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. The links between entrenched disadvantage, including social, cultural and economic forms, and increased rates of criminal justice contact, are well-established. 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.
Family violence and sexual abuse
11.19 Aboriginal and Torres Strait Islander women are frequent victims of crime, particularly interpersonal or violent crime. Female Aboriginal and Torres Strait Islander prisoners are likely to have been victims of crime themselves, particularly family violence and sexual abuse. 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. 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. 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. A study of Victorian female prisoners found 87% were victims of sexual, physical or emotional abuse, with most having suffered abuse in multiple forms.
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. Family violence has been described as cyclical and intergenerational.
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 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.
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.
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, 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’.
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’.
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. 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.
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. 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. 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. 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. 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.
11.29 Female Aboriginal and Torres Strait Islander offenders also commonly have histories involving substance abuse. 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. Aboriginal and Torres Strait Islander women who are survivors of family violence are also more likely to experience mental illness and cognitive impairment.
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. These include rates of: complex needs; out-of-home care; police contact; remand episodes; homelessness; and victimisation. 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.
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. 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.
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.
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.
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’.
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.
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.
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.
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. 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.
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.
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.
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.
Human Rights Law Centre and Change the Record Coalition, above n 1, 16; Victorian Equal Opportunity and Human Rights Commission, Unfinished Business: Koori Women and the Justice System (2013) 84; Sisters Inside, Submission No 69 to Senate Standing Committees on Legal and Constitutional Affairs, Value of a Justice Reinvestment Approach to Criminal Justice in Australia (March 2013) 4–7.
See, eg, Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) vol 4; Senate Standing Committees on Finance and Public Administration, Parliament of Australia, Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (2016) 126; Senate Standing Committees on Legal and Constitutional Affairs, Parliament of Australia, Value of a Justice Reinvestment Approach to Criminal Justice in Australia (2013) 27–42; Human Rights Law Centre and Change the Record Coalition, above n 1, 16; Drugs and Crime Prevention Committee, Parliament of Victoria, Inquiry into the Impact of Drug-Related Offending on Female Prisoner Numbers: Interim Report (2010) v–vi.
Human Rights Law Centre and Change the Record Coalition, above n 1, 4–5; Victorian Equal Opportunity and Human Rights Commission, Unfinished Business: Koori Women and the Justice System (2013) 88.
Council of Australian Governments, National Plan to Reduce Violence against Women and Their Children 2010–2022 (2011) 1; Productivity Commission, above n 2, 4.98.
Council of Australian Governments, above n 20, 1; Productivity Commission, above n 2, 4.98.
Mandy Wilson et al, ‘Violence in the Lives of Incarcerated Aboriginal Mothers in Western Australia’ (2017) 7(1) SAGE Open 6.
Human Rights Law Centre and Change the Record Coalition, above n 1, 17; Mary Stathopoulos and Antonia Quadara, ‘Women as Offenders, Women as Victims: The Role of Corrections in Supporting Women with Histories of Sexual Abuse’ (Women’s Advisory Council of Corrective Services NSW, 2014) 18.
Mary Stathopoulos and Antonia Quadara, above n 23.
Victorian Equal Opportunity and Human Rights Commission, Unfinished Business: Koori Women and the Justice System (2013).
PwC’s Indigenous Consulting, Indigenous Incarceration: Unlock the Facts (2017) 23.
See, eg, Aboriginal Peak Organisations (NT), Submission No 134 to the Senate Standing Committees on Finance and Public Administration, Domestic Violence in Australia (August 2014) 4; Janet Stanley et al, ‘Causal Factors of Family Violence and Child Abuse in Aboriginal Communities: Exploring Child Sexual Abuse in Western Australia’ (Australian Institute of Family Studies, prepared for the Western Australian Government Inquiry into Responses by Government Agencies to complaints of Family Violence and Child Abuse in Aboriginal Communities, 2002).
National Plan to Reduce Violence against Women and Their Children, Third Action Plan 2016–2019 of the National Plan to Reduce Violence against Women and Their Children 2010–2022 (2016) 1, citing Australian Institute of Health and Welfare, Family Violence among Aboriginal and Torres Strait Islander Peoples (2006).
Productivity Commission, Overcoming Indigenous Disadvantage: Key Indicators 2011—Report (2011) 29.
National Family Violence Prevention Legal Services, Submission 77.
Aboriginal Justice Advisory Council, Holistic Community Justice: A Proposed Response to Aboriginal Family Violence (Attorney-General’s Department (NSW), 2001) 6 as cited in Human Rights Law Centre and Change the Record Coalition 17.
Lorana Bartels, ‘Painting the Picture of Indigenous Women in Custody in Australia’ (2012) 12(2) Queensland University of Technology Law and Justice Journal 1, 11.
United Nations Special Rapporteur on the Rights of Indigenous Peoples, End of Mission Statement by the United Nations Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, on Her Visit to Australia (2017).
Australian Bureau of Statistics, The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander People, Oct 2010, Cat No 4704.0 (2010); Human Rights Law Centre and Change the Record Coalition, above n 1, 18.
Human Rights Law Centre and Change the Record Coalition, above n 1, 18; Victorian Equal Opportunity and Human Rights Commission, Unfinished Business: Koori Women and the Justice System (2013) 33.
Victoria Department of Justice, Koori Prisoner Mental Health and Cognitive Function Study—Final Report (2013) 13.
Victorian Equal Opportunity and Human Rights Commission, Unfinished Business: Koori Women and the Justice System (2013) 77; Sisters Inside, The Over-Representation of Aboriginal and Torres Strait Islander Women in Prison (2013) 3.
Eileen Baldry, ‘Continuing Systemic Discrimination—Indigenous Australian Women Exiting Prison’ in Women Exiting Prison: Critical Essays on Gender, Post-Release Support and Survival (Routledge, 2013) 99–100.
Eileen Baldry et al, A Predictable and Preventable Path: Aboriginal People with Mental and Cognitive Disabilities in the Criminal Justice System (University of New South Wales, 2015) 45.
National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
Human Rights Law Centre and Change the Record Coalition, above n 1, 18.
Top End Women’s Legal Service, Submission 52.
Sisters Inside, Submission 119.
National Aboriginal and Torres Strait Islander Legal Services, Submission 109.
Human Rights Law Centre and Change the Record Coalition, above n 1, 22.
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).
Human Rights Law Centre and Change the Record Coalition, above n 1, 38.
Eileen Baldry et al, ‘Ex-Prisoners, Homelessness and the State in Australia’ (2006) 39(1) Australian & New Zealand Journal of Criminology 8.
Legal Aid NSW, Submission 101. See also Law Council of Australia, Submission 108.
Law Society of Western Australia, Submission 111; Law Council of Australia, Submission 108.
J Cashman, Submission 105.