Response from the Victorian Aboriginal Legal Service:
Victorian Ombudsman
Investigation into the rehabilitation and
reintegration of prisoners in Victoria –
Discussion Paper
October 2014
About the Victorian Aboriginal Legal Service
Our role in the Victorian justice system for the past 40 years and our place as the primary point of
contact for community in regards to legal advice, representation, information and referral means we
are able to provide the perspectives and experiences of Aboriginal and Torres Strait Islander people
in Victoria as they interact with the legal system. We operate in a number of strategic forums which
help inform and drive initiatives to support Aboriginal and Torres Strait Islander people in their
engagement with the justice, and broader legal system, in Victoria. We have strong working
relationships with the other five ACCOs in Victoria and we regularly support our clients to engage in
services delivered by our sister organisations. Our legal practice spans across Victoria and operates
in the areas of criminal, civil and family law (including child protection and family violence). Our 24
hour support service is backed up by the strong community based role our Client Service Officers
play in being the first point of contact when an Aboriginal or Torres Strait Islander person is taken
into custody, through to the finalisation of legal proceedings. Our community legal education
program supports the building of knowledge and capacity within the community so our people can
identify and seek help on personal issues before they become legal challenges.
Victorian Ombudsman’s Discussion Paper
We note that the 20 recommendations made in the Royal Commission into Aboriginal Deaths in
Custody relating specifically to prisoners (‘The Prison Experience’, recommendations 168-187) makes
practical and culturally specific recommendations for the treatment of Aboriginal prisoners in all
prisons. Although the Royal Commission’s recommendations were made over 20 years ago, they are
relevant to the experiences of Aboriginal and Torres Strait Islander prisoners in Victoria, and around
Australia.
Whilst VALS welcomes the specific issue raised in regards to male and female Aboriginal and Torres
Strait Islander prisoners, we are concerned these needs are generally presented as an afterthought
in the Discussion Paper. Unfortunately, this is often the case in regards to the experiences of our
community in general. With the high rates of incarceration of Aboriginal people, the disturbingly fast
increase of Aboriginal women entering the prison system, and the links between out of care
placements and juvenile justice, there is the greater need to ensure the issues facing Aboriginal
people in prison at front and centre of planning and delivery of in prison and post release services.
With this in mind, VALS responds to each of the questions posed in the Discussion Paper through the
Aboriginal lens - how do these issues specifically impact on Aboriginal prisoners, male and female?
In general, we call for the following:
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An increase in the number of identified positions for Aboriginal Wellbeing and Aboriginal
Liaison Officers, consistent with the rates of Aboriginal and Torres Strait Islander
incarceration.
Ongoing cultural awareness training for all staff in prisons, and those delivering services to
prisoners.
Identified positions for Aboriginal and/or Torres Strait Islander case managers to work with
prisoners.
Programs to be informed by cultural practices and including content that reflects the
experiences of Aboriginal and Torres Strait Islander people.
Support for maintaining and observing cultural practices whilst in prison as part of
rehabilitation.
Recognition of broader kinship and familial relationships within the Aboriginal and Torres
Strait Islander community.
Cultural materials developed as part of a prisoner’s time incarcerated should become part of
the prisoner’s property – this includes artwork that is created through an art course,
because of the significant contribution such work makes to cultural ties and rehabilitation,
and the intellectual property invested by the prisoner in their work.
VALS also support the use of the term Aboriginal and Torres Strait Islander in preference to
Indigenous.
Responses to specific questions in the Discussion Paper
Response to 3.1.3 Assessment of prisoners
In the case of assessment of prisoners and the delays in these being done, there are a number of
issues:
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Delays mean valuable time is being lost for prisoners to engage fully with the process of
rehabilitation. Assessments provide the groundwork for gathering important information
about a prisoner and their needs, and provide a foundation for those delivering programs to
understand how to best engage with a prisoner. Needless to say, the earlier the assessment,
the more opportunity to start working on a program that caters to identified needs of the
individual prisoner.
There's no indication in the report as to priorities with prisoner populations for the ordering
of prisoner assessments. For prisoners entering the prison system for the first time, it would
appear to be a significant opportunity to engage early to undertake an assessment.
This Discussion Paper focuses on prisoners post sentence and doesn't make mention of
those people on remand awaiting trial or sentencing. Whilst certain courses cannot be
undertaken whilst an individual is on remand, assessments made during a period of remand
could be utilised if the individual ultimately is sentenced to a period of imprisonment.
Further the information gathered in such assessments could be utilised by the courts in
understanding the services and programs that are available to the individual if they are
sentenced. It would also inform the location of prison placements (which can be
inappropriate if a transfer is done before an assessment - see para 55).
For Aboriginal and Torres Strait Islander people in the Victorian prison system, there needs to be
significant consideration for their cultural needs and barriers for these prisoners - specific cultural
awareness training should be regularly taken to understand their circumstances and needs,
particularly with regards to cultural observances within prison and kin and familial connections. The
assessment itself should incorporate a cultural component to look at what programs and
opportunities within prison are available not suitable. Assessment should take place either by
appropriately trained Aboriginal and/or Torres Strait Islander personnel, or with Aboriginal
Wellbeing Officers and Aboriginal Liaison Officers present, or at the very least, the individual
undertaking an assessment should have appropriate cultural awareness training to ensure the
assessment is performed in a culturally respectful manner.
The content of an assessment needs to be considered as physical and mental health can impact
significantly on an individual’s ability to take up rehabilitative opportunities within prison. As a
specific, simple example, ear health can impact on an individual’s ability to communicate. If left
untreated as a youth, it can impact on the language development and learning capacity, which can
then lead to becoming disengaged in school, and may to lead into criminal activity. The implications
of these means that individuals can be disconnected from community because of language and
communication barriers, which will impact on learning and communication in a prison environment.
Any training and development offered within prison needs take this into consideration.
In addition, assessment needs to also consider other legal matters that are impacting on the client,
in particular civil and family matters. Civil matters are often the trigger for an individual becoming
criminally active, as problems with housing and debt become difficult to deal with. If a prisoner
comes out of prison with civil matters hanging over his or her head, it can mean a quick return to
reoffending and prison. Prisoners with family matters, particularly child protection matters, need to
be supported through the process and given opportunities to maintain the parenting rights and
skills. This is discussed further at our response to 4.3 Indigenous and women prisoners.
We note the reference to transfer of prisoners, and raise the issue of placement of prisoners. Where
possible, VALS strongly recommends, and echoes the sentiments of the Royal Commission
(Recommendations 68-169), that Aboriginal prisoners, in placement and transfer, need to be places
as close as possible to the place of residence of his or her family and/or his or her community and
country. It is important to maintain these cultural and familial connections whilst a prisoner in
detention.
Response to 3.2.3 Case management
Case management should come from a rehabilitative and advocacy based model, not from a
custodial model. The fact that prison staff undertaking case management roles are prison staff first,
then trained as case managers, would appear to contribute to the conflict in their role (as mentioned
in para 66). Further, this conflict is difficult for the individual prisoner to comprehend and could be
the barrier to the building of a productive relationship which ultimately leads to rehabilitation and
reduced recidivism. If a prisoner has been in a case management relationship before coming into
prison, they may not feel comfortable to open up in their prison case management relationship,
given that the case manager is also a prison officer.
With this is in mind, we would support specialist case management staff performing the role rather
than prison staff with some level of training. Again Aboriginal and Torres Strait Islander prisoners
should have access to case managers who are Aboriginal and or Torres Strait Islander people and/or
case managers with appropriate training cultural awareness and responsiveness. A traditional case
management relationship is built on trust and the ability to freely communicate - it is imperative for
the relationship to work that the prisoner feels comfortable with their case manager. This trust is
undermined when there is frequent changing of case managers, so assignment of case managers to
individual prisoners seems a more sensible approach if the outcome is the rehabilitation of a
prisoner, and not finding ways to minimise costs.
Response to 3.3.3 Programs
The importance of education and training opportunities cannot be stressed enough. The links
between placement of young Aboriginal people into out of home care, then moving into juvenile
justice (often because of behaviour within out of home care facilities), and then becoming part of
the adult justice system means that many Aboriginal adults are living lives of fractured education
with little or no prospects of further education and/or employment.
The large number of Aboriginals in prison, their general low level of education,
and the connection of their educational level with their offending, make the
availability of education to Aboriginal prisoners a matter of vital importance. The
Commission has come across quite remarkable examples of rehabilitation of
Aboriginal offenders as a result of new windows on the world opened to them.
One former prisoner of 35, who had spent half his life in prison, told me that his
rehabilitation had begun when he started to study sociology and art in gaol. 'For
the first time in my life I felt free', he said.1
VALS supports the view that there should be compulsory assessment for language, literacy and
numeracy skills. When one considers the social determinants of disadvantage, which include lack of
education and employment, and how these are intertwined with offending, it becomes clear that
much of the prison population would struggle with language literacy and numeracy. Without
assessing for these skills, any other training and learning delivery can be undermined. The Australian
Core Skills Framework sets out practical ways of assessing for five core skills of learning, reading,
writing, communication and numeracy, and how training can be delivered in these areas in practical
ways. Trainers in vocational education and training are required to assess for these skills. Further, if
challenges to learning are identified, this can explain why learning is diffuse in the first place (and
why an individual may not have succeeded in traditional learning settings), and can support learning
in the future.
Practically speaking, challenges in language, literacy and numeracy contribute to everyday
situations, such as making appointments with service providers, attending court dates and
complying with reporting requirements. Tasks involved could be identifying the location of the
appointment on a map, navigating a public transport system to get to the appointment and planning
the time required to make the appointment. All these involve literacy and numeracy skills and can
often be the barrier to individuals not making critical appointments. Programs in prison provides the
opportunity to identify these challenges and start supporting individuals in these skills in very
practical ways.
1
Royal Commission into Aboriginal Deaths in Custody, Regional Report, New South Wales, Tasmania and
Victoria – Prisoner Education, 30 March 1991
For Aboriginal and Torres Strait Islander offenders, behavioural change programs underpinned with
cultural knowledge are important and effective. It provides the individual with a connection to
community and culture and also supports the individual to understand the impact of offending in the
broader sense of the community. Further, it's important that programs are informed by theories
around trans-generational trauma, grief and loss. Considering the impact of removalist policies,
break up of families and kin, and loss of language and culture, a lot of Aboriginal and Torres Strait
islander prisoners are dealing with the impact of not having grown up in stable environments, of
being marginalised by society and services, and have not had the opportunity to discuss and
understand, let lane heal from, such trauma. This trauma can be in and of itself a barrier to learning.
Case study: Marumali is a course that specifically looks at the experiences of Aboriginal and Torres
Strait Islander people who were forcibly removed from their families and works with individuals
through a process of healing.
Consideration should be given to the very physical environment of learning and program delivery.
For the prisoner who has felt alienated from a traditional school setting, placing that person as an
adult back in that environment will not encourage to learning. For Aboriginal and Torres Strait
Islander prisoners, they need to be able to relate to the very material that is being used incorporating references to Aboriginal culture and experiences supports the learner, and validates
their own experiences.
Recognition of prior learning is a key aspect of vocational education and training. It is a process by
which an assessor can look at the prior work, learning and experiences of the individual and see how
these align with competency standards for the purpose of recognising aspects of competencies or
even whole qualifications. With regards to vocational training such as certificates and diplomas,
there should be an assessment of the individual to see what they have gained, and how this feeds
into the current training plan. This is particularly useful if the individual has undertaken training at
another prison but was unable to complete it before release. Such a process is empowering as it
gives recognition to life experiences that the individual prisoner has been through.
Case study: At a recent County Koori Court hearing, the offender had commenced a forklift licence
course before being remanded for the offending. It would be appropriate to look at what elements of
the training could contribute to another qualification whilst in prison, whether that be the completion
of a forklift licence course, or some other course.
In addition to behavioural change programs, life skills programs are important. Particularly for
parents who are prisoners, programs that support parenting and nurturing skills are important and
can contribute to the reunification of prisoners with children. The fact of criminal behaviour should
not automatically be equated with the inability to parent, and there needs to be supports
particularly where there is involvement from the Department of Human Services.
Aside from programs is the ability to access services such as religious services. For Aboriginal and
Torres Strait Islander people, cultural practices and observances are on par with religious
observances. Greater respect needs to be provided to these aspects of culture and identity. One
particular issue is with the passing of community members. Because of kinship structures, the
importance of extended families, and the role of Elders in the community, the passing of a nonimmediate family member can have as much significance as the passing of an immediate relation.
Further, the passing of one community member can impact on a number of Aboriginal and Torres
Strait Islander prisoners. Consideration needs to be given for prisoners to engage in sorry business –
whether this is the actual attendance of a funeral and participation in cultural practices, or space
within the prison to observe an individual’s passing in a culturally appropriate way, there needs to
be support for these prisoners.
Some prisons, such as Port Philip and the Melbourne Remand Centre, have Aboriginal specific art
classes which involve Elders from the community and are targeted at encouraging Aboriginal
prisoners to tell their stories through art. Art has long been used a therapeutic measure in healing,
and the creation of a piece of art for many Aboriginal people, prisoner or not, is a process of telling a
story and completing a journey – the process is as important as the finished product. There is some
concern about who actually gets to retain the artwork at the end of the process, the prisoner or the
prison, and this is an area that, if left unresolved, can actually lead to undermining the process of the
prisoner’s rehabilitative journey through art.
Response to 3.4.3 Preparing prisoners for release
VALS supports the creation of more transition centres for prisoners to prepare for their release. We
note that the Discussion Paper states that there is no women specific transition centre – this is
particularly concerning, given the high rates of homelessness amongst women, and specifically for
Aboriginal and Torres Strait Islander women, the increasing rate of incarceration. Transition centres
can provide essential re-establishment of community and familial relationships that may not have
been facilitated because of security requirements. For parents, having children visit in these
transition centres may be less confronting for the children, but also can allow prisoners to perform
basic parenting roles before their release and aid in prospects of rehabilitation and, if possible,
reunifying families, with or without DHS involvement.
For Aboriginal and Torres Strait Islander prisoners, pre release programs should look at connecting
prisoners with family and community for additional supports and making referrals to Aboriginal
Community Controlled organisations for their ongoing services, if that individual prisoner wishes to
use these.
The actual process of release needs to be considered also. VALS employs Client Service Officers,
Aboriginal and Torres Strait Islander people who are connected with different communities around
the state, who provide support to clients through their legal processes. We’re often called upon to
pick up a released prisoner who has come out of prison at a late hour after public transport has
finished, which is the likelihood in regional areas, or they are released on a Friday night. This has the
impact of leaving the prisoner vulnerable from the minute they come out of prison. More
consideration and appropriate notice needs to be provided regarding the release of prisoners to
appropriate support agencies and family members.
Response to 3.5.4 Post release support
Housing is a critical factor in reintegration into society and reducing reoffending. At VALS, in our civil
law practice, we deal with clients who have challenges with their housing, and in our criminal and
family law matters, we consistently see the impact of unstable housing on criminal offending, on
intervention of DHS into parenting and in other aspects of day to day life. Stable accommodation
means a place to raise a family and grow, to have relatives over and keep cultural connections; it's a
place to prepare for work or study from; and ultimately, it should be a place to feel safe in. The loss
of ‘home’ has a significant impact on mental and physical wellbeing and threats to stable
accommodation can lead to a decline in an individual’s mental health. A stable home also means a
base from which services such as mental health, drug and alcohol and counselling can be accessed.
For individuals coming out of prison, finding stable accommodation is the greatest factor in getting
people reconnected with community and in establishing a routine.
VALS strongly supports the provision of more post release accommodation services, and in 2015 will
be working with Aboriginal Housing Victoria (with funding from Corrections Victoria and Department
of Human Services) to build and manage two gender specific post release accommodation sites for
Aboriginal and Torres Strait Islander people. These sites will be established with proximity to support
services and public transport in mind, as well as specific cultural connections and visits from legal
and other services to facilitate and strengthen the individual’s release into the community and
undertaking of programs.
As of 1 January 2015, VALS will be delivering post release services for Aboriginal and Torres Strait
Islander prisoners upon their release. VALS will provide a model of case management whereby we
will link prisoners with appropriate support services (through Aboriginal community controlled
organisations or other organisations) to support their reintegration back into the community. Of the
seven key areas we need to provide supports in, we have highlighted stable accommodation and
cultural connectedness as two priorities, knowing that this is the foundation from which people can
access services that will address any drug and alcohol or mental health challenges; lead into
education and employment, and support general wellbeing. As we continue in this space, we will be
able to provide more in depth knowledge about the needs of prisoners whilst in prison and upon
release, and how these needs can be met by Corrections Victoria services.
Response to 4.3 Indigenous prisoners and women prisoners
As demonstrated in the responses above that are specific to Aboriginal and Torres Strait Islander
prisoners, VALs supports their being a significant increase in the number of Aboriginal Wellbeing and
Liaison Officers. In employing these individuals, we suggest that there be input from the Regional
Aboriginal Justice Advisory Committees (RAJACs) which are established in regions around Victoria
and work closely with prisoners and prisons to ensure prisoner rights are supported. A process of
involving the RAJACs would ensure that individuals selected are appropriately connected with the
community of the area of the prison, and are able to provide cultural supports to the prisoners
inside. Consideration needs to be given to the fact that Aboriginal Wellbeing and Liaison Officers
may have family and kin who are themselves prisoners, and in general, need support for dealing with
the specific needs of prisoners. Supports within the prison and without from community and
organisations such as VALS are essential. The role needs to be clearly understood from the
perspective of the prison employing the individual, the community the prison is in, and the individual
themselves. Ultimately, it is about supporting the prisoner through the process of imprisonment to
put them in the best position of continued rehabilitation upon release.
Prisoners who are parents need specific assistance for possible reunification of parents with
children. With recent changes to the Children, Youth and Families Act in Victoria, there is a greater
fast-tracking of children in out of home care to permanent care, looking at a period of 12 months.
VALS is concerned that this will impact more harshly on Aboriginal and Torres Strait Islander people
in Victoria than non-Aboriginal and Torres Strait Islander people because of the increasing rates at
which children are being put in out of home care, and the rates of Aboriginal and Torres Strait
Islander women entering Victorian prisons. When this legislation comes into effect, it will be very
difficult for parents who are prisoners to exercise their parenting rights and abilities. Where the
offending has in no way related to the children, and when the children would be with the parent, but
for imprisonment, there needs to be specific efforts made for children to visit their parents, for
parents to maintain some semblance of parenting rights whilst in prison, and for parents to maintain
their skills in parenting. The impact of prison should not necessarily mean an adult is deemed to be
an incapable parent. However, any parenting skills development that is delivered must take into
account cultural practices and understand the broader structures of family and kin important to
Aboriginal and Torres Strait Islander people, and it must take into consideration the cycle of forced
removal of Aboriginal children becoming parents who have not received positive parenting models.
We note that the discussion paper points out there is no medium security correctional prison for
women and no transition centre. Considering the types of offending that women are engaged in
(often motivated by dire financial circumstances and in response to domestic violence),
rehabilitation would be best supported if women were to gain and maintain skills that would allow
them to continue their familial relations, including their parental rights, continue their education and
gain employment. The opportunities that are afforded to prisoners in medium security (and low
security prisons such as Tarrengower) and transitional centres would be conducive to these
rehabilitative measures, rather than a woman going from high security to release without any
recognition of the process of adjustment back into society. The Victorian Equal Opportunity and
Human Rights Commission Report Unfinished Business: Koori Women and the Justice System, notes
that Aboriginal women are more likely to have a higher security rating compared with non Aboriginal
women. This is because the initial assessment that is done takes into account features that are more
likely to impact on Aboriginal female prisoners than non-Aboriginal female prisoners2. We strongly
encourage the Victorian Ombudsman to consider the findings and case studies contained in the
VEOHRC report.
The impact of domestic violence on housing of prisoners is of great concern. It can mean the safety
of the victim (adult and children) of domestic violence is compromised when the perpetrator is
released. Conversely, when a victim of domestic violence is released, he or she may not be able to
return to the community they were in because the perpetrator still lives there. This can mean ties to
family and kin in that community, including children and dependents, are cut as the individual tries
to find another location, and, as stated before, homelessness is a significant fear for released
prisoners, and the lack of stable housing is a driver for reoffending.
VALS welcomes further opportunities to make submissions to the Victorian Ombudsman. Contact
should be directed to Meena Singh, Strategic Advisor, msingh@vals.org.au or 03 9418 5928.
2
The Victorian Equal Opportunity and Human Rights Commission ‘Unfinished Business: Koori Women and the
Justice System’, released 2013, p. 65