A record one in four prisoners in NSW are Indigenous, worse than it was at the time of the Royal Commission into Black Deaths in custody.
It's a record, but not one to be proud of: one in four prisoners in NSW jails are Indigenous, a statistic that has risen by 35 per cent since the Coalition government came to power in 2011.
The Minister for Corrections David Elliott conceded "it is a tragedy". Aboriginal and Torres Strait islanders represented 24 per cent of the prison population in October 2016, up from 22 per cent in March 2011.
That means the NSW justice system is imprisoning Indigenous people at 11.3 times the rate of non-Indigenous people.
Legal advocates say a mix of tougher bail laws, racial prejudice, better detection methods and under investment in diversionary programs is contributing to the problem, while the Greens blame the major parties' "law and order auctions" as politicians compete to look tough on crime.
"We have postcode justice," said Sarah Hopkins, Managing Solicitor of justice projects at the Aboriginal Legal Service.
"Diversionary options are not available across all of NSW, particularly in regional and remote areas, so courts are unable to divert people from prison. This does impact disproportionately on Aboriginal and Torres Strait islander people who live in these communities."
She points to the rise in convictions of indigenous people for relatively minor offences.
Investment in early intervention and therapeutic treatment programs have been shown to have a far greater impact on reducing recidivism than short prison sentences, she said.
It is also cheaper: a recent study by Deloitte Access Economics found that $111,000 can be saved per year per offender by diverting non-violent Indigenous offenders with drug problems into treatment instead of prison.
In a presentation to the NSW Law Society last week, Dr Don Weatherburn at the Bureau of Crime Statistics and Research said that the biggest driver of growth in Indigenous convictions over the five years from 2011-2016 were not violent crimes but regulatory driving offences followed by breach of community-based orders and driver licence offences.
There has been a steady rise in the number of court appearances by Indigenous people since January 2011 (from about 1000 a month to over 1600); and in the percentage of Indigenous defendants refused bail (from 15 per cent to 18 per cent) in the same time period, he said.
The overall prison population has been steadily climbing over the past decade (13 per cent growth between 2006 and 2016) but the Indigenous prison population has grown faster (31 per cent growth).
Dr Weatherburn said that over 95 per cent of Indigenous prisoners are serving sentences of less than two years.
But BOCSAR could not yet say what was driving the increase.
Minister Elliott said "All incarceration has gone up because we toughened the Bail Act up, and we make no apology for the fact that we have the toughest bail laws in the country."
However, he said, the unrepresentatively high Indigenous incarceration rates are "unacceptable".
"Which is why I've spent $237 million on reducing reoffending. We want to make sure that everyone who goes into jail who the court has said will be released gets every opportunity to be rehabilitated."
The government is spending $3.8 billion on building 7000 new prison beds across NSW over the next four years to accommodate the growing prison population.
Upper house MP David Shoebridge from the Greens said police discretionary powers such as consorting laws, move on powers and public order offences are disproportionately applied to Indigenous people.
"When you increase discretionary police power and make backward changes to bail laws then you are basically deciding to jail more Aboriginal people, and that's been the Coalition's track record over the last six years," he said.
The Shadow Attorney-General, Paul Lynch, said, "Aboriginal incarceration rates are alarmingly high. The situation is now worse than it was at the time of the Royal Commission into Black Deaths in Custody."
Mr Lynch said the government was not doing enough in justice reinvestment (redirecting money spent on prisons to preventative community programs) and said Labor had committed to do more if elected.
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