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May 9, 2021

Report and recommendations – First Nations people in custody

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High, but not high enough, on the country’s human rights agenda is the issue of Aboriginal deaths in custody.

With last week’s protest marches again shining a light on Australia’s deplorable deaths in custody statistics, yesterday’s release of the Upper House Select Committee’s report and recommendations into the high level of First Nations people in custody, and the oversight and review of deaths in custody, will be of great interest to many Australians.

Committee Chair, Mr Adam Searle MLC said the tabling of this report yesterday marked 30 years since the Royal Commission into Aboriginal Deaths in Custody. ‘Sadly, we are no closer to addressing the over-representation of First Nations people in the criminal justice system.

Royal Commission recommendations not implemented

‘It is extremely disappointing that many of the recommendations made in the Royal Commission’s report have still not been implemented and that governments have even given up monitoring implementation of those recommendations,’ said Mr Searle.

‘On this crucial issue, NSW has lost its way. The question remains whether it has the will to find it again.’

Mr Searle said that while many witnesses and stakeholders in the inquiry process are rightly concerned that this report will be just one of many that will be left on the shelf to gather dust, the committee believes 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.

Like the many reports before it, the committee’s report highlights the systemic and entrenched disadvantage being faced by First Nations communities, contributing to disproportionate rates of incarceration.

Diverting First Nations people away from the criminal justice system

While the committee makes important recommendations aimed at diverting First Nations adults and youth away from the criminal justice system, it also calls upon the NSW Government to address the underlying drivers leading to over-representation, including disadvantage in the areas of health, housing, employment and education.

The Select Committee makes 39 recommendations to address the over-representation of First Nations people in the criminal justice system and to enhance the oversight arrangements for the review of deaths in custody.

This includes specific legislative reforms in relation to bail and offensive language provisions, and the expansion of diversionary programs and specialist courts. Importantly, the report also calls for improved health screening and mental health services to be delivered in correctional centres, and a thorough review of the coronial system, given the significant delays being endured by families with inquests.

Committee’s key recommendations

‘One of the committee’s key recommendations is that the NSW Government expand the functions of the Law Enforcement Conduct Commission to undertake full investigations in relation to deaths in custody,’ said Mr Searle. ‘Although a number of options were put forward by stakeholders, the evidence was that this was the best way forward in the current circumstances and will instil greater confidence, independence and transparency in the process.

‘We hope that this recommendation, along with others we have made, provide a realistic roadmap for government to deliver better outcomes for First Nations people and for others in the criminal justice system.’

The committee’s report and other inquiry documents can be found on the committee’s website.


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