Alcohol and offending

13.7     The over-consumption of alcohol is associated with: health conditions including liver disease, diabetes, cardiovascular disease, and some cancers; accidents and injury; and harms to family and community.^[2]

13.8     A number of prior inquiries have also identified widespread problems relating to the harmful use of alcohol and the links between alcohol and offending. For example, the 2013 National Drug Strategy Household Survey found that, while many drinkers in the Australian community consume alcohol responsibly, there is a substantial proportion of drinkers who consume alcohol at levels considered to increase the risk of alcohol-related harm.^[3] The Productivity Commission’s 2016 Report into Indicators of Indigenous Disadvantage stated that excessive alcohol consumption increases an individual’s risk of death, disease and injury. Alcohol also contributes to family and community related problems, such as child abuse and neglect, work or financial problems, family breakdown, and violence and crime.^[4]

13.9     The National Drug Strategy 2010–2015 noted that ‘excessive consumption of alcohol is a major cause of health and social harms’ and that,

[s]hort episodes of heavy alcohol consumption are a major cause of road and other accidents, domestic and public violence, and crime. Long-term heavy drinking is a major risk factor for chronic disease, including liver disease and brain damage, and contributes to family breakdown and broader social dysfunction.^[5]

13.10  With respect to Aboriginal and Torres Strait Islander peoples, the National Aboriginal and Torres Strait Islander Health Survey 2004–05 reported that, overall, fewer Aboriginal people drink alcohol than non-Indigenous people.^[6] However, later inquiries have identified the harmful effects of alcohol in Aboriginal and Torres Strait Islander communities.^[7]

13.11  In 2015, the House of Representatives Standing Committee on Indigenous Affairs conducted an inquiry into the harmful use of alcohol in Aboriginal and Torres Strait Islander communities (House of Representatives Alcohol Inquiry). Its Report made 33 recommendations concerning best practice strategies to minimise alcohol misuse and alcohol-related harm and best practice alcohol treatments and support.^[8]

13.12  Submissions to the House of Representatives Alcohol Inquiry spoke of the harm that alcohol abuse continues to cause Aboriginal communities and its connection to the over-representation of Aboriginal people in the criminal justice system.^[9] For example, the Australian Crime Commission noted that alcohol was a factor in 78% of violent offences involving Aboriginal and Torres Strait Islander persons dealt with in the Alice Springs Supreme Court in 2010;^[10] and the Northern Territory (NT) Police Association said that 60% of all assaults and 67% of reported domestic violence incidents in the NT involved alcohol.^[11]

13.13  The Victorian Aboriginal Controlled Health Organisation (VACCHO) referred to research conducted through a partnership between the Victorian Department of Justice, Monash University and VACCHO, that showed ‘high levels of alcohol and drug use in Victorian Aboriginal people in prison (higher than for non-Aboriginal prisoners) contributing to increasing rates of Aboriginal incarceration’.^[12]

13.14  In its submission to this Inquiry, Endeavour Drinks Group^[13] suggested there is an oversimplification of the role alcohol plays in Aboriginal and Torres Strait Islander offending. The Group suggested that alcohol itself does not cause violence. Instead, the Group suggested that alcohol abuse in Aboriginal and Torres Strait Islander communities is a symptom of factors such as poverty, unemployment, passive welfare, and the loss of land and culture.^[14]

13.15  However, a 2009 review of the Alice Springs Alcohol Management Plan suggested that high levels of alcohol consumption are associated with high levels of alcohol-related harm and low consumption with low levels of harm. Drawing on the work of the National Drug Research Institute (2007), the review identified the most effective measures to reduce alcohol-related harm. These included:

• restrictions on the hours and days of sale on licensed premises;

• minimum legal drinking age enforcement for consumption and purchase;

• restrictions on high risk alcohol beverages (eg, cheap cask wine/fortified wine);

• outlet density;

• dry community declarations (when communities request declaration);

• mandatory packages of restrictions for remote and regional areas;

• restrictions on service to intoxicated people when enforced; and

• community-based interventions when enforced.^[15]

13.16  While a connection between alcohol abuse and criminal conduct has been identified, criminalising alcohol consumption may not be an appropriate response. The National Congress of Australia’s First Peoples (the National Congress) has described such an approach as a ‘failed strategy, merely adding to a cycle of escalating rates of incarceration. It hides specific problems in watch-houses, prisons and institutions and provides no remedy. This approach should play no future part in the alcohol policy’.^[16]

13.17  The National Congress further argued that alcohol offences should not be seen as a criminal justice issue, but rather as a social and health problem:

The way forward lies in a health and wellbeing approach based on community healing and personal rehabilitation, which addresses the historical and social factors which contribute to an unhealthy social environment and targets resources at those areas affected.^[17]

13.18  Similarly, the NT Anti-Discrimination Commission submitted to this Inquiry that ‘alcohol misuse must be addressed as a social and health issue rather than criminalised … On repeated occasions, we have seen the failure to address misuse of alcohol in this way, lead to incarceration of Aboriginal people’.^[18]

13.19  The Human Rights Law centre argued that:

[t]he response should be to address alcohol misuse for what it is—a complex health issue requiring health-focused responses within a broader framework of supply, demand and harm reduction—not to criminalise individuals struggling with alcohol addiction and other health and social challenges.^[19]

Fetal Alcohol Spectrum Disorder

13.20  Alcohol consumed during pregnancy has been shown to cause defects in the developing foetus.^[20] There is also ‘increasing evidence that early onset of drinking during childhood and the teenage years can have health effects and interrupt the normal development of the brain’.^[21]

13.21  Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Spectrum Disorders (FASD) describe a range of conditions that result from prenatal alcohol exposure during pregnancy. FAS and FASD can affect an unborn child exposed to alcohol in utero, with risk increasing as a multiple of the frequency and intensity of alcohol consumption. The effects of FAS and FASD on cognitive functioning and behaviour, first noticed in children, continues through to adulthood.^[22]

13.22  Studies of the prevalence of FAS and FASD are limited. According to the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG):

FASD is a community wide problem with prevalence rates of Fetal Alcohol Syndrome (FAS) reported to be between 0.064 and 0.685 per 1,000 live births in Australia. Indigenous women are less likely to consume alcohol than non-Indigenous women but those who do are more likely to consume harmful amounts. FAS is up to 4 times higher in Indigenous Australians: 2.767 to 4.75 per 1,000 live births.^[23]

13.23  RANZCOG describes the range of behavioural disabilities associated with FAS and FASD as ‘behavioural disorders (for example, poor impulse control) and developmental delay including impaired language and communication, social and emotional delays. These have lifelong implications such as impaired education, employment and imprisonment’.^[24]

13.24  Some research points to FAS and FASD contributing to Aboriginal incarceration rates.^[25] However, data on the relationship between imprisonment and FASD is scarce. One Canadian study found that youths with FASD are 19 times more likely to be incarcerated than youths without FASD in a given year.^[26] There is limited statistical information in Australia about incarcerated persons with FASD:

Limited research has investigated the relationship between FASD and contact with the criminal justice system in Australia. The limited Australian literature, complemented by international research, indicates that FASD should be considered at every stage of the criminal justice system, from offending behaviour, through to court proceedings, as well as throughout incarceration and post-release. There is no Australian estimate of the number of offenders with FASD. Overseas studies of individuals with FASD, however, demonstrate high rates of contact with the criminal justice system.^[27]

13.25  The National Indigenous Drug and Alcohol Committee made six specific recommendations directed at FAS and FASD, including: community information campaigns about the effects of consuming alcohol while pregnant; training of health practitioners to increase the earlier diagnosis and to assist in early identification and intervention; and other initiatives to address available support for people with FASD.^[28] Other research has suggested that resourcing Indigenous organisations to provide mentoring and family and support services, as well as ‘on-country’ camps that aim to stabilise affected young people while attempting to heal families, may address the social effects of FAS and FASD more appropriately than a criminal justice response.^[29]

13.26  The Commonwealth has developed an action plan to reduce the impact of FASD, which aims to improve outcomes for FASD affected infants as well as reducing its incidence in the population.^[30]

13.27  To respond to harms associated with alcohol abuse and misuse, the Intergovernmental Committee on Drugs developed the National Aboriginal and Torres Strait Islander Peoples’ Drug Strategy 2014–2019 (the Drug Strategy).^[31] The Drug Strategy provides a roadmap for work that might be done to minimise the negative effects of alcohol and other drugs (AOD), suggesting that

[i]n order to reduce high levels of harmful AOD use among some segments of the Aboriginal and Torres Strait Islander population it is necessary to: prevent or minimise the uptake of harmful use; provide safe acute care for those who are intoxicated; provide treatment for those who are dependent; support those whose harmful AOD use has left them disabled or cognitively impaired; and support those whose lives are affected by other’s harmful AOD use.^[32]

13.28  The Drug Strategy adopted a harm minimisation approach, identifying ‘three pillars’ of reduction focused on demand, supply and harm.^[33] In an Aboriginal and Torres Strait Islander context such approaches were described as follows:

Demand reduction strategies aim to reduce the appeal of alcohol, tobacco and other drugs, and drug taking. Prevention and early intervention are key elements of effective demand reduction strategies. Strategies that are effective in this context include preventative strategies such as early intervention, education and health promotion, provision of alternatives to AOD use; community‐led initiatives leading to alcohol bans, permits and restrictions on hours of supply.

Supply reduction strategies aim to reduce the availability of alcohol, tobacco and other drugs, and control their use. Strategies that are effective in this context include indirect price controls by banning cheap high alcohol content beverages such as cask wine, restrictions on trading hours, fewer outlets, dry‐community declarations and culturally sensitive enforcement of existing laws.

Harm reduction strategies aim to reduce the negative effects of AOD use, without necessarily expecting people who use drugs to stop or reduce their use. Effective harm reduction strategies include: bans on the serving of alcohol in glass containers, night patrols, and sobering‐up shelters.^[34]

Imposition of alcohol controls

13.29  Some efforts to control supply of alcohol in Aboriginal and Torres Strait Islander communities have involved the imposition of alcohol restrictions without significant community consultation or consent. For example, in 2007, widespread alcohol restrictions on designated areas in the NT were introduced by the Northern Territory Emergency Response Act 2007 (Cth). These restrictions were continued in 2012 by the Stronger Futures in the Northern Territory Act 2012 (Cth), and included prohibition of the possession, supply and consumption of alcohol—effectively creating ‘dry’ communities.^[35]

13.30  A 2016 evaluation of these measures found that there was

insufficient data available to the reviewers that would evidence comprehensive and robust links between the Act and changes in key indicators of alcohol related harm over the 2012 to 2015 period. While some positive changes in patterns of consumption have occurred contemporaneously … it is problematic to attribute such outcomes to the operation of the Act.^[36]

13.31  A 2017 review of alcohol policies and legislation in the NT noted that many stakeholders held the view that

the unilateral decision to ban the supply, possession and consumption of alcohol in Aboriginal communities … has been discriminatory and detrimental to effective community driven alcohol reduction measures. The approach taken by the NTERA in declaring significantly more communities ‘dry’ in the manner it did, exacerbated the issues … relating to people leaving their community, or establishing unsafe drinking areas.^[37]

13.32  Another response to alcohol misuse in the NT is the Banned Drinkers Register (BDR), which commenced in September 2017.^[38] The BDR identifies people who are banned from purchasing, consuming or possessing alcohol and prevents their purchase of alcohol at a takeaway outlet. A person can be placed on the BDR for reasons including:

•     any combination of three alcohol-related protective custodies or alcohol infringement notices in two years

•     two low-range drink driving offences or a single mid-range or high-range drink driving offence

•     being the defendant on an alcohol-related domestic violence order

•     having an alcohol prohibition condition on a court order (including child protection orders), bail or parole order

•     by decision of the BDR Registrar after being referred by an authorised person such as a doctor, nurse or child protection worker, or a family member or carer

•     self-referral for any reason.^[39]

13.33  Stakeholders to this Inquiry held mixed views about the appropriateness and efficacy of the BDR. NATSILS submitted that the BDR will disproportionately impact upon Aboriginal and Torres Strait Islander peoples. It preferred that harmful consumption of alcohol be addressed through rehabilitative programs focusing on positive health outcomes rather than through ‘the implementation of punitive regimes’.^[40]

13.34  The Central Australian Aboriginal Congress supported the BDR, but cautioned that a ‘high quality expert evaluation’ of the BDR and other alcohol measures in the NT was warranted.^[41]

Community-driven solutions

13.35  The ALRC recommends that any initiative to reduce the harmful effects of alcohol in Aboriginal and Torres Strait Islander communities should be developed with, and led by, those communities. Many stakeholders to this Inquiry supported this approach. National Aboriginal and Torres Strait Islander Legal Services submitted that law reform designed to address the link between alcohol abuse and offending,

must be based on ground up rather than top down models of community engagement. Accordingly, the development and implementation of liquor accords and other law reforms must be supported by community members, community sector organisations, social service providers and other key stakeholders. ^[42]

13.36  The Australian Human Rights Commission (AHRC) cautioned that ‘successes achieved and processes implemented by a community may not be appropriate to mirror in other communities, as a “one size fits all” approach is known to be ineffective’.^[43] The AHRC emphasised the importance of governments appropriately engaging and liaising with Aboriginal and Torres Strait Islander communities in order to identify their needs and priorities on a case-by-case basis.^[44]

13.37  The NT Legal Aid Commission similarly submitted that ‘a sound evidence base, combined with the meaningful participation by Aboriginal people, communities and organisations in the identification and implementation of solutions is crucial to addressing this issue’.^[45]

13.38  The Human Rights Law Centre also suggested that:

Measures to address alcohol misuse and alcohol-related harm must be non-discriminatory and tailored to suit the needs of specific communities. They must involve the participation of affected communities to ensure that they are culturally appropriate, address community needs and have the greatest chance of success.^[46]

13.39  Commenting on programs that reduced harms of alcohol and drug abuse, Mission Australia suggested that the common thread of effective interventions were those with strong community interest, engagement and leadership.^[47]

13.40  The need for Aboriginal and Torres Strait Islander leadership in developing initiatives to address alcohol-related harm has been acknowledged in the Drug Strategy, which recommended that ‘development of actions to achieve each outcome should be led by local communities in collaboration with government and non‐government sectors’:^[48]

Aboriginal and Torres Strait Islander people should be meaningfully included and genuinely consulted regarding the development of solutions to harmful AOD use. Aboriginal and Torres Strait Islander ownership of solutions should occur from inception and planning, right through to implementation and provision, and monitoring and evaluation of any solutions.^[49]

13.41  The Drug Strategy identified four priority areas including: building community capacity; developing culturally responsive and appropriate programs; strengthening partnerships between the community, government, law enforcement and health; and establishing meaningful evaluation of programs.^[50]

13.42  The Australian Government’s National Drug Strategy 2017–2026 has also emphasised that,

[i]t is critical to ensure that any efforts to reduce the disproportionate harms experienced by Aboriginal and Torres Strait Islander people are culturally responsive and appropriately reflect the broader social, cultural and emotional wellbeing needs of Aboriginal and Torres Strait Islander people. Planning and delivery of services should have strong community engagement including joint planning and evaluation of prevention programs and services provided to Aboriginal and Torres Strait Islander communities taking place at the regional level. Wherever possible, interventions should be based on evidence of what works specifically for Indigenous people.^[51]

13.43  The importance of ownership of solutions has been emphasised in a review of what works to reduce harm related to alcohol and other drugs among Indigenous Australians, which argued that despite gaps in our knowledge, ‘there is ample evidence to show what can be done to reduce AOD-related harm. What is needed is the commitment to do it—with and not for Indigenous people’.^[52]

13.44  Below, the ALRC considers two examples of measures to reduce alcohol-related harm that have been successfully developed and led by Aboriginal and Torres Strait Islander communities: liquor accords, and the ban on full strength alcohol in Fitzroy Crossing.

Liquor accords

13.45  Liquor accords are a local community response that seeks to address alcohol-related harm within a particular community. The liquor industry—comprised of off-licence retailers commonly referred to as ‘bottle shops’, and on-licence liquor providers, such as hotels and registered clubs—have, in many instances, sought to regulate the sale of liquor to reduce or minimise the harm of alcohol misuse or alcohol abuse. Large liquor industry players—such as Wesfarmers (Coles), having a 33.5% share of the retail liquor market, and Woolworths, having a 40.2% share^[53]—have historically joined as members of accords across states and territories.

13.46  A liquor accord, as the NT chapter of the Australian Hoteliers Association (AHA (NT)) has explained, is

a written agreement between licensed venues and other stakeholders, with the purpose of working together to support one another on issue/s of mutual concern. For example a liquor accord may be created to assist in the reduction of alcohol misuse and associated harms within a local community.

Depending on the specific needs and characteristics of the region involved, most liquor accords include members from the local business community, local councils, local police, government departments and other community focused organisations. Voluntary participation by licensees in local area initiatives is allowed for when a stakeholder of a liquor accord and liquor related problems can be addressed with the introduction of practical solutions. Such teamwork aims to ensure that precincts and venues are safe and enjoyable places in which to meet and socialise which will ultimately enhance community life and enjoyment of the local area.^[54]

13.47  The AHA (NT) considered that liquor accords were ‘extremely worthwhile’, provided that

all parties come to the table as equals and have a long-term view of the benefits which can flow from an effective liquor accord. This requires a strong commitment from all members (licensees, police, government) who must be able to work together to make change happen. It may also present an opportunity for local police and councils to improve their working relationships with industry on issues of common interest.^[55]

13.48  The AHRC submitted to this Inquiry that the success of approaches to alcohol management—that included the development and implementation of local liquor accords and plans to prevent sale of full strength alcohol—hinged on those programs being based on priorities identified by the community.^[56]

13.49  Liquor accords may raise concerns relating to anti-competitive behaviours. With respect to this, the AHA (NT) said that these could be addressed

by seeking immunity from the competition provisions of the Trade Practices Act through the ‘authorization’ process. There is a clear process to follow which will prevent any legal repercussions for members of an accord. The problem of alcohol abuse within local communities and the need for a range of strategies to address the problems are understood by the ACCC [Australian Competition and Consumer Commission]. Where the ACCC is satisfied that the public benefit from the arrangements between competitors will outweigh any public detriment, it can grant immunity from legal action.^[57]

13.50  Liquor and Gaming New South Wales has suggested that some liquor accords have reduced harmful effects of alcohol misuse and abuse:

Successful liquor accord groups generate many benefits for licensees, patrons and the community:

• Less alcohol-related assaults and anti-social behaviour

• Local neighbourhoods that are safer and more welcoming

• Better reputations for licensees

• Improved business environment

• Constructive relationships between licensees, councils, patrons, residents and police

• Stronger compliance

• Less under-age drinking

• More awareness about responsible consumption of alcohol.^[58]

13.51  The liquor accord in Norseman, Western Australia, is an example of a liquor accord that has community support and is driven by community priorities:

In the early 2000s members of the Indigenous community in Norseman in Western Australia became increasingly concerned that heavy alcohol consumption was the main cause of chronic health problems in their community. The community, in collaboration with local Health Department officers, worked with individuals and their families to prevent harmful drinking, but were not able to sustain a change to low risk drinking, and so decided that a different approach was needed … The Indigenous community in Norseman is not geographically discrete, rather it is distributed throughout the township. Consequently, the option used by many Indigenous communities, of declaring themselves dry was not available. However, there was clear recognition within the Indigenous community that certain beverages were particularly associated with heavy drinking. In an effort to reduce the amount of alcohol consumed, in particular the packaged liquor most linked to heavy drinking, the community proposed restricting the quantity and the hours of sale of these products.^[59]

13.52  An evaluation of the Norseman liquor accord found that the accord had reduced alcohol-related harms:

the Indigenous community was the driving force for introducing the restrictions, in response to the domestic violence, chronic disease and death that was associated with heavy drinking. The reasons given for not allowing sales, other than between midday and 6pm, was to limit the period of drinking so there was break for heavy drinkers to sober up. There was almost universal agreement that the behaviour of drinkers, the amount of alcohol consumed and alcohol-related harms had all changed for the better since the introduction of restrictions … [and] the benefits for the Norseman community are clear. The restrictions are still in place, have increased social order, are still overwhelmingly supported by the community including the Licensee, and have remained effective in keeping in check those beverages identified from initial community discussions as problematic. These findings indicate that … an Accord, which is fashioned by key stakeholders, and supported by the whole community, can have a long-term impact on local alcohol problems.^[60]

13.53  In its submission to this Inquiry, NATSILS supported community-developed restrictions to reduce alcohol consumption, including restrictions on opening hours, number and density of liquor licences, and a limitation on the type and quantity of takeaway alcohol purchased.^[61]

13.54  Similarly, the NT Legal Aid Commission supported ‘evidence-based whole of community measures to reduce the availability of alcohol’, including restricted trading hours.^[62]

13.55  The Commissioner for Children and Young People Western Australia suggested it was important that state and territory governments

provide guidance to communities on how to implement alcohol restrictions using the various mechanisms available, and support communities to gather the evidence required to determine harm and to challenge and restrict alcohol supply, including strengthening alcohol accords. ^[63]

13.56  Legal Aid Western Australia supported measures to control alcohol abuse such as liquor accords and plans to restrict full strength alcohol. They noted that alcohol restrictions had made a significant difference in Halls Creek, where full strength alcohol is only available from the local hotel.^[64] They suggested that the seriousness of offending in Halls Creek had substantially reduced, while also acknowledging the assistance of night patrols that support people affected by alcohol to return home or obtain shelter.^[65] Legal Aid WA cautioned, however, that the success of these restrictions also required measures to avoid the black market sale of alcohol. It also opposed any restrictions that would only apply to Aboriginal people.^[66]

13.57  The Institute of Public Affairs was supportive of liquor accords, while noting the complex nature of alcohol abuse, the inability of the criminal justice system to solve such issues, and the inappropriateness of prohibition. It observed:

the abuse of alcohol is a problem that the criminal justice system can only manage, it cannot solve it. The reasons that people choose to drink are complex and will need to be addressed by communities and individuals from the bottom-up. In remote communities, cooperation between private businesses and civil society may be the best way to manage the supply of alcohol. Accords are a proper exercise of market power, so long as membership is voluntary. However, Indigenous Australians retain the right to purchase alcohol wherever it is legally sold, just as all Australians do. Across-the-board prohibition will not work and is not desirable. Alcohol bans will not address the reasons that people choose to drink.^[67]

13.58  In its submission to this Inquiry, the NT Government outlined its commitment to finalising a comprehensive public review of alcohol policies and legislation to address alcohol misuse and its effects on individuals, families and communities throughout the NT. It suggested the review would consider

plans to prevent the sale of full strength alcohol, and accords between liquor retailers and other stakeholders to minimize harm will form part of the NTG’s Local Decision Making policy (that is currently under development). This initiative aims to create opportunities for interested communities to exercise a high-degree of local decision making, and where possible to control the delivery of Government services. The Local Decision Making policy initiative will provide an opportunity for government and Aboriginal communities to work together on alcohol issues that impact on Aboriginal peoples’ lives.^[68]

Fitzroy Crossing ban on full strength alcohol

13.59  In a 2010 report, the AHRC detailed the implementation of alcohol restrictions in Fitzroy Crossing, noting its community-driven genesis:

In 2007 … the senior women in the Fitzroy Valley decided to discuss the alcohol issue and look for solutions at their Annual Women’s Bush Meeting. The Women’s Bush Meeting is auspiced by Marninwarntikura; it is a forum for the women from the four language groups across the Valley. At the 2007 Bush Meeting, discussions about alcohol were led by June Oscar and Emily Carter from Marninwarntikura. The women in attendance agreed it was time to make a stand and take steps to tackle the problem of alcohol in the Fitzroy Valley. While the women did not represent the whole of the Valley, there was a significant section of the community in attendance. Their agreement to take action on alcohol was a starting point and it gave Marninwarntikura a mandate to launch a campaign to restrict the sale of alcohol from the take-away outlet in the Fitzroy Valley. The community-generated nature of this campaign has been fundamental to its ongoing success. The communities themself were ready for change.^[69]

13.60  The Fitzroy Crossing initiative did not seek the complete prohibition on the sale of alcohol or to make Fitzroy Crossing a dry community. Instead, it sought to prevent the sale of full strength alcohol.

13.61  Speaking to SBS about her experiences implementing the ban on full strength alcohol in Fitzroy Crossing, June Oscar AO stated:

We couldn’t continue to live in a community that was just being decimated by alcohol. Every aspect of life. Every facet of life was being affected. And in 2005–6 we had 50 deaths in the valley. Many of them were alcohol-related deaths. Our right to a future was important. We had to fight for that future. So the women decided then in July of 2007 enough was enough. We want to pursue restrictions on the sale of full strength alcohol … Within the first 3 to 6 months we saw the presentations at hospital from 85% alcohol-related injuries drop to 25, 15%.^[70]

13.62  The Fitzroy Crossing initiative also allowed members of the Fitzroy Crossing community to design and implement strategies to reduce the prevalence of FASD in the community. The AHRC noted:

In October 2008, just over a year after the alcohol restrictions were brought into the Fitzroy Valley, members of the communities gathered to discuss FASD and other alcohol-related problems … In November 2008, a draft strategy was developed by the CEO of Marninwarntikura, June Oscar and Dr James Fitzpatrick, a paediatric trainee serving the communities. The strategy was called Overcoming Fetal Alcohol Spectrum Disorders (FASD) and Early Life Trauma (ELT) in the Fitzroy Valley: a community initiative. This strategy is now described locally as the Marulu Project. Marulu is a Bunuba word meaning ‘precious, worth nurturing’.^[71]

13.63  An evaluation of the effects of alcohol restrictions in Fitzroy Crossing two years following their implementation found continuing health and social benefits for the residents of Fitzroy Crossing and the Fitzroy Valley communities, including:

• reduced severity of domestic violence;

• reduced severity of wounding from general public violence;

• reduced street drinking;

• a quieter town;

• less litter;

• families purchasing more food and clothing;

• families being more aware of their health and being proactive in regard to their children’s health;

• reduced humbug and anti-social behaviour;

• reduced stress for service providers;

• increased effectiveness of services already active in the valley;

• generally better care of children and increased recreational activities; and,

• a reduction in the amount of alcohol being consumed by Fitzroy and Fitzroy Valley residents.^[72]

13.64  Another analysis also noted the benefits flowing from the experience in Fitzroy Crossing:

In Fitzroy Crossing and Halls Creek, where the impetus for alcohol restrictions came from strong local women and where responsible serving of alcohol is now being enforced, there has been a noticeable decline (between 20% and 40%) in the number of alcohol-related crimes and alcohol-related admissions to hospitals.^[73]

13.65  However, the same analysis also noted that, while

stricter controls on alcohol has made these towns more pleasant places to live … the restrictions have not addressed the reasons why people are drinking in the first place. Controls on alcohol supply help mitigate the harms that alcohol causes, but they will not solve the alcohol problem.^[74]

13.66  Kayla Calladine has also suggested that there are several limitations of alcohol restrictions, including the prevalence of unlawful sales of liquor at highly inflated prices to dry communities, otherwise known as ‘sly grogging’. However, she concludes that ‘early evidence suggests prima facie improvement in living conditions, suggesting that voluntary prohibition regimes contribute to the aims of substantive equality’.^[75]

13.67  Concerns also exist that prohibition of alcohol within dry communities has led to the substitution of illicit drugs for alcohol. The Healing Foundation has suggested that ‘[m]any dry communities now face the scourge of drugs as a substitute for grog, causing many of the same issues such as violence that alcohol did’.^[76] Similarly Scott Mclean Cullen suggested limiting access to alcohol has the effect of creating ‘black market sly grogging or an increase in home brew and the associated health risks’.^[77]

13.68  The ALRC accepts that, while community-led initiatives to reduce alcohol consumption are a useful circuit breaker to address alcohol-related harm and offending, such measures do not address the underlying causes of excessive drinking and addiction. Addressing the causes of alcohol abuse will ultimately be the key to reducing alcohol-fuelled offending and subsequent incarceration.

13.69  However, there was much support in consultations and submissions to this Inquiry for initiatives like the one in Fitzroy Crossing, that prohibit the sale of full strength alcohol. To achieve meaningful results in minimising alcohol abuse within Aboriginal and Torres Strait Islander communities, these communities must have ownership of the solutions, be supported to develop local initiatives and be resourced to implement them. The ALRC recommends that state and territory governments facilitate these sorts of initiatives where there is community desire to do so.

12.167       Stakeholders to this Inquiry have advised that offensive language provisions and subsequent infringement notices for such conduct continue to be an issue for Aboriginal and Torres Strait Islander peoples.

Statutory frameworks

12.168       All states and territories have provisions that criminalise the use of offensive language in a public place.^[283] A person may receive an infringement notice for using offensive language from various issuing officers,^[284] including police—where the infringement notice is generally referred to as a Criminal Infringement Notice (CIN). Police can issue CINs for offensive language in all states and territories except SA, Tasmania and the ACT, where the matter must go before the court.^[285] In the jurisdictions with CINs, there remains an option for police to arrest or issue a court attendance notice for the matter to go before the court.

12.169       CINs are a relatively new form of infringement notice. For example, NSW introduced CINs in 2004, and WA introduced CINs in 2016.^[286]

12.170       The penalty amount for offensive language CINs ranges from $110 in Queensland to $500 in NSW and WA.^[287] When appearing in court, the maximum fine ranges from $660 in NSW to $6,000 in WA, with the majority of jurisdictions having maximum fines of approximately $1,000. A sentence of imprisonment can also be imposed in all jurisdictions except NSW and WA.^[288]

The impact on Aboriginal and Torres Strait Islander peoples

12.171       Aboriginal and Torres Strait Islander people remain over-represented as recipients of offensive language CINs.^[289] For example, the NSW Ombudsman found that 11% of CINs for offensive language in 2008 were issued to Aboriginal and Torres Strait Islander people.^[290] More recently, it was reported that the proportion had risen to 17%.^[291] This can have a significant impact. According to the NSW Ombudsman, 89% of Aboriginal and Torres Strait Islander people issued with a CIN failed to pay on time and were referred to SDR for enforcement. By comparison, 48% of all CIN penalty notices were referred for enforcement.^[292]

12.172       Professor Tamara Walsh submitted that Aboriginal people in Queensland are up to 12 times more likely to be charged with or receive infringement notices for public nuisance than non-Indigenous people. In most cases, offensive language was directed at police officers. Where these matters were dealt with in the court, Aboriginal and Torres Strait Islander people were more likely to receive a custodial sentence.^[293]

12.173       The issues regarding offensive language provisions and how they are applied to Aboriginal and Torres Strait Islander people have been well ventilated. Primarily: most offensive language CINs are issued for language directed at police;^[294] and, if tested in court, may not meet the legal definition of ‘offensive’.^[295] Instead, under CINs, police are the ‘victim, enforcer and judge’ of the law, which provides strong foundation for conflict and misuse.^[296]

12.174       The RCIADIC recognised the role of offensive language provisions in incarcerating Aboriginal and Torres Strait Islander people, and recommended that offensive language provisions be monitored.^[297]

12.175       The high incidence of Aboriginal and Torres Strait Islander offensive language offending has been ascribed to the likelihood of Aboriginal and Torres Strait Islander people being out in public, amounting to an increased likelihood of police interaction.^[298] Aboriginal and Torres Strait Islander people are likely to be over-represented in areas of social disadvantage, including homelessness, mental health issues and lower education; and are more likely to be reliant on public services.^[299] This visibility means that there is a high likelihood of interaction with police, which can easily escalate.^[300]

12.176       It has also been reported that there is an acceptance of swear words in the vernacular of some Aboriginal and Torres Strait Islander communities.^[301] The use of swear words when interacting with police may be an expression of resistance to police but also may represent cultural differences in attitudes to swearing, where it may be more ‘routine’ in some Aboriginal communities.^[302] This may not always be the case. The NT Government suggested to this Inquiry that some Aboriginal communities welcome the criminalisation of offensive language:

A person’s right to feel safe in the community should not be compromised, and the lessening of community value standards through abolition of such offences could contribute to decreased social amenity. A recurring theme in Aboriginal communities as part of the NT Police community safety management process is the importance of a safe community, free from offensive language and disorderly behaviours. Community members often pose sanction options that should apply if people engage in offensive behaviour and the use of offensive language as Aboriginal communities state it is detrimental to the values they wish to uphold in their communities.^[303]

Offensive language provisions should be reviewed

12.177       Offensive language provisions have a particular history associated with Aboriginal and Torres Strait Islander peoples, and have wide application. There may be value in, if not abolishing relevant offensive language provisions, then narrowing their application.

12.178       Abolition may result in unintended consequences—it may leave police without a tool to manage some situations, and may even result in more serious charges being laid. It may therefore be most appropriate for states and territories to narrow the application of relevant provisions to language voiced in public which is threatening or abusive. This would remove the option for a person to be fined for telling police something was ‘none of their fucking business’, for example, but retain the option for police to issue CINs when threatened or abused. It may be, however, that certain threatening or abusive conduct is already proscribed by the criminal law in some states and territories, and that police can use move-on powers, intoxication, assault or inciting provisions when needed.^[304]

12.179       The ALRC suggests that states and territories evaluate their relevant offensive language provisions.

Options for reform

12.180       Stakeholders in this Inquiry expressed strong support for the abolition of all offensive language provisions.^[305] Stakeholders submitted that these provisions were disproportionately used and had a disproportionate effect on Aboriginal and Torres Strait Islander people.^[306]

12.181       Redfern Legal Centre supported abolition of the offence of offensive language, noting that ‘though ostensibly less serious than criminal proceedings, the consequences of receiving a CIN can be significant’.^[307] It argued that Aboriginal and Torres Strait Islander people are unlikely to request a review or elect to have a CIN dealt with by the court, even where it is likely that the offensive language will not satisfy the legal test. As a result, the ‘overwhelming majority’ of CINs issued to Aboriginal and Torres Strait Islander people for offensive language were not scrutinised by a court. In Redfern Legal Centre’s view, the CIN scheme had not met its stated aims of diverting people away from the criminal justice system: it instead involved them further through fine default and involved more people through net widening.^[308]

12.182       The ALSWA noted that, for many Aboriginal and Torres Strait Islander people, the penalty amount of $500 in WA would be ‘impossible to pay’.^[309] Kimberly Community Legal Services argued that for ‘Aboriginal people, the homeless and other disadvantaged groups the imposition of such a fine is tantamount to a prison sentence in WA’.^[310]

12.183       Some stakeholders considered offensive language provisions to be outmoded.^[311] The NSW Bar Association asserted that, not only are these types of provisions no longer needed, but that their continuing use ‘brings the law into disrepute’:

Historically, the offence has been used disproportionately against Aboriginal and Torres Strait Islander people, and it is likely to continue to be so used. There is no justification for its retention. Other existing laws provide protection from verbal threats and intimidation.^[312]

12.184       Short of abolition, there are other options by which to reduce the use of offensive language provisions. For example, the NSWLRC has previously recommended that if offensive language provisions were retained, the issuing of a CIN for these offences should be subject to mandatory review by a senior police officer.^[313] This approach garnered some support from stakeholders to this Inquiry. Redfern Legal Centre supported this with an additional requirement to examine and monitor usage on Aboriginal and Torres Strait Islander peoples.^[314] VALS/IWG suggested, however, that police oversight without any other mechanism may not be an effective measure to prevent the imposition of fines, especially multiple fines.^[315]

12.185       The YLCLC suggested that the NSW provision should also include a requirement that offensive language is used at a ‘time or in circumstances at which it was likely to be heard by a reasonable member of the public and it caused offence or was done in a manner likely to cause offence to a reasonable member of the public’.^[316] Professor Tamara Walsh suggested that, if retained, the threshold of ‘offensiveness’ set by the High Court in Coleman v Power (2004)^[317] should be spelt out within the relevant provisions—that is that offensive behaviour provisions were meant to protect the public from harms including disorder, violence, intimidation and serious affront.^[318]

12.186       The Law Society of WA suggested that offensive language should only be capable of criminal sanction where it forms part of a more serious set of circumstances giving rise to a breach of the peace.^[319] The Law Council of Australia suggested that only language that is so ‘grossly offensive as to amount to vilification or intimation’ ought to be criminalised.^[320]

The reforms of this chapter

12.187       Offensive language CINs provide an example of how fine systems can operate in a way that disproportionately affects Aboriginal and Torres Strait Islander people. The ALRC has heard of people receiving multiple infringement notices for swearing more than once in the same transaction. Swearing need not be abusive or threatening, and can be a consequence of everyday vernacular. The large penalty amounts render offensive language CINs difficult to pay, and are likely to result in the offender entering the fine enforcement regime. It some jurisdictions it can result in prison.

12.188       The recommendations in this chapter aim to circumscribe the effects of such provisions. Under these, the issuing officer would be directed to recognise circumstances when the imposition of a formal caution is more appropriate. Police in SA can issue a caution to adults for offensive language offending, including for swearing at police.^[321] Cautioning is particularly appropriate to offensive language offending, which is more often than not a ‘victimless crime’.^[322]

12.189        When cautioning is not appropriate, or has not been effective, the recommendations of this chapter would provide that the monetary penalty attached to a fine for offensive language be decreased to a more manageable amount. Offensive language CINs carry high penalties. As noted above, an imposition of a $500 fine on many Aboriginal and Torres Strait Islander people is insurmountable, and is likely to cause a person to enter the fine enforcement regime.

12.190       Under the recommendations in this chapter, when unable to pay the decreased amount, the offender could opt to pay the fine via a WDO.

12.191       This mitigation would apply to other types of offending that lead to the issuing of infringement notices or CINs. For example, in 2014, the NSW Ombudsman noted that Aboriginal and Torres Strait Islander peoples were particularly affected by the issuing of CINs for the offence of ‘continuation of intoxicated and disorderly behaviour following move on direction’.^[323] The Ombudsman reported that, of the 484 fines or charges issued for this offence during the review period, 31% (150) were issued to Aboriginal people.^[324] Stakeholders to this Inquiry also pointed to alcohol, begging offences, and move-on powers as problematic provisions for Aboriginal and Torres Strait Islander peoples.^[325]

12.192       Nonetheless, as offensive language provisions particularly affect Aboriginal and Torres Strait Islander people, the ALRC recommends state and territory governments review the relevant statutes with a view to repealing or narrowing the application of the provisions.

11.1     The Terms of Reference to this Inquiry ask the ALRC to have regard to Aboriginal and Torres Strait Islander women and their rate of incarceration. This chapter contextualises Aboriginal and Torres Strait Islander female offending within experiences of intergenerational trauma, including family and sexual violence, child removal, mental illness and disability and poverty.

11.2     Strategies that aim to address the offending of Aboriginal and Torres Strait Islander women must take a trauma-informed and culturally appropriate approach. These strategies must be responsive to the numerous reasons why Aboriginal and Torres Strait Islander women become involved in the criminal justice system and the multiple layers of disadvantage they face.

11.3     Aboriginal and Torres Strait Islander women constitute a fast growing group in prison populations, yet the historically low numbers of female Aboriginal and Torres Strait Islander offenders—and misunderstandings of their criminogenic needs—has meant that few appropriately-designed criminal justice responses are available.

11.4     This chapter briefly reviews some of the alternatives to incarceration, including holistic, trauma-informed diversion programs for Aboriginal or Torres Strait Islander women who have experienced deep and intergenerational trauma. To minimise reoffending and to help Aboriginal and Torres Strait Islander women out of the criminal justice system, it is critical that criminal justice responses are not only trauma-informed and culturally appropriate but are developed with and delivered by Aboriginal and Torres Strait Islander women.

11.5     Female Aboriginal and Torres Strait Islander offenders are likely to have been victims, often of family violence. In this chapter the ALRC makes recommendations to enhance police responses to family violence in Aboriginal and Torres Strait Islander communities.

11.6     The vast majority of Aboriginal and Torres Strait Islander women will never enter the criminal justice system as offenders, or be incarcerated.^[1] It is well established, however, that Aboriginal and Torres Strait Islander women are vastly over-represented in the criminal justice system and in the prison population, and that the numbers of female Aboriginal and Torres Strait Islander prisoners are rapidly growing.^[2]

11.7     In 2016, Aboriginal and Torres Strait Islander women represented 34% of all women in prison.^[3] The level of imprisonment for Aboriginal and Torres Strait Islander women exceeded that of non-Indigenous women by a factor of 21.2—that is Aboriginal or Torres Strait Islander women were 21.2 times more likely to be imprisoned than non-Indigenous women. Further still, the rate of imprisonment for Aboriginal and Torres Strait Islander women exceeded even that of non-Indigenous men.^[4]

11.8     Aboriginal and Torres Strait Islander women are also significantly over-represented in the remand population, meaning that Aboriginal and Torres Strait Islander women may be less likely to be granted bail by the court than non-Indigenous people.^[5] In fact, Aboriginal and Torres Strait Islander women were 15.7 times more likely to be in prison on remand than non-Indigenous women—an over-representation ratio even higher than that of Aboriginal and Torres Strait Islander men to non-Indigenous men (10.9).^[6]

11.9     This rate of over-representation is a persistent and growing problem. Since 2006, the rate of imprisonment of Aboriginal and Torres Strait Islander women increased from 365.8 per 100,000 adult Aboriginal and Torres Strait Islander females in 2006, to 464.8 per 100,000 in 2016.^[7]

11.10  Aboriginal and Torres Strait Islander incarceration has been characterised by:

• low-level offending including justice procedure offences and failure to pay a fines);
• prior incarceration; and
• short terms of imprisonment.^[8]

11.11  Aboriginal and Torres Strait Islander female prisoners are disproportionately more likely than their non-Indigenous counterparts to:

• be mothers and primary care givers of children;
• have experienced family violence and sexual abuse;
• 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]

11.12  In their 2017 Report the Human Rights Law Centre and Changing the Record asserted that:

These realities drive the over-representation of Aboriginal and Torres Strait Islander women in Australian criminal justice systems. They stem from the oppression, violence, trauma and discrimination associated with colonisation, transmitted through generations. In effectively punishing Aboriginal and Torres Strait Islander women for extreme disadvantage, the criminal justice system perpetuates and institutionalises discrimination and inequality.^[10]

11.13  Although the lack of reliable and cross-comparable data in relation to offending and incarceration is an issue affecting Aboriginal and Torres Strait Islander people generally, it is an issue that particularly hinders accurate assessment of the needs and pathways of Aboriginal and Torres Strait Islander female offenders.^[11] This has been a longstanding problem. In 2002 and in 2004, the Aboriginal and Torres Strait Islander Social Justice Commissioner stressed that the paucity of data in relation to Aboriginal and Torres Strait Islander female offending had rendered them ‘invisible’ in the criminal justice system.^[12]

11.14  Although now beginning to improve, data analysis in relation to Aboriginal and Torres Strait Islander women has been particularly hampered because publicly available data may not disaggregate Aboriginal and Torres Strait Islander women from men, or Aboriginal and Torres Strait Islander women from non-Indigenous women.^[13]

11.15  Legal Aid WA raised concerns around the failure of existing data on Female Aboriginal offenders ‘to consider Aboriginal women as a separate group with a unique set of circumstances and needs’ where analysis of that data ‘tends to focus on Aboriginal people or gender as a group, yet rarely the intersection of the two’.^[14]

11.16  Even where data is collected in a disaggregated way, it may not be cross-comparable with other jurisdictions because of the way in which the data has been collected, differences in statutory definitions, or differences in the way in which criminal justice processes operate.^[15] This lack of consistency between jurisdictions can make comparisons difficult, and contributes to the lack of evidence-based solutions in relation to Aboriginal and Torres Strait Islander women.^[16]

11.17  Limitations of data are further discussed in Chapter 3. The importance of consistency in data collection and of empirical evidence and evaluated programs form key features of Aboriginal Justice Agreements and criminal justice targets. These are further discussed in Chapter 16.

11.18  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.^[17] The links between entrenched disadvantage, including social, cultural and economic forms, and increased rates of criminal justice contact, are well-established.^[18] A cycle of ongoing disruption—caused partly by repeated low-level offending and short terms of incarceration—can exacerbate existing disadvantage and make it extremely difficult for a female offender to reintegrate into her community.^[19]

Family violence and sexual abuse

11.19  Aboriginal and Torres Strait Islander women are frequent victims of crime, particularly interpersonal or violent crime.^[20] Female Aboriginal and Torres Strait Islander prisoners are likely to have been victims of crime themselves, particularly family violence and sexual abuse.^[21] 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 were survivors of family and other violence.^[22] A New South Wales study in 2014 revealed that 70% of the Aboriginal and Torres Strait Islander female prisoners disclosed they were survivors of child sexual abuse, with 44% subject to ongoing sexual abuse as adults and 78% experiencing violence as adults.^[23] The National Association of Community Legal Centres submitted similar data on the rates of sexual abuse and assault of Aboriginal women in prison in NSW.^[24] A  study of Victorian female prisoners found 87%  were victims of sexual, physical or emotional abuse, with most having suffered abuse in multiple forms.^[25]

11.20  The prevalence of family violence in Aboriginal and Torres Strait Islander communities, and the damaging effects of family violence and sexual abuse have been recognised as key drivers of the incarceration of Aboriginal and Torres Strait Islander men and, increasingly, women.^[26] Family violence has been described as cyclical and intergenerational.^[27] 

11.21  Research suggests that Aboriginal and Torres Strait Islander women are up to 35 times more likely to experience domestic and family violence than non-Indigenous Australian women^[28] and that Aboriginal and Torres Strait Islander women and girls are 31 times more likely to be hospitalised due to domestic and family violence-related assaults compared to non-Indigenous women and men.^[29]

11.22  Aboriginal and Torres Strait Islander women face many barriers when attempting to access the justice system.  The National Family Violence Prevention Legal Services (NFVPLS) submitted:

[F]rontline experience demonstrates that Aboriginal and Torres Strait Islander women face a wide array of complex and compounding barriers to accessing support, including the reporting of family violence. Those barriers include:

• a lack of understanding of legal rights and options and how to access advice and support;

• mistrust of mainstream legal, medical, community and other support services and their ability to understand and respect the needs and wishes of Aboriginal and Torres Strait Islander women;

• a lack of cultural competency and experiences of direct or indirect discrimination across the support sector, including by police and other agencies such as child protection;

• a lack of access to interpreters or support for people with low levels of literacy;

• fear of child removal if disclosing experiences of violence and/or risk of criminalisation;

• particular cultural or community pressures not to go to the police, such as perceived threats to cultural connection (especially for children) or to avoid increased criminalisation of Aboriginal and Torres Strait Islander men; and

• poverty and social isolation.^[30]

11.23  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,^[31] 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’.^[32]

11.24  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—addressing the prevalence of family and sexual violence in Aboriginal communities must be a priority and involve targeted trauma-informed responses including culturally competent supports and interventions. As the Human Rights Law Centre and Change the Record Coalition have stated, ‘[r]esponding effectively to violence against Aboriginal and Torres Strait Islander women will address one of the key underlying drivers of women’s offending, which should in turn lead to less women in the justice system, both as victim/survivors and offenders’.^[33]

11.25  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 and other treatments and supports in what is often a relatively short prison episode.^[34] Short sentences are further discussed in Chapter 7, while a greater exploration of the effects of prison environments on Aboriginal and Torres Strait Islander women is discussed below. 

11.26  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.^[35]

11.27  The 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.^[36] The impact of fines on the incarceration of women is discussed in Chapter 12. 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.^[37] A discussion on the development of criminal justice targets is included in Chapter 16.

Mental health and cognitive impairment

11.28  Rates of psychological disability for Aboriginal and Torres Strait Islander women are more than double that for Aboriginal and Torres Strait Islander men.^[38] 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.^[39] 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.^[40]

11.29  Female Aboriginal and Torres Strait Islander offenders also commonly have histories involving substance abuse.^[41] 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.^[42] Aboriginal and Torres Strait Islander women who are survivors of family violence are also more likely to experience mental illness and cognitive impairment.^[43]

11.30  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 over-represented in multiple areas of disadvantage compared to men—be they Aboriginal and/or Torres Strait Islander or otherwise.^[44] These include rates of: complex needs; out-of-home care; police contact; remand episodes; homelessness; and victimisation.^[45] 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.

11.31  National Aboriginal and Torres Strait Islander Legal Services (NATSILS) submitted to this Inquiry that:

A substantial number of Aboriginal and Torres Strait Islander women are entering the criminal justice system with an undetected disability. Aboriginal and Torres Strait Islander women with cognitive impairment have some of the highest rates of the criminal justice system of any social group, and are significantly over-represented compared to men. Experiences of disability and poor mental health must be a central focus of the development of culturally safe diversionary options.^[46]

11.32  The criminal justice system is poorly suited to respond to complex needs arising from mental illness, disability, acquired brain injury 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 Aboriginal and Torres Strait Islander women to become incarcerated in the first place.^[47] This is particularly the case for cognitive impairment, which remains chronically undiagnosed and largely misunderstood. This is further explored in Chapter 10 that looks at access to justice issues.

Poverty and homelessness

11.33  Poverty and homelessness is a significant factor in the lives of many Aboriginal and Torres Strait Islander women who are incarcerated where: 

Poverty has been shown to magnify the detrimental effect that minor offending has on an offender. The Top End Women’s Legal Service Inc noted:In 2015-16, around 60 percent of TEWLS clients were experiencing or at risk of experiencing domestic and family violence; over 60 percent were on a low or nil income; and over 20 percent identified having a disability and/or mental illness. Additionally, in 2015-16, TEWLS provided double the amount of advices as the previous year, and triple the amount of casework, with women still being referred out due to capacity constraints.^[48]

11.34  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. The negative impact of fines, including offensive language offences and driving offences, is discussed in Chapter 12.

11.35  Sisters Inside suggested a link between poverty, homelessness and criminal behaviours stating:

Poverty, homelessness and social exclusion are also drivers of criminalisation and imprisonment for women. The Newstart Allowance is the only source of income for many criminalised women prior to and after their imprisonment. The Newstart Allowance has not increased in real terms (i.e. greater than CPI) since 1994.^[49]

11.36  NATSILS submitted: 

Homelessness and poverty increase the chances of individuals entering the criminal justice system. It is necessary for legal frameworks to support those who experience homelessness rather than further marginalise and criminalise experiences of homelessness. Additional support services are required to ensure the availability of accommodation options and stable housing to meet certain community based orders. Disconnection from country and culture, and the inter-generational effects of historic treatment of Aboriginal and Torres Strait Islander people, plays a role in the over-representation of Aboriginal and Torres Strait Islander people in prison.^[50]

11.37  The interaction of Aboriginal and Torres Strait Islander female disadvantage and incarceration was also described by the Human Rights Law Centre and Change the Record Coalition, reporting ‘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’.^[51]

11.38  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 the safeguard of judicial oversight.^[52]

11.39  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.^[53]

11.40  Homelessness or a lack of stable accommodation can be a criminogenic factor for Aboriginal and Torres Strait Islander women that is often elevated on release from prison—adding to the likelihood of reoffending. This in turn may put children at a high risk of entering the child protection system.^[54]

11.41  Aboriginal and Torres Strait Islander women are the least likely of any group within prisons to be able to find appropriate accommodation upon release from incarceration—particularly where they have dependent children.^[55] A study of NSW and Victorian Aboriginal and Torres Strait Islander female prisoners released between 2001–2003 found that:

• none of the women was 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.^[56]

11.42  Legal Aid NSW highlighted accommodation issues for Aboriginal and Torres Strait Islanders upon release from prison, drawing attention  to the following case study:

Case Study: Kayla

Legal Aid NSW assisted Kayla, an Aboriginal woman leaving custody. She advised us that many years earlier she had left social housing because of domestic violence, and became homeless. She applied for social housing at the Department of Housing, indicating that she left her previous tenancy because of domestic violence. Despite this, her application was refused because of a debt she owed to the Department. She was not advised of her right to appeal this refusal. She was given 28 days of emergency housing. She was subsequently homeless for six years and did not have her children with her during that period. She was physically and sexually assaulted during this time. Eventually, she was convicted of criminal offences and incarcerated.^[57]

11.43  The Law Council of Australia suggested:

Access to adequate housing is a growing and serious issue in Australia. Aboriginal women exiting prison who have children face extreme difficulty in establishing a home where they can live with their children post-release. Children of imprisoned parents are at a higher risk of homelessness and disrupted childhoods than other young people. International human rights law recognises that every person has the right to adequate housing. Article 11 of the International Covenant on Economic, Social and Cultural Rights, which Australia is a party, states: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realisation of this right”.

There is strong evidence that indicates the best solutions are to invest in health and housing support services, so that there is an adequate safety net for people who are vulnerable. Without adequate housing Aboriginal women may be forced into homelessness, making them particularly vulnerable to violence and to police interference, harassment and re-arrest for public order offences.^[58]

11.44  Josephine Cashman highlighted the need for increased funding for housing and other infrastructure especially in remote communities:

A 2015 infrastructure audit of the 73 largest remote Indigenous communities in the NT found that less than 50% had mobile and data services. Only 26% had standard town planning regimes, less than 50% had a permanent police presence, and housing met only 60% of demand. Nearly all had no sea transport services, ensuring that communities in the north are inaccessible by land for half the year due to flooding. The impact of this lack of infrastructure is devastating for Indigenous communities. In the worst affected areas, overcrowding is at a rate of 19 adults and children per room. The solution is to build enabling environments across remote Australia. This will require large investments over coming decades.^[59]

11.45  In their report on Koori women in the criminal justice system, the Victorian Equal Opportunity and Human Rights Commission suggested that 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.^[60] Strategies that aim to address the offending of Aboriginal and Torres Strait Islander women should be responsive to the numerous reasons why Aboriginal and Torres Strait Islander women become involved in the criminal justice system and the multiple layers of disadvantage they face. This suggests that programs and services must take a trauma-informed and culturally appropriate approach.

11.46  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.^[61]

Prison is a stressful and traumatic experience for many Aboriginal and Torres Strait Islander women, most of whom have significant histories of trauma. It disconnects women from children, family, community and country. The unnecessary imprisonment of a growing number of Aboriginal and Torres Strait Islander women contributes to the dislocation and fragmentation of families and communities, when action to strengthen communities is needed.^[62]

11.47  Programs developed for Aboriginal and Torres Strait Islander men do not necessarily transpose to Aboriginal and Torres Strait Islander women—each group having different needs.^[63] 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.^[64]

11.48  Dr Vickie Hovane, Dorinda Cox and Professor Harry Blagg described a systemic failing of the criminal justice system, where programs delivered to Aboriginal peoples, particularly Aboriginal women, are not designed by Aboriginal people and particularly not by Aboriginal women, thus failing to meet their needs:

Inter-generational trauma impacts on all Aboriginal families and communities. It impacts on individuals, families, communities and cultures.  For Aboriginal people, it is a collective consequence of colonisation rather than simply an individual experience. It is compounded by negative contact with the justice and related systems, such as children’s protection.  Because this trauma impacts across all levels of Aboriginal society, there is a need for a holistic and life-span approach to addressing the issue. Such an approach starts as a minimum from pre-birth through to later-life.  It aims to reduce the incidence of issues such as foetal alcohol spectrum disorders (FASD) as a result of maternal substance use, low birthweight due to poverty, and other impairments among children being born into Aboriginal families.  Such an approach should also respond to the traumatising impacts of processes such as the Stolen Generations on the health and wellbeing of individuals, families and communities, across generations.  These are all symptoms of the profound intergenerational trauma experienced by Aboriginal people.

Mainstream approaches and programs, particularly those relying on cognitive behavioural therapeutic techniques have only limited value for responding to intergenerational trauma among Aboriginal people including those who are imprisoned. It is time for a paradigm shift that requires investment in Aboriginal led, designed and managed initiatives. The current system has been designed by White people for White people. More specifically, it is designed by White men for White men – Aboriginal women are particularly disadvantaged because of this. ^[65]

11.49  Dorinda Cox further suggested failings in the way in which diversionary programs are delivered:

Many of the Aboriginal women are hyper vigilant due to their trauma and medication is used for behavioural management, rather than having culturally led therapeutic responses these should be lead by Aboriginal organisations and workers to engage with Aboriginal women on their specific needs across remand, sentenced and pre-release facilities… Mapping the journey into, through and post release from the justice system is critical in understanding the challenges, barriers and experiences to build a new system that enables diversionary away from the current high levels of Aboriginal women in prison and to be responsive to the transmission of intergenerational trauma of Aboriginal people and communities.^[66]

Police responses

11.50  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 people and their communities.^[67]

11.51  The ALRC recognises that police practices, and police and community relationships, have much improved over recent years. However, a number of stakeholders emphasised that issues remain, suggesting in particular, that Aboriginal and Torres Strait Islander women are over-policed as offenders,^[68] while also being under-recognised as victims of crime. Queensland Law Society stated:

‘police practices that contribute to stereotyping First Nations women as violent and/or untrustworthy or criminal may contribute to the increase of criminalisation and over­representation of Aboriginal and or Torres Strait islander women in the criminal justice system.’^[69]

11.52  The Australian Institute of Criminology has identified a combination of factors underlying the deep mistrust of police by some Aboriginal and Torres Strait Islander women. 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.^[70] The ALRC acknowledges the views of many stakeholders that, while 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. In their Report, the Human Rights Law Centre and Change the Record  Coalition suggested that to better address family violence in Aboriginal and Torres Strait Islander communities:

…Police must come to understand and be responsive to the justified distrust Aboriginal and Torres Strait Islander women have in police and the high rates of violence and trauma in many women’s lives. Addressing institutionalised patterns of behaviour is no easy task. There is however, a clear need for police protocols that require officers to prioritise responding to Aboriginal and Torres Strait Islander women’s victimisation. There is also an urgent need for training and recruitment practices that ensure appropriate responses to Aboriginal and Torres Strait Islander women and that promote Aboriginal and Torres Strait Islander women’s participation.^[71]

11.53  Because family violence contributes significantly to the factors that contribute to offending—including child removal, homelessness, poverty, poor physical and mental health and substance misuse—the way police respond to family violence incidents can have a significant impact on women’s offending and incarceration.^[72]  

11.54  Historical and ongoing processes of colonisation provide important context for the way in which police respond to family violence within Aboriginal and Torres Strait Islander households and communities and the way those communities in turn perceive that police response.^[73]  Factors identified as particularly affecting contemporary police responses in relation to family violence include the historical role of police in child removals and the deaths in custody of Aboriginal and Torres Strait Islander men—as well as a history of police responding poorly when Aboriginal and Torres Strait Islander women report family violence.^[74]

11.55  One of the key challenges facing police in relation to family violence affecting Aboriginal and Torres Strait Islander households and communities is under-reporting. An Australian Institute of Criminology (AIC) 2010 review highlighted research that suggested up to 90% of violence against Aboriginal and Torres Strait Islander women goes unreported to police.^[75]

11.56  The AIC found that although there are structural barriers affecting the reporting of family violence generally (including perceptions of inadequate justice system responses), fear and distrust of police and the justice system is a factor particularly affecting the reporting of family violence by Aboriginal and Torres Strait Islander women.^[76] Antoinette Braybrook suggested that Aboriginal victims/survivors of family violence face significant impediments to reporting and seeking support for family violence including:

lack of understanding of legal rights and options and how to access supports when experiencing family violence poor police responses and discriminatory practices within police and child protection services community pressure not to go to the police in order to avoid increased criminalisation of Aboriginal men.^[77]

11.57  In her 2016 address to the National Press Club, Jacinta Price outlined the many difficulties with respect to Aboriginal and Torres Strait Islander people making complaints to police in relation to family violence and abuse:

I could spend days giving examples of acts of family violence that I have been witness to or learned of within my own family in remote communities … Where I am related to both victim and perpetrator and where the kinship network demands loyalty to your family members even if they are a perpetrator. One is expected to pretend that these perpetrators are decent human beings and ignore the fact that they have committed acts of physical and sexual violence towards those you love. Because to speak the truth is to create conflict. So from early in life, everyone learns to lie to keep the peace—which manifests into child and youth suicide and the continuation of a destructive cycle. I have given just a glimpse of examples of violence that some Aboriginal women experience. The number of deaths due to homicide that have impacted my family is in the hundreds. And in the NT alone for Aboriginal families it is in the thousands. But this epidemic is not only occurring in remote areas but within urban Aboriginal communities as well. The code of silence that victims live in blankets both remote and urban Australia.^[78]

11.58  Stakeholders to this Inquiry noted the barriers to reporting family violence including: a lack of understanding of their legal rights and options; mistrust of mainstream legal and other services; fear of child removal if they disclose experiences of violence and/or the risk of criminalisation; and cultural or community pressures not to go to the police.^[79]

11.59  The NFVPLS assessed that:

… a combination of preventative education, community engagement, support services and legal assistance (as both early intervention and response) are all crucial parts of the continuum of services to address and reduce family violence against Aboriginal and Torres Strait Islander women and children …^[80]

11.60  Josephine Cashman noted benefits arising from supports around the reporting of family violence, submitting that where ‘victims are supported and encouraged to report violence, the act of reporting itself works to deter offenders and potential offenders by signalling intolerance for this criminal behaviour’.^[81]

11.61  A number of stakeholders also voiced concerns about calls to minimise police involvement as a response to the issue of over-policing. Commenting on the Third Action Plan to Reduce Violence Against Women (implemented as part of the National Plan to Reduce Violence against Women and their Children 2010–2022), Professor Marcia Langton stated:

It recommends that cases of violence against Indigenous women and children should be dealt with, and I quote, through ‘activities that provide wraparound, case-managed support for families, and encourage behavioural change without resorting to police or courts’. Indigenous women who are involved in ending the violence against us are asking this question: Why would the Third National Action Plan to end Violence recommend that police and courts not be involved in the rising tide of violence against us? What about the rule of law, so highly valued by all major political parties and the bedrock of Australian society? I am calling it ‘drinking the Kool Aid’.^[82]

11.62  Josephine Cashman has expressed similar views on this aspect of the Third Action Plan and suggested that ‘Forcing victims to resolve crimes perpetrated against them without going to the police will do nothing but feed the destructive culture of silence that allows criminals to gain power over communities through fear, and further normalise criminal behaviours’.^[83]

11.63  These stakeholders were strongly of the view that a core problem for Aboriginal and Torres Strait islander women and their families is a lack of police responsiveness to the experience of Aboriginal women experiencing violence. ^[84]

11.64  Under-reporting of family violence to police can have a negative impact on victims and can increase their own offending and subsequent incarceration. However, many stakeholders to this Inquiry also spoke of the other side of policing, the over- policing of certain types of offending. With respect to over-policing, the evidence indicates that Aboriginal and Torres Strait Islander women are more likely to be charged and arrested for public order offences and other forms of minor offending than non-Indigenous women.^[85] These offences include 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.^[86] AMT is discussed in Chapter 13.

11.65  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.^[87]

[F]ive of the females were detained for drunkenness, three for unpaid fines, one for driving without a licence and while under the influence of alcohol, and one for indecent language. [Ms] O’Rourke (the juvenile) was detained while arrangements were being made to return her to Sydney because she did not want to return to her most recent foster care placement.^[88]

11.66  More recently, the death of Ms Dhu in custody in Western Australia (WA) illustrated 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 Ms Dhu would have had to ‘spend four days in custody unless outstanding fines …were paid’.^[89]

11.67  This case illustrates the failure of police to empathetically respond to the circumstances of an Aboriginal woman experiencing family violence. Ms Dhu died in police custody of complications from an infected rib fracture—an injury sustained in a family violence incident—after repeated failure by officers to provide access to adequate medical care. As was noted by the Human Rights Law Centre, this failure was largely rooted in the false assumption by police officers that Ms Dhu was withdrawing from substance addiction, rather than the victim of a family violence incident:

Despite repeated requests and cries for help by Ms Dhu, police and health professionals responded woefully inadequately to her rapidly deteriorating health over the three days she was in police custody. Their assessment of her condition was infected by an erroneous assumption made early in her imprisonment that her behaviour was the result of drug withdrawal. This resulted in a cascading series of errors and ultimately, her tragic and avoidable death. The conduct of police was described by the Coroner as ‘inhumane’ and ‘unprofessional’.^[90]

11.68  A further case of Ms Mitchell, a 22-year old pregnant Aboriginal woman with two small children, also illustrates how over-policing and harsh use of officer discretion can further contribute to distrust and fear of police. Ms Mitchell was charged with a serious fraud offence for travelling as an adult on a child’s ticket when a lesser and more appropriate infringement notice offence was available to officers. On appeal following her refusal of bail, the Supreme Court of Victoria noted:

[O]ver policing of Aboriginal communities and their overrepresentation amongst the prison population are matters of public notoriety. In this case I regard the use of s 82(1) of the [Crimes Act 1958 (Vic)] (obtaining financial advantage by deception) to charge an adult for travelling on a child’s ticket as singularly inappropriate.^[91]

11.69  Previous research has highlighted that poor police responses can involve minimising or dismissing Aboriginal and Torres Strait Islander women’s experiences of family violence, or reflects a focus on their perceived criminality rather than their victimisation.^[92] As the Human Rights Law Centre noted:

There is a long history of over-policing of Aboriginal and Torres Strait Islander communities, including high numbers of Aboriginal and Torres Strait Islander women being picked up for very low level offending, like the use of offensive language. At the same time, there is a history of police responding poorly to Aboriginal and Torres Strait Islander women who experience violence. Many Aboriginal and Torres Strait Islander women understandably hold a deep distrust of the police…The trauma of repeated victimisation combined with deep distrust of police can shape the way that women behave when police do intervene. There is a history of police, the majority of whom are non-Indigenous and male, viewing Aboriginal and Torres Strait Islander women’s responses to violence as atypical and ‘difficult’.^[93]

11.70  These poor responses include documented cases 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.^[94]  Sisters Inside submitted:

[W]e are seeing rising rates of Aboriginal and Torres Strait Islander women charged with breaches of domestic violence protection orders, often in circumstances where the police (rather than the intimate partner) have applied to impose the order. The criminalisation of Aboriginal and Torres Strait Islander women for acts of domestic violence is unacceptable and totally inconsistent with the evidence that women and children are disproportionately survivors of violence.^[95]

11.71  Legal Aid NSW drew attention to their experience of police failing to correctly identify the primary perpetrator of family violence:

Celia was the victim of violence from Harry over a 20 year relationship. They have a child together … There was an incident at their home and police were called. Harry claimed that Celia scratched his face. Police charged Celia with assault occasioning actual bodily harm and intimidation and applied for an ADVO [Apprehended Domestic Violence Order] against Celia. Celia was required to leave the home and could not see her child.

Celia disclosed to the DVU [Legal Aid NSW Domestic Violence Unit] lawyer that she has actually been the victim of serious physical and sexual violence by Harry for years. Celia said that on the night in question, Harry had punched her and tried to take her phone to stop her from calling police. Celia feared for her life and defended herself … DVU represented Celia in defence of the criminal charges and the ADVO. The evidence confirmed Celia’s injuries to her face; and the Triple 000 calls were played in court. The court accepted Celia’s account of violence and dismissed the charges and the ADVO application.^[96]

11.72  These police responses help explain the distrust and fear that many Aboriginal and Torres Strait Islander women feel in relation to reporting family violence to police. These responses may also help explain why Aboriginal and Torres Strait Islander women are more likely than their non-Indigenous counterparts to be charged and imprisoned for ‘acts intended to cause injury’— where in some cases resorting to violence may be seen as the only feasible means of defending themselves and their children against a violent partner.^[97]

Positive police responses

11.73  As noted above, more consistent and higher quality police responses to Aboriginal and Torres Strait Islander women experiencing family violence could dramatically influence the incidence of their imprisonment—because family violence is a key driver of criminogenic factors such as substance abuse, contact with the child protection system and unresolved trauma.

11.74  The Human Rights Law Centre noted the importance of police discretion in diverting Aboriginal and Torres Strait Islander women out of further involvement with the criminal justice system:

Community-based prevention and early-intervention measures offer significant potential to reduce the number of Aboriginal and Torres Strait Islander women entering the criminal justice system in the first place. … The criminal justice system must be responsive to Aboriginal and Torres Strait Islander women’s interests and strengths if it is to contribute to the broader goal of reducing imprisonment rates. There are a number of points at which police and courts make decisions that can dramatically alter women’s lives. These points present an opportunity to help women transition onto a more positive trajectory.^[98]

11.75  Just Reinvest NSW submitted that community ownership is important in successful police responses to family violence and highlighted the Bourke Tribal Council’s Growing our Kids up Safe Smart Strong example:

The program involves the police visiting the home of perpetrators of domestic violence following a DV incident with a member of the community for a check-in – the purpose of the visit being both supervisory and supportive. The police and the Aboriginal community in Bourke worked together in partnership to reduce family violence. In doing so they created an environment of support for families. Repeat Victim Assaults have reduced from 45 in the second half of last year, to a total of 28 in the first half of this year.^[99]

11.76  The Aboriginal Legal Service (ALS) NSW/ACT supplementary submission^[100] also supported genuine community engagement and involvement in police responses to family violence:

With respect to community engagement, participants strongly emphasised the importance of community policing approaches. This includes, among other things, frontline police attending cultural events and programs in their communities. This is necessary to combat perceptions of police in the community as only responding to ‘bad’ situations. Participants suggested that the police place particular emphasis on attending schools and educating children, to demonstrate that they are good community role models and potentially demonstrate policing as a viable career.

In relation to family violence in Aboriginal communities, participants suggested that police work with the whole family, not only victims or perpetrators. Additionally, participants suggested police act proactively through ongoing engagement with families in which violence may be in issue. This would improve perceptions of police and increase trust placed in the police by the community to effectively respond to incidents if they occur.^[101]

11.77  The Change the Record Coalition also stressed the value of engagement with Aboriginal and Torres Strait Islander family and community services in responding to family violence—and pointed to the Victoria Police ‘e-learning package’ as a successful product of this type of engagement:

Police need to be less confrontational in their approach to taking out intervention orders on behalf of family violence victims and need to better understand the complexities of Aboriginal communities when dealing with family violence. Engaging other services to support family violence victims during this period is crucial. It is preferable that Aboriginal services be engaged or police should explore with the client and family which services have previously worked or if there are any particular support workers that the victim or family would prefer to engage…The Victoria Police e-learning package, developed in response to recommendations of the Victorian Royal Commission into Family Violence, is one example of a positive initiative taken to improve police responses to Aboriginal and Torres Strait Islander victims/survivors of family violence. Part of the success of this initiative was its close consultation with and inclusion of Aboriginal community members and Aboriginal Community Controlled Organisations. The e-learning package is compulsory for all levels of the police force and, to date, it has been completed by 11,700 police officers across Victoria. It is just the first step in the development of a new family violence education framework and creation of a family violence centre of learning within Victoria Police in order to implement recommendations of the Royal Commission into Family Violence.^[102]

11.78  Sisters Inside preferred a locally-driven response to violence within regional and remote Aboriginal and Torres Strait Islander communities, but did not support diversion of funds to police-community programs:

Rather than relying on police, communities must be funded and supported to develop local, Indigenous-controlled responses to violence. Additionally, funding should be made available for appropriate crisis accommodation and related support services to allow women and children the choice to leave dangerous situations…We do not support diverting funds from direct investment in Aboriginal and Torres Strait Islander communities and organisations to “community” programs operated by the police.^[103]

11.79  The NSW Bar Association encouraged police to extend their involvement with Aboriginal and Torres Strait Islander communities by entering ‘into genuine and meaningful collaborations with communities to reduce family violence, such as the Domestic Violence Home Visiting Program in Bourke’.^[104]

Diversion programs

11.80  Diversion programs involve initiatives that seek to divert offenders from the criminal justice system and may include ‘treatment, healing, family support, education and training programs that target the root causes of offending’ as well as ‘restorative justice processes … that aim to directly engage the offender with the consequences of their offending and repairing the harm’.^[105]

11.81  Many stakeholders to this Inquiry have urged that diversion initiatives and responses to Aboriginal and Torres Strait Islander female offending and incarceration be underpinned by the demonstrated strengths of Aboriginal and Torres Strait Islander women. The Australasian Institute of Judicial Administration has observed that diversion initiatives and programs that are effective for non-Indigenous women or Aboriginal and Torres Strait Islander men may be ineffective or even detrimental to Aboriginal and Torres Strait Islander women.^[106] Vickie Hovane, Dorinda Cox and Harry Blagg submitted that:

Mainstream approaches and programs, particularly those relying on cognitive behavioural therapeutic techniques, have only limited value for responding to intergenerational trauma among Aboriginal people including those who are imprisoned. It is time for a paradigm shift that requires investment in Aboriginal led, designed and managed initiatives.^[107]

11.82  Commissioner for Children and Young People WA suggested: 

There is a strong need for a range of diversionary programs tailored to the needs of young female offenders and those at high risk of offending. As young female offenders represent only a small proportion of young offenders they are often overlooked for dedicated programs and services, however their high vulnerability for harm and exploitation must be recognised and given due attention….  young females who participated in my office’s youth justice consultation identified the need for culturally appropriate programs and services to better support their mental health, wellbeing and education needs and their overall rehabilitation. More could also be done to make legal services more accessible to young Aboriginal women by ensuring they are culturally secure, including being delivered by Aboriginal people and organisations, being safe and confidential and providing access to interpreters where required.^[108]

11.83  Despite the lack of evidence generally in terms of ‘what works’ in relation to Aboriginal and Torres Strait Islander women to reduce and mitigate the effects of contact with the criminal justice system, some key principles have been identified.^[109] The Law Council of Australia suggested that diversion programs for Aboriginal and Torres Strait Islander offenders should:

• be culturally and gender specific;
• draw on community knowledge in their design and delivery;
• recognise the significant role of Aboriginal and Torres Strait Islander women in family and community life;
• ensure Aboriginal and Torres Strait Islander women ‘have a stable base—especially in regards to safe and secure housing’;
• allow Aboriginal and Torres Strait Islander women ‘to be with their children and support families to rebuild;
• deal with experiences of violence, trauma and victimisation—and secondary consequences of these;
• promote and strengthen connection to culture;
• support Aboriginal and Torres Strait Islander women to navigate the complex and fragmented service system; and
• use a wrap-around approach, providing life skills, parenting skills, mental health services, drug and alcohol support and disability support, as required.^[110]

11.84  NFVPLS provided an example of a diversion program specifically designed to meet the needs of Aboriginal and Torres Strait islander offenders:

The Dilly Bag Program is an intensive women’s cultural strengthening program delivered by the Aboriginal Family Violence Prevention and Legal Service (Victoria) that targets Aboriginal women, and has been adapted to work with women on community based orders. The program assists Aboriginal women with recovery from trauma they may have experienced in their lives. Dilly Bag builds on cultural strength and experiences to explore ways to increase self-esteem and enhance emotional, physical and spiritual well-being, which strengthens the ability of Aboriginal women to reduce their vulnerability to family violence. It is a residential program in a community setting that highlights the important roles Aboriginal women play in their community as leaders and nurturers. Dilly Bag was developed in response to an identified gap in therapeutic programs that provide culturally-based healing for Aboriginal women where the program has been developed and delivered for and by Aboriginal women. An external evaluation of the program determined that it has significant beneficial impacts, including increased self-esteem and well-being, strengthened relationships and networks, increased knowledge and understanding of family violence and the supports available, and significant changes to participants’ lifestyles such as living arrangements, matters relating to custody of children and personal care.

11.85  The Northern Territory Government submitted that:

Although there are currently no diversionary options specifically for Aboriginal female offenders in the Northern Territory, the Through-Care program at NAAJA and the Kunga Stopping Violence program through CAALAS offers re-integration support and case management for Aboriginal women who have been sentenced to a term of imprisonment.^[111]

11.86  Where Aboriginal and Torres Strait Islander specific diversion programs do exist, the ALRC has heard that they are commonly offered only to Aboriginal and Torres Strait Islander men and exclude Aboriginal and Torres Strait Islander women, in part due to the much greater total volume of male offenders. Systemic barriers specific to Aboriginal and Torres Strait Islander women include:

• lower rates of admission to police diversions—because diversion options often require an admission of wrongdoing;^[112]
• demand for diversionary initiatives often exceeding supply—particularly in relation to court-based diversionary options;^[113]
• high rates of homelessness and lack of stable housing, compounded by family violence—making it difficult to engage with court and other community-based diversionary initiatives;^[114]
• the likelihood that Aboriginal and Torres Strait Islander women have criminal records than their non-Indigenous counterparts, or be facing multiple charges—making them often ineligible for diversionary options that may exist;
• higher rates of substance abuse and mental health issues—which can make their circumstances too complex for existing diversionary options with strict eligibility criteria; and
• high rates of remand and short sentences, making them ineligible for any programs that may aid in reducing recidivism.^[115]

11.87  The ALRC’s recommendation—that all programs and services delivered to female Aboriginal and Torres Strait Islander offenders within the criminal justice system should take into account their particular needs and be developed with and delivered by Aboriginal and Torres Strait Islander women and be trauma-informed and culturally appropriate—builds on these observations.

What is required is for governments and their agents to trust Aboriginal people to know what is needed and how to respond to the needs of people, families and communities.  What is required is Aboriginal led and responsive, place-based initiatives that are trauma and attachment informed; initiatives which aim to heal families rather than simply focusing on individuals. The need to maintain and rebuild attachments and connections, severed by imprisonment, is critical for the rehabilitation of Aboriginal people, particularly women, and for the health and wellbeing of children and other dependents.^[116]

Prison environments, programs and services

11.88  Many stakeholders raised the failings and inadequacies in the actual prison environment and in particular of the services delivered to Aboriginal and Torres Strait Islander women while incarcerated. Jesuit Social Services described these as:

• Chronic overcrowding leading to pressure on every aspect of prison operations. Overcrowding has led to further housing and facility issues such as limited access to basic amenities including shelter from harsh weather and access to bathrooms

• Failing to prepare women for transition back into the community post‐release because of a lack of access to education and rehabilitation programs

• Limited employment opportunities for women

• The under‐identification of health issues among female prisoners and the consequent lack of access to health care in the facility

• A number of issues relating to basic necessities including food, hygiene, clothing and recreational activities

• Inadequate culturally‐appropriate supports to understand and navigate the prison system, such as induction provided in languages other than English

• Risks to infants and children housed with their mothers in prison under the current arrangements.^[117]

11.89  The experience for women, and particularly Aboriginal and Torres Strait Islander female offenders in prison, is vastly different to that experienced by male offenders. Bartels and Gaffney argue that there are problems in the way in which correctional services are delivered to female offenders: 

A majority of facilities do not specifically cater for female prisoners is due, in part, to the fact that traditionally, the majority of prisoners have been male…. more is required to effectively address the specific issues relevant to women and ensure that correctional policies and practices applied to women are not merely an adaptation of those considered appropriate for men.^[118]

11.90  The experience of incarceration for female prisoners who have been victims of physical and sexual abuse can be especially both difficult and damaging. 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 group.^[119] De-incarceration and women’s prisoner advocate, Debbie Kilroy, has described the effects of prisons on women as follows:

They are based on rigid rules, imposed by authority figures (often in an arbitrary manner), and requiring absolute obedience. Common prison practices, in particular strip-searching, often re-traumatise women with a history of abuse contributing to increased incidents of self-harm. Prison staff typically respond to threatened or actual self-harm, by placing women in isolation – a practice totally contrary to the best medical advice. And, in some jurisdictions, male officers undertake tasks such as inspecting women’s cells at night, observing (often naked) women in isolation cells and participating in strip searches. Far from preparing a woman to return to society, they leave her more vulnerable to ongoing abuse than ever before: 

As a result of even a very short period in prison a woman may lose her housing and employment (if she had these prior to imprisonment).

Many women lose custody of their children – with their children, too often, going into state care. 

Any treatment they were receiving for mental health issues or substance abuse will have been stopped, or, at best, suspended. 

If a woman was participating in education or training, she may permanently lose her place.

Many (particularly women who went to prison unexpectedly) will have accumulated further debts and a poor credit rating, and have lost most of their household items and personal belongings. 

And, women leave prison with a new or extended criminal record which is an added barrier to accessing employment, housing and services.

For women leaving prison, these often appear insurmountable obstacles. Many will engage in self harm, and some will commit suicide. At least 40% will return to prison  —17% within 12 months and 27% within 2 years. (One major study found that 70% of Aboriginal and Torres Strait Islander women returned to prison within 9 months.) The prognosis for their children’s future lives will have similarly deteriorated – particularly if they were taken into care. The lives of most women and their families will be significantly worse than when they first went to prison. It is hardly surprising that many women feel compelled to return to violent relationships following their release.^[120]

11.91  In its submission to this Inquiry, the Criminal Lawyers Association of the Northern Territory pointed to issues related to overcrowding within women’s prisons and the deleterious effects on women prisoners :

The number of Indigenous female offenders and defendants is growing. However, the infrastructure of the criminal justice system is ill-equipped to deal with this. It is an established fact, and commented upon by the judiciary, that there is acute overcrowding in the female sections of the Northern Territory jails, particularly Alice Springs. This has compromised the availability of education programs due to lack of space. It has also led to unrest within the prison population, including recent reports of women inmates fighting over scarce basic necessities such as undergarments.^[121]    

11.92  The Northern Australian Aboriginal Justice Agency submitted that:

In the Northern Territory, female prison facilities are grossly overcrowded. A recent report found that the new Darwin Correctional Precinct, only open in 2016, was already at 3 times the appropriate capacity for women. This needs to be addressed immediately…. as well as overcrowding, facilities need to be culturally appropriate. For example, current procedures for visitations require strip searches, which does not acknowledge that Aboriginal and Torres Strait Islander women in prison are oftentimes survivors of sexual abuse and domestic violence and there is the potential for strip searches to re-traumatise survivors of such violence.^[122]

11.93  Academic Elizabeth Grant noted a shift in approach by some correctional agencies to respond to the needs of Aboriginal prisoners so as to fulfil cultural obligations such as sorry business through the construction of small shelters in which prisoners could gather and grieve.^[123] Drawing on this work, Legal Aid WA submitted that ‘prisons for women should provide a respectful and dignified prison environment where women are empowered to make meaningful and responsible choices’.^[124] It further suggested that services and programs provided to Aboriginal women in prison should reflect Aboriginal culture, traditions and beliefs, including providing outdoor areas for cultural gatherings such as fire pits for the preparation and cooking of traditional foods and shelters in which to gather and grieve.

11.94  The South Australian Legal Services Commission supported what it described as ‘Mother-and-Infant Facilities’ in women’s prisons where the Commission identified such facilities were able to lower the risk of offending, in conjunction with ‘significantly improved outcomes’ for both mothers and children. The Commission raised concerns about the lack of such a facility at the Adelaide Women’s Prison.^[125]

11.95  The National Congress of Australia’s First Peoples (Congress) succinctly outlined the intersect between historic trauma and the prison environment stating:

The damage inflicted on Aboriginal and Torres Strait Islander women can be aggravated by invasive and disempowering prison routines that may trigger past traumas. One such example is strip-searching, in which the woman experiences disempowerment and vulnerability that can be likened to experiences of family violence. Although such routines may play an important functional role in the criminal justice system, Congress stresses that they must be used only where absolutely necessary, and that culturally appropriate measures should be taken to minimise their detrimental effects on Aboriginal and Torres Strait Islander women’s mental health. The intergenerational and ongoing trauma experienced by Aboriginal and Torres Strait women clearly demonstrates that alternative treatment is needed. Congress submits that mainstream service providers are unlikely to cater to the specific needs of Aboriginal and Torres Strait Islander women. Further, programs specifically for Aboriginal and Torres Strait islander women, such as ‘Sisters Inside,’ while successful, do not have the funding or scope to instigate change on a national level.^[126]

11.96  As a means of ameliorating these issues Congress made recommended that more funding be allocated towards developing specialised therapeutic and rehabilitation services specifically for Aboriginal and Torres Strait Islander women.^[127]

11.97  One example of a prison program that seeks to meet the needs of Aboriginal and Torres Strait Islander women was provided by NFVPLS: 

The Prison Support Program (*Name pending) is delivered to Victorian Aboriginal women at the Dame Phyllis Frost Centre and Tarrengower Prison who are survivors of violence or abuse. The program provides culturally safe and holistic support and links women into a range of services and supports to address a broad spectrum of legal and non-legal needs, including for example legal advice for family violence, child protection or victims of crime assistance; family violence counselling, housing, drug and alcohol services, parenting programs and more. The program also facilitates the provision of community legal education to provide information to Aboriginal women in prison about their legal rights and the services available. The majority of the women supported through this program are on remand, and aged between 18 and 34. The program can also support women preparing to exit prison and post-release to ensure women have a network of supports and plans in place to address safety and risk, and reduce vulnerability to further victimisation or criminalisation upon release. Through this program, FVPLS Victoria has seen a profound transformation in many of the women we work with – from an attitude of despair or having given up hope for the future, to one of renewed motivation to address the issues that led to imprisonment.^[128]

11.98  Outlining the barriers to the delivery of programs to Aboriginal and Torres Strait Islander women within prisons, and the difficulties caused to their families through imprisonment, Kimberly Community Legal Services Inc noted:

Aboriginal female prisoners are a cohort in need of particular attention. Many prison programs are unavailable to women due to a lack of female prison staff, and others are not culturally or gender appropriate. Many Aboriginal women prisoners are victims as well as offenders, which is an important consideration in providing appropriate prison programs. Imprisonment of women, and especially of mothers who are the primary carers of children, can cause extraordinary amounts of disruption to family cohesion. Visiting hours for those who are the primary carers of children should be extended to allow for their caretaking responsibilities to be maintained.^[129]

11.99  Prison programs are discussed in more detail at Chapter 9.

Prison for mothers and their children

11.100    Legal Aid Western Australia submitted that ‘most women in prison are mothers and carers. Most are also survivors of physical and sexual violence’^[130]. Some estimates suggest that up to 80% of Aboriginal and Torres Strait Islander female prisoners are mothers,^[131] with 20% of Aboriginal and Torres Strait Islander children nationally experiencing parental incarceration.^[132]

11.101    The effect on imprisonment on women significantly impacts upon their capacity to parent or care for family members as well as impacting upon children. The Human Rights Law Centre noted:

Many women in the justice system care not only for their own children, but for the children of others and family who are sick and elderly. Prosecuting and imprisoning women is damaging for Aboriginal and Torres Strait islander children, who are already over-represented in child protection and youth justice systems.^[133]

11.102    The incarceration of Aboriginal and Torres Strait Islander women can therefore contribute to gaps in ‘parenting, income, child care, role models and leadership’ in their communities,^[134] entrenching future disadvantage.^[135] 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,^[136] but also are at higher risk of ‘developing behaviour problems, experiencing psychosocial dysfunction, experiencing stigmatisation and discrimination, and suffering negative health outcomes’.^[137] 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.^[138]

11.103    In its submission to this Inquiry, the ACT Government acknowledged that the ‘impact of female incarceration can be especially devastating for families where children are involved’.^[139] The Aboriginal Legal Service NSW/ACT noted that,

‘the incarceration of Aboriginal and Torres Strait Islander women has a significant, negative impact on families. This is particularly the case where children are removed while the mother is in custody, and placed in non-Aboriginal care or care that is not on country’.^[140]   

11.104    Dorinda Cox pointed to complexities and trauma experienced by many Aboriginal and Torres Strait Islander women that brings them into contact with the criminal justice system resulting in not only child removal but the perpetuation of intergenerational trauma stating: 

In my observations whilst visiting Aboriginal women in prison they have told me how they have wanted to leave violent relationships and have gone to seek help and refuge only to be flagged in the system as unable or unwilling to protect their children from violence.  This systemic contact results in the removal of the children with more permanent consequences in child placement through government policies. The removal of Aboriginal children from their families and communities, in particular their mothers, has a historical legacy for Aboriginal people. The removal of Aboriginal women from their role in families and communities, further fragments and exacerbates the social and cultural issues that occur in the everyday lives of Aboriginal people.  The immediate consequence for the women on a deeply personal level is the interruption of attachment to their children resulting in transmission of inter-generational trauma and further entrenching cycles of disempowerment, sometimes resulting in multiple generations of Aboriginal women from the same families incarcerated at the same time.^[141]

11.105    The Queensland Law Society drew attention to the need to support Aboriginal and Torres Strait Islander female prisoners who have children, submitting that:

(a)     Incarceration of women has significant implications for families and can lead to family law and child protection issues. Women tend to be primarily caregivers for children and may be the only caregiver in a family. In these circumstances, incarceration can lead to children being placed in out of home care and triggering the entire child protection machinery, which often results in trauma to children, separation from family and community and difficulty achieving reunification. It can also place considerable pressure on extended families.

(b)     The enormous impact of incarceration on women’s family relationships and responsibilities in relation to their children must be considered.

(c)     There are ongoing impacts on the health and wellbeing of women where they have lost their children as a result of their imprisonment. This can lead to destructive and self-sabotaging behaviours, for example, increased drug use to self-medicate, which then leads to further offending to support a drug habit.^[142]

11.106    Dr Vicky Hovane, Dorinda Cox and Professor Harry Blagg pointed to the negative effect upon children and families where often multiple generations of Aboriginal women are removed into prison stating:

Aboriginal women are pivotal in maintaining the health and wellbeing of families. When Aboriginal women are removed from the family structure via imprisonment it creates a massive crisis, affecting a range of dependents, principally children. The crisis is exacerbated when there are multiple generations of women from one family in prisons, as is the case at Bandyup prison in WA.  The ramifications reverberate negatively across the breadth and depth of family and community wellbeing.^[143]

The impact of incarceration on children

11.107    Although this Report is directed to the over-representation of Aboriginal and Torres Strait Islander adults in prison, as noted above, it is important to recognise that they—particularly the women—may be the primary carer of children.

11.108    Given the highly disproportionate incarceration rates of both Aboriginal and Torres Strait Islander men and women, their imprisonment will have a consequentially disproportionate but largely hidden adverse outcome for their children.

11.109    The Human Rights Law Centre has noted:

Many women in the justice system care not only for their own children, but for the children of others and family who are sick and elderly. Prosecuting and imprisoning women is damaging for Aboriginal and Torres Strait islander children, who are already over-represented in child protection and youth justice systems.^[144]

11.110    When exploring the impact of incarceration on children, it is relevant to consider the Convention on the Rights of the Child. Article 3.1 of the Convention provides that ‘In all actions concerning children, whether undertaken by public or private welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.^[145] While the Convention has been ratified by Australia it has not been enacted into domestic law.

11.111    When the primary carer of an Aboriginal or Torres Strait Islander child is in custody (whether on remand or sentenced), there is a considerable risk that the child will be taken into out-of-home care. Such an outcome can arise while the parent is in custody and may continue even after release if the child’s parent is then homeless. The NSW Bar Association made clear this issue pointing out that:

When an Indigenous women is incarcerated, there is often a significant disruption in the family and an increased risk that the children will end up in the child protection system.  The impact of separation of Indigenous children from their families and communities is irrefutable.  The incarceration of Indigenous women, often the primary or sole carers compounds the trauma.  The Bringing Them Home report found that the effects on children of separation from the primary carer can have serious long-term consequences on these children’s lives. Separation of children at a young age results in depression, trust and self worth issues, choice of inappropriate partners, difficulties parenting their own children and unresolved trauma and grief.  This separation fractures families and results in children who are more likely to have disrupted education, poor health and unstable housing.  This ultimately creates conditions entrenching the cycle of disadvantage.^[146]

11.112    The number of Aboriginal and Torres Strait Islander men and women in prison and children in out-of-home care suggests more attention should be given to the Convention and the rights and best interests of the children involved as a primary consideration when courts sentence the primary carer of the child, usually their mother, to a period of imprisonment.

11.113    The New South Wales Bar Association suggested:

When sentencing an Aboriginal or Torres Strait Islander woman to a term of imprisonment, a court must pay particular attention to the impact on her children and any evidence of intergenerational trauma caused by a history of removal and separation.^[147]

11.114    The Crimes Act 1914 (Cth) requires that, in federal sentencing, ‘the court must take into account such of the following matters as are relevant and known to the court: … the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’.^[148] Section 16A(2)(p) would apply to an Aboriginal or Torres Strait Islander offender facing incarceration for a federal offence who has a child or children, especially mothers.

11.115    An approach that considers the ‘probable effect’ on these children could, on a wide reading of the section, be thought to be important to take into account, particularly where the decision about incarceration is finely balanced and involves a less serious offence.

11.116    Such an approach could take into account that many Aboriginal and Torres Strait Islanders, and non-Indigenous offenders, are likely to receive a custodial sentence because they live in a remote area with few sentencing alternatives that would be available to those offenders living in metropolitan or major regional areas.

11.117    The courts have however determined that the application of section 16A(2)(p) would only apply in ‘exceptional’ circumstances.^[149]

11.118    This issue does not solely arise in Commonwealth legislation. For example, in NSW, there is no equivalent provision to s 16A(2)(p). However, it has been established at common law that courts can take hardship to family and dependants into account as a subjective matter in sentencing in State offences but only in ‘highly exceptional’ circumstances where ‘it would be, in effect, inhuman to refuse to do so’.^[150]

11.119    The NSW Court of Criminal Appeal has held that, although the effect of imprisonment on an offender’s family can be taken into account as one subjective circumstance in sentencing, in the absence of exceptional circumstances it cannot be taken into account as a specific matter that results in a substantial reduction or elimination of a sentence’.^[151] Similar considerations apply to people remanded in custody pending trial or sentence.

11.120    The ALRC suggests that the impact that incarceration of a primary care giver has on his or her children—at least in areas of Australia that have inadequate or no alternatives to imprisonment—should be taken into account by sentencing courts As this issue came to attention late in the course of this Inquiry, and was not identified in the Discussion Paper or the subject of detailed consultation, the ALRC does not make a recommendation to address this issue. However, the ALRC suggests that the concerns raised in respect of the impact of incarceration on children are of sufficient importance for governments to consider reviewing the scope and application of the ‘exceptional circumstances’ sentencing consideration. 

10.1     ‘Access to justice’ is an essential element of the rule of law. In essence, access to justice refers to the ‘affirmative steps’ necessary to ‘give practical content to the law’s guarantee of formal equality before the law’.^[1] It refers to the need to ameliorate or remove barriers to access^[2] and ‘must be defined in terms of ensuring that legal and judicial outcomes are just and equitable’.^[3] It is enshrined in art 14 of the International Covenant of Civil and Political Rights (ICCPR).

10.2     This chapter is focused on specific access to justice issues faced by Aboriginal and Torres Strait Islander people appearing as defendants before the criminal justice system. Communication barriers, alienation and disconnection from mainstream court processes, as well as mental illness and cognitive impairment all contribute to the complexity of Aboriginal and Torres Strait Islander legal needs and limit access to justice. In this chapter, the ALRC makes a suite of recommendations targeted at addressing these needs and improving Aboriginal and Torres Strait Islander peoples’ experience with the courts. The ALRC recommends that state and territory governments:

• work with relevant Aboriginal and Torres Strait Islander organisations to establish interpreter services within the criminal justice system where needed, and monitor and evaluate their use;
• establish specialist Aboriginal and Torres Strait Islander sentencing courts in areas and regions where needed that are designed, implemented and evaluated in partnership with Aboriginal and Torres Strait Islander organisations; and
• where a person is found unfit to stand trial, introduce special hearing processes that provide for a fixed term of detention and regular periodic reviews while the person remains in detention.

10.3     The need for adequate resourcing of legal assistance providers is also discussed in depth in this chapter. Access to legal representation and advice is one of the cornerstones of addressing the disproportionate rates of Aboriginal and Torres Strait Islander incarceration. In the absence of legal representation and advice, a defendant may be incarcerated for a range of reasons, including sentencing following an inappropriate guilty plea, a lack of awareness of available defences or pleas in mitigation.