On an average day in 2017–18, there were 2,566 Aboriginal and Torres Strait Islander young people under youth justice supervision, representing 47% of all those under youth justice supervision
Indigenous young people were 16 times as likely as non-Indigenous young people to be under supervision on an average day in 2017–18
were imprisoned at 12 times the rate of non-Indigenous adults in 2019 (2,088 and 173 per 100,000, respectively)
The imprisonment rate for Indigenous adults increased 61% compared with an increase of 36% for non-Indigenous adults, between 2006 and 2019
The rate of youth justice supervision fell from 212 to 170 per 10,000, between 2010–11 to 2017–18 for Indigenous young people
Why is it important?
Most Aboriginal and Torres Strait Islander people have never been incarcerated, and in 2014–15, most had not been arrested within the last five years (ABS 2016). However, Indigenous Australians experience contact with the criminal justice system—as both offenders and victims—at much higher rates than non-Indigenous Australians (Productivity Commission 2016; Royal Commission into Aboriginal Deaths in Custody 1991; Senate Community Affairs References Committee 2010).
Imprisonment compounds existing social and economic disadvantage and affects family, children and the broader community with intergenerational effects. This cycle can lead to a normalisation of incarceration where prison is no longer a deterrent but instead a fact of life (Brown 2010). Imprisonment also has social and health effects following release. Indigenous offenders are more likely than non-Indigenous offenders to have additional contact with the justice system, and Indigenous prisoners are more likely to have served a prior prison sentence (Allard 2010).
Weatherburn (2014) (Weatherburn 2014) identified four key risk factors for Indigenous offending: exposure to child neglect (see measure 2.12 Child protection); school attendance and performance (see measure 2.04 Literacy and numeracy); unemployment (see measure 2.07 Employment); and drug and alcohol abuse (see measures 2.16 Risky alcohol consumption and 2.17 Drug and other substance use including inhalants) (Allard 2010; Avery 2018).
The effects of these, along with child removals, poverty, higher rates of stressful life events, psychological distress, and mental health issues, are linked to the higher rates of contact with the criminal justice system (Australian Medical Association 2015; McCausland et al. 2017; Shepherd et al. 2017).
The recently established National Agreement on Closing the Gap has identified the importance of addressing Indigenous Australians (young people and adults) being overrepresented in the criminal justice system. This includes specific outcomes, targets and indicators to direct policy attention and monitor progress. Reporting arrangements for the new agreement are being established. The data presented in this report predates the establishment of the agreement.
What does the data tell us about youth justice supervision?
The youth justice system is the set of processes and practices for managing children and young people who have committed or allegedly committed an offence when aged 10–17. People aged 18 and over may also be supervised in the youth justice system if they were 18 or over when they were apprehended for a crime (allegedly) committed when they were 17 or younger; if their existing supervision continues once they turn 18; or if a court determines that they should be detained in a youth justice facility due to their vulnerability or immaturity (reasons vary depending on the state or territory) (AIHW 2020a). Supervision may take place while young people are unsentenced or sentenced and, in each case, can take place in the community or a secure detention facility. Most young people under youth justice supervision are supervised in the community rather than in detention (AIHW 2019b).
Number in youth justice supervision during the year
During 2017–18, 4,764 Indigenous young people spent time under youth justice supervision. Of these, 4,358 were aged 10–17 (AIHW 2019b).
On an average day in 2017–18, there were 2,566 Indigenous young people under youth justice supervision, representing 47% of all young people under supervision. There were 2,389 Indigenous young people aged 10–17 under youth justice supervision on an average day in 2017–18, representing 1.9% of the Indigenous population in this age group (AIHW 2019b).
Whether supervised in the community or in detention facilities
On an average day in 2017–18, more than 80% (2,078) of Indigenous young people under youth justice supervision were under community-based supervision, and 20% (504) were in secure detention facilities. Of the 974 young people in secure detention facilities on an average day in 2017–18, half (52%, or 504) were Indigenous (AIHW 2019b).
Gender and age, and age at first supervision
Of all Indigenous young people supervised on an average day in 2017–18, 80% were male, similar to the proportion of males among non-Indigenous young people under youth justice supervision (83%) (AIHW 2019b).
On average, Indigenous young people entered youth justice supervision at a younger age than non-Indigenous young people—39% of Indigenous young people under supervision in 2017–18 were first supervised when aged 10–13, compared with around 15% of non-Indigenous young people. On an average day in 2017–18, 11% of Indigenous young people under youth justice supervision were aged 10–13, compared with 4% of non-Indigenous young people (AIHW 2019b).
Youth justice supervision and child protection
Of the 3,733 Indigenous young people aged 10–17 under youth justice supervision between July 2014 and June 2018, 54% (2,031) had also received child protection services during the period. This was higher than the proportion among non-Indigenous young people under youth justice supervision (47%, or 1,995). Note that New South Wales data was excluded from these calculations (AIHW 2019c).
Nationally, on an average day in 2017–18, the rate of youth justice supervision among Indigenous young people aged 10–17 was 16 times the rate of non-Indigenous young people (170 compared with 11 per 10,000, respectively). The rate of supervision of those aged 10–17 peaked in 2010–11 for both Indigenous and non-Indigenous young people (212 and 17 per 10,000, respectively) before steadily declining until 2017–18.(Table D2.11.1, Figure 2.11.1).
Figure 2.11.1: National rate of supervision of young people aged 10–17 on an average day, by Indigenous status, 2006–07 to 2017–18
Youth justice supervision rates by Indigenous status and jurisdiction
Across all jurisdictions, more Indigenous than non-Indigenous young people aged 10–17 were under supervision on an average day in 2017–18. Western Australia had the highest rate, and Tasmania had the lowest (280 and 60 per 10,000, respectively). The rate of Indigenous young people in Western Australia was 25 times the rate for non-Indigenous young people (Table D2.11.1, Figure 2.11.2).
Figure 2.11.2: Rate of supervision of young people aged 10–17, by jurisdiction and Indigenous status, on an average day in 2017–18
Multiple periods of supervision and recidivism
For young people who completed a period of supervision during 2017–18, a higher proportion of Indigenous young people had completed multiple periods of supervision than non-Indigenous young people (22% and 14%, respectively).
The average length of time under supervision was 11 days longer for Indigenous young people (197 days) than non-Indigenous young people (186 days) (AIHW 2019b).
For young people aged 10–16 who were released from sentenced youth justice supervision during 2016–17:
- Indigenous young people released from sentenced community-based supervision were more likely than non‑Indigenous young people to return to sentenced youth justice supervision within 12 months: 54% of Indigenous males, compared with 44% of non-Indigenous males; and 43% of Indigenous females, compared with 40% of non-Indigenous females.
- For those released from sentenced detention, the rates of returning to sentenced youth justice supervision within 12 months was similar for Indigenous and non‑Indigenous young males (81% and 79%, respectively), and higher for Indigenous than non-Indigenous young females (81% and 76%) (Table D2.11.6, Figure 2.11.3).
Figure 2.11.3: Proportion of young people aged 10–16 years released from sentenced supervision in 2016–17 who returned to sentenced supervision within 12 months, by Indigenous status, sex and type of sentenced supervision
Across jurisdictions, Western Australia had the highest rate of return to sentenced supervision within 12 months for Indigenous young people (61%), and the lowest was in New South Wales (38%) (Table D2.11.22).
Young people may be detained when they are unsentenced or sentenced. There were 2,390 Indigenous young people in detention at some time during 2018–19.Of these, 2,287 were aged 10–17.
On an average day in 2018–19, there were 515 Indigenous young people in detention nationally (sentenced or unsentenced). Of these, 478 were aged 10–17 (AIHW 2020b).
Although about 6% of young people in Australia aged 10–17 are Indigenous, over half (53% or 500) of all young people in detention on an average night in the June quarter of 2019 were Indigenous Australians.
A higher proportion of Indigenous young people in detention were aged 10–17 (89%) than non-Indigenous young people (76%) (June quarter of 2019).
On an average night in the June quarter of 2019, 31 per 10,000 Indigenous Australians aged 10–17 were in detention, compared with 1.5 per 10,000 non-Indigenous people aged 10–17. That is, Indigenous young people aged 10–17 were 21 times as likely as non-Indigenous young people in the same age group to be in detention on an average night.
From the June quarter of 2015 to the June quarter of 2019, the rate of Indigenous Australians aged 10–17 in sentenced detention steadily declined—from 13 per 10,000 to 9.3 per 10,000. Over the same period, the rate of young Indigenous Australians aged 10–17 in unsentenced detention fluctuated over time, with no clear trend (AIHW 2020c).
What does the data tell us about adult imprisonment?
Adult prisoners by Indigenous status and gender
On 30 June 2019, there were 11,866 Indigenous prisoners in Australia, based on information from the National Prisoner Census (Table D2.11.7). These numbers remained stable from 2018, increasing by less than 1%.
At June 2019, Indigenous prisoners represented 28% of all prisoners. Over 1 in 4 (27%) male prisoners were Indigenous, and 1 in 3 (33%) female prisoners were Indigenous (Table D2.11.8). Around 1 in 3 (34%) of Indigenous prisoners (4,011) were unsentenced, a similar proportion to non-Indigenous prisoners (33%) (Table D2.11.9).
At June 2019, Indigenous adults were imprisoned at a rate of 2,088 per 100,000 population—2% of the Indigenous adult population—compared with 173 per 100,000 non-Indigenous adults, after adjusting for differences in the age structure between the two populations. Indigenous adults were imprisoned at a rate 12 times the rate of non-Indigenous adults (Table D2.11.7).
There was an increase of 61% in the imprisonment rate for Indigenous adults (from 1,337 to 2,088 per 100,000) between 2006 and 2019, compared with an increase of 36% for non-Indigenous adults (from 132 to 173 per 100,000), after adjusting for differences in the age structure between the two populations (Table D2.11.11, Figure 2.11.4).
Figure 2.11.4: Age-standardised national adult imprisonment rate, by Indigenous status, 2006 to 2019
Imprisonment rates by jurisdiction
By jurisdiction, the highest rate of imprisonment of Indigenous adults at 30 June 2019 was in Western Australia (4,106 per 100,000), followed by the Northern Territory (2,837 per 100,000). The lowest imprisonment rate of Indigenous adults was in Tasmania (777 per 100,000) (Table D2.11.8, Figure 2.11.5).
Figure 2.11.5: Adult imprisonment rate, Indigenous adults, by jurisdiction, 30 June 2019
The imprisonment rates of Indigenous adults increased between 2006 and 2019 in all jurisdictions—the largest increases were in the Australian Capital Territory (from 627 to 1,707 per 100,000) and Victoria (from 649 to 2,133 per 100,000), while the smallest increase was in New South Wales (from 1,359 to 1,684 per 100,000) (Table D2.11.12).
Recidivism, sentence length and nature of offences
At June 2019, there were more Indigenous prisoners (81%) than non-Indigenous prisoners (50%) who had a prior adult imprisonment sentence (Table D2.11.9).
The median aggregate sentence was lower for Indigenous prisoners (2 years) than for non-Indigenous prisoners (3.5 years). Three-quarters (75%) of sentences for Indigenous prisoners were under 5 years, compared with 57% for non-Indigenous prisoners (ABS 2018) (Table 26).
At 30 June 2019, the majority of Indigenous prisoners (65%) were in prison due to violence-related offences and offences that cause harm, compared with 53% of non-Indigenous prisoners. Indigenous prisoners were more likely than non-Indigenous prisoners to have ‘acts intended to cause injury’ as their most serious charge (34% compared with 19%) (Table D2.11.21). The number of Indigenous prisoners with ‘acts intended to cause injury’ as their most serious charge grew from 2,499 in 2010 to 4,009 in 2019 (Table D2.11.20). At 30 June 2019, a smaller proportion of Indigenous than non-Indigenous prisoners were in prison for illicit drug offences (4% compared with 20%, respectively) and homicide (5% compared with 9%, respectively). In 2019, 1.3% of Indigenous prisoners had ‘traffic and vehicle regulatory offences’ as their most serious charge—this has decreased from 4.2% in 2010 (Table D2.11.20).
Findings from the 2014–15 National Aboriginal and Torres Strait Islander Social Survey
In 2014–15, an estimated 22% of Indigenous males aged 35 and over had been incarcerated at some time in their life, based on self-reported information from the 2014–15 National Aboriginal and Torres Strait Islander Social Survey (Social Survey). Other findings from the 2014–15 Social Survey, based on self-reported information, included:
- An estimated 48% of Indigenous males aged 15 and over and 23% of Indigenous females aged 15 and over had been formally charged by the police at some time in their life.
- 20% of Indigenous males aged 15 and over and 9.2% of Indigenous females aged 15 and over had been arrested in the past five years.
- 5.3% of Indigenous males aged 15 and over and 1.1% of Indigenous females aged 15 and over had been incarcerated in the past five years (ABS 2016) (Table 15.3).
What does the data tell us about other factors in the criminal justice system?
Prisoner health and determinants
The National Prisoner Health survey, conducted in 2018, involved 789 prison entrants, including 308 Indigenous prison entrants. Of the survey participants, 12% of the Indigenous prison entrants had completed Year 12 at school, compared with 24% of the non-Indigenous entrants (excluding New South Wales data) (Table D2.11.23). Indigenous prison entrants were more likely than non-Indigenous entrants to have been unemployed in the 30 days prior to imprisonment (64% compared with 49%, respectively) (Table D2.11.24). Indigenous entrants were 3 times as likely as non-Indigenous entrants to have had a parent or carer imprisoned (32% compared with 11%, respectively) (Table D2.11.26).
Three in four (75%) prison entrants said they were current smokers. Indigenous prison entrants (80%) were more likely than non-Indigenous entrants (73%) to be current smokers. The proportion of Indigenous prison entrants who smoked was higher than in the wider Indigenous population (43% of those aged 18 and over in 2018–19). Indigenous prison entrants (46%) were almost twice as likely as non-Indigenous entrants (26%) to be rated as being at high risk of alcohol-related harm (AIHW 2019a).
In 2016, the National Prison Entrants Bloodborne Virus and Risk Behaviour Survey found a higher prevalence of hepatitis B antibody among Indigenous prison entrants than non-Indigenous prison entrants (32% compared with 8%, respectively) (see measure 1.12 HIV/AIDS, hepatitis and sexually transmissible infections) (Table D2.11.28).
Indigenous prison dischargees were more likely to have visited the prison health clinic (97%) than non-Indigenous dischargees (88%); however, they were less likely to report having a Medicare card available on release (56%) compared with non-Indigenous dischargees (71%) (AIHW 2019a).
Deaths in custody
In Australia, deaths that occur in prison, police custody and youth detention are monitored by the National Deaths in Custody Program at the Australian Institute of Criminology.
In 2017–18, there were 72 deaths in prison custody. Of these, 16 (or 22%) were deaths of Indigenous people. The death rate of Indigenous prisoners was 0.14 per 100 prisoners, similar to the previous year and lower than the death rate of non-Indigenous prisoners of 0.18 per 100 prisoners.
There were 21 deaths in police custody and custody-related operations—of these, three were deaths of Indigenous people, 14 were deaths of non-Indigenous people and in four cases, Indigenous status was not recorded.
Deaths in prison custody and in police custody fluctuated over time. The death rates of Indigenous prisoners has been consistently lower than the death rates of non-Indigenous prisoners since 2003–04 (Doherty & Bricknell 2020).
What do research and evaluations tell us?
A great deal of research has been conducted on identifying risk factors and characteristics of Indigenous Australians who have had contact with the criminal justice system, highlighting the complex effects of entrenched social disadvantage and intergenerational trauma, spanning across the life course. Some research moves beyond this to identify potential ways forward to improve how the justice system treats Indigenous Australians at various points along the life course and the justice continuum. The Indigenous Justice Clearinghouse website is a useful resource that provides more information to assist policy makers.
Indigenous Australians that have contact with the criminal justice system are more likely than their non-Indigenous counterparts to:
- have experienced family violence and sexual assault (Corrigan 2018)
- have mental illness or cognitive disability (Heffernan et al. 2012; Korff 2016)
- have substance abuse issues (Australian Medical Association 2015; Weatherburn 2014);
- have worse health problems (Australian Medical Association 2015; Levy 2005), particularly for some specific diseases, such as hepatitis B (Butler & Simpson 2017)
- have entered into the child protection system as children (Roettger et al. 2019)
- have earlier and more frequent criminal justice contact—including police contact and incarceration (Weatherburn 2014)
- be living in unstable housing or homeless (Weatherburn 2014)
- have hearing loss (Vanderpoll & Howard 2012)
- be unemployed (Woodward 2003)
- have learning difficulties and lower levels of educational attainment (Corrigan 2018)
- have had a parent or carer in prison while growing up (AIHW 2019a).
- adverse employment and financial consequences (Woodward 2003)
- lack of positive male role-models in Indigenous society (Woodward 2003)
- prisoners taking health problems and problematic behaviours out into the community, for example hepatitis C, substance abuse, violence (Butler & Milner 2003; Woodward 2003)
- challenges for continuity of health care following incarceration and release, for example for Hepatitis C, or for treatment involving pharmacotherapies and psychotropic medications (Krieg 2006)
- mental and other health problems for children who have a parent in prison custody (20% of Indigenous children have a parent in custody at some stage) (Levy 2005)
- among children whose parents offend there is an increased risk of antisocial behaviour and imprisonment, mental and physical health issues, substance use, academic difficulties, and social marginalisation or exclusion in offspring (Roettger et al. 2019).
Studies have found that structural and systemic factors can also contribute to the high rates of Indigenous offending, including laws, policies and practices that can unintentionally operate to the detriment of Indigenous Australians (Allard 2010; Blagg et al. 2005).
Imprisonment for Indigenous Australian females is increasing faster than for Indigenous Australian males and non-Indigenous males and females. In New South Wales, female incarceration rates in general climbed 33% between March 2013 and June 2019, with almost a third of them (32%) being Indigenous Australian females. This was driven by a significant increase (66%) in the proportion of women on remand, rather than a growth in crime (Phelan et al. 2019).
Female prisoners (Indigenous and non-Indigenous) are often the victims and survivors of violence, and may use violence as a strategy to respond to their victimisation. Structural factors related to bail and sentencing laws also appear to be contributing, with around 40% of all female prisoners in Australia being unsentenced (on remand) (Australia’s National Research Organisation for Women’s Safety Limited 2020; Heffernan et al. 2015; Wilson et al. 2017).
Other studies have shown high proportions of Indigenous Australian female prisoners are survivors of childhood sexual and other abuse (Lawrie 2003a, 2003b; Productivity Commission 2016; Wundersitz 2010) and have had post‑traumatic stress disorder (from the sudden death of a loved one, being the victim of serious domestic violence or sexual assault, or observing serious physical violence in the home as a child) (Heffernan et al. 2015).
Over the four year period June 2015–June 2019, young Indigenous Australians made up a higher proportion of those in unsentenced detention (52%–59% each quarter) than those in sentenced detention (45%–54%) (AIHW 2020c). The consequences of this are severe and include separation from family and community; lack of access to therapeutic programs; a greater likelihood of receiving a remand period following a future court appearance and receiving a sentence of imprisonment compared with young people who are released on bail (Richards & Renshaw 2013); and greater risk of repeated contact with the criminal justice system in the future (Amnesty International 2017; Jesuit Social Services and Effective Change Pty Ltd 2013).
In New South Wales prisons in 2009, Aboriginal inmates were twice as likely to report a history of juvenile detention compared with non-Indigenous inmates, and Aboriginal men were more likely to have been in juvenile detention five or more times compared with non-Indigenous men (Indig et al. 2010). In New South Wales, a higher proportion of young Aboriginal youths in juvenile detention had been placed in out-of-home care as a child (38%) than non-Indigenous youths (17%) (Indig et al. 2011) (see measure 2.12 Child protection).
Evidence shows how the effects of prison custody persist after release. A study in Western Australia found that released prisoners have an increased risk of death compared with the general population, and this risk is greater for Aboriginal people, with female Aboriginal prisoners at a particularly high relative risk (Krieg et al. 2016; Stewart et al. 2004).
The longitudinal analysis shows that Indigenous Australians are around 1.7 times as likely as non-Indigenous Australians to be re-imprisoned within 10 years of release (ABS 2014; Zhang & Webster 2010).
A recent study modelled the costs of Indigenous and non-Indigenous offending and found more prolific offending among Indigenous Australians resulting in much higher costs across the justice continuum compared with non-Indigenous Australians. Between the ages of 10 and 31 years, chronic Indigenous offenders are estimated to each cost the criminal justice system over $380,000, compared with just under $75,000 for non-Indigenous offenders. This is primarily due to the greater frequency and length of youth justice sanctions for the Indigenous chronic offending cohort—in particular, probation orders and detention. The greater frequency may be due to the greater churn or frequency of contact with the criminal justice system for the Indigenous chronic offenders cohort over their young adult life, compared with the non-Indigenous chronic offenders cohort. It may also partly be due to the somewhat greater rate of violent offending among the Indigenous chronic offenders cohort, which may affect their eligibility for diversionary options or particular sanction types, as well as potentially affecting the length of their sanctions (Allard et al. 2020).
In 2009, the Australian Government funded the evaluations of 20 Indigenous Australian justice programs to build the evidence-base to support the National Indigenous Law and Justice Framework (2009).
The evaluations reviewed programs designed to reduce the rates of offending for Indigenous Australians, incarceration and recidivism, particularly among Indigenous youths and perpetrators of violent crime. The evaluations were published in 2013 and identified elements of programs that were good practice and well managed:
- Indigenous courts and conferences provide a more culturally appropriate and inclusive process and encompass the wider circumstances of offenders and victims, and may contribute to reducing recidivism.
- Community participation in supporting offenders’ reintegration post-release and preventing reoffending has brought ownership of the justice process and improved accountability and support for offenders.
- Effective service coordination and partnerships with allied services can assist offenders to navigate the complex justice system and gain access to the services they need.
- Monitoring and evaluation of programs need to be embedded in the program design with clear objectives and goals (Cultural Indigenous Research Centre Australia 2013a, 2013b).
The Closing the Gap Clearinghouse identified similar promising practices of Indigenous youth justice programs such as the importance of having adequately resourced, culturally appropriate and competent services; effective collaboration; addressing multiple and complex needs of offenders; and family engagement and parental training. However, there is a lack of evidence on whether prevention and early intervention programs are working to reduce the over-representation of Indigenous young people in the criminal justice system (Davis & Higgins 2014). Areas that require further in-depth research and evaluation include how Indigenous participants fare in mainstream justice programs; how sustainable the outcomes are; if collaborative case management in youth crime prevention and reduction programs is effective for Indigenous young people; and how effective the structured, cognitive behavioural programs based on ‘Western’ psychological theories (Davis & Higgins 2014).
Marchetti (2017) argued that limited quantitative measurement of outcomes such as failure to reduce reoffending does not necessarily mean Indigenous-focused justice programs have failed, but rather suggest that important aspects of their contribution, such as the cultural complexities that drive and influence these programs, are not being measured (Marchetti 2017).
A recent follow-up quantitative evaluation, after an initial evaluation in 2008, found that circle sentencing is associated with lower levels of incarceration and recidivism. However, the evaluation was unable to address the possibility that selection bias was driving the estimates, and thus they should be interpreted with caution. (Circle sentencing is an alternative method of sentencing Indigenous offenders that that involves the offender’s community, Elders, and sometimes victims in the sentencing process.)
The Tiwi Islands Youth Development and Diversion Unit (Northern Territory) provides a 12‑week diversion program engaging Tiwi youth (typically first‑time youth offenders) in prevention activities that aim to benefit the offender, the victim and the community (Davis & Higgins 2014; Stewart et al. 2014).
- An independent evaluation of the program found it was effective in reducing adverse contact between Tiwi youth and the criminal justice system (Stewart et al. 2014). Individual re‑offence data from the Northern Territory Police for program participants showed that 20% of participants (13 of 65 young people) had contact with the police for alleged offences in the year following commencement with the program—below what would be expected for this population without the intervention.
- Qualitative data found the program was useful in reconnecting young people to cultural norms, was culturally ‘competent’ and directly addressed the factors that contribute to offending behaviour, such as substance misuse, boredom and disengagement from work or education.
The findings and research show a high level of intergenerational disadvantage associated with contact with the criminal justice system. Supporting children and their families through wrap-around services and programs, designed and led by Indigenous Australians, can reduce the intergenerational effects of incarceration (Roettger et al. 2019). Many Indigenous Australians do not offend despite the presence of the common risk factors for offending. Further research into resilience and protective factors will aid approaches to prevention (Wundersitz 2010).
Primary responsibility for criminal justice issues sits with state and territory governments. The states and territories, as well as non-government organisations, deliver a range of programs to reduce levels of Indigenous incarceration and reoffending, including diversionary programs (for example cautions and conferencing), circle sentencing and Indigenous courts, and prisoner through-care arrangements (AHRC 2013). The Australian Government also funds a number of activities to complement efforts by states and territories to improve justice and community safety outcomes for Indigenous Australians, such as Custody Notification Services and Indigenous-specific through-care programs.
Crime prevention strategies have been recommended by the Australian Law Reform Commission. Justice reinvestment initiatives in Australia have taken the form of programs designed to empower Indigenous Australians to identify the drivers of crime and develop tailored, place-based solutions. These solutions are chosen for their potential to prevent crime (for example, night patrols or alcohol restrictions) and reduce recidivism (for example by rehabilitating prisoners returning to the community) (Australian Law Reform Commission 2017; Desmond Dawes & Davidson 2019).
Indigenous Australians are more likely to return to prison than non-Indigenous Australians, as they are more likely to experience risk factors for offending. Culturally appropriate wrap-around support models, such as Indigenous-specific through-care models, are designed to help address risk factors for reoffending through offering tailored support to Indigenous Australians while incarcerated and for an extended period following release from prison (Australian Law Reform Commission 2017; Committee 2013). In April 2016, the Council of Australian Governments agreed to develop methods to address barriers to employment on release and to support Indigenous Australians as they transition from incarceration to employment (COAG 2016).
Efforts to address the overrepresentation of Indigenous Australians in the criminal justice system include:
- maternal health, parenting skills and family-based programs
- holistic intensive programs for Indigenous young people in out of home care
- actions targeting those at high risk of offending
- therapeutic and holistic support to address criminogenic needs
- programs targeting aggression and problem sexual behaviour
- prison-based rehabilitative programs, including prison services for people with a cognitive disability
- prisoner through-care programs, including employment-focused re-entry programs
- access to appropriate legal services (Australian Law Reform Commission 2017)
- early intervention, prevention, justice reinvestment and diversion initiatives (PricewaterhouseCoopers 2017).
A strong attachment to culture is associated with better outcomes on a range of indicators, including the probability of being arrested or reoffending (Dockery 2010; Lafferty et al. 2016; Shepherd et al. 2018). Culturally appropriate law, legal and court services (Aboriginal and Torres Strait Islander Legal Services, Koori courts, circle sentencing, and restorative justice) that meet complex legal, cultural and language needs can assist Indigenous Australians to navigate the justice system and mitigate systemic factors that disadvantage Indigenous Australians (Australian Law Reform Commission 2017; Urbis 2019).
In Australia, the minimum age of criminal responsibility is 10. This is the age below which a child is deemed incapable of having committed a criminal offence. At the time of writing, this was under review. For context, doli incapax is a longstanding common law doctrine that is a fundamental element of Australian criminal law. Translated from Latin as ‘incapable of evil’, doli incapax states a presumption that a child between the ages of 10 and 14 cannot commit a crime because he or she does not understand the difference between right and wrong.
Two main principles upon which the Australian youth justice system is based, and are incorporated in state and territory legislation, are that young people should be detained only as a last resort and for the shortest appropriate period (Chrzanowski & Wallis 2011).
Diverting young people from further involvement in the justice system is crucial. Forms of diversion include:
- police warnings
- referral to services such as drug and alcohol treatment
- bail supervision for those at risk of remand
- youth justice conferencing.
Alternatives to detention include:
- transfer to specialist courts or programs
- supervised or unsupervised community orders (AIHW 2020c).
Research needs to consider the effectiveness of different forms of diversion and alternatives to detention for addressing the over-representation of Indigenous youth in the justice system, particularly those in remand and unsentenced detention.
Another critical issue in supporting Indigenous Australians who have contact with the justice system is ensuring that universal services are accessible and able to meet their need. For example, access to health services is needed both prior to imprisonment and post-release (Lloyd et al. 2013). Accessing health care post-imprisonment may require reapplying for a Medicare number, which creates an additional barrier to addressing health issues while managing competing priorities of re-establishing housing, employment and relationships with family and community. Some Aboriginal health organisations have developed their own health programs for prisoners and their families (Nettleton et al. 2007; Tongs et al. 2007).
A contributing factor to the over-representation of prisoners—including Indigenous prisoners—with mental health and substance use problems, is the lack of institutional psychiatric care positions available in the community (Rosen 2006).
In 2016, Delaney-Thiele and others examined the effects of incarceration and the return of former inmates to their communities on family members and how primary health care services might provide better support to Indigenous families and communities. They highlighted the need to identify which organisations are the key duty bearers for former inmates and family members and how best to support them to ensure they can access their rights to health and wellbeing. The study found that the key to effective post-release support is a linked and collaborative service network model so that when families and former inmates seek support, primary health care providers are ready to activate the network as well as provide targeted health interventions as needed (Delaney-Thiele et al. 2016).
A further area in which improvements could allow the needs of Indigenous Australian prisoners to be identified and addressed is data collection. The Australian Government is also working with states and territories to develop nationally comparable Indigenous offending and victimisation data sets that will assist with identifying areas of greatest need and monitoring trends. More evidence is required about what prevention strategies and interventions are effective in reducing victimisation, offending and reoffending, and contact with the criminal justice system. There are also a number of gaps in the evidence regarding youth justice supervision, children intersecting between the child protection and youth justice systems, tracking movement into adult detention, and the health of those under youth justice supervision.
The Australian Bureau of Statistics is working with corrective services agencies to explore ways to improve prisoner flow data to build a more accurate picture of incarceration (ABS 2019). National reporting of prison separations will help inform through‑care services for those released from prison (Avery & Kinner 2015).
The new National Agreement on Closing the Gap has been developed in partnership between all Australian governments and the Coalition of Aboriginal and Torres Strait Islander Peak Organisations. This new agreement outlines a better way of working, with governments working in genuine partnership Indigenous people to obtain better outcomes. The National Agreement sets out ambitious targets and new priority reforms that will change the way governments work to improve life outcomes experienced by Indigenous Australians. The National Agreement specifically outlines the following outcomes and targets to direct policy attention and monitor progress:
- Outcome 10—Aboriginal and Torres Strait Islander people are not overrepresented in the criminal justice system.
- Target—By 2031, reduce the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15 per cent.
- Outcome 11—Aboriginal and Torres Strait Islander young people are not overrepresented in the criminal justice system.
- Target—By 2031, reduce the rate of Aboriginal and Torres Strait Islander young people (10–17 years) in detention by 30 per cent.
The policy context is at Policies and strategies.
- ABS (Australian Bureau of Statistics) 2014. Australian Social Trends 2014. Canberra: ABS.
- ABS 2016. National Aboriginal and Torres Strait Islander Social Survey 2014–15. Cat. no. 4714.0. Canberra:
- ABS 2018. Prisoners in Australia, 2018. Cat. no. 4517.0. Canberra: ABS.
- ABS 2019. Corrective Services, Australia, March quarter 2019. Canberra.
- AHRC (Australian Human Rights Commission) 2013. The Social Justice and Native Title Report 2013. AHRC.
- AIHW (Australian Institute of Health and Welfare) 2019a. The health of Australia’s prisoners 2018. Cat. no. PHE 246. Canberra: AIHW.
- AIHW 2019b. Youth justice in Australia 2017–18. Cat. no. JUV 129. Canberra: AIHW.
- AIHW 2019c. Young people in child protection and under youth justice supervision 1 July 2014 to 30 June 2018. Canberra: AIHW.
- AIHW 2020a. Australia's welfare snapshots 2019—youth justice. Canberra: AIHW.
- AIHW 2020b. Youth justice in Australia 2018–19. Canberra: AIHW.
- AIHW 2020c. Youth detention population in Australia 2019. Canberra: AIHW.
- Allard T 2010. Understanding and preventing Indigenous offending (Brief 9). NSW, Indigenous Justice Clearinghouse.
- Allard T, McCarthy M & Stewart A 2020. The costs of Indigenous and non-Indigenous offender trajectories. Trends & Issues in Crime & Criminal Justice.
- Amnesty International 2017. The crisis of Indigenous youth detained in Australia. (ed., National Aboriginal and Torres Strait Islander Legal Services). UN human rights council.
- Australia’s National Research Organisation for Women’s Safety Limited 2020. Telling life stories: Exploring the connection between trauma and incarceration for Aboriginal and Torres Strait Islander women. Sydney.
- Australian Law Reform Commission 2017. Pathways to Justice—Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report No 133.
- Australian Medical Association 2015. 2015 AMA Report Card on Indigenous Health - Closing the Gap on Indigenous Imprisonment Rates. Barton: Australian Medical Association.
- Avery A & Kinner SA 2015. A robust estimate of the number and characteristics of persons released from prison in Australia. Australian and New Zealand journal of public health 39:315-8.
- Avery S 2018. Culture is inclusion: A narrative of Aboriginal and Torres Strait Islander people with disability.
- Blagg H, Morgan N, Cunneen C & Ferrante A 2005. Systemic racism as a factor in the overrepresentation of Aboriginal people in the Victorian criminal justice system. Report to the Equal Opportunity Commission of Victoria.
- Brown D 2010. The limited benefit of prison in controlling crime. Current Issues in Criminal Justice 22:137-48.
- Butler T & Milner L 2003. The 2001 New South Wales Inmate Health Survey. Corrections Health Service Sydney.
- Butler T & Simpson M 2017. National prison entrants’ blood-borne virus survey report 2004, 2007, 2010, 2013, and 2016. Sydney: The Kirby Institute (UNSW Sydney).
- Chrzanowski A & Wallis R 2011. Understanding the youth justice system.
- COAG (Council of Australian Governments) 2016. Council of Australian Governments Meeting Communique - 1 April 2016. COAG (Council of Australian Governments).
- Committee LaCAR 2013. Value of a justice reinvestment approach to criminal justice in Australia. Canberra.
- Corrigan M 2018. Aboriginal justice: Major report makes key access to justice recommendations to reduce Indigenous incarceration. Bulletin (Law Society of South Australia) 40:34-6.
- Cultural Indigenous Research Centre Australia 2013a. Evaluation of Indigenous Justice Programs—Project A: Aboriginal and Torres Strait Islander Sentencing Courts and Conferences, Final Report. (ed., Department AGs). Canberra.
- Cultural Indigenous Research Centre Australia 2013b. Evaluation of Indigenous Justice Programs Project B: Offender Support and Reintegration Final report. (ed., Department AGs). Sydney: Cultural & Indigenous Research Centre Australia (CIRCA) in collaboration with Anne Markiewicz and Associates
- Davis KL & Higgins D 2014. Law and justice: prevention and early intervention programs for Indigenous youth. Vol. Resource sheet no. 34 Canberra: Australian Institute of Health and Welfare and Australian Institute of Family Studies.
- Delaney-Thiele D, Lloyd JE, Abbott P, Baldry E, McEntyre E, Malera-Bandjalan K et al. 2016. How primary health care can better support the families of aboriginal Australians in contact with the criminal justice system: A human rights approach. Aboriginal and Islander Health Worker Journal 40:25.
- Desmond Dawes G & Davidson A 2019. A framework for developing justice reinvestment plans for crime prevention and offender rehabilitation in Australia’s remote indigenous communities. Journal of offender rehabilitation 58:520-43.
- Dockery AM 2010. Culture and wellbeing: The case of Indigenous Australians. Social Indicators Research 99:315-32.
- Doherty L & Bricknell S 2020. Deaths in custody in Australia, 2017–18. Canberra: Australian Institute of Criminology.
- Heffernan E, Andersen K & Dev A 2012. Inside out: the mental health of Aboriginal and Torres Strait Islander people in custody report.
- Heffernan EB, Andersen KC, Aboud A, Scotney A & Kinner SA 2015. The Family Business: Improving the Understanding and Treatment of Post Traumatic Stress Disorder Among Incarcerated Aboriginal and Torres Strait Islander Women: Report. Beyondblue.
- Indig D, Topp, L., Ross, B., Mamoon, H., Border, B., Kumar, S. & McNamara, M, 2010. 2009 NSW Inmate Health Survey: Key Findings Report. Sydney: Justice Health.
- Indig D, Vecchiato C, Haysom L, Beilby R, Carter J, Champion U et al. 2011. 2009 NSW Young People in Custody Health Survey: Full Report. Sydney: Justice Health.
- Jesuit Social Services and Effective Change Pty Ltd 2013. Thinking Outside: Alternatives to remand for children, Summary Report.
- Korff J 2016. Mental health at its worst in prison.
- Krieg AS 2006. Aboriginal incarceration: health and social impacts. Medical Journal of Australia 184:534-6.
- Krieg AS, Guthrie JA, Levy MH & Segal L 2016. “Good kid, mad system”: the role for health in reforming justice for vulnerable communities. The Medical Journal of Australia 204:177-9.
- Lafferty L, Treloar C, Chambers GM, Butler T & Guthrie J 2016. Contextualising the social capital of Australian aboriginal and non-aboriginal men in prison. Social Science & Medicine 167:29-36.
- Lawrie R 2003a. Speak out speak strong: researching the needs of Aboriginal women in custody. Australian Indigenous Law Reporter 8:81-4.
- Lawrie R 2003b. Speak out speak strong: Rising imprisonment rates of Aboriginal women. Indigenous Law Bulletin 5:5-7.
- Levy M 2005. Prisoner health care provision: Reflections from Australia. International Journal of Prisoner Health 1:65-73.
- Lloyd J, Baldry E, McEntyre E, Indig D, Harris MF, Thiele D et al. 2013. Primary health care services better meeting the needs of Aboriginal Australians transitioning from prison to the community: SPRINT final report. Sydney: UNSW.
Phelan L, Sotiri M & Scott M 2019. KWOOP Profile of Women in Prison Part A: A Snapshot. Sydney.
- Marchetti E 2017. Nothing Works? A Meta-Review of Indigenous Sentencing Court Evaluations. Current Issues in Criminal Justice 28:257-76.
- McCausland R, McEntyre E & Baldry E 2017. Indigenous People, Mental Health, Cognitive Disability and the Criminal Justice System. Indigenous Justice Clearinghouse, Policy and Reform, NSW Department of Justice.
- Nettleton C, Napolitano DA & Stephens C 2007. An Overview of Current Knowledge of the Social Determinants of Indigenous Health: Working Paper.
- PricewaterhouseCoopers 2017. Indigenous incarceration – Unlock the Facts.
- Productivity Commission 2016. Overcoming Indigenous Disadvantage: Key Indicators report 2016.
- Richards K & Renshaw L 2013. Bail and remand for young people in Australia: A national research project.
- Roettger M, Lockwood K & Dennison S 2019. Indigenous people in Australia and New Zealand and the intergenerational effects of incarceration.
- Rosen A 2006. The Australian experience of deinstitutionalization: interaction of Australian culture with the development and reform of its mental health services. Acta Psychiatrica Scandinavica 113:81-9.
- Royal Commission into Aboriginal Deaths in Custody 1991. National Report. Australian Government Publishing Service.
- Senate Community Affairs References Committee 2010. Hear us: inquiry into hearing health in Australia. . Canberra.
- Shepherd SM, Delgado RH, Sherwood J & Paradies Y 2018. The impact of indigenous cultural identity and cultural engagement on violent offending. BMC Public Health 18:1-7.
- Shepherd SM, Ogloff JRP, Shea D, Pfeifer JE & Paradies Y 2017. Aboriginal prisoners and cognitive impairment: the impact of dual disadvantage on Social and Emotional Wellbeing. Journal of Intellectual Disability Research 61:385-97.
- Stewart J, Hedwards B, Richards K, Willis M & Higgins D 2014. Indigenous youth justice programs evaluation.
- Stewart LM, Henderson C, Hobbs MS, Ridout SC & Knuiman MW 2004. Risk of death in prisoners after release from jail. Australian and New Zealand journal of public health 28:32-6.
- Tongs J, Chatfield H & Winnunga Nimmityjah Aboriginal Health Service 2007. The social determinants of Aboriginal prison health and the cycle of incarceration and their implications for policy: an Australian Capital Territory case study. Adelaide.
- Urbis 2019. Review of the Indigenous Legal Assistance Program 2015-2020. (ed., Department AGs). Australia: Urbis in association with Cox Inall Ridgeway (CIR).
- Vanderpoll T & Howard D 2012. Massive prevalence of hearing loss among Aboriginal inmates in the Northern Territory. Indigenous Law Bulletin 7:3-7.
- Weatherburn D 2014. Arresting Incarceration: pathways out of Indigenous imprisonment. Canberra: Aboriginal Studies Press.
- Wilson M, Jones J, Butler T, Simpson P, Gilles M, Baldry E et al. 2017. Violence in the lives of incarcerated Aboriginal mothers in Western Australia. Sage open 7:2158244016686814.
- Woodward R 2003. Families of prisoners: Literature review on issues and difficulties. FaHCSIA Occasional Paper.
- Wundersitz J 2010. Indigenous perpetrators of violence: Prevalence and risk factors for offending. AIC reports. Research and Public Policy series.:xi.
- Zhang J & Webster A 2010. An Analysis of Repeat Imprisonment Trends in Australia using Prisoner Census Data from 1994 to 2007. (ed., Australian Bureau of Statistics). Canberra: ABS.