ANTaR NSW urges the NSW Government to think again about legislative amendments which have led to dramatic increases in Indigenous juveniles in jail. Under recent amendments to the Bail Amendment (Repeat Offenders Act) 2002 (NSW) and the Law Enforcement Legislation Amendment (Public Safety) Act 2005 (NSW) the government has removed the presumption in favour of bail for a wide range of people (Cunneen and Schwartz 2008, p. 46).

Most arrests and imprisonment of Indigenous people are for offences committed under the influence of alcohol or other drugs. But research by the National Indigenous Drug and Alcohol Committee of the Australian National Council on Drugs (NIDAC) shows that young Indigenous offenders are:

• more likely than non Indigenous defendants to be refused bail and to be unable to meet bail conditions

• far less likely to be diverted into treatment than their non Indigenous counterparts.

NSW has seen the reversal of initiatives introduced in 2002 which aimed to address the over representation of young indigenous people in custody including greater use of cautions and juvenile justice conferencing.

As a result, repeat offenders (who are often Indigenous people committing minor offences) are refused bail. In addition, offenders breaching bail conditions are now jailed, even if the offence does not carry a custodial penalty.

These laws need to be amended to exclude juveniles, for whom bail conditions are often far more onerous and closely supervised than for adults. Conditions may include curfews and requirements to stay at home with family even when that situation is unsuitable. Current bail conditions allow for thousands of children, many of whom are Indigenous, to be incarcerated prior to their trials. In many cases many of these juveniles are subsequently found not guilty.

Indigenous young offenders, under the Young Offenders Act 1997 (NSW) are far less likely to be diverted into treatment due to discrimination in the system which leads to Indigenous young people being apprehended at younger ages than non Indigenous people (subsequently leading to criminal records earlier on in life) as well as issues around police discretion and a lack of diversion programs in areas where they live.

ANTaR NSW calls on the NSW Government to support alternative interventions designed for young Indigenous offenders which link with existing local Aboriginal community controlled services. The Government also needs to address the discriminatory practices that have led to far fewer Indigenous young offenders accessing, and being diverted to, drug and alcohol treatment programs instead of incarceration.

The NSW Bureau of Crime Statistics attributes rising incarceration rates, not on increased crime but on tougher sentencing and the new bail laws. Aboriginal people comprise 2% of the NSW population but 20% of the prison population. Half of the girls under 18 in detention are Indigenous. Young Indigenous people falling into the hands of the law are doubly vulnerable.