Incidence

11.6     The vast majority of Aboriginal and Torres Strait Islander women will never enter the criminal justice system as offenders, or be incarcerated.^[1] It is well established, however, that Aboriginal and Torres Strait Islander women are vastly over-represented in the criminal justice system and in the prison population, and that the numbers of female Aboriginal and Torres Strait Islander prisoners are rapidly growing.^[2]

11.7     In 2016, Aboriginal and Torres Strait Islander women represented 34% of all women in prison.^[3] The level of imprisonment for Aboriginal and Torres Strait Islander women exceeded that of non-Indigenous women by a factor of 21.2—that is Aboriginal or Torres Strait Islander women were 21.2 times more likely to be imprisoned than non-Indigenous women. Further still, the rate of imprisonment for Aboriginal and Torres Strait Islander women exceeded even that of non-Indigenous men.^[4]

11.8     Aboriginal and Torres Strait Islander women are also significantly over-represented in the remand population, meaning that Aboriginal and Torres Strait Islander women may be less likely to be granted bail by the court than non-Indigenous people.^[5] In fact, Aboriginal and Torres Strait Islander women were 15.7 times more likely to be in prison on remand than non-Indigenous women—an over-representation ratio even higher than that of Aboriginal and Torres Strait Islander men to non-Indigenous men (10.9).^[6]

11.9     This rate of over-representation is a persistent and growing problem. Since 2006, the rate of imprisonment of Aboriginal and Torres Strait Islander women increased from 365.8 per 100,000 adult Aboriginal and Torres Strait Islander females in 2006, to 464.8 per 100,000 in 2016.^[7]

11.10  Aboriginal and Torres Strait Islander incarceration has been characterised by:

• low-level offending including justice procedure offences and failure to pay a fines);
• prior incarceration; and
• short terms of imprisonment.^[8]

11.11  Aboriginal and Torres Strait Islander female prisoners are disproportionately more likely than their non-Indigenous counterparts to:

• be mothers and primary care givers of children;
• have experienced family violence and sexual abuse;
• have mental illness or cognitive disability;
• have substance abuse issues;
• have entered into the child protection system as children;
• have earlier and more frequent criminal justice contact—including police contact and incarceration;
• be living in unstable housing or homeless;
• be unemployed; and
• have lower levels of educational attainment.^[9]

11.12  In their 2017 Report the Human Rights Law Centre and Changing the Record asserted that:

These realities drive the over-representation of Aboriginal and Torres Strait Islander women in Australian criminal justice systems. They stem from the oppression, violence, trauma and discrimination associated with colonisation, transmitted through generations. In effectively punishing Aboriginal and Torres Strait Islander women for extreme disadvantage, the criminal justice system perpetuates and institutionalises discrimination and inequality.^[10]

11.13  Although the lack of reliable and cross-comparable data in relation to offending and incarceration is an issue affecting Aboriginal and Torres Strait Islander people generally, it is an issue that particularly hinders accurate assessment of the needs and pathways of Aboriginal and Torres Strait Islander female offenders.^[11] This has been a longstanding problem. In 2002 and in 2004, the Aboriginal and Torres Strait Islander Social Justice Commissioner stressed that the paucity of data in relation to Aboriginal and Torres Strait Islander female offending had rendered them ‘invisible’ in the criminal justice system.^[12]

11.14  Although now beginning to improve, data analysis in relation to Aboriginal and Torres Strait Islander women has been particularly hampered because publicly available data may not disaggregate Aboriginal and Torres Strait Islander women from men, or Aboriginal and Torres Strait Islander women from non-Indigenous women.^[13]

11.15  Legal Aid WA raised concerns around the failure of existing data on Female Aboriginal offenders ‘to consider Aboriginal women as a separate group with a unique set of circumstances and needs’ where analysis of that data ‘tends to focus on Aboriginal people or gender as a group, yet rarely the intersection of the two’.^[14]

11.16  Even where data is collected in a disaggregated way, it may not be cross-comparable with other jurisdictions because of the way in which the data has been collected, differences in statutory definitions, or differences in the way in which criminal justice processes operate.^[15] This lack of consistency between jurisdictions can make comparisons difficult, and contributes to the lack of evidence-based solutions in relation to Aboriginal and Torres Strait Islander women.^[16]

11.17  Limitations of data are further discussed in Chapter 3. The importance of consistency in data collection and of empirical evidence and evaluated programs form key features of Aboriginal Justice Agreements and criminal justice targets. These are further discussed in Chapter 16.