Aboriginal people have long been over-represented in Australian prisons. While the incarceration rate has increased across the board in the last 20 years, the Aboriginal incarceration rate has skyrocketed. The number of Aboriginal Australians in custody has increased by 88% since 2004, while the non-Aboriginal incarceration rate has risen by 28%. In the Northern Territory over 80% of the prison population is Indigenous, while nationally an average of 18% of prisoners is Indigenous.
Why are level of Aboriginal incarceration so high?
Many factors contribute to the high rate of incarceration among Aboriginal Australians. Among these are poor social conditions, including lack of literacy and English language skills, health problems, poverty and unemployment. Lack of services and infrastructure in Aboriginal communities and the ongoing legacy of colonisation and associated trauma have also been blamed for the high rate of Aboriginal arrests and convictions. Prejudice, over-policing and lack of understanding of cultural issues in the justice system are also said to be contributing factors.
Over the last twenty years, despite an awareness of the problem of Aboriginal incarceration, public pressure on governments to be ‘tough on crime’ has led to legislative reforms which have meant an increase in the number of offenders going to jail both on remand and following sentencing. This is the case across the whole population but it has disproportionately impacted Aboriginal people.
‘Tough on crime’ legislative reform
Until the 1970s, there was a general presumtion in favour of bail. The idea of remand is based on the ‘risk’ of a defendant failing to come back to court to finalise a matter by way of a plea or a hearing. In the last several decades, bail has increasingly been refused and Bail Acts have been amended, creating different categories of offences with different bail presumptions. The overall effect of these changes has been to make it harder for offenders to get bail. There is a significantly higher ratio of prison inmates on remand (compared to sentenced prisoners) today than there was 20 years ago.
A substantial increase in the Aboriginal incarceration rate can be attributed to more Aboriginal people being refused bail.
Mandatory sentencing regimes exist in some form in all states and territories. Mandatory sentencing has the longest history and the harshest operation in the Northern Territory and Western Australia, which are also the jurisdictions with the largest Aboriginal populations. Mandatory sentencing is supposed to ensure that offenders are adequately punished for crimes that the community considers serious. However, when Mandatory Sentencing exists, judicial discretion is fettered. In practice, this can mean that an offender is sentenced to a term of imprisonment even where the judge or magistrate does not consider that the offending warrants a term of imprisonment. In the Northern Territory, mandatory sentencing regimes exist in relation to numerous categories of offences, including aggravated assaults and drug offences.
Aboriginal deaths in custody
In 1991, the Royal Commission into Aboriginal Deaths in Custody handed down its final report. The majority of its recommendations, which included that imprisonment be a sentence of last resort for Aboriginal people, have not be implemented. Since 1991, around 340 more Aboriginal people have died in custody.
During the same period, sections of the Australian prison system have been privatised. The move towards privatisation of the prison system has been controversial and is considered by some to be part of the reason for the rapidly increasing prison population. Critics of private prisons consider them to have a conflict of interest. The objective of prison is supposed to be to rehabilitate offenders, whereas a private company running a business has a vested interest in maintaining the prison population and therefore perpetuating recidivism. Supporters of private prisons argue that they allow the government to speed up the process of building additional prisons to ease prison overcrowding. Private prisons are also said to reduce red tape and allow for improved quality of service.
Prisons operated by private companies are subject to less scrutiny than public prisons. For example, it is very difficult to obtain a private company’s records through Freedom of Information. For this reason, when Aboriginal Elder Ian Ward died of heat-related complications in the back of a paddy wagon in 2008, it was not possible to establish what Global Solutions Ltd knew about the malfunctioning air-conditioning in the paddy wagon
The privatisation of sections of the Australian prison system was started as a ‘trial’. It is not yet clear whether Australia will continue down the path towards prison privatisation, or return to a fully government operated prison system in the future. There is no evidence that there is any correlation between prison privatisation and the increasing Aboriginal incarceration rate.
What is being done to address Aboriginal incarceration?
In all jurisdictions, there have been attempts to rectify the way Aboriginal people are dealt with by the criminal courts. In many states and territories, this has taken the form of a specialist court such as the Koori Court which began operating in Victoria in 2002. In the Koori Court, an Aboriginal person who has committed an offence and is willing to take responsibility for their actions is given the chance to discusses the situation with a number of Aboriginal elders as well as a Magistrate. Legalese is not allowed and the court attempts to determine the most culturally appropriate sentence.
The Koori Court has been found to reduce recidivism and improve justice outcomes for the Koori Community. In 2016, it was rolled out in New South Wales. In Queensland, the Murri Court operates in a similar way. The Northern Territory trialed a specialist court similar to the Koori Court, which was known as the Community Court, but this specialist court is no longer running.
Justice Reinvestment, a model of dealing with crime where funds are directed into prevention rather than punishment, is being rolled out in some communities, notably in the New South Wales town of Bourke and in the ACT. These projects recognise that too many people are being locked up and that incarceration does not solve the problem of crime. They seek to address the causes of crime by supporting vulnerable people to live in the community.