Criminal Justice and Indigenous Women in Australian Prisons

This essay examines the significant over-representation of Indigenous Australians, particularly women, within the Australian prison system. It explores the historical and systemic factors contributing to this disparity, including sentencing practices, recidivism, and the impact of structural disadvantages. The analysis draws upon statistical data from the Australian Bureau of Statistics (ABS) and research from various scholars to highlight the unequal treatment of Indigenous offenders compared to their non-Indigenous counterparts. The essay investigates the application of legal principles, such as the Walker v The State of New South Wales judgment, and the individualised justice principle, to assess whether structural circumstances are adequately considered in sentencing. The conclusion emphasizes the need for a more equitable approach within the criminal justice system, acknowledging the unique challenges faced by Indigenous communities and advocating for reforms to address the high rates of incarceration.

Running head: PRISON PUNISHMENT AND CRIMINAL JUSTICE
PRISON PUNISHMENT AND CRIMINAL JUSTICE
Name of Student
Name of University
Author Note

Introduction
In Australia there are more than 400 separate indigenous communities. One of the
most pressing concerns in human rights in relation to the indigenous people in Australia is
their overrepresentation in the prison system. As per the statistics provided by the ABS there
has been a tremendous growth in the confinement rate of the indigenous people in the
Australian prison system in the recent few years (Abs.gov 2018). The report also provided the
growth in the imprisonment rate among the indigenous female population has been higher
than the imprisonment rate among the men. In this essay the main aim had to discuss about
the growth in the imprisonment rates among the aboriginal people in the Australian system of
criminal justice. In the context the special focus would be put upon the over-representation of
aboriginal women in the Australian penal system.
Indigenous People in Australia
The penal system in Australia focuses primarily on delivering justice against any
individual who has committed any kind of crimes. Another focus of the penal system is to
provide rehabilitive justice to the offenders to help them get back to the society. The penal
system is important for maintaining law and control in the society and for the safety of the
fundamental human rights of people (Ashworth 2015). In the recent times the most pressing
issue that the criminal justice system is facing is over representing the aboriginal people in
the penal system.
The aboriginal people can be described as the original residents of the country who
have been residing in the country from a very long time. The indigenous people in Australia
are the individuals residing in the country for almost 65000 years which is even before the
period of British Colonization (Anthony 2013). In Australia there are more than 400 separate

indigenous communities. As per the statistics provided by the ABS there have been
tremendous growths in the detention rate of the aboriginal people in the Australian prison
system in the recent few years (Abs.gov 2018). The report also provided the growth in the
imprisonment rate among the indigenous womenfolk has been higher than the imprisonment
rate among the men even. This issue has raised severe concerns even among the international
communities who have taken many significant steps for the process of development and
coordination for decreasing the growing rate of women in the prisons; most of which were
not much successful (Carlen 2013). In the present time, as per any of the demographics
referring to the prisoner rates in Australia, the highest rate of incarceration can be observed to
be among the women from the aboriginal communities.
Statistical Data
According to a recent “Social Justice and Native Title Report” it has been perceived
that there has been a significant rise in the rates of incarceration among the aboriginals in the
last 15 years (Humanrights 2019). As per the researches it has also been observed that the
indigenous and the people of Torres Strait islanders contribute to only 2% of the entire
population in Australian and in furtherance add to almost 28% of the overall adult
inhabitants. As per the researches it has also been found that the proportion of indigenous
detention is almost 15 times higher than the degree of incarceration among the non-
indigenous men. As per the statistics provided by the Australian Bureau of Statistics it has
provided the growth in the imprisonment rate among the indigenous womenfolk has been
higher than the imprisonment rate among the men even (Abs.gov 2018). The imprisonment
rate of aboriginal women is 21 times higher than the rate of imprisonment among the non-
indigenous female population (MacGillivray, Clearinghouse, and Baldry, 2015). A significant
reason for the high rate of imprisonment among the indigenous womenfolk is recidivism. As

per the AIC reports 76% of the indigenous prisoners have been imprisoned previously (AIC
2019).
Sentencing
There has been substantial change in the characterization of the aboriginal offenders
in the penal system in Australia. They have been considered to be helpless and incapable of
defending themselves and treated as the object of sympathy; and also as being highly
dysfunctional while treated as being the objects of risk. Although, as per the Walker v The
State of New South Wales [1994] judgment every individual is required to be treated equally
before law, yet this is not followed always. The penalizing arrangement for the native and the
non-indigenous offenders in the Australian Penal system is observed to be highly unequal.
According to the court data from various states such as NSW, South Australia, Queensland
and Western Australia the aboriginal delinquents are often punished in a stricter way than
their non-indigenous counterparts. The judgments in similar cases are seen as varying
between the aboriginals and the non-indigenous people. The aboriginals, further, receives
more custodial orders than the non-indigenous people. In their judgment in R v Bugmy (2013)
the High Court was observed as stating that the indigenous background of any individual
should not be considered as a mitigating factor in the sentencing process. However, the
factors which relate to the background of an offender, such as the socio-economic
disadvantages, health problems and family problems are required to be considered while
sentencing. These considerations should be in consistence with the Individualised justice
principles. The aboriginals have many issues relating to substance abuse, health problems,
and family issues and so on (Abs 2019). Therefore, following the individualised justice
principle the courts should be considerate towards the punishment of the aboriginal people.

Conclusion
A significant rise in the prison population has been observed in the recent years. This
rise is more prominent among the aboriginal people, specifically the women. The paper has
discussed about the higher rate of incarceration of the aboriginal women in Australia. The
major reason for the higher rate of imprisonment is the recidivism among the prisoners. It can
also be observed that although the justice system is required to treat every individual equally
yet there is a huge inequality between the sentencing structures for aboriginals and non-
indigenous offenders. Even though the aboriginal background cannot be a mitigating factor
for punishment, yet following the individualised justice principle the courts should be
considerate towards the punishment of the aboriginal people.

Reference
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Walker v The State of New South Wales [1994] 182 CLR 45 at 49