19.07.2017

Underlying factors

9.3        The vast majority of Aboriginal and Torres Strait Islander women will never enter the criminal justice system as offenders, or be incarcerated.[1] However, Aboriginal and Torres Strait Islander female offenders are the fastest growing prison cohort in Australia, growing at a rate which significantly exceeds the growth rate of other offenders, including Aboriginal and Torres Strait Islander male offenders.[2] They represent over one-third (34%) of all incarcerated women, despite representing only 2% of the adult female population.[3] At June 2016, Aboriginal and Torres Strait Islander women were incarcerated at a rate which was 21 times the rate for non-Indigenous women,[4] while in the Northern Territory (NT), Aboriginal and Torres Strait Islander women made up 86% of the adult female prison population.[5]

9.4        The rate at which Aboriginal and Torres Strait Islander women are imprisoned has been identified as a reflection of the multiple and layered nature of the disadvantage they face as a cohort.[6] The links between entrenched disadvantage—including social, cultural and economic forms—and increased rates of criminal justice contact, are well-established.[7] Aboriginal and Torres Strait Islander female prisoners are disproportionately more likely than their non-Indigenous counterparts to:

  • have experienced family violence and sexual assault;
  • be mothers and primary care givers of children;[8]
  • have mental illness or cognitive disability;
  • have substance abuse issues;
  • have entered into the child protection system as children;
  • have earlier and more frequent criminal justice contact—including police contact and incarceration;
  • be living in unstable housing or homeless;
  • be unemployed; and
  • have lower levels of educational attainment.[9]

9.5        As the Victorian Equal Opportunity and Human Rights Commission noted, the complex needs of many Aboriginal and Torres Strait Islander female offenders is deeply intertwined with historical and ongoing experiences of intergenerational trauma, institutionalisation, and colonisation.[10] This suggests that strategies which aim to address the complex needs of Aboriginal and Torres Strait Islander female offenders should take a trauma-informed and culturally appropriate approach. These strategies should be responsive to the numerous reasons why Aboriginal and Torres Strait Islander women may choose not to disclose their histories, and the multiple layers to the disadvantage they face.

9.6        Aboriginal and Torres Strait Islander female offenders disproportionately experience incarceration defined by:

  • low-level offending (eg, failure to pay a fine);
  • repeat incidents; and
  • short terms of incarceration.[11]

9.7        This can result in a cycle of ongoing disruption, caused partly by repeated low-level offending and incarceration, which exacerbates existing disadvantage and makes it extremely difficult to reintegrate into society.[12] Although data is not conclusive, it appears that Aboriginal and Torres Strait Islander women are incarcerated at greater rates for minor crimes which, if committed by a non-Indigenous woman, are unlikely to attract prison sentences.[13] One possible explanation for why Aboriginal and Torres Strait Islander women may be incarcerated at greater rates is that they often have long criminal records marked by low-level offending.[14] For example, a 2012 study revealed that 67% of Aboriginal and Torres Strait Islander female prisoners had been incarcerated previously, compared to 36% of non-Indigenous women.[15] By contrast, others argue that Aboriginal and Torres Strait Islander people are in general less likely to receive a custodial sentence than those who are non-Indigenous.[16]

9.8        There is a long list of royal commissions, reports, inquests, and inquiries documenting both the existence and effects of policing practices on Aboriginal and Torres Strait Islander communities and peoples generally.[17] The ALRC acknowledges that police practices, and police and community relationships, have much improved over recent years. However, a number of stakeholders emphasised that issues remain, in particular, suggested that Aboriginal and Torres Strait Islander women are over-policed as offenders,[18] while also being under-recognised as victims of crime.

9.9        With respect to over-policing, the evidence indicates that this group are more likely to be charged and arrested for public order offences and other forms of minor offending than non-Indigenous women.[19] These include offences such as offensive language and behaviour, driving offences, and justice procedure offences (such as breach of a community-based order). When compared to non-Indigenous women, Aboriginal and Torres Strait Islander women are also more likely to be subject to ‘preventative’ detention regimes—such as the Alcohol Mandatory Treatment regime (AMT) in the NT.[20] AMT is discussed in Chapter 8.

9.10     In a 2013 report, the Victorian Equal Opportunity and Human Rights Commission cited an example of over-policing of an Aboriginal woman. In that matter, police charged a pregnant 21 year old Aboriginal mother of two small children with a fraud offence for travelling on a train using a child’s ticket—when the lesser, and more appropriate,[21] charge of failure to carry a valid ticket was open and available to them.[22] This matter is discussed further in Chapter 2.

9.11     The results of punitive policing and arrest practices against Aboriginal and Torres Strait Islander women can be tragic—of the 11 female deaths examined as part of the Royal Commission into Aboriginal Deaths in Custody(RCIADIC), none of the women were incarcerated for serious offences.[23] More recently, the death of Ms Dhu in custody in Western Australia (WA) illustrates the escalating impacts that minor offending can result in when combined with racial stereotypes, assumptions, and discrimination by police. The Coroner’s report into the death of Ms Dhu noted that she had been arrested on various warrants of commitment, and that it had been calculated that she would have had to ‘spend four days in custody unless outstanding fines …were paid’.[24]

9.12     The Australian Institute of Criminology has identified a combination of factors as underlying the deep mistrust of police by some Aboriginal and Torres Strait Islander women.[25] These include: over- and under-policing; the historical role of police in implementing former government policies including those relating to child removal; a history of conflict between police and Aboriginal and Torres Strait Islander communities; and the role of police in Aboriginal and Torres Strait Islander deaths in custody. The ALRC acknowledges the views of many stakeholders that, although the past cannot be undone, there are strong pathways to be forged between Aboriginal and Torres Strait Islander communities and police, and that these can result in better outcomes for people, including women, in those communities.

9.13     Numerous articles and reports have argued that Aboriginal and Torres Strait Islander female offenders are, by and large, a group that requires support, prevention, and diversion—not punitive responses.[26] However, there remains a lack of available evaluations of ‘what works’ in terms of reintegration of Aboriginal and Torres Strait Islander female prisoners and offenders.[27] It is evident that programs that work for Aboriginal and Torres Strait Islander men do not necessarily work for Aboriginal and Torres Strait Islander women—each group having different needs.[28] Aboriginal and Torres Strait Islander women, in particular, appear to engage most effectively with an intersectional approach that recognises their needs both as women and as Aboriginal and Torres Strait Islander people.[29]