HIGH LEVEL OF FIRST NATIONS PEOPLE IN CUSTODY AND OVERSIGHT AND REVIEW OF DEATHS IN CUSTODY The high level of First Nations people in custody and oversight and review of deaths in custody April 2021 www.parliament.nsw.gov.au LEGISLATIVE COUNCIL Select Committee on the high level of First Nations people in custody and oversight and review of deaths in custody The high level of First Nations people in custody and oversight and review of deaths in custody Ordered to be printed 15 April 2021 according to Standing Order 231. Report 1 - April 2021 i LEGISLATIVE COUNCIL High Level of First Nations People in Custody and Oversight and Review of Deaths in Custody New South Wales Parliamentary Library cataloguing-in-publication data: New South Wales. Parliament. Legislative Council. Select Committee on the high level of First Nations people in custody and oversight and review of deaths in custody. The high level of First Nations people in custody and oversight and review of deaths in custody: Report / Select Committee on the high level of First Nations people in custody and oversight and review of deaths in custody. [Sydney, N.S.W.] : the Committee, 2021. [xvi, 232] pages; 30 cm. (Report /Select Committee on the high level of First Nations people in custody and oversight and review of deaths in custody) “April 2021” Chair: Hon Adam Searle MLC ISBN 9781922543042 1. Prisoners, Aboriginal Australians—New South Wales—Mortality. 2. Aboriginal Australians–Criminal justice system. I. Searle, Adam. II. Title. III. Series: New South Wales. Parliament. Legislative Council. Select Committee on the high level of First Nations people in custody and oversight and review of deaths in custody. Report. 305.899 (DDC22) ii Report 1 - April 2021 SELECT COMMITTEE ON THE HIGH LEVEL OF FIRST NATIONS PEOPLE IN CUSTODY AND OVERSIGHT AND REVIEW OF DEATHS IN CUSTODY Table of contents Terms of reference vii Committee details viii Chair's foreword ix Recommendations xi Conduct of inquiry xvi Chapter 1 Introduction 1 Focus of this inquiry 1 Terminology 2 Previous reports and reviews 2 Royal Commission into Aboriginal Deaths in Custody report (1991) 2 Deaths in custody: 10 Years on from the Royal Commission (2001) 3 Review of the implementation of the recommendations of the Royal Commission into Aboriginal deaths in custody (2018) 3 Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (2017) 4 National Agreement on Closing the Gap 4 The call for action 5 Oversight of previous recommendations 10 The Closing the Gap targets 12 Importance of self-determination 14 Committee comments 17 Chapter 2 The over-representation of First Nations people in the criminal justice system 21 Data on the over-representation of First Nations people in the criminal justice system 21 Nature of offences 24 New prison admissions and custodial length 26 Bail decisions 27 The impact of COVID-19 on the prison population 27 First Nations young people 29 First Nations Women 31 Report 1 - April 2021 iii LEGISLATIVE COUNCIL High Level of First Nations People in Custody and Oversight and Review of Deaths in Custody The drivers of disproportionate incarceration rates 33 Drivers contributing to the rate of First Nations youth in custody 35 Drivers contributing to the rate of First Nations women in custody 36 Data collection – limitations and concerns 39 Committee comments 41 Chapter 3 Addressing the over-representation of First Nations people in the criminal justice system 45 Specific legislative reforms 45 Changes to bail laws 45 Introduction of Gladue style reporting 48 Removal of offensive language provisions 50 Raising the age of criminal responsibility 51 Expansion of diversionary programs and specialist courts 56 Ensuring arrest is a last resort 57 Enhanced use of the Young Offenders Act 58 Justice reinvestment 60 Expansion of the Youth Koori Court 63 Establishment of a First Nations specific list in the Children's Court 65 Expansion of Circle Sentencing 66 Expansion of Drug Courts 68 Establishment of a Walama Court 69 Suspect Target Management Program 72 Committee comments 75 Chapter 4 Deaths in custody 83 First Nations deaths in custody 83 National data 83 New South Wales data 85 High profile cases 89 Investigations following a death in custody 89 Overview of system 89 Internal investigations by relevant agencies 91 Police investigations 93 Coronial inquests 94 First Nations families' experiences 97 Notifying families and providing information 97 Lack of cooperation between agencies 100 Confidence in the integrity of investigations 101 Support and counselling 104 iv Report 1 - April 2021 SELECT COMMITTEE ON THE HIGH LEVEL OF FIRST NATIONS PEOPLE IN CUSTODY AND OVERSIGHT AND REVIEW OF DEATHS IN CUSTODY Committee comments 105 Chapter 5 Health screening and support services in custody 107 Health needs, screening and services 107 Health needs of people in custody 107 Health screening processes 109 Health and mental health services within facilities 111 Connecting people with services upon release 113 Improving health services for First Nations people 116 Suicide hanging points 119 Committee comments 121 Chapter 6 The coronial system 125 Resourcing and timeliness 125 Funding and resources 125 Inquest timeframes 127 Structural issues 129 Timeliness of the provision of information 131 Impact of timeframes on families 133 Cultural considerations of the coronial system 136 First Nations staff 136 A therapeutic and culturally safe approach 138 Accountability mechanisms 142 Accountability of Coroners recommendations 142 Referral to the Director of Public Prosecutions 144 Examining systemic issues 146 Review of the coronial system 149 Committee comments 150 Chapter 7 The need for reform 153 Key concerns with the current system 153 Ambiguity of arrangements and concerns about independence 153 Resourcing constraints 155 Limited remit of existing external oversight bodies 156 Lack of a systemic oversight mechanism 158 Lack of First Nations staff involved in oversight processes 159 A way forward 162 Expanding the role of the NSW Ombudsman 162 Enhancing the role of the NSW Coroner's Court 165 Expanding the role of the Law Enforcement and Conduct Commission 167 Appointing a First Nations Commissioner 172 Report 1 - April 2021 v LEGISLATIVE COUNCIL High Level of First Nations People in Custody and Oversight and Review of Deaths in Custody Establishment of a new independent oversight body 174 Committee comments 177 Appendix 1 Submissions 181 Appendix 2 Witnesses at hearings 186 Appendix 3 Minutes 192 Appendix 4 Dissenting statement 231 vi Report 1 - April 2021 SELECT COMMITTEE ON THE HIGH LEVEL OF FIRST NATIONS PEOPLE IN CUSTODY AND OVERSIGHT AND REVIEW OF DEATHS IN CUSTODY Terms of reference 1. That a select committee be established to inquire into and report on First Nations people in custody in New South Wales, and in particular (a) the unacceptably high level of First Nations people in custody in New South Wales, (b) the suitability of the oversight bodies tasked with inquiries into deaths in custody in New South Wales, with reference to the Inspector of Custodial Services, the NSW Ombudsman, the Independent Commission Against Corruption, Corrective Services professional standards, the NSW Coroner and any other oversight body that could undertake such oversight, (c) the oversight functions performed by various State bodies in relation to reviewing all deaths in custody, any overlaps in the functions and the funding of those bodies, (d) how those functions should be undertaken and what structures are appropriate, and (e) any other related matter. 2. That the committee report by 15 April 2021.1 The terms of reference were referred to the committee by the Legislative Council on Wednesday 17 June 2020.2 1 The original reporting date was by the final working day in March 2021 (Minutes, Legislative Council, 17 June 2020, pp 1057- 1059). The reporting date was later extended to 15 April 2021 (Minutes, Legislative Council, 17 February 2021, p 1915). 2 Minutes, NSW Legislative Council, Wednesday 17 June 2020, pp 1069-1071. Report 1 - April 2021 vii LEGISLATIVE COUNCIL High Level of First Nations People in Custody and Oversight and Review of Deaths in Custody Committee details Committee members The Hon Adam Searle MLC Australian Labor Party Chair Mr David Shoebridge MLC The Greens Deputy Chair The Hon Trevor Khan MLC The Nationals The Hon Rod Roberts MLC Pauline Hanson's One Nation The Hon Penny Sharpe MLC Australian Labor Party The Hon Natalie Ward MLC Liberal Party Contact details Website www.parliament.nsw.gov.au Email [email protected] Telephone 02 9230 3313 viii Report 1 - April 2021 SELECT COMMITTEE ON THE HIGH LEVEL OF FIRST NATIONS PEOPLE IN CUSTODY AND OVERSIGHT AND REVIEW OF DEATHS IN CUSTODY Chair's foreword The tabling of this report today marks 30 years since the Royal Commission into Aboriginal Deaths in Custody, and sadly, we are no closer to addressing the over-representation of First Nations people in the criminal justice system. While being Chair of this important inquiry has been a privilege, I have also felt the enormous responsibility of the task at hand, particularly when you consider the extensive number of previous reports and reviews that have come before us, most of which have failed to effect meaningful change. It is extremely disappointing that many of the recommendations made in one of the most influential reports of our time, the Royal Commission into Aboriginal Deaths in Custody, have still not been implemented, and that governments have even given up monitoring the implementation of those recommendations. While many inquiry participants are rightly concerned that this report will be just one more left on the shelf to gather dust, we believe that this report and its recommendations provide the opportunity to bring about important changes for First Nations peoples, particularly in light of the momentum currently taking place with Black Lives Matter movements here and around the world.
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