Stop reporting and start doing,
lawyers tell NSW inquiry into ‘inhumane’
Indigenous incarceration

Coroner’s court should be properly resourced to investigate deaths in custody, bar association says

Tony McAvoy SC addresses the NSW inquiry into Indigenous incarceration and deaths in custody on Monday.

Photograph: NSW parliament
The imprisonment rates of Aboriginal people in New South Wales are “gross and inhumane” but the solutions already exist in the 50 different reports that have been written on the issue over several decades, the NSW Bar Association has told a parliamentary inquiry.
“There seems to have developed a culture of reporting in lieu of doing,” the Association’s Tony McAvoy SC told the NSW inquiry, which is holding its first hearings today. “I raise that now to encourage this committee and this parliament to be focused on the act of doing.”
McAvoy noted the last major review of Aboriginal incarceration – a report by the Australian Law Reform Commission that the federal government has had for three years, and is yet to respond to – and the 1991 deaths in custody royal commission, “touch on similar matters”.
“Those two reports provide a guidebook on how to reduce over-incarceration,” he said. “There are things that can be done now.”
McAvoy, who is the first Indigenous SC appointed in Australia, said the coroner’s court should be properly resourced to investigate deaths. An Aboriginal commissioner could sit alongside coroner to give Aboriginal families some faith in the process. At the moment, he said, “faith in the system is at a very low level”.
While the bar association’s preference is to resource the coroner’s court to do its own investigation, “an independent body established elsewhere would be a vast improvement on the current situation”.
Sarah Crellin, representing the president of the Law Society of NSW, Richard Harvey, said independence in the coronial investigation was very important for bereaved families.
“It’s no surprise there is a distrust in the community of authority,” said Crellin, the Aboriginal Legal Service’s principal solicitor for the criminal practice and a member of the NSW Law Society’s Indigenous issues committee.
“It is my experience in my practice that many families grow suspicious when they see police investigating police. I say it would be very important for an independent body to investigate coronals.”
The Bar Association also recommended bail laws to be amended to reduce the number of people, especially children, on remand for minor offences, as well as an expansion of community-based diversionary programs and Indigenous sentencing courts. “The criminal justice system is a net,” McAvoy said. “It is a net designed by parliament. The net can be redesigned not to catch young Aboriginal people.”
“This place is the designer and creator of the product that we see today. This place needs to redesign the [net] if it wants a different result.”
NSW has a youth Koori court initiative that aims to divert young Aboriginal people from prison by tackling the causes of crime. Legal experts have advocated for the establishment of an adult version, called the Walama court, since at least 2014.
An analysis by the NSW Department of Justice found that the court would cost less than $4m a year and deliver millions in savings from reduced prison costs.
A decision on whether the Berejiklian government will fund the Walama court was expected next month, McAvoy said. The budget will be handed down on 17 November.
• On 27 October 2020 this article was amended to add that Sarah Crellin was also representing the president of the Law Society of NSW.