Criminal Justice services, programs and responses

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.