On Thursday 23 May 2019, I attended at the Sydney University Law School Beyond Punishment Seminar Series: Aboriginal Women in the Criminal Justice Network. The speakers discussed data on Aboriginal and Torres Strait Islander women in prison, and programs to support them in the state of New South Wales (NSW). ‘Aboriginal’ women in the context of the talks and the discussion below also encompasses Torres Strait Islander women.*
Before I tell you more about the talks, I’ll set the scene, looking solely at the adult prison context affecting Aboriginal women being targeted by the criminal justice system.
Over-incarceration is an issue best examined through a lens of intersectionality, a term originally exploring the limitations of dominant definitions of discrimination under industrial law (Crenshaw 1989: 150). Legal outcomes of Aboriginal women are simultaneously impacted by race, gender, class and other systemic inequalities. Lack of legal resources available to Aboriginal women to navigate the legal system is born of concurrent racial justice and gender inequalities. Economic disadvantage, poor access to therapeutic and other health services, and housing insecurity are preconditions of offending; these are class and racial justice issues. Sexual violence and poverty of Aboriginal mothers are typical of imprisoned women’s backgrounds at a rate that is much higher than male prisoners (Stathopoulos and Quadara 2014). Again, these are both racial and gendered issues, which are interconnected with colonial violence and intergenerational trauma.
I am writing on 26 May; National Sorry Day. This day commemorates the truth-telling of the Bringing Them Home report, the documentation of the Stolen Generations. Around 100,000 Aboriginal and Torres Strait Islander children were forcibly taken from their families under our racist social policy. The first institution built to ‘civilise’ Aboriginal children through the use of violence was in Parramatta, New South Wales (Marlow 2016). From 1910 to 1970, across the nation, Aboriginal children were forced to forget their culture, language and spirituality. They were placed into neglect by Christian-run missions and into White foster care (AHRC 1997). Today, the state continues to forcibly remove Aboriginal children from their families at four times the rate as non-Indigenous kids (Zevallos 2017). New forced adoption laws in New South Wales mean children placed in care will be forcibly adopted (Zevallos 2019). For Aboriginal women in prison, this will almost certainly mean losing legal rights to see their children. Fracturing families through the imprisonment of mothers is another way in which colonial violence continues in the present-day.
Forced removal of Aboriginal children leads to cultural disconnection, exposure to child abuse, an increased likelihood of entering the criminal justice system, and trauma for mothers. These are gender, race and class dynamics unique to Aboriginal women, their families and communities.
Social context of racial injustice
At the national level, the Australian Bureau of Statistics reports that there are almost 42,800 adults in full-time custody, with Aboriginal people representing 28% of the national imprisonment rate (11,800 Aboriginal people) (ABS 2019). This is in spite the fact that Indigenous people make up only 2.8% of our national population (ABS 2017a). NSW has the highest incarceration rate across Australia (31%), and the highest Aboriginal and Torres Strait prisoner population (28% of NSW prisoners are Indigenous) (ABS 2019). Yet Aboriginal people represent only 2.9% of the total NSW population (ABS 2017b).
The Australian Law Reform Commission (ALRC 2017) reports that Aboriginal people are seven times more likely to be charged with a criminal offence and brought before the courts than non-Aboriginal people. But they are also 12.7 times more likely to receive a sentence of imprisonment. They are additionally over-represented in prison on remand (that is, denied bail and awaiting sentencing). They’re 27% more likely to be denied bail than non-Indigenous people. The remand rate for Aboriginal women is 104.3 per 100,000 compared to 6.7 per 100,000 for non-Aboriginal women. The overrepresentation ratio for Aboriginal women on remand is 15.7 (per 100,000) compared to overrepresentation of Aboriginal men (10.9) (p. 106).
Despite the justice system over-penalising Aboriginal people, they’re more likely to be given short sentences, including for their most serious charges (acts intended to cause injury). This is partly because they’re often spending more time on remand than they would’ve been sentenced. In half of the cases, the most serious assault does not result in injury (pp. 101-102). This in no way excuses violence; the justice issue is that Aboriginal people are more likely to be imprisoned even when they do not cause grave harm. Conversely, the system is more lenient with non-Indigenous people even where serious injury is involved. Three of every five Aboriginal people (60%) receive a custodial sentence for acts intended to cause injury compared with only one in three non-Aboriginal people (30%) (p. 108). With this over-policing and recurring sentencing, it’s no wonder that the rate of recidivism for Indigenous people is 76% (p. 119).
Table 1: Offence profile of people who appeared in court (2016)
|Aboriginal and Torres Strait Islander||Non-Indigenous|
|Acts intended to cause injury (24%)||Illicit drug offences (23%)|
|Public order offences (17%)||Acts intended to cause injury (20%)|
|Offences against justice (14%)||Theft and related (13%)|
|Theft and related (12%)||Offences against justice (12%)|
Source: ALRC (2017). ABS data, ‘Criminal Courts Australia, 2015-2016’ (2017). Data for men and women charged before the court
Table 1 above shows that Aboriginal people are most likely to appear before the court due to acts intended to cause injury (24% of all Aboriginal and Torres Strait Islander defendants in 2016). This is followed by public order offences (17%); offences against justice (14%); and theft (12%). For non-Indigenous people, the most common charges are: illicit drug offences (comprising 23% of all non-Indigenous defendants); acts intended to cause injury (20%); theft (13%); and offences against justice (12%). These patterns are distinct because Aboriginal people are more likely to be charged for petty offences.
The ALRC writes:
‘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. 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 [Northern Territory].’ (p. 363)
You can see the charges versus remand differences between Aboriginal and non-Aboriginal people below (click to enlarge).
A prior offence is more likely to lead to a sentence of imprisonment. With Aboriginal people being targeted by a racist system since youth, specifically beginning with separation from family (p. 73), our criminal justice system is almost assuring that Aboriginal people end up in and out of jail, thanks to the current sentencing and remand patterns.
My previous research shows that most justice and rehabilitation programs for vulnerable people have an overly complicated eligibility process that reproduces stigma. These services lack culturally meaningful approaches and input from Aboriginal experts (BIU 2018).
Inadequate responses to recidivism reproduces racial and gender inequality and contributes to our burgeoning prison system. Making wrap-around services easier to join and customised to individual and community needs of clients is one part of the puzzle. Addressing systemic racism across our justice and other social institutions is the primary answer.
Injustices against Aboriginal women
Looking now more specifically at women, in the most recently available data from 2018, the Bureau of Crime Statistics and Research (BOCSAR) found that the number of women being imprisoned in NSW over the past six years has increased by 50% (from 682 to 1,021 women) (BOCSAR 2018). This is mostly affecting Aboriginal women, whose imprisonment rate has increased by 74% (from 195 to 340 women), compared with a 40% increase by non-Aboriginal women. The two biggest factors impacting this pattern is the number of women appearing before court and over-policing of women. The number of women held on remand has doubled (again: this means they’re languishing in prison awaiting trial, without conviction). BOCSAR finds that these women are not committing more serious offences. They are just being processed more vigorously by NSW Police, who are charging 405 women each month; a rate like never before.
At the state and national levels, this is a gendered and racial justice crisis. Up to 90% of women prisoners are victims of domestic and family violence (Gleeson and Baird 2018). The injustice is compounded by the fact that these women are not provided support to begin with and then are revictimised by harsh police and criminal justice action. Perpetrators also use the criminal justice system to seek revenge, by misidentifying women as primary aggressors (Women’s Legal Service Victoria 2018). Aboriginal women victims of intimate partner violence are over six times more likely to experience mental health and other health burdens when they’re of childbearing age (18 to 44 years; over five times for other ages) (Webster and Zevallos 2016). Eighty percent (80%) of Aboriginal women in NSW directly identify their history of sexual abuse as a precursor to, or otherwise impacting, their reoffending (ALRC 2017: pp. 351-353).
At the time of arrest, the majority of Aboriginal women who are incarcerated were under the influence of drugs (68%), alcohol (14%) or both (4%) (Lawrie 2003: 47). Alcohol and other drugs (AOD) are often used as self-medication to cope with sexual abuse and other intergenerational trauma. Eighty percent of Aboriginal women interviewed by Wakka Wakka and Wiradjuri woman researcher, Rowena Lawrie, said that their drug use was a contributing factor to their incarceration (Lawrie 2003: 48).
‘If we had more support, then we wouldn’t need alcohol or drugs, we need housing when we get out of custody.’
‘If there were more rehabilitation centres available to me earlier in life, maybe I would not be in the situation I am today.’
‘When I was first convicted at 18, I was shoplifting to sell goods so that I would have money to buy drugs… I have never been offered drug rehabilitation. I wanted to go to drug rehabilitation but have never had the opportunity.’ (Lawrie 2003: 49)
AOD use often leads to homelessness or precarious housing for Aboriginal people because of few rehabilitation and housing options available to them. Indigenous people were more likely to be homeless prior to being imprisoned (27%) compared to non-Indigenous people (24%). Indigenous people were also less likely to have their own long-term accommodation organised by the time they were discharged from prison (56%) compared with non-Indigenous people (62%) (AIHW 2015: 28-30).
Without stable housing, children are taken from Aboriginal women, and they have little resources and legal recourse to get their kids back. This ensures the cycle of poverty, forced family separation and intergenerational trauma of the Stolen Generations will be passed onto the next cohort of youth (AHRC 1997).
Lack of trust in legal and medical institutions impact on the help available to Aboriginal women caught up in the criminal justice system. The women’s distrust is warranted, due to historical injustice, discrimination, and cultural disrespect embedded into these institutions. Other barriers to Aboriginal women finding adequate support include:
- institutional racism, poverty and social isolation;
- previous adverse family experiences;
- lack of understanding of their rights and options;
- fear of losing their children due to traumatic experiences with human services and related agencies; and
- poor access to interpreters and culturally safe support (ALRC 2017: 353; see also Zevallos 2017).
In 2017, the Women’s Legal Service NSW made the following recommendation to the Australian Law Reform Commission:
‘Legal reform is needed to reduce the criminalisation and over-incarceration of Aboriginal and Torres Strait Islander peoples, particularly women. There must be a whole-of-system approach which addresses the underlying causes and drivers of the offending behaviour with a greater focus on prevention and early support.’ (WLS NSW 2017: 3)
Let’s now hear from the Sydney Law School panel.