Indigenous incarceration: jumping off the treadmill

ABC Radio | The Law Report | 12 July 2011

Indigenous incarceration: the figures are shocking. But what can we do about it?

Meet some people working hard to break the cycle in the Top End. Darwin based workers with the North Australia Aboriginal Justice Agency (NAAJA) help released offenders find education, work, and accommodation.

And if offenders come from remote, traditional communities they help smooth their return and deal with thorny issues like payback.

Hear the audio here and read the transcript below:

Transcript

This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.

Damien Carrick: Hello, welcome to the Law report. We know Indigenous incarceration rates are unacceptably high in this country, but what can we do about it? Well, there's no silver bullet. But today I'm speaking to people who work very hard to try and turn around the abysmal figures. Recently I was in Darwin, and I called in to the office of NAAJA, the North Australian Aboriginal Justice Agency. It provides legal aid services to Indigenous people across the Top End. But NAAJA staff do more than just represent clients in court. They also work with convicted offenders to re-integrate them back into their communities and to reduce their likelihood of re-offending.

One NAAJA staff member is Terry Byrnes. He spends his time with young Indigenous people who are being released from Don Dale, Darwin's youth detention centre. He focuses on finding pathways to work and education.

Terry Byrnes: I've got two young clients who are sisters, who co-offended. They've come out in the recent past.

Damien Carrick: What did they do?

Terry Byrnes: It was a violent crime. They assaulted a person in their home; detained them; stole, and were extremely threatening. I mean these crimes, you can't water them down. They are violent crimes. That's why they wind up in Don Dale. It's not because they've committed a minor misdemeanour. But the point is, once they get out, if you're not going to lock them up for life or execute them, when they get out, what person do you want back out on the street? Do you want the person out on the street who's got something to live for, who sees themselves as having a role in society, or the person who committed the crime? And so when they are coming back out, these particular two young people, they're siblings, they co-offended, they got out at almost the same time, they both wanted to go to school. Now when they were applying to the school the school was pretty reluctant about taking them on.

Damien Carrick: I get that. I can understand why.

Terry Byrnes: But they were insistent they wanted to go. So we got them into distance education, and they did distance education for the first term. Now after they completed their first term, which is now, which is right now, this is school holidays -- after they completed their first term they then are going back to the school having completed work, having demonstrated that they can work. Now one of them, as it turns out, wants to stick with the distance education. One of them wants to enrol in the school. And that's just fine, so long as the opportunity for them to have the education is there before them.

Damien Carrick: They've proven that by working hard this term that they're serious about this, and because they did that, the school's willing to take them on.

Terry Byrnes: Well the school really didn't have the choice when it came down to it to take them on, but I suppose what I'm trying to do with the school is for them to be willing participants in it and not sort of be doing it, you know, through gritted teeth. Because that's going to impact on everything, on the young people and their education. So yes, their demonstration that they were determined, certainly it makes a big difference to how the school sees them.

Damien Carrick: Tell me about some of your other clients.

Terry Byrnes: I've got a young fellow. Now it's not going to come as a surprise but a lot of the young people in detention are tough guys, you know, they've committed violent crimes, they've lived on the street; they've had to be tough to survive. And this young guy, he also committed a violent crime, and it seems like he can take care of himself. But what he wants to be is a hairdresser. Now he doesn't want to tell anybody he wanted to be a hairdresser, because you're not going to say, in that environment, that what you want to be is a hairdresser. But that is what he wants to do.

He's come out, I've got him into school, and we're now looking at him beginning a hairdressing apprenticeship. And I can just see that there's going to be some time in the future where I won't be able to afford to get this guy to cut my hair, because you know, he's a very groovy guy, hip-looking guy. He's going to fit right in to that and I'm sure will do very well. He's very excited about it. He's got back in to a special school for Aboriginal people and he's one of the best students. He hasn't missed a day of school -- no that's not true, he's missed one day's school since he's been out, which is about three months, and is going along fabulously.

You've just got to make sure that they stick by the conditions, report to the parole officer; keep their curfew, not take any drugs. That's the vital thing. If they're doing that they've then got a platform from which they can operate.

Damien Carrick: What's your percentage of success versus failure in keeping kids on the straight and narrow?

Terry Byrnes: I reckon I've got around about an 80% batting average, which isn't too bad. But the way we do it in Through Care, which I think is fabulous, is we have a fairly small client base that we work with intensively. So when you take them on you take on their family, very often, and their family problems. Often the parents will have alcohol problems, sometimes mental health problems, problems with a whole range of things. Gambling problems. And so we try and help them holistically. So we only work with a small number of people but we work intensely with them and we take on all of their problems.

Damien Carrick: You've told me about some success stories. Can you tell me about some failures?

Terry Byrnes: I had a very disappointing thing happen with one young person. And I can't tell you why it happened because I don't know and no-one else seems to be able to fathom it either, but he was doing extremely well. I'd got him into a program where he was working with disabled people. The disabled people loved him. He was going out three times a week. He had open classification, which meant he was allowed to go out to do things on the outside.

Damien Carrick: So he's still in detention but he had this transition phase.

Terry Byrnes: That's right. You're in detention, and if you get open classification -- which is very tough to get -- you can do all sorts of things. You can do education, you can do sports. I had one young person who was playing in one of the premier football teams here and he was going out to training, and he was going out to play the football games. So if you get the open classification you have the ability to go outside. So this young fellow was working outside. He was working with disabled people. He was doing fabulously. He got on famously with the people who worked there at the centre. He got on so well that other people would say, 'Who is this guy, where did he come from? He's such a great guy.' And he was out on the weekend with a youth worker from the detention centre -- that's not a jail because he's a young person -- and he escaped. Attacked the person, stole the car, went back to where his family was, got drunk. And now -- he was only a fortnight away from his parole coming up which seemed almost a dead cert, and now he's got to serve out the time that he has hanging over him, which is about two years. And he's turning 18; he's got to go to the big jail. It's just a kick in the guts that no-one was ready for, that no-one really understands. I don't know. I don't profess to understand it 'cause I don't. Maybe the outside world terrified him, I don't know. But that's what he did. It was a bit of a high profile case here in Darwin, but that was immensely disappointing.

So that seems to be the thing in the job that's difficult. All you can really do is hand them the opportunity and give them every support. Once somebody doesn't take it, you just have to live with it.

Damien Carrick: How important is family support when you're working with the kids? How important is it that they have parents who are kind of fighting for them or helping them out?

Terry Byrnes: Well, it's enormously important but a lot don't have it. A real lot don't have it. The majority. Most of the young people have come from dysfunctional backgrounds. I've got one young person I've worked with now who's on the outside who's doing fabulously well despite the fact that her mother gives her no support. And she says essentially her mother has been throwing her out since she was 12. So since she was 12 she's been fighting with her mother, being called belittling names, and being chucked out. So it's not a great surprise if someone like that offends, if someone like that doesn't see themselves as having a role in this society.

So the ones that do have support from their parents, the young person who wants to be a hairdresser, he's got a lot of support from his mum. I spoke to her on the phone before he got out. Kept telling me how much she loved him, how much she cared about him. But the vast majority of the ones I deal with don't have those sort of supports. The young boy who made the escape, he had nothing to go out to. The two siblings, the young girls who co-offended, they're living with their sister. Their mother has thrown them out. So the lack of family support is a crucial factor, and that's what I try to do. I can't take that place, of course, but what I try to do is let them know that there is someone who's behind them and will do what they can to help them get over the line.

And this is what I think is vital about what we do, is to try and be a bridge in those difficulties. Because you know one of the things that really worries me, often, is I think they just can't see themselves in a role of having a good home, having a partner they love and who takes care of them, having a job, contributing to society. They almost feel as if they belong in the jail system. On the dole. And they don't. A lot of them are extremely talented. Some of the smartest people are young people I've met. I've got a young girl who's in Don Dale at the moment. She's about 17. And she was talking to me the other day about reading Tomorrow When the War Began.

Damien Carrick: That's by the Australian author Marsden. They recently made a film about it.

Terry Byrnes: Yes. And this is a meaty book. This isn't a book for a person who doesn't have an active mind. Extremely bright girl. But often uses it for making up excuses for why she can't do this or can't do that. But a lot of young people have extremely active minds, and it's not being used for anything, and it's an awful waste. That's what I hate to see.

Damien Carrick: What had this young woman done?

Terry Byrnes: This young woman had -- again, she'd been kicked out of home, living on the streets of Darwin. She assaulted somebody on the street, for no reason. Saw somebody, assaulted her, stole her money -- a pittance, a small amount of money. But she says to me, quite freely and openly, 'I shouldn't have done that. That young person now, they're nervous walking the streets, they're looking over their shoulder, they're thinking anything could happen. Someone could pop out of the darkness and assault me.' She said, 'I know what I did was wrong.'

That's a fantastic capability, to be able to put yourself in the other person's shoes. That's what's so difficult in areas of conflict, when you need some form of mediation. For people to be able to see things from the other point of view. That's what's so hard to do. And she can do this, all by herself. I mean this to me is somebody who's very switched on. Got a great sense of humanity. This is somebody who one day might be able to be a playwright or something. But unless she can see herself in that role, I mean your chances are greatly diminished. So yes, I just want to give her a way through, to be able to use the obviously creative talents she's got.

Damien Carrick: Terry Byrnes, who works with the Through Care project with NAAJA, the North Australian Aboriginal Justice Agency. Terry Byrnes's job is to try and steer troubled young people away from committing further crime, and away from ending up spending significant chunks of their life behind bars. Unfortunately, however, all too often this is what ends up happening.

Kieran Boylan is a prison support officer employed by NAAJA. He works with Darwin's Berrimah Prison. He helps prisoners apply for parole. In other words, he helps prisoners argue that they should be released early from jail. But convincing the parole board isn't easy. It wants to be sure that a released prisoner has somewhere to go, a roof over their head.

Kieran Boylan: With our people it's mainly residence. Residence is always an issue. Residence back to community, and that'd be the main issue I should imagine. And the other one, which is telling is this aspect of the parole board wanting them to have completed some sort of rehab program while incarcerated. And we're finding that's not how it should be.

Damien Carrick: Let's talk about those things separately. First of all residence. Well residence is a problem for Indigenous people everywhere. There are real problems in terms of getting housing, and I guess what you're saying is when you have parole, well where do they stay, how close is it from other people that they shouldn't be in contact with -- all that kind of stuff. And the reality is of remote communities, or any community where Indigenous people live, housing is a big problem.

Kieran Boylan: Oh, absolutely. And with a client who has achieved parole and has gone out to the community on parole, then the conditions of parole become an issue for him regarding reporting, mainly, to parole officers. And being remote, that's very hard. And whether they report by physical report or report by phone contact, that always becomes an issue and lots of times it does fall over and we find them coming back for breaching their condition of reporting.

Damien Carrick: So how often do you find breaches of parole leading to reincarceration -- bringing back into prison?

Kieran Boylan: Extremely high at the moment. Definitely over half.

Damien Carrick: You work with offenders, but I imagine that the people who work with victims would be saying look we've got to be pretty hard core about this because the possibility of reoffending can be very high. Do you understand their positions in being quite cautious about granting of parole and people coming back into community?

Kieran Boylan: Oh absolutely. It's a big concern I suppose for the parole board to consider, The decision of parole and that person's safety and what could and may happen. We know there's been instances all over Australia I suppose where parolees have been released to parole and have actually committed an offence similar to the one that they got placed in detention for in the first place. And that's always scary and there was one of those up here in the Northern Territory -- which probably brought about the change that we see regarding parole and the tolerance of a parolee out there and how parole officers perceive how much latitude they should actually give a parolee.

Damien Carrick: You mentioned that there are issues around rehabilitation programs. Are they there in the prisons?

Kieran Boylan: I could honestly say probably no, at the minute. Initially I thought programs were going along OK. Not probably as fast and as rightfully as they should be, but in recent times they've dropped off and the amount of programs running and the amount of clients getting on the programs has created a big wait-list and lists that are going to be hard to get under control.

Damien Carrick: Tell me a bit about these programs. What sort of programs are you talking about, rehabilitation programs?

Kieran Boylan: The programs on offer, or should be on offer, are an alcohol and other drugs program, there's an Indigenous violence program, Indigenous family violence program, that is. There's various sex offender treatment programs. There's anger management programs, cognitive skills program and violent offenders treatment program. And of those, they desperately try and get Indigenous family violence programs running but they are few and far between, as are nearly all the other programs.

Damien Carrick: Why?

Kieran Boylan: It would appear to me to be lack of people to facilitate the program. A lack of people to actually give the program.

Damien Carrick: Kieran, how important are these programs?

Kieran Boylan: They are extremely important in our bid to try and achieve parole. It's pretty much a requirement that a parole board would like to have seen that a client has participated and completed the program successfully. And it's often a reason for parole being not recommended or refused is that there has been no program participated in.

Damien Carrick: Because there's been no program available.

Kieran Boylan: Because of no programs available. They've tried desperately to get on programs. They've asked to be assessed for programs but the programs aren't forthcoming in that period leading up to the parole date. And we find they now go over their parole date because they haven't participated in the treatment program.

Damien Carrick: You're telling me that they're important in terms of as an argument to justify the granting of parole. Do you also think that they are effective in terms of making sure that these offenders don't further offend?

Kieran Boylan: That'd be double-edged, I'd say. A lot of our clients, the more remote clients -- Groote Eylandt people and perhaps those out in Nhulunbuy and those out Lajamanu -- out in those really remote communities who do some of those programs, I doubt very much whether they'd have an understanding of what the program is all about. And that's all relative to the language issue and understanding of what people are actually telling them in the context of a classroom and having a program put in front of them.

Damien Carrick: So you're saying that even when they do take place, they're not that effective, sometimes.

Kieran Boylan: I'd have to say yes to that.

Damien Carrick: And these rehabilitation courses, are they taught in those languages?

Kieran Boylan: No, they're not. So as I mentioned earlier, those blokes from out there perhaps remote who come and sit in on a program would gain very little of anything from it.

Damien Carrick: Kieran, your role's an interesting one. You're also a touchstone for prisoners who may have concerns about what might happen once they are released. Is payback an issue?

Kieran Boylan: Yeah, payback is and can be an issue where there's a victim who's been injured or on some occasions been killed, and that becomes a real concern for the client and for family and victim's family and of course the parole board -- and us -- to try and sort out these issues of payback.

Damien Carrick: Tell me, do you have clients against whom there has been payback, and can you tell me about some of those?

Kieran Boylan: No, not directly, not where they've been directly given payback. I have had a client who received mediation through elders for his offending, which was to eliminate the issue of payback if it did arise where he was speared in both eyes. And he showed me evidence of that spearing. And he said, 'I've had payback. Elders have mediated with me and the victim's mob and payback is complete.' And that would be held in the eyes of the parole board as there is no payback.

Damien Carrick: So he was speared in...where was he speared?

Kieran Boylan: He was speared in both eyes and he had visible scars of the spearing that he showed me, and he wrote a letter to the parole board along those lines that yes, I have received my payback. And as far as he's concerned and as far as we're all concerned, yes, payback has been effected and it's now over.

Damien Carrick: Kieran Boylan, a prison support officer employed by NAAJA, the North Australian Aboriginal Justice Agency.

Sometimes mediation is not successful and payback does end up taking place. Samantha Taylor Hunt also works for Through Care, with NAAJA. She starts working with prisoners about six months before they're released to prepare them for a smooth transition back into the community. Now sometimes, if the offender has been jailed, it's their relatives who end up enduring physical retribution.

Samantha Taylor Hunt: Yeah. It does. It happens a lot in the Northern Territory. Because when a client has offended, particularly a serious offence: murder, manslaughter or do a dangerous act that causes death, then they're immediately taken into custody and for the most part there's no time for payback to occur within the community. And then the families of the victims certainly want that payback to occur as quickly as possible. As, mostly, do the families of the offender, as well, because it can be pretty horrific, the payback, and nobody wants to hang around with that hanging over their head.

Damien Carrick: That threat, that fear. Tell me what happened to the person who was punished as the result of what their relative did.

Samantha Taylor Hunt: It was the mother and the sister that were the victims of the payback, if you like. The offender had committed -- the charge was 'do a dangerous act causing death'. She was highly intoxicated and she killed her husband as a result. Well, not as a result because it's never an excuse, but that was the offence. And because she was taken straight into custody and the payback was an issue for her, the family decided to go to the other side and say, look, we want this payback to happen now. And the mother and the sister took that payback and they were hit with nulla nullas between the neck and the ankles. All over, And often that can mean hospitalisation or really serious injuries. Horrific injuries can come from payback.

Fortunately for her family, they were OK. The mother and the daughter were OK. And that took care of the payback issue. The client herself was terrified of the payback, prior to that happening, and was very relieved that the family had taken that on for her, very relieved that they were OK. And she's a reasonably young woman as well, so she's not fully supportive of the payback system, because it can be so violent. Nobody accepts violence and I don't believe anyone should accept violence as a payback.

Damien Carrick: And how common is payback?

Samantha Taylor Hunt: Very common in the Northern Territory. If you talk to any of the elders out in the communities they'll tell you how important their law is to them and how many years that they've been practising that law, that it doesn't change; our laws change constantly, and they feel that they should be allowed to continue. And it's not just the elders. You talk to the community as a whole and the general opinion is that they should be allowed to have their payback.

Damien Carrick: Can you tell me about payback involving, say, a male offender?

Samantha Taylor Hunt: Males in general the payback's more severe. I worked for a long time in the Katherine region, so I'm talking about the Katherine region rather than the Darwin region. My knowledge is greater down there. But in some of the communities down there, say, where my female offender came from, if a male had committed the same offence then they would be up for spearing rather than nulla nulla. And often not just hospitalisation, it has caused death.

Damien Carrick: Tricky question. What do you reckon?

Samantha Taylor Hunt: I think there needs to be a medium. I don't agree with the violence. I don't think that -- it's not an eye for an eye, otherwise you could go back to the days of floggings in our legal system. I think there has to be some changes, but I'm not Indigenous and I do fully respect the culture of the people and where they're coming from but personally, no, I think that they need to keep with the payback system but get rid of the violence that's attached to it and find other means of punishment.

We've worked with communities where it's not payback, but where they bring youth in when they've committed offences and put them through ceremonies with the elders and I think is fantastic, I think that's really beneficial. It gives them a taste of their culture and the respect for the elders. The elders want them to learn more about their culture and want them to be a part of the community and I think that's fantastic.

Damien Carrick: Sam, tell me, payback, is it always clear-cut that somebody has actually committed an offence which would warrant payback?

Samantha Taylor Hunt: From what I've seen there are occasions when the issue of payback arises and you hear stories and you think, how could that eventuate and what does that mean, where's it come from? I had a client in Katherine. He was from a remote community in the area of Katherine and he had committed driving offences and he was in prison at the time, and he'd given his car to a nephew in the remote community while he was doing time. And that nephew used that car and drove it into town to buy some alcohol and a horrific accident happened on the way back to the community. He was drunk and the car rolled and the nephew died. And my client was actually told that he was going to be sought out, and payback was an issue for him because he had given the car to the nephew. And he was terrified. So terrified that he didn't actually eventually go back to his home community. He went to Western Australia. Left the Territory altogether because of his fear of payback.

Damien Carrick: Do you ever come across the victims' families and what they want out of when an offender is being released?

Samantha Taylor Hunt: I have spoken to victims within communities who are in favour of payback and see that once payback's occurred that's the end of it. They're really not particularly interested in how long the offender spends in prison. They're more interested in having payback dealt with and then they feel that everything's OK then. They're happy to get on with their lives in harmony with the offender's family within community.

Damien Carrick: Just stepping in to the shoes of offenders, maybe they think that if payback is meted out then there's an acknowledgment that there is law in the remote community and that law is respected and therefore there's less likely to be any further offending. Maybe that's their thinking as well.

Samantha Taylor Hunt: I've come across offenders that want to go back to community for payback, want it dealt with as quickly as possible and want to go through the cultural payback system. That's their desire, is to be speared or hit with a nulla nulla so that that sorts the problem for them, that sorts the problem for the family. And in their law, in their culture, that's the end of it. Whether they spend ten, fifteen, twenty years in prison as our culture deals out the penalties, is irrelevant to the community really, for the most part. they want the payback system.

Damien Carrick: Samantha Taylor Hunt from NAAJA, the North Australian Aboriginal Justice Agency. Next week come with me to the Tiwi Islands. I'm told that although payback is no longer practised by the Tiwi, other aspects of traditional law remain very strong. And these traditions are being incorporated into a highly successful mediation program that's helping reintegrate offenders. That's the Law report for this week. I'm Damien Carrick. Thanks to producer Erica Vowles, and also to technical producer Carey Dell.