Prisons still failing First Nations people, Justice Health conference told

Silhouette of a guard inside a watch tower at Goulburn jail.

Jeremy Lasek – PHAA

Three decades after the landmark Royal Commission into Aboriginal Deaths in Custody, a leading expert on the impact of incarceration on First Nations people told the PHAA Justice Health Conference, things have worsened, not improved.

Professor Thalia Anthony, Professor of Law at University of Technology Sydney, last week discussed How COVID-19 has shone a light on the risks of prisons to First Nations people.

Professor Anthony spoke about systemic issues and racism ‘which have been well documented for decades and how COVID-19 has served to highlight the dangerous health conditions in prisons. There is such a high risk to life in prison with COVID-19, and prisons are making First Nations people more unwell.’

Professor Anthony described the rates of incarceration of First Nations people as ‘a pandemic of imprisonment, and I mean that in a structural way with very personal consequences for the health and wellbeing of those inside.’

She relayed the account of Tabitha Lean, a Gunditjmara woman and advocate, who told the 2020 Parliamentary Inquiry into First Nations Deaths in Custody:

‘When I went to prison, I thought it was the very worst day of my life…I was torn away from my children, my family…I cried for the entire first 10 months – silently in my cell and silently in the showers – because God forbid you show weaknesses to anyone in that place, or any sign of mental distress, or you’ll get thrown in a hard cell.’

Lives at risk

Professor Anthony told the Conference how First Nations lives are at particular risk given over-representation in prisons ‘and the systemic racism in prison health care.’

‘Imprisonment and issues relating to health are not new issues. Pastoral strategies have harked back to the early times of colonisation and segregation; in lock hospitals on quarantine islands, on reserves, missions and government settlements dating back to the 18th and 19th centuries. In all these places disease spread, and there were many deaths tragically of First Nations people,’ Professor Anthony said.

‘So, what we’re seeing in contemporary times, I would say, is a different manifestation of segregation, but it’s part of the same continuum. We have to continue to question how this is an introduced colonial strategy, because First Nations people did not have prisons as we know them today.

‘Despite this huge risk, there has also been some amazing mobilization in the community led by First Nations organisations and by families of people who have loved ones in prison.

‘I think there are some valuable lessons about how we can pivot from prisons, and how we can use the leadership of families and Aboriginal organisations as change makers. How lawyers can do better in discussing conditions in courts and in sentencing and bail applications. And just a lesson on the strength of community supports and the need for that wholistic support in these times.’

Professor Anthony referred to a key finding of the 1991 Royal Commission into Aboriginal Deaths in Custody which described incarceration of First Peoples as a risk to life.

‘A major reason for Aboriginal deaths in custody remains: the grossly disproportionate rates at which Aboriginal people are taken into custody…Too many Aboriginal people are in custody, too often.’

Burgeoning prison numbers

‘I would say it’s findings are as true today as they were 30 years ago. Since 1991, what we have seen is burgeoning imprisonment, and imprisonment has especially had a burden on First Nations people.’

Professor Anthony outlined the steady growth in numbers of First Nations people to be imprisoned in Australia over the past 21 years. Where there were about 20,000 people in Australian prisons in 2000, now there are about 45,000 people incarcerated. That’s an overall increase of 245% or an average of 11 per cent each year.

For non-Indigenous people the increased rates of imprisonment are 177% (average of 8.5% per year), while for First Nations people in prisons the increase has been 325% (averaging 15.5% per year).

In 1991, when the Royal Commission handed down its findings, the proportion of First Nations people in prisons was 14%, and in the 30 years since, that proportional number has grown to 30%.

‘The steady increase in imprisonment rates show that for every 100,000 people in Australia there are 2,406 First Nations people in prison,’ Professor Anthony said.

‘The fact that there are so many First Nations people in Australian prisons make them the most incarcerated population on the planet, even exceeding African American people in United States prisons. I think this is a real blight on our nation.

Urgent action needed

‘I feel like this shift towards incarcerating more First Nations people is a complete defiance of the Royal Commission and we have an urgency to decarcerate First Nations people, or we’re going to see this trend continue to increase.’

Professor Anthony said in the past 21 years there had been 26 new prisons built in Australia and more youth detention centres. Interestingly, she said this didn’t reflect any increase in crime.

‘There hasn’t been any proportionate increase in crime, the increase in imprisonment is due to political decisions, such as the government and police approaches to being tough on crime and law and order. That is what is fuelling the change. It’s important to understand these are strategies. And we need to respond with strategies and advocacy that diminishes the role of prisons and that points out that it creates harms rather than promoting safety.’

Lessons during COVID

Professor Anthony said the pandemic saw a rare shift in the trend for rates of incarceration. She highlighted a slight decrease in the numbers incarcerated since COVID struck ‘shows us that we can safely release people with the right supports.’

‘In 2020 there was an 11% reduction in the number of people in our prisons, including for First Nations people.  This was due to lawyers going to court and highlighting that prison was a risk to people’s health. It’s actually a high-risk, dangerous environment, especially during a pandemic.

‘In August to September 2021, the transmission in NSW prisons was 10 times the rate of the broader NSW community. One youth officer and another man who caught COVID-19 at Parklea Prison died.

‘Despite us building more and more and bigger prisons, including private prisons, we’re still overcrowding our prisons. They’re operating at over 100% capacity which means it’s easier for COVID to transmit because of the difficulties social distancing. Investigations into prison conditions during COVID have found inadequate PPE and sanitation, inadequate ventilation and a lack of appropriate health care.’

‘Despite the warnings and prisons being identified as high risk and a high priority group, vaccination rollout in prisons was slower than in the general population.

The wrong response

‘What was the response in NSW and Australia when the pandemic hit our shores?

‘A lot of the advocacy was to release people from prison to reduce the risk of the spread of COVID. Certainly internationally, hundreds of thousands of people were taken out of prison and placed on parole with no identified safety risk. So, there were many good examples of safe release.

‘Despite legislation being passed quite early in the pandemic in early 2020 in NSW and the ACT to allow the release, it has never been used. Instead, the strategies have been hard lockdowns where prisoners are in some cases locked up for 23 hours a day, quarantine and segregation on admission, and the suspension of social visits, rehabilitation programs, education and work. And this has had a really detrimental effect on the wellbeing of people inside.

‘This not only impacts on the health and wellbeing of individuals but on their whole families and their whole communities.

‘They also manifest in chronic illnesses getting worse by First Nations people in prisons not receiving adequate treatment.

The Guardian found in its deaths in custody data called ‘Deaths Inside’ that First Nations people are three times less likely to receive the required medical care in prison, and this is even worse for First Nations women.

This evidence has emerged and continues to emerge through coronial inquests, which further demonstrates the systemic failures of justice health, Professor Anthony said.

Image: Goulburn jail in New South Wales. Eva Rinaldi/Flickr.

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