Select Committee recommendations made to address the high level of First Nations people in custody and deaths in custody
The NSW Select Committee on the High Level of First Nation’s People in Custody and Oversight and Review of Deaths in Custody has published its Report, 30 years since the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). The Committee heard submissions at Parliament House from October to December 2020, and the final report was published on 15 April 2021.
The Report has been tabled in response to the lack of implementation in NSW of many of the recommendations made in the RCIADIC. The Report highlights the disproportionate rates of incarceration of First Nations communities and the systematic disadvantage contributing to this. In 2018-2019, there had been 455 Indigenous deaths in custody in the 28 years since the RCIADIC.
The terms of reference for the Report required that a select committee be established to inquire into and report on First Nations people in custody in NSW, including and in particular, the unacceptably high level of First Nations people in custody in NSW, the sustainability of the oversight bodies tasked with inquiries into deaths in custody in NSW, the oversight functions performed by State Bodies and how those functions should be undertaken, and any other related matter.
The Report makes 39 recommendations, ranging from legislative changes to allocation of funding and reviews of processes. This article will focus on select recommendations made by the Committee to changes in the law, court processes and delivery of services.
Recommendation 8 – the legislative changes recommended in the Report include an amendment to the Bail Act 2013 to include a provision stipulating that a person’s Aboriginality and any issues arising from it must be taken into account by a bail decision-maker. The Report also highlights that Gladue style reporting should be introduced in NSW courts to ensure a First Nation person’s background and community is considered when sentencing.
Recommendation 10 – the Committee states that no child under the age of 14 should be held criminally responsible or incarcerated. In line with this, the Committee recommends that section 4A of the Summary Offences Act 1988, which criminalises the use of offensive language in or near or within hearing of a school, is amended so that there is only an offence where intimidation or actual threat of harm is involved.
Recommendation 13/14 – the Committee recommends that it be expressly legislated in the Law Enforcement (Powers and Responsibilities) Act 2002 and the Children (Criminal Proceedings) Act 1987 that the arrest, detention or imprisonment of a person should be a last measure and for the shortest period of time possible. It is also recommended that the Young Offenders Act 1997 be expanded to remove the cap on the number of cautions young people may be given. The Report discusses the importance of community-led justice reinvestment to provide tailored solutions to local problems.
Recommendation 32/33/34 – the Committee states that the remit of the Coroner needs to be legislatively strengthened so that they may make findings and recommendations on systematic reforms for deaths in custody. The Report recommends amending the Coroners Act 2009 so that a Coroner is required to examine whether there are systematic issues in relation to a death in custody, particularly for First Nations people, and make recommendations for improvements. The relevant government department and correctional centre must, within six months of receiving a Coroner’s report, respond in writing as to the implementation of recommendations made, and if they have not, the reasons why. The Committee also suggested that Coroners should be mandated to make findings on whether implementing the recommendations made in the RCIADIC would have reduced the risk of death of a First Nations person who has died in custody.
Recommendation 36 – recognising the importance of First Nations people being employed across the criminal justice system, the Committee recommends that the Law Enforcement Conduct Commission Act 2016 be amended to include a senior statutory First Nations position to undertake engagement across the organisation and review policies and casework.
Court or sentencing processes
Recommendation 16 – for the benefit of First Nations children in the out-of-home care and criminal justice systems, the Committee recommends that a dedicated court list be established for proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) involving First Nations children.
Recommendation 17 – the Report recognises that circle sentencing is working to reduce rates of imprisonment and that when compared to Aboriginal offenders sentenced in the traditional way, offenders participating in circle sentencing were 9.3 per cent less likely to receive a prison sentence. The Committee suggests that the Department of Communities and Justice work with First Nations communities to increase the number of areas in which circle sentencing is available.
Recommendation 18 – the Drug Court of NSW is a specialist court that takes referrals from local and district courts of offenders dependent on drugs. The Committee recommends that the NSW Government expand the Drug Court to Dubbo and to other regional, rural and remote areas, as it emphasises the benefits of diverting people with drug and alcohol-related problems away from the criminal justice system where possible.
Recommendation 21 – recommendation is also given for the establishment of the Walama Court in the District Court of NSW. The Walama Court would involve Aboriginal and Torres Strait Islanders in sentencing decisions and dialogue around the cause of offending and recidivism.
Recommendation 31 – the Committee recognises that the NSW Coroners Court needs adequate funding and resources to ensure that an inquest is completed in shorter lengths of time. The Committee recommends that additional resources and funding be allocated to the Coroners Court to allow it to effectively undertake its role.
Recommendation 6 – the Report highlights that in NSW, there are only nine beds dedicated to women coming out of prison, leading to high levels of homelessness. The Committee recommends that the number of post-release housing beds for First Nations women coming out of prison be urgently expanded to provide safe spaces for them and their children.
Recommendation 20 – the Committee highlights that there are currently not enough spaces at existing drug treatment centres and recommends that the NSW Government provide adequate funding and resources to ensure drug and alcohol rehabilitation services are available across NSW.
Recommendation 28 – the Report states that First Nations people with disability are often unrecognised and unsupported both when incarcerated and when released, leading to further incarceration rates. The Committee recommends that support for people with disabilities in custody and upon release is established through the collaboration of service providers such as the Corrective Services NSW, Youth Justice NSW, Housing NSW and Centrelink.
The full set of recommendations can be read here. The Government’s response to the final report is due by 15 October 2021.
Authors: Christine Jones & Ushna Bashir
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Manly Fast Ferry Pty Ltd v Wehbe  NSWCA 67
COURTS AND JUDGES – procedural fairness – judicial intervention – where expert witness conclave conducted via audio visual and audio link – whether excessive judicial questioning of experts – whether real danger that trial was unfair – whether the trial miscarried DAMAGES – assessment of damages in tort – personal injury – where respondent suffered injury to left knee when ferry collided with wharf – whether respondent suffered compensatory injury to right knee by favouring left – whether primary judge erred in awarding damages for injury to respondent’s right knee EVIDENCE – expert evidence – where competing medical evidence – whether primary judge substituted own medical opinion for that of the expert DAMAGES – assessment of damages in tort – personal injury – where respondent could no longer perform certain house maintenance tasks – where those tasks carried out by respondent’s brothers – whether primary judge erred in awarding respondent damages for commercial domestic assistance.
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary of New South Wales  NSWCA 64
ADMINISTRATIVE LAW – jurisdictional error – challenge to determinations of Industrial Relations Commission – whether plaintiffs were denied procedural fairness – whether Commission failed to have regard to relevant consideration – whether Commission erred in placing onus on moving parties – whether decision was legally unreasonable.
EJE v Department of Communities and Justice  NSWCATAD 96
ADMINISTRATIVE LAW – privacy – alleged misuse of and holding of inaccurate personal and health information - HPP 9 – s6 PPIP Act and judicial functions – absence of evidence of holding the relevant information and breaches.
Shaw v Secretary, Department of Education  NSWCATAD 95
HUMAN RIGHTS – discrimination – whether power to amend complaint under s 103 of Anti-Discrimination Act 1977 (NSW) should be exercised.
Joe Miriani v NSW Department of Communities & Justice  NSWCATAD 94
JUDICIAL FUNCTIONS The application for an external review is dismissed. NCAT registry officer used Mr Miriani’s email address for the purpose of effecting service without his consent.
Civil and Administrative Tribunal Act 2013; Privacy and Personal Information Protection Act 1998.
Doyle’s Farm Produce Pty Ltd as trustee for Claredale Family Trust v Murray Darling Basin Authority  NSWSC 369
NEGLIGENCE — duty of care — public authorities — statutory construction — whether the Murray Darling Basin Authority, its delegates or the Commonwealth is a “public or other authority” within the meaning of s 41 of the Civil Liability Act 2002 (NSW) CIVIL PROCEDURE — interlocutory proceedings — summary determination of the question of statutory construction — give effect to the overriding purpose of Civil Procedure Act 2005 (NSW), s 56 — need to read general statements in judgments by reference to the circumstances of the case CIVIL PROCEDURE — originating process — pleading discloses no reasonable defence — meaning of “no reasonable defence” — order to strike out part of a pleading under the Uniform Civil Procedure Rules 2005 (NSW), r 14.28 CONSTITUTIONAL LAW — Commonwealth and State relations — alleged inconsistency of laws — general principles – unnecessary to decide.
Miriani v Commissioner of Police  NSWCATAD 93
ADMINISTRATIVE REVIEW. Government Information (Public Access) –- access applications - applications for administrative review - reviewable decision - deemed refusals - failure to comply with directions for filing and service of evidence - no explanation for delay - want of prosecution - summary dismissal
EJE v Registrar of Births Deaths and Marriages  NSWCATAD 92
ADMINISTRATIVE LAW – administrative review - application under Part 5 of the Privacy and Personal Information Protection Act 1988 - application made out of time – no application for extension of time - application dismissed.
Wilmot v Commissioner for Fair Trading  NSWCATOD 43
ADMINISTRATIVE LAW – home building – application for contractor licence – whether applicant satisfied criterion in respondent’s policy of having experience in a wide range of building construction work – whether applicant satisfied criterion in respondent’s policy of having been supervised by the holder of a contractor licence when doing that work – whether applicant satisfied statutory criterion of having experience enabling him to do, or to supervise, the work for which a supervisor certificate is required – whether applicant is capable of doing or supervising work for which a supervisor certificate is required.
Regulatory Powers (Standard Provisions) Act 2014
18/04/2021 - Act No. 93 of 2014 as amended, taking into account amendments up to Regulatory Powers (Standardisation Reform) Act 2021 - Part 2—Monitoring; Part 3—Investigation; Part 4—Civil penalty provisions; Part 5—Infringement notices; Part 6—Enforceable undertakings; Expand Part 7—Injunctions.
Electoral Legislation Amendment (Miscellaneous Measures) Regulations 2021
19/04/2021 - These regulations amend the Electoral and Referendum Regulation 2016 to expand the electronically assisted voting methods, which are currently only available to blind and low vision voters, to Australians working in Antarctica. They also amend the Electronic Transactions Regulations 2020.
Regulations and other miscellaneous instruments
Child Protection (Working with Children) Amendment (COVID-19 Proof of Identity) Regulation 2021 (2021-179) — published LW 16 April 2021.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.