Addressing the complex needs of ATSI female offenders

Parenting responsibilities and intergenerational trauma

9.14     Some estimates suggest that up to 80% of Aboriginal and Torres Strait Islander female prisoners are mothers,^[30] with 20% Aboriginal and Torres Strait Islander children nationally experiencing parental incarceration.^[31] Stakeholders told the ALRC that the incarceration of Aboriginal and Torres Strait Islander women contributes to gaps in ‘parenting, income, child care, role models and leadership’ in their communities,^[32] entrenching future disadvantage.^[33] The intergenerational nature of Aboriginal and Torres Strait Islander female incarceration appears to be borne out in data that shows that Aboriginal and Torres Strait Islander children, who are removed from their mothers, are themselves not only much more likely to enter the criminal justice system,^[34] but also are at higher risk of ‘developing behaviour problems, experiencing psychosocial dysfunction, experiencing stigmatisation and discrimination, and suffering negative health outcomes’.^[35] The Australian Institute of Health and Welfare noted that young people who are the subject of child protection orders are 27 times more likely to be under a youth justice supervision order in the same year.^[36] Aboriginal and Torres Strait Islander young males and females were 1.7 and 2.2 times as likely to be the subject of a supervision order, compared to their non-Indigenous counterparts.^[37]

9.15     In 2017, the United Nations Special Rapporteur on Violence Against Women emphasised the crucial importance of diverting Aboriginal and Torres Strait Islander women from the criminal justice system—particularly those who are mothers—and recommended that state and territory governments amend laws that contribute to their unnecessary imprisonment.^[38]

9.16     The Special Rapporteur specifically recommended that fine default laws be amended, in part due to their disproportionate impact on the rate of imprisonment of Aboriginal and Torres Strait Islander women.^[39] Fines are discussed in Chapter 6. The Rapporteur also recommended the introduction of family violence ‘justice targets’ as part of the Council of Australian Government’s ‘Closing the Gap’ measures, noting the role of family violence in the incarceration of Aboriginal and Torres Strait Islander women.^[40] Justice targets are discussed in Chapter 10.

Family violence and sexual abuse

9.17     Aboriginal and Torres Strait Islander women are frequent victims of crime, particularly interpersonal or violent crime.^[41] Prison population surveys have revealed high rates of family violence and sexual abuse among incarcerated Aboriginal and Torres Strait Islander women. One Western Australian study suggested that up to 90% of Aboriginal and Torres Strait Islander female prisoners are survivors of family and other violence.^[42] A New South Wales study revealed that 70% of the Aboriginal and Torres Strait Islander female prisoner cohort disclosed they were survivors of child sexual abuse, with 44% subject to ongoing sexual abuse, and 70% experiencing violence as adults.^[43] Unsurprisingly, these experiences of trauma often translate into higher rates of psychiatric issues—with Aboriginal and Torres Strait Islander women more than 11 times more likely to experience severe psychological distress than the general population.^[44]

9.18     Aboriginal and Torres Strait Islander women are among the least likely to disclose the fact that they are survivors of violence and sexual abuse—with studies showing that up to 90% of violence directed at Aboriginal and Torres Strait Islander women is unreported to police.^[45] Poor police responses may be a contributing factor to the under-reporting of violence against Aboriginal and Torres Strait Islander women.

9.19     There have been documented instances of police responding poorly or not at all to offending that occurs against Aboriginal and Torres Strait Islander women—particularly in relation to family violence. The case of Ms Mullaley is illustrative. In March 2013, Ms Mullaley was assaulted by her partner and found naked and injured by Western Australian police officers. Instead of being taken to medical services or given medical aid, Ms Mullaley was charged with assaulting police, with her behaviour branded a ‘distraction’ from other issues raised by Ms Mullaley with police about a potential threat to her child’s safety. The child was ultimately murdered by her abusive partner. Upon investigation by the WA Corruption and Crime Commissioner, it was noted that police had failed to consider whether the cause of Ms Mullaley’s behaviour was related to family violence committed against her—and had instead made assumptions that Ms Mullaley was a perpetrator, not a victim.^[46]

9.20     Submissions to the ALRC and NSWLRC joint inquiry into family violence in 2010 also provided examples of police charging Aboriginal and Torres Strait Islander women who are the subject of family violence protection orders with ‘aid and abet’ provisions in relation to their breach.^[47] The following example was provided by National Legal Aid to that Inquiry:

An Aboriginal woman living in the Pilbara had been in a long-term violent relationship. After being physically assaulted again, she obtained an interim violence restraining order against her partner on the advice of the police. Some weeks later after pressure from extended family and her children she allowed her partner to attend her house to see the children. Her partner again assaulted her and the police were called to the house. The police charged her partner with assault and breach of the restraining order. The woman was also charged with breach of restraining order as a party to the offence. She pleaded guilty and was given a fine. She remarked to the refuge that she would never seek a protection order again.^[48]

9.21     Although experiences of abuse have not been found to directly contribute to rates of Aboriginal and Torres Strait Islander female incarceration, traumatic histories can have secondary and cascading effects which can continue long after the initial abuse has ended. In 2001, the NSW Aboriginal Justice Advisory Council reported that at least 80% of Aboriginal women surveyed linked previous experiences of abuse indirectly to their offending,^[49] with histories of sexual abuse in particular noted as ‘central features of women’s pathways into offending, their experiences of custody, and their capacity to engage in rehabilitation programs’.^[50] Research reveals that prison—rather than being a refuge from violence or sexual abuse—can actually mirror the power dynamics of abusive relationships, with acts such as routine strip-searching contributing to the ongoing re-traumatisation of Aboriginal and Torres Strait Islander women, and reinforcing themes of powerlessness, lack of control, and vulnerability to an already traumatised cohort.^[51]

9.22     This suggests that in order to address the issue of Aboriginal and Torres Strait Islander female incarceration rates—as well as the high rates of substance abuse and psychological distress—the causes of trauma must be addressed through culturally competent supports and interventions. However, due to the short length of sentences Aboriginal and Torres Strait Islander women commonly receive, there can be practical difficulties in providing appropriate mental health treatment and other supports in what is often a relatively short prison episode.^[52] Short sentences are discussed in Chapter 4.

Mental illness, disability, and substance abuse

9.23     Rates of psychological disability for Aboriginal and Torres Strait Islander women are more than double that for Aboriginal and Torres Strait Islander men.^[53] This includes higher rates of hospitalisation for psychiatric issues, as well as higher rates of mental illness, Post-Traumatic Stress Disorder (PTSD), and cognitive impairment.^[54] One Victorian study revealed that more than nine in ten (92%) Aboriginal and Torres Strait Islander female prisoners surveyed had received a lifetime diagnosis of a recognised mental illness, and almost half met the criteria for PTSD.^[55]

9.24     Aboriginal and Torres Strait Islander female offenders also commonly have histories involving substance abuse.^[56] For many of these prisoners, self-medicating can be a response to childhood and ongoing trauma, which may include experience in or with the child protection system, homelessness, and being a victim of abuse.^[57] Aboriginal and Torres Strait Islander women who are survivors of family violence are also more likely to experience mental illness and cognitive impairment.^[58]

9.25     Aboriginal and Torres Strait Islander women with cognitive impairment have among the highest rates of criminal justice system contacts of any group and are significantly overrepresented in multiple areas of disadvantage compared to men—Aboriginal and Torres Strait Islander or otherwise.^[59] These include rates of: complex needs; out-of-home care; police contact; remand episodes; homelessness; and victimisation.^[60] It may also be the case that cognitive impairment—including Foetal Alcohol Spectrum Disorders (FASD)—may remain undetected and undiagnosed, often leading to a cycle of incarceration and disadvantage.

9.26     The criminal justice system is poorly suited to respond to complex needs arising from mental illness, disability, and substance abuse. The Human Rights Law Centre and the Change the Record Coalition argue that the role of prison has become—in many cases—simply to ‘warehouse’ or ‘manage’ people who fall into these categories, without providing appropriate or adequate support in addressing the underlying issues that led them to become incarcerated in the first place.^[61] This is particularly the case for cognitive impairment, which remains chronically undiagnosed and largely misunderstood. These issues are explored in Chapter 11 dealing with access to justice.

Poverty

9.27     Poverty has been shown to magnify the detrimental effect that minor offending has on an offender. The most common penalty Aboriginal and Torres Strait Islander women receive are fines.^[62] Fines can have hugely significant impacts when they are imposed on people who experience poverty and disadvantage.^[63] The Human Rights Law Centre and Change the Record Coalition argued that ‘unpaid fines [as well as enforcement costs], may in reality mean a choice between imprisonment and children going without food, clothes or other necessities’.^[64]

9.28     The interaction of poverty and punitive criminal justice regimes can be hugely damaging for Aboriginal and Torres Strait Islander women, particularly in relation to unpaid fine regimes, penalty notices, and Criminal Infringement Notices (CINs). It can result in escalating consequences arising from what may begin as relatively minor and victimless offending. Fines are discussed in Chapter 6. Common examples raised by stakeholders to date include offensive language offences and the issuing of speeding tickets.

9.29     Stakeholders suggested that the Western Australian fines legislation has particularly significant consequences for Aboriginal and Torres Strait Islander women. The legislation provides for a series of escalating consequences that, when combined with poverty, eventually results in the imprisonment of the fine defaultee, without any safeguard of judicial oversight.^[65]

9.30     The interaction of Aboriginal and Torres Strait Islander female disadvantage and incarceration is described by the Human Rights Law Centre and Change the Record Coalition in the following terms:

Those who are poorer are at greater risk of being locked up. Aboriginal and Torres Strait Islander women are more likely to be living in poverty, and thus have been found to be more likely to be locked up for unpaid fines.^[66]

9.31     Even where fine default does not result in imprisonment, the interaction of poverty and CINs can result in driver licence disqualification for Aboriginal and Torres Strait Islander women, on the basis that they are often unable to pay the fine. This can create impossible situations for women, particularly in areas that are not supported by transport infrastructure. For instance, it makes it impossible, or at the least, very difficult to continue to meet family needs such as dropping children off at school or attending medical appointments.

9.32     Unpaid fines resulting in driver licence disqualification can have serious and cascading effects in these situations, and can result in the imprisonment of the Aboriginal and Torres Strait Islander women for secondary offences such as driving while disqualified.^[67]

Homelessness and lack of stable accommodation

9.33     The lack of stable accommodation can mean that Aboriginal and Torres Strait Islander women are more likely to breach community-based orders, parole and bail. It has been identified as contributing to higher levels of criminal justice contact and incarceration for Aboriginal and Torres Strait Islander people.^[68] However, because of the central role Aboriginal and Torres Strait Islander women play in raising children, the importance of securing stable accommodation for this cohort is elevated.^[69] One common consequence of incarceration—particularly where there are repeated episodes of short-term incarceration—is that the offender may lose access to their existing housing. This puts their children at high risk of entering the child protection system.^[70]

9.34     Aboriginal and Torres Strait Islander women are the least likely of any cohort to be able to find appropriate accommodation upon release from incarceration—particularly where they have dependent children.^[71] A study of NSW and Victorian Aboriginal and Torres Strait Islander female prisoners released between 2001–2003 found that:

• none of the women were able to find stable family accommodation;
• half were still homeless at nine months after release; and
• over two-thirds (68%) returned to prison within nine months.^[72]