Social determinants of incarceration

2.25     The Royal Commission’s finding that reforms to the criminal justice system alone are not sufficient to address the over-representation of Aboriginal and Torres Strait Islander people in prisons has been echoed many times since.^[30] Reflecting on the 25 years since the RCIADIC, in 2016, Aboriginal and Torres Strait Islander peak organisations issued the Redfern Statement, calling for action to address Aboriginal and Torres Strait Islander disadvantage. The Redfern Statement emphasised that addressing disadvantage required meaningful engagement with Aboriginal and Torres Strait Islander peoples: ‘[t]his, known as self-determination, is the key to closing the gap in outcomes for the First Peoples of these lands and waters’. The Redfern Statement also made a number of specific recommendations to address disadvantage across the domains of health, disability, violence prevention, employment, housing, early childhood, and justice, all of which foregrounded the need for Aboriginal and Torres Strait Islander peoples to have leadership in developing and delivering any initiatives.^[31]

2.26     The significance of drivers of incarceration external to the criminal justice system was repeated by many submissions to this Inquiry. For example, Aboriginal Peak Organisations Northern Territory submitted that

[c]olonisation, dispossession and displacement from traditional lands, weakening of culture, the separation of families through past government policies, high levels of incarceration, and ongoing discrimination and racism, have all contributed to continuing disadvantage, poor health and poor social outcomes for many Aboriginal people.^[32]

2.27     As Hogg and Quilter pointed out, ‘the role of the criminal justice system cannot be disentangled from the complex dynamics that sustain and compound high levels of disadvantage and in turn contribute directly to high levels of victimisation in many ATSI communities’.^[33]

2.28     The importance of addressing the drivers of incarceration external to the criminal justice system has been recognised in other jurisdictions. In the United States, the National Research Council of the National Academies has noted that criminal justice reforms will not alone

relieve the underlying problems of economic insecurity, low education, and poor health that are associated with incarceration in the nation’s poorest communities. Solutions to these problems are outside the criminal justice system, and they will include policies that address school dropout, drug addiction, mental illness, and neighborhood poverty—all of which are intimately connected to incarceration. If large numbers of intensely disadvantaged prime-age men and women remain in, or return to, poor communities without supports, the effects could be broadly harmful. Sustainably reducing incarceration may depend, in part, on whether services and programs are sufficient to meet the needs of those who would otherwise be locked up. Thus, policy makers and communities will need to assess and address the availability, accessibility, and quality of social services, including drug treatment, health care, employment, and housing for those who otherwise would be imprisoned.^[34]

2.29     This Inquiry has principally focused its recommendations on reforms to criminal laws and legal frameworks to address the disproportionate rates of Aboriginal and Torres Strait Islander incarceration. However, the ALRC recognises the significance of drivers of incarceration external to the criminal justice system. Justice reinvestment is an approach to reducing incarceration that involves redirection of money from corrections to local initiatives that strengthen communities with high levels of incarceration. Chapter 4 considers the promise of justice reinvestment for addressing the social determinants of incarceration in Aboriginal and Torres Strait Islander communities and recommends that a national body with expertise in justice reinvestment methodology be established, to assist in providing technical assistance to local sites wishing to implement justice reinvestment.^[35]

2.30     The following section considers aspects of Aboriginal and Torres Strait Islander disadvantage that contribute to over-representation in prisons in more detail. Australian governments have committed to addressing the interrelated aspects of Aboriginal and Torres Strait Islander disadvantage through the Closing the Gap process, which focuses on achieving key targets for health, education and employment outcomes.^[36] Many other Inquiries and reports, including those identified in the Terms of Reference for this Inquiry, have made recommendations to address these issues.^[37]

Education and employment

2.31     The links between lack of employment opportunity, lack of educational attainment, and subsequent entry into the criminal justice system are well established.^[38] In recognition of this relationship, the RCIADIC made a number of recommendations in relation to education and increasing employment and economic opportunities for Aboriginal people.^[39]

2.32     Aboriginal and Torres Strait Islander people have lower educational attainment than non-Indigenous people. For example, in 2015, only 49% of Year 3 Aboriginal and Torres Strait Islander students living in a remote area reached minimum national standards of literacy, reading and numeracy.^[40] In 2014, 86.4% of non-Indigenous students nationally completed Year 12 or equivalent, compared with 61.5% of Aboriginal and Torres Strait Islander students. This fell to 41.7% for Aboriginal and Torres Strait Islander students living in remote areas.^[41] Nationally in 2015, of the potential Year 12 population, 43.8% of non-Indigenous young people achieved an ATAR^[42] of 50.00 or above, compared with 8.5% of Aboriginal and Torres Strait Islander young people.^[43]

2.33     Aboriginal and Torres Strait Islander people also face employment disadvantage. In 2014–15 the unemployment rate for Aboriginal and Torres Strait Islander people aged 15–64 was about three times the rate of the non-Indigenous population.^[44] Just under half (48.4%) of Aboriginal and Torres Strait Islander people aged 15–64 were employed, compared with 74.8% of non-Indigenous people.^[45]

2.34     There is also a lack of real employment opportunity for Aboriginal and Torres Strait Islander people living in remote areas such as central Australia.^[46] As was noted in the 2017 Closing the Gap—Prime Minister’s Report:

Indigenous employment rates vary sharply by geography. In 2014–15, only 35.1 per cent of all Indigenous people of workforce age (15–64 years) in very remote areas were employed compared with 57.5 per cent of those living in the major cities.^[47]

2.35     Ex-prisoners also face a number of barriers to employment, with inability to find work contributing to the likelihood of reoffending and reconviction. Research has suggested that unemployment is higher among Aboriginal and Torres Strait Islander people who have been arrested in the past five years than among those who had not, and that unemployment is related to reoffending and reconviction.^[48]

Health and disability

2.36     In 2015, the Australian Medical Association (AMA) noted the connection between health issues experienced by Aboriginal and Torres Strait Islander peoples—including poor mental health, physical disability, cognitive disability and substance abuse—and high incarceration rates. The AMA stressed the need for a diversionary approach that focused on the underlying, undiagnosed and unaddressed health needs of Aboriginal and Torres Strait Islander people who are at high risk of entering the criminal justice system.^[49] The RCIADIC also directed a number of recommendations toward improving health services, programs, and training of health professionals working with Aboriginal people.^[50] It noted that the

link between the health of Aboriginal people in the community and these deaths in custody should be obvious: Aboriginal people in general have a very poor level of health. Their quality of life is substantially reduced by illnesses that only uncommonly affect the general Australian public. Since so many Aboriginal people experience serious sickness and injury as part of their everyday lives, it should be no surprise to find that they bring this impaired health status with them into the custodial situation.^[51]

2.37     Aboriginal and Torres Strait Islander peoples experience health-related risk factors such as substance abuse and cognitive disability at higher rates than the general population, yet have significantly lower access to appropriate health and support services when these additional health service needs are taken into account.^[52]

2.38     The 2015 report of the Aboriginal and Torres Strait Islander Social Justice Commissioner noted the challenges faced by Aboriginal and Torres Strait Islander people with disability, including underutilisation of disability services, due to factors including a lack of trust in service providers, a lack of cultural competence in service delivery, as well as difficulties in access to disability services for those living in regional and remote areas.^[53] The Report made a number of recommendations related to disability, including improved data collection, evaluation of programs and policies in addressing the needs of Aboriginal and Torres Strait Islander people with disability, and the need to include a Closing the Gap target for Aboriginal and Torres Strait Islander people with disability as an area for future action.^[54]

Physical disability

2.39     According to the Close the Gap Progress and Priority Report 2016, Aboriginal and Torres Strait Islander people experience severe or profound physical disability at about twice the rate of non-Indigenous people,^[55] with about half of those experiencing severe or profound disability in sight, hearing and speech-related areas.^[56]

2.40     Hearing loss is particularly prevalent among Aboriginal and Torres Strait Islander peoples. In 2014–15, 8.4% of Aboriginal and Torres Strait Islander children aged 0–14 years had a hearing condition (2.9 times the rate for non-Indigenous children.^[57] In 2012–13, around one in eight (12%) Aboriginal and Torres Strait Islander people reported having diseases of the ear and mastoid and/or hearing problems, and were 1.3 times more likely than non-Indigenous people to have these conditions.^[58]

2.41     Hearing impairment among adult Aboriginal and Torres Strait Islander prisoners is estimated to be extremely high—affecting between 80–95% of Aboriginal and Torres Strait Islander prisoners.^[59] This can result in communication difficulties when engaged with the criminal justice system, particularly where English is a second or third language.^[60] Hearing loss can also compound other forms of disadvantage regularly experienced by Aboriginal and Torres Strait Islander people, including unemployment and poor school performance, thus making entry into the criminal justice system more likely.^[61]

Cognitive impairment and Fetal Alcohol Spectrum Disorder

2.42     Cognitive impairment, particularly that experienced as a result of Fetal Alcohol Spectrum Disorder (FASD)—caused by exposure to alcohol while in utero—is another risk factor for incarceration that disproportionately affects Aboriginal and Torres Strait Islander peoples. People with cognitive impairment have an increased likelihood of contact with the criminal justice system for reasons including

difficulties regulating behaviour, impaired decision making, problems communicating, a poor understanding of criminal justice procedures, poor memory and attentiveness and social immaturity. Having a disability and underprivileged living circumstances enhances susceptibility to homelessness, substance misuse, poor general health, low levels of community support, visibility to police and ultimately criminal engagement. People with cognitive impairment are additionally vulnerable to physical and sexual trauma, coercion, peer pressure and victimisation.^[62]

2.43     Available evidence suggests that there are higher levels of cognitive impairment among Aboriginal and Torres Strait Islander offenders than non-Indigenous offenders.^[63] The Law Council of Australia has pointed to WA and the Northern Territory (NT) as two jurisdictions where the prevalence of cognitive impairment in Aboriginal and Torres Strait Islander communities is particularly high, including high rates of FASD and severe communication barriers.^[64] The NT Office of the Public Guardian also drew attention to the high incidence of cognitive impairment and mental illness among Aboriginal and Torres Strait Islander people in the criminal justice system.^[65]

2.44     FASD has been linked to extremely high levels of criminal justice contact for juveniles, with FASD-affected youth 19 times more likely to be incarcerated, as well as high levels of recidivism for adults and difficulty in understanding and complying with court orders and bail conditions.^[66]

2.45     In many cases FASD is undiagnosed.^[67] To address this, a Guide to the Diagnosis of FASD, containing a diagnostic instrument for FASD, was released in 2016.^[68] A 2016 Senate Inquiry into Aboriginal and Torres Strait Islander Experience of Law Enforcement and Justice Services (Law Enforcement and Justice Services Inquiry) recommended that the Department of Health prepare a communication plan for those working in areas such as the criminal justice field, to accompany the release of this Diagnostic Tool.^[69] A National FASD Strategy 2018–2028 is under development.^[70]

2.46     Prevention of FASD is also an important longer-term goal. The Law Enforcement and Justice Services Inquiry recommended that general prevention initiatives be continued, promoting knowledge about the risks of drinking alcohol during pregnancy, when planning a pregnancy or when breastfeeding.^[71] A Fetal Alcohol Spectrum Disorder Prevention and Health Promotion Resources Package has been developed for use in Aboriginal and Torres Strait Islander child and maternal health care services.^[72]

2.47     Ensuring access to justice and culturally appropriate support for Aboriginal and Torres Strait Islander people with cognitive impairment who are in contact with the criminal justice system is a particular challenge, and the subject of a number of recommendations in the 2016 Senate Community Affairs Reference Committee Inquiry into the indefinite detention of people with cognitive and psychiatric impairment in Australia.^[73] These recommendations are considered further in Chapter 10, addressing access to justice issues for Aboriginal and Torres Strait Islander peoples.

Mental health

2.48     In 2014–15, almost one third (32.8%) of Aboriginal and Torres Strait Islander people aged 18 years and over reported experiencing high to very high levels of psychological distress, 2.6 times the non-Indigenous rate.^[74] Aboriginal and Torres Strait Islander women have particularly troubling rates of poor mental health, with almost two in five (38.4%) suffering high to very high levels of psychological distress.^[75] The proportion of Aboriginal and Torres Strait Islander people experiencing high to very high levels of psychological distress increased by approximately six percentage points between 2004–2005 and 2014–2015.^[76]

2.49     Mental health disorders have been established as another factor that is likely to increase the risk of Aboriginal and Torres Strait Islander people entering incarceration. In 2010, the proportion of prison entrants with a history of mental health disorder was about 2.5 times higher than the general population.^[77] The Mental Health Commission of NSW submitted that ‘at least half of all adult inmates in NSW have been diagnosed or treated for a mental health problem and 87% of young people in custody in NSW have a past or present psychological disorder. Rates are higher for Aboriginal people in custody’. It stressed that this was the result of ‘a failure to provide appropriate services and supports to people with mental illness in our community’.^[78]

2.50     A 2008 Queensland study of Aboriginal and Torres Strait Islander prisoners revealed mental health disorder rates as high as 86% for female Aboriginal and Torres Strait Islander prisoners, and 73% for male Aboriginal and Torres Strait Islander prisoners. Substance abuse disorders were the most common (69% of Aboriginal and Torres Strait Islander females and 66% of Aboriginal and Torres Strait Islander males), but they were often comorbid with other conditions, including anxiety, depressive, and psychotic disorders.^[79]

2.51     A 2015 study found that Aboriginal and Torres Strait Islander prisoners with diagnosed mental disorders, when compared with non-Indigenous prisoners who also had a diagnosed mental disorder, had approximately 29 additional police contacts.^[80] Age when first taken into prison custody was about four years younger for Aboriginal and Torres Strait Islander prisoners with a recognised mental disorder than the equivalent non-Indigenous prison population.^[81]  

Harmful use of alcohol

2.52     Most Aboriginal and Torres Strait Islander people either do not consume alcohol or do not consume it at a level that poses risks to their health over their lifetimes. However, Aboriginal and Torres Strait Islander people are also more likely than non-Indigenous Australians to consume alcohol at levels that pose risks to their health over their lifetimes and on single drinking occasions. Alcohol misuse contributes disproportionately to Aboriginal and Torres Strait Islander ill-health. It has been estimated that 8.3% of the total burden of disease is attributable to alcohol, a rate 3.1 times greater than for non-Indigenous Australians.^[82]

2.53     The RCIADIC recognised the relevance of the harmful use of alcohol and other drugs for Aboriginal people in custody, and made a number of recommendations to address this.^[83] The Report noted that:

It is clear that alcohol and other drugs contribute to Aboriginal deaths in custody in two direct ways. First, alcohol and other drugs are involved in many of the offences committed by Aboriginal people that lead to their being placed in custody and to being held in protective custody owing to drunkenness. Secondly, alcohol (especially) is a major cause of chronic and acute illness among Aboriginal people, contributing to their high rates of death from injury and disease which, when combined with their high levels of over-representation in custody, lead to their high levels of death in custody. Furthermore, alcohol and other drug use contribute less directly to deaths in custody through their impact on family and community relationships, employment, housing, educational achievements, etc. These factors interact to produce the serious situation of Aboriginal people and alcohol observed today in many parts of Australia.^[84]

2.54     A number of submissions to this Inquiry drew attention to the links between alcohol misuse and offending and incarceration.^[85] The Northern territory Legal Aid Commission noted that ‘[i]n the NT generally there is a prevalent and socially accepted culture of excessive drinking, which is more likely to lead to alcohol-related harm and violence’.^[86]

2.55     Overcrowding, educational disadvantage, and lack of employment opportunity have also been linked to the harmful use of alcohol in Aboriginal and Torres Strait Islander communities.^[87] These interrelated factors increase the likelihood of contact with the criminal justice system.^[88]

2.56     Alcohol-related violence is a serious issue affecting Aboriginal and Torres Strait Islander communities. A 2015 House of Representatives Committee Report about the harmful use of alcohol in Aboriginal and Torres Strait Islander communities (House of Representatives Alcohol Report) noted that, ‘[w]hile alcohol may not always be the direct cause of violent acts, alcohol misuse is implicated in the prevalence and severity of assaults and domestic violence’.^[89] Alcohol use has been associated with the escalation of assaults into homicides, with 66.7% of Aboriginal and Torres Strait Islander homicides involving both the victim and offender having consumed alcohol at the time of the offence, compared to 16.3% of non-Indigenous homicides.^[90] The NT Police Association have similarly reported that 67% of family violence incidents in the NT involve alcohol.^[91] A 2017 review estimated that 45% of hospitalisations for family violence related assault in remote and very remote regions were attributable to alcohol.^[92]

2.57     A number of ongoing governmental initiatives seek to address alcohol misuse and alcohol-related harm. The National Aboriginal Torres Strait Islander Peoples Drug Strategy 2014–2019 aims to improve the health and wellbeing of Aboriginal and Torres Strait Islander people by preventing and reducing the harmful effects of alcohol and other drugs on individuals, families and their communities.^[93]

2.58     The 2013 report of the Aboriginal and Torres Strait Islander Social Justice Commissioner advocated that a human rights approach be taken to addressing alcohol misuse. This would require that ‘communities are empowered to make decisions about the policies adopted to manage alcohol within their community … [and] that measures are reasonable, proportionate and necessary’.^[94] The House of Representatives Alcohol Report made a number of recommendations to minimise alcohol misuse and alcohol-related harm, including that the harmful impacts of alcohol be put on the Coalition of Australian Governments (COAG) agenda for coordinated action. It recommended that such action should recognise the social and economic determinants of harmful uses of alcohol, and that the impact of alcohol on achieving each Closing the Gap target be considered.^[95] The ALRC makes recommendations relating to laws regulating the availability of alcohol in Chapter 13.

Housing

2.59     The RCIADIC identified action on housing and infrastructure as important to addressing custodial rates for Aboriginal people, noting that ‘the appalling conditions in which many Aboriginal people live have long been a concern to government’,^[96] and making a number of recommendations in relation to housing.^[97]

2.60     The Productivity Commission has identified housing issues—particularly homelessness, inadequate housing, and overcrowding—as disproportionately affecting Aboriginal and Torres Strait Islander peoples.^[98] Nationally, more than one in five (20.6%) Aboriginal and Torres Strait Islander people lived in overcrowded households in 2014–15, increasing to about one in two (49.4 %) for Aboriginal and Torres Strait Islander people living in very remote areas.^[99]

2.61     Aboriginal and Torres Strait Islander peoples are also disproportionately represented in the homeless population: in 2011, approximately 1 in 20 Aboriginal and Torres Strait Islander people were considered homeless,^[100] accounting for 28% of homeless people. Aboriginal and Torres Strait Islander people were 14 times as likely as non-Indigenous people to be homeless.^[101]

2.62     Housing has been identified as one of the key determinants driving the poor health outcomes experienced by many Aboriginal and Torres Strait Islander people.^[102] Overcrowding has been linked to negative impacts on childhood development, educational achievement, rates of endemic disease, and workforce participation levels.^[103]

2.63     Overcrowding, which again disproportionately affects Aboriginal and Torres Strait Islander people, has similarly been linked to harmful alcohol use^[104] as well as higher rates of family violence.^[105] Family violence in turn is recognised as a major risk factor for homelessness.^[106]

2.64     In 2015, 27% of Aboriginal and Torres Strait Islander prison entrants reported being homeless in the four weeks prior to imprisonment.^[107] Submissions to this Inquiry raised homelessness as a major driver of incarceration for Aboriginal and Torres Strait Islander peoples, with Legal Aid WA asserting that ‘[a]ddressing homelessness and unstable accommodation for Aboriginal people is a fundamental step in reducing disadvantage and Aboriginal imprisonment’.^[108]

2.65     Homelessness and inadequate housing may also result in Aboriginal and Torres Strait Islander people being denied bail.^[109] Socioeconomic factors that are taken into account in the decision of whether or not to grant bail include whether a person has stable housing arrangements, and lack of suitable housing may result in being denied bail.^[110]

2.66     Those leaving prison often face homelessness, with the Australian Institute of Health and Welfare noting that ‘homelessness is more common among those with a history of contact with the criminal justice system, it lasts for longer, and is more likely to re-occur than for other homeless people’.^[111] In 2015, 31% of prison dischargees were expecting to be homeless.^[112] A Legal Aid NSW study of women leaving Silverwater Prison in NSW over a 12-month period found that only 12% believed they had access to stable housing on release from prison.^[113]

2.67     Homelessness following exit from prison increases the risk of returning to prison:

lack of housing is also a substantial risk factor for reoffending and given the lack of emergency and transitional housing available to the Victorian community this situation will only worsen unless there is increased investment. A research study found that previous offenders were twice as likely to return to prison within nine months if they were homeless.^[114]

Child protection and youth justice

2.68     Contact with the child protection system and the youth justice system are both risk factors for adult incarceration. Aboriginal and Torres Strait Islander peoples are disproportionately represented in both systems, as well as in the crossover between the two.

2.69     Entry of Aboriginal and Torres Strait Islander children into the child protection system should be understood against the historical background of the removal of children for their families under government policies toward Aboriginal and Torres Strait Islander peoples of protection and assimilation, creating what has become known as the ‘Stolen Generation’.^[115] Children were removed to institutions and, later, into non-Indigenous foster families.^[116] The 1997 Human Rights and Equal Opportunity Commission Report, Bringing Them Home, concluded that, nationally:

between one in three and one in ten Indigenous children were forcibly removed from their families and communities in the period from approximately 1910 until 1970. In certain regions and in certain periods the figure was undoubtedly much greater than one in ten. In that time not one Indigenous family has escaped the effects of forcible removal (confirmed by representatives of the Queensland and WA Governments in evidence to the Inquiry). Most families have been affected, in one or more generations, by the forcible removal of one or more children.^[117]

2.70     The RCIADIC noted that almost 43 of the 99 Aboriginal and Torres Strait Islander people whose deaths were reviewed had experienced childhood separation from their families through intervention by the State, mission organisations or other institutions,^[118] and made a number of recommendations directed at welfare, youth justice services and police aimed at breaking the cycle of incarceration for Aboriginal young people.^[119] The Bringing Them Home Report highlighted the relationship between being placed in out-of-home care and the increased likelihood of coming into contact with the criminal justice system, through an examination of the lasting effects of institutionalisation on Aboriginal and Torres Strait Islander children.^[120]

2.71     Aboriginal and Torres Strait Islander children continue to be disproportionately affected by care and protection orders and entry into the child protection system, with some describing this as a new stolen generation.^[121] Rates of contact with the child protection system increased steadily over the four years to 2016. From 2012 to 2016, the number of Aboriginal and Torres Strait Islander children on care and protection orders rose from 13,268 to 18,409, with rates increasing from 46.1 to 61.9 per 1,000. By contrast, the rate of non-Indigenous children on care and protection orders has remained relatively stable, increasing from 5.6 to 6.5 per 1,000.^[122]

2.72     At June 2016, there were 16,846 Aboriginal and Torres Strait Islander children in out-of-home care, a rate of 56.6 per 1,000 children. The rate of Aboriginal and Torres Strait Islander children in out-of-home care was 10 times the non-Indigenous rate.^[123]

2.73     Young people in out-of-home care between 1 July 2014 and 30 June 2016 were 19 times more likely than the equivalent general population to be under youth justice supervision in the same year.^[124] Aboriginal or Torres Strait Islander males were most likely to also be under youth justice supervision, with 17.8% of those in out-of-home care also under youth justice supervision, compared with 12% of non-Indigenous males, 9.9% of Aboriginal or Torres Strait Islander females and 5.6% of non-Indigenous females.^[125] Aboriginal and Torres Strait Islander young people in the child protection system were almost three times as likely to be subject to youth justice supervision between 1 July 2014 and 30 June 2016 when compared with non-Indigenous young people.^[126]

2.74     Many submissions emphasised the link between involvement in child protection and out-of-home care and subsequent offending.^[127] Dr Kath McFarlane noted that that the ‘criminogenic impact of Australia’s child removal practices and subsequent institutionalisation of children has been known for decades’, and outlined a long history of concern about the links between child protection and later offending:

In 1977 the Department of Aboriginal Affairs noted that approximately 95% of people in NSW and Victoria who sought assistance from the Aboriginal Legal Services on criminal matters had been in care. This over-representation was attributed to the children being separated from the support of the Aboriginal community, the corresponding lack of identity with Indigenous culture and simultaneous alienation from the white community. The Senate Standing Committee on Social Welfare (Australian Senate 1985) observed that welfare intervention was a highly disruptive factor that had set many young Indigenous people on the road to incarceration.^[128]

2.75     Victoria Legal Aid also argued that out-of-home care is a contributing factor to imprisonment, and noted that its analysis of data between 2011 and 2016 found that, of those aged 11–17 who were placed in out-of-home care, almost one in three young people later returned to Victoria Legal Aid for assistance with a criminal matter.^[129]

2.76     The Children’s Court of NSW noted the efforts by the Court and within the NSW Department of Family and Community Services to improve planning and supports for Aboriginal and Torres Strait Islander children and their families, with the aim of addressing both the over-representation of Aboriginal and Torres Strait Islander children in care, and the impact on the crossover of those children into the criminal justice system.^[130]

2.77     A 2015 Senate Inquiry into out-of-home care recommended that state and territory governments review Aboriginal and Torres Strait Islander over-representation in out-of-home care as a matter of priority, and provide additional resources for family support services to addresses the causes of social disadvantage.^[131] The 2015 report of the Aboriginal and Torres Strait Islander Social Justice Commissioner also made a number of recommendations about child protection, including that child welfare targets be introduced into the Closing the Gap process, that state and territory governments take steps to establish Aboriginal and Torres Strait Islander Children’s Commissioners, and that Commonwealth, state and territory governments support investment in research and in improving the quality of information relating to child protection.^[132]

2.78     The 2017 Royal Commission into the Protection and Detention of Children in the Northern Territory (NT Royal Commission) made a number of recommendations relating to child protection in that jurisdiction. It found that the system needed fundamental change:

The Northern Territory and Commonwealth governments need to acknowledge that the current child protection system in the Northern Territory is not effectively protecting children. Governments must accept that fundamental changes must be made. They must invest in a public health approach to supporting and protecting all children, families and their communities. This requires sustained support over a lengthy period, with a focus on child-centred solutions.^[133]

2.79     The contribution of out-of-home care to Aboriginal and Torres Strait Islander incarceration is considered further in Chapter 15, and the ALRC recommends that there be a national inquiry into child protection laws and processes affecting Aboriginal and Torres Strait Islander children.

2.80     Many submissions to this Inquiry also noted the link between contact with the juvenile justice system and adult incarceration.^[134] While overall rates of all young people under youth justice supervision fell over the five-year period to 2015–16, Aboriginal and Torres Strait Islander young people are disproportionately represented under youth justice supervision:

In 2011–12, Indigenous young people were 13 times as likely to be under supervision as non-Indigenous young people, increasing to 17 times as likely in 2015–16. In 2015–16, Indigenous over-representation was higher for those in detention (25 times) than for those under community-based supervision (15 times).^[135]

2.81     Research following a sample of juvenile offenders in NSW over an eight-year period found that 57% went on to appear in an adult court within that period.^[136] More than 90% of Aboriginal or Torres Strait Islander young people who first appeared in the Children’s Court appeared in an adult court within eight years, and 33.3% had received at least one custodial sentence in an adult court.^[137]

2.82     In 2011, the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs inquired into Indigenous youth in the criminal justice system. It observed that the

overrepresentation of Indigenous youth in the criminal justice system is a national crisis and Commonwealth, state and territory governments must respond rapidly and effectively to prevent current and future generations of young Indigenous people from entering into the criminal justice system. This is a long term challenge that will require sustained commitment and rigour from all jurisdictions to address the root causes of Indigenous disadvantage, and to rehabilitate young Indigenous people currently in the criminal justice system.^[138]

2.83     As with adult incarceration, the Committee considered that the major drivers of incarceration of Aboriginal and Torres Strait Islander youth were external to the criminal justice system, and emphasised the need for early intervention. It made a number of recommendations responding to Aboriginal and Torres Strait Islander disadvantage, including about health, education and support for families.

2.84     The NT Royal Commission, along with making a number of recommendations about reform of youth detention in the NT, stressed the importance of early intervention to prevent entry into the youth justice system, both through police diversion and through family-focused and education-based early interventions, which ‘must involve the full spectrum of services engaged with young people’. ^[139]

Family violence

2.85     Aboriginal and Torres Strait Islander women experience family violence at a rate much higher than the broader Australian community. A 2014 summary of family violence statistics showed that

• Indigenous people are between two and five times more likely than non-Indigenous people to experience violence as victims or offenders.

• Indigenous females are five times more likely to be victims of homicide than non-Indigenous females; 55% (n=33) of the 60 Indigenous homicide victims were killed in a domestic homicide; which includes 42% (n=25) that were intimate partner homicides.

• Indigenous females were 35 times as likely to be hospitalised due to family violence related assaults, and Indigenous males 21.4 times as likely, than non-Indigenous females and males.^[140]

2.86     Available research suggests that the majority of Aboriginal and Torres Strait Islander women in prison have experienced physical or sexual abuse.^[141] The National Family Violence Prevention and Legal Services Victoria argued that there was

an intrinsic link between between family violence and the over-incarceration of Aboriginal and Torres Strait Islander men, women and young people. Any measures designed to reduce the over-imprisonment of Aboriginal and Torres Strait Islander men and women must therefore also target the reduction of rates of violence against Aboriginal and Torres Strait Islander women.^[142]

2.87     The Top End Women’s Legal Service urged an appreciation of the complexity of violence in Aboriginal and Torres Strait Islander communities when developing responses to interpersonal violence. It argued that it is important to distinguish between

1. Coercive and controlling violence—an ongoing pattern of use of threat, force, emotional abuse and other coercive means to unilaterally dominate a person and induce fear, submission and compliance in them. Its focus is on control; and

2. Lateral violence—often described as ‘internalized colonialism’ and refers to the harm done by Aboriginal and Torres Strait Islander people to others in their families, organisations and communities.^[143]

2.88     The RCIADIC received some criticism for failing to address family violence in Aboriginal communities. Judy Atkinson observed:

The Commissioners acknowledged ‘appaling levels of domestic violence against Aboriginal women and children’, with ‘rape and even murder… failing to attract the due attention of police and the criminal justice system’, and the fact that 53% of those who died in custody were in custody for acts of violence, with 9% for homicide, 12% for serious assault, and 32% for sexual assault. But there was not one recommendation out of the 339 which allowed for women as victims of domestic violence and/or rape, or as the wives, daughters, mothers and grandmothers of violent offenders, to access funds for services in this regard.^[144]

2.89     Since the RCIADIC, family violence in both Aboriginal and Torres Strait Islander communities and the broader Australian community has become a policy priority. Since 2010, major broad-based initiatives have included the National Plan to Reduce Violence against Women and their Children 2010–2022, the 2010 ALRC and NSWLRC joint report into family violence,^[145] and the 2016 Victorian Royal Commission into Family Violence.^[146] A review of Aboriginal and Torres Strait Islander viewpoints on effective responses to family violence identified the following themes:

• Solutions to violence developed by Indigenous people are likely to focus on community healing, restoration of family cohesion and processes that aim to let both the victim and perpetrator deal with their pain and suffering.

• Indigenous communities want to play a more significant role in shaping program and service responses.

• Because Indigenous family violence is, in part, attributed to the breakdown of traditional culture and kinship practices, the rebuilding of these family and kinship ties is often seen as central to developing any type of response to Indigenous family violence.

• Generalised services and programs can be considered effective if they operate in a culturally sensitive way and/or are run in partnership with Indigenous organisations.

• The criminal justice system is not considered the most appropriate means for dealing with family violence in Indigenous communities. Instead, communities prefer Indigenous sentencing courts aimed at integration of Indigenous community members in the court process, rehabilitation of the offender and restoration of the family.

• Ongoing planned and consistent funding for service provision is considered a major issue.^[147]

2.90     In its submission to this Inquiry, the National Family Violence Prevention and Legal Services Victoria pointed to a number of its own programs designed to prevent and respond to family violence, and noted that:

Central to the best practice elements of these programs is the fact that these programs are designed and delivered by Aboriginal and Torres Strait Islander organisations. Successful programs take a cultural and strength-based approach and target the underlying causes of contact with the criminal justice system in the first place.^[148]

2.91     The ALRC considers family violence further in Chapter 11. It also recommends in Chapter 16 that a target to reduce violence against Aboriginal and Torres Strait Islander people be adopted as part of criminal justice targets.

Intergenerational trauma

2.92     The legacy of historical dispossession and dislocation from land, culture and family has ongoing harmful effects for Aboriginal and Torres Strait Islander peoples, commonly described as ‘intergenerational trauma’:

It is defined as the subjective experiencing and remembering of events in the mind of an individual or the life of a community, passed from adults to children in cyclic processes as ‘cumulative emotional and psychological wounding’ … [H]istorical trauma can become normalised within a culture because it becomes embedded in the collective, cultural memory of a people and is passed on by the same mechanisms through which culture, generally, is transmitted.^[149]

2.93     Intergenerational trauma has particularly affected families of those who were affected by the stolen generation. The Bringing Them Home Report observed:

The impacts of the removal policies continue to resound through the generations of Indigenous families. The overwhelming evidence is that the impact does not stop with the children removed. It is inherited by their own children in complex and sometimes heightened ways.^[150]

2.94     As Professor Harry Blagg, Dr Vickie Hovane and Dorinda Cox described: ‘[f]or Aboriginal people, intergenerational trauma 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’.^[151]

2.95     Many submissions to this Inquiry emphasised the significance of the experience of intergenerational trauma in heightening other risk factors for incarceration.^[152] The National Congress of Australia’s First Peoples submitted that it is ‘the view of many Aboriginal people that intergenerational trauma is a key driver of many health, wellbeing and social issues faced by many Aboriginal people and communities today’.^[153]

2.96     Submissions to this Inquiry stressed that addressing intergenerational trauma must form part of efforts to reduce incarceration rates of Aboriginal and Torres Strait Islander peoples. The ACT Government submitted:

Breaking the cycle of disadvantage and intergenerational trauma requires solutions that are both future-oriented and responsive to the past. Providing meaningful employment and access to appropriate housing is as critical as providing culturally sensitive programs that respond to trauma, loss and grief, addiction, violent behaviour, experiences of abuse and mental illness.^[154]

2.97     A series of community justice forums conducted by the Aboriginal Legal Service NSW/ACT identified

the need for greater focus and investment on prevention and early intervention strategies that: address inter-generational trauma; preserve strong, vibrant and well-functioning families; and grow and nurture resilient young people. This should be guided by Elders and community leaders, and embedded in Aboriginal culture.^[155]

2.98     Key principles of a ‘trauma-informed’ approach to delivering services have been identified:

• understand trauma and its impact on individuals, families and communal groups;
• promote safety;
• ensure cultural competence;
• support client’s control;
• share power and governance;
• integrate care;
• support relationship building;
• enable recovery.^[156]

2.99     The Aboriginal Healing Foundation, in a report marking 20 years from the Bringing Them Home Report, has identified the need for a ‘trauma informed public policy environment’. It has advocated for police, welfare services, health and mental health providers and other institutions to become trauma-informed:

Trauma-informed organisations use a strengths-based approach based on an understanding of the impact of trauma; emphasise the physical, psychological, and emotional safety of clients and staff; and help people affected by trauma to rebuild a sense of control and empowerment.^[157]

2.100  In Chapters 9 and 11, the ALRC recognises the need for prison programs to be trauma-informed, and for services delivered to Aboriginal and Torres Strait Islander women to be designed specifically to meet their needs.

Cycle of incarceration

2.101  As a number of submissions pointed out, incarceration itself has a compounding effect on all of the above disadvantages, and can lead to a cycle of incarceration—both for ex-prisoners, and for their families.^[158]

2.102  The Victorian Aboriginal Legal Service drew attention to the effects on children of the imprisonment of parents and other family members, offering the following accounts:

Many of the Aboriginal youth in juvenile justice facilities have or have had family members incarcerated within adult correctional systems and see themselves as likely to repeat the cycle. One Aboriginal youth had a view of helplessness when envisioning his future and felt that he would likely reunite with family ‘when I go to adult prison’. Another Aboriginal youth who identified with the cycle of offending experience by his family noted that he had uncles at Port Phillip Prison so ‘when they put me in an adult prison, that is where I want to go’.^[159]

2.103  The incarceration of women in particular can lead to entry of children into the child protection system. Australian Lawyers for Human Rights submitted that the ‘incarceration of women, even for short periods on remand, may result in the removal of their children and their exposure to neglect and abuse, contributing to the cycle of disadvantage experienced by these communities’.^[160]

2.104  Professor Harry Blagg, Dr Vickie Hovane and Dorinda Cox emphasised the significance of the community-level effect of the incarceration of women:

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.^[161]

2.105  Professor Russell Hogg and Associate Professor Julia Quilter noted the community-level effects of incarceration:

the numbers for young men actually caught up in the system at any given moment must, in particular, be breathtakingly high, perhaps one in three or four. … [T]his cannot be anything other than socially, demographically, economically and psychologically catastrophic for any community, producing disastrous effects on employment, household incomes, education, inter-generational relationships and so on. Put in plain terms it is criminogenic.^[162]

2.106  The criminogenic effects of incarceration that is disproportionately concentrated in particular communities is considered further in Chapter 4, where justice reinvestment is explored as a place-based, community-led approach to addressing the ‘upstream’ drivers of incarceration for Aboriginal and Torres Strait Islander peoples.