Disproportionate incarceration rate

Although Aboriginal and Torres Strait Islander adults make up around 2% of the national population, they constitute 27% of the national prison population.[1] In 2016, around 20 in every 1,000 Aboriginal and Torres Strait Islander people were incarcerated. Over-representation is both a persistent and growing problem—Aboriginal and Torres Strait Islander incarceration rates increased 41% between 2006 and 2016, and the gap between Aboriginal and Torres Strait Islander and non-Indigenous imprisonment rates over that decade widened.

Aboriginal and Torres Strait Islander women constitute 34% of the female prison population. In 2016, the rate of imprisonment of Aboriginal and Torres Strait Islander women (464.8 per 100,000) was not only higher than that of non-Indigenous women (21.9 per 100,000), but was also higher than the rate of imprisonment of non-Indigenous men (291.1 per 100,000).

In 1991, the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) found that the Aboriginal population was grossly over-represented in custody. It noted that ‘Aboriginal people are in gross disproportionate numbers, compared with non-Aboriginal people, in both police and prison custody and it is this fact that provides the immediate explanation for the disturbing number of Aboriginal deaths in custody’.[2]

The RCIADIC looked at indicators of disadvantage that contributed to this disproportionate representation, including that ‘Aboriginal people were dispossessed of their land without benefit of treaty, agreement or compensation’.[3]

Other indicators identified by the RCIADIC were

the economic position of Aboriginal people, the health situation, their housing requirements, their access or non-access to an economic base including land and employment, their situation in relation to education; the part played by alcohol and other drugs—and its effects.[4]

Over the 26 years since the RCIADIC, multiple resources have been dedicated to remedying the factors identified by the RCIADIC and to reducing the disproportionate incarceration of Aboriginal and Torres Strait Islander peoples.

However, in 2016, Aboriginal and Torres Strait Islander people were 12.5 times more likely to be in prison than non-Indigenous people, and Aboriginal and Torres Strait Islander women were 21.2 times more likely to be in prison than non-Indigenous women.

The submission to this Inquiry from Jesuit Social Services summed up a common assessment: ‘The over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system is a national disgrace’.[5]

While the statistics concerning the disproportionate incarceration of Aboriginal and Torres Strait Islander peoples are alarming, it is important to bear in mind that the majority of Aboriginal and Torres Strait Islander people never commit a criminal offence.

The task of this Inquiry

This Inquiry has one principal but constrained purpose. It is to inquire into the over-representation of Aboriginal and Torres Strait Islander people in prison and develop recommendations for reform of laws and legal frameworks to reduce their disproportionate incarceration.

The ALRC has had regard to the research, reports, inquiries and action plans referred to in the Terms of Reference. They include consideration of the much larger historical, social and economic context that contributes to the disproportionate incarceration rate, which are both a result and a further cause of disadvantage for Aboriginal and Torres Strait Islander peoples.

While it is difficult to disentangle historical, social and economic disadvantage from legal issues that contribute to the incarceration of Aboriginal and Torres Strait Islander peoples, the recommendations made in this Report focus principally on criminal laws and legal frameworks, as required by the Terms of Reference. The ALRC has confined its scope to recommendations relating to the incarceration of Aboriginal and Torres Strait Islander adults.

[1]             Data in this Executive Summary is drawn from, and more fully explained in ch 3.

[2]             Ibid vol 1, [9.4.1].

[3]             Ibid vol 1, [1.4.2].

[4]             Ibid vol 1, [1.3.6].

[5]             Jesuit Social Services, Submission 100.