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HREOC Social Justice Report 2002: Indigenous women and corrections - A
Landscape of Risk

Social Justice Report 2002\

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  • Chapter
    5: Indigenous women and corrections - A Landscape of Risk

    A statistical
    overview of Indigenous women in corrections

    a)
    Rates of incarceration of Indigenous women

    b) Recidivism rates among Indigenous women
    c) Types of crime committed by Indigenous women
    d) Over-policing
    e) Sentencing patterns for Indigenous women
    f) Characteristics of Indigenous women who are imprisoned

    Policy debates
    about Indigenous women in corrections and human rights

    Experiences
    of Indigenous women in corrections

    Addressing
    the needs of Indigenous women in corrections

    Conclusion


    The Social Justice
    Report 2001
    reported on the situation of Indigenous prisoners in the
    decade following the Royal Commission into Aboriginal Deaths in Custody
    (RCIADIC). The report noted that the ten years since the Royal Commission
    have seen a rise in the adult prison population and an even sharper rise
    in numbers of Indigenous peoples in custody. While Indigenous men face
    unacceptably high rates of incarceration, the rate for Indigenous women
    is significantly higher [1] and is rising at a faster
    rate.[2] The Social Justice Report 2001 noted
    that this situation is 'profoundly distressing' and yet 'Aboriginal women
    remain largely invisible to policy makers and program designers with very
    little attention devoted to their specific situation and needs'. [3]

    This chapter follows
    up on these concerns and provides an overview of issues facing Indigenous
    women in corrections. It is broadly divided into four sections - an overview
    of the status of Indigenous women in corrections; an analysis of policy
    debates about Indigenous women in corrections and the growing recognition
    of the need to identify intersections of racism and gender discrimination;
    an overview of the specific issues faced by Indigenous women in corrections;
    and an overview of developments and proposals for more appropriately addressing
    Indigenous women's needs in correctional systems.

    Indigenous women
    face an unacceptably high risk of incarceration in prisons across Australia.
    The rising rate of over-representation of Indigenous women is occurring
    in the context of intolerably high levels of family violence, over-policing
    for selected offences, ill-health, unemployment and poverty. Studies of
    Indigenous women in prison reveal experiences of life in a society fraught
    with danger from violence. The consequences to the community of the removal
    of Indigenous women are significant and potentially expose children to
    risk of neglect, abuse, hunger and homelessness. Indigenous women also
    serve comparatively shorter sentences, suggesting a general failure to
    employ the principle of imprisonment as a last resort. Once imprisoned,
    recidivism statistics also indicate that Indigenous women are at greater
    risk of returning to gaol. Despite these factors, very little research
    has been conducted to explain the causes of it.

    The reports of the
    Royal Commission also focus almost exclusively on the circumstances of
    Aboriginal men. Of the 99 deaths investigated, only 11 were the deaths
    of women, and none of the recommendations of the Royal Commission specifically
    addressed the circumstances of Indigenous women.[4]

    Amid this bleak picture,
    there has been a growing awareness in recent years of the specific cultural
    needs of Indigenous women in corrections. It is beginning to be accepted
    that while much offending behaviour is linked to social marginalisation
    and economic disadvantage, the impact of non-economic deprivation, such
    as damage to identity and culture, as well as trauma and grief, have a
    significant relationship to offending behaviour. Effective crime prevention
    and pre- and post-release programs are beginning to recognise the need
    for Indigenous self-determination and participation, with a focus on cultural
    restoration and healing.

    A statistical
    overview of Indigenous women in corrections

    This section provides
    an overview of what is known about Indigenous female prisoners over the
    past decade. There is limited statistical data currently collected and
    limitations on the data are noted where relevant. This section considers
    changes in rates of incarceration over the past decade; recidivism statistics
    and descriptions of the type of offences committed by Indigenous women;
    sentencing patterns for Indigenous women; as well as a profile of the
    characteristics of the Indigenous women prison population.

    a) Rates
    of incarceration of Indigenous women

    Indigenous women
    are currently incarcerated at a rate higher than any other group in Australia.

    The decade since
    the Royal Commission into Aboriginal Deaths in Custody has seen an increase
    in the overall national prison population of 28 percent.[5]
    By 2001, all States and Territories had recorded increases in prison numbers
    varying from 116 per cent in Queensland to 25 per cent in New South Wales.[6]

    During this time,
    incarceration rates for women have increased at a more rapid rate than
    for men. The population of sentenced men incarcerated has increased from
    12,429 in 1991[7] to 20,960 in 2001.[8]
    This represents a 68.7% increase. At the same time, the female prison
    population increased from 607 to 1,498.[9] This represents
    an increase of 147% from 1991.[10] In 1991, women represented
    5 per cent of the proportion of all Australian prisoners. In 2001, this
    proportion had increased to 7 percent.[11]

    The increase in imprisonment
    of Aboriginal and Torres Strait Islander women has been much greater over
    the period compared with other women.[12] The number
    of Indigenous women incarcerated has increased from 104 in 1991 [13]
    to 370 Indigenous women in 2001.[14] This represents
    an increase of 255.8% over the decade. Similarly, rates of over-representation
    of Indigenous women are higher than for Indigenous men. For the June 2002
    quarter, Indigenous women were over-represented at 19.6 times the non-Indigenous
    rate compared to Indigenous men at 15.2 times.[15]

    Causes of the increases
    are complex and vary between jurisdictions. In New South Wales, the Select
    Committee into the Increase in Prison Population found in 2001 that the
    most significant contributing factor was the increase in the remand population.
    There was no evidence to suggest that an in increase in actual crime accounted
    for the prison increase, although increases in police activity and changes
    in judicial attitudes to sentencing were also important.[16]

    The following three
    tables highlight different aspects of these incarceration rates. Table
    1
    shows the number of people incarcerated in Australia in the period
    1991 to 2001 for men and women, and on the basis of Indigenous identity.

    Table
    1: Changes in Incarceration in Australia between 1991-2001

    [17]

    As
    at 30 June
    All
    Prisoners
    Males
    Females
    Indigenous
    Total Prisoners
    Indigenous
    Males
    Indigenous
    Females
    1991
    15021
    14300
    721
    2163
    n.a
    n.a
    1992
    15559
    14797
    762
    2245
    n.a
    n.a
    1993
    15866
    15105
    761
    2411
    n.a
    n.a
    1994
    16944
    16107
    409
    2800
    2642
    158
    1995
    17428
    16593
    835
    2985
    2821
    164
    1996
    18193
    17221
    972
    3273
    3067
    206
    1997
    19128
    17987
    1095
    3580
    3347
    233
    1998
    19906
    18778
    1128
    3750
    3489
    261
    1999
    21538
    20173
    1365
    4307
    3975
    332
    2000
    21714
    20329
    1385
    4095
    3787
    308
    2001
    22458
    20960
    1498
    4445
    4075
    370

    Table
    2
    distinguishes between rates of incarceration of Indigenous and non-Indigenous
    women and men expressed as rates of imprisonment per 100,000 of population.
    It reveals a steady rise in the over-representation of Indigenous women
    over the decade, to the point that by 1999 they were 17.5 times more likely
    to be incarcerated than non-Indigenous females. It also reveals that the
    rate (per 100,000) of Indigenous women in custody is approaching that
    of non-Indigenous men.

    Table
    2: Sentenced prison population - rate per 100,000 by Indigenous status

    [18]

      1991 1992 1993 1994 1995 1996 1997 1998 1999
    Total
    women
    607
    638
    649
    718
    709
    816
    919
    939
    1124
    Rate
    per 100,000 [19]
    9.2
    9.6
    9.6
    10.5
    10.2
    11.6
    12.9
    12.9
    15.3
    Total
    men
    12429
    13067
    13334
    14280
    14720
    15071
    15603
    16179
    17208
    Rate
    per 100,000
    194
    201.1
    202.9
    214.6
    218.3
    220.3
    224.8
    229.6
    240.5
    Non
    ATSI women
    503
    522
    538
    583
    570
    638
    722
    722
    851
    Rate
    per 100,000
    7.8
    7.9
    8.1
    8.7
    8.3
    9.2
    10.3
    10.1
    11.8
    ATSI
    women
    104
    116
    111
    135
    139
    178
    197
    217
    273
    Rate
    per 100,000 [20]
    103.9
    112
    104.8
    124.6
    125.5
    158.9
    166.6
    173.7
    206.5

    Table
    3
    shows over-representation rates on a state-by-state basis. New South
    Wales, Western Australia and South Australia have the highest over-representation
    rates.

    Table
    3: Indigenous imprisonment rates by state / territory - June 2002

    [21]

      
    Indigenous
    All
    inmates
    Over-representation
    rate
    Male
    Female
    Total
    Male
    Female
    Total
    Male
    Female
    Total
    NSW
    3852.4
    379.3
    2044.6
    292.6
    19.6
    153.5
    15.6
    25.8
    15.9
    Victoria
    2087.1
    206.0
    1137.4
    180.0
    13.1
    94.2
    12.1
    16.5
    12.6
    Queensland
    327.2
    247.6
    1723.4
    336.1
    20.8
    175.8
    12.7
    15.5
    12.6
    SA
    3452.1
    259.2
    1744
    246.3
    14.4
    127.8
    16.4
    21.5
    16.0
    WA
    4726
    400.8
    2493.6
    364.7
    26.1
    194.1
    18.3
    24.1
    18.2
    Tasmania
    n.p
    n.p
    678.8
    229.9
    19.7
    121.9
    n.p
    n.p
    6.3
    NT
    2751.4
    76.7
    1384.4
    879.7
    29.47
    4.9
    7.4
    6.3
    6.8
    ACT
    n.p
    n.p
    n.p
    46.8
    2
    23.8
    n.p
    n.p
    n.p
    Australia 3421 275.6 1790 276.4 18.2 144.8 15.2 19.6 15.2

    Other statistical
    reports also tell us the following about Indigenous women in corrections:

    • In New South
      Wales, Indigenous women represented 30 percent of the total female population
      in custody in October 2002 [22] despite constituting
      only 2 percent of the female population of the state. [23]

    • In Queensland,
      the growth of Indigenous female offenders in Queensland secure and open
      custody over the five year period from 1994-1999 was 204 per cent, compared
      with an increase of 173 per cent for all female offenders in Queensland
      over the same period. [24] In February 2001, Indigenous
      women represented 28.2 per cent of the total female population in Queensland
      open and secure centres. [25]

    • In Victoria,
      of the 4886 prisoners received into Victorian prisons in the 2000-01
      period, only 539 were women.[26] Nevertheless, while
      female representation is low overall, Indigenous women are over-represented,constituting
      8% of all female prisoners.[27]

    • In Western Australia,
      reception data [28] shows that for the period 1 July
      2001 to 30 June 2002, Aboriginal women represented 51.7 per cent of
      all women received into prison [29] despite constituting
      3.2 per cent of the female population of Western Australia.[30]

    • In the Northern
      Territory, Indigenous women constituted 57 percent of the total female
      prison population [31] and 26 per cent of the female
      population of the Northern Territory.[32]
    b) Recidivism
    rates among Indigenous women

    A significant factor
    among the Indigenous female prisoner population is the high rate of recidivism.
    National statistical data indicates that nearly 3 in every 4 (76 percent)
    of all Indigenous prisoners had been previously imprisoned. This statistic
    replicates data collected in 2000.[33] In New South
    Wales, 'almost 85% of Aboriginal women in prison have previously been
    in custody compared with 71% of non-Aboriginal women'.[34]
    When the Aboriginal Justice Advisory Committee in New South Wales recently
    conducted interviews with Indigenous women in New South Wales prisons,
    98 per cent of women had a prior conviction as an adult.[35]
    Table 4 shows recidivism rates for Indigenous compared
    to non-Indigenous women. It shows that recidivism rates are higher in
    all jurisdictions for Indigenous women.

    Table
    4: Sentenced women prisoners known to be previously imprisoned in Australian
    states in 1999
    [36]

     
    NSW
    VIC
    QLD
    SA
    WA
    TAS
    NT
    ACT
    Aust
    Sentenced
    Non-ATSI women
    380
    38
    171
    45
    94
    15
    7
    1
    851
    Previously
    imprisoned
    155
    82
    78
    24
    30
    6
    0
    0
    375
    -(%)
    (40.8)
    (59.4)
    (45.6)
    (53.3)
    (31.9)
    (40)
    (0)
    (0)
    (44.1)
    Sentenced
    ATSI women
    86
    6
    62
    10
    92
    2
    15
    0
    273
    Previously
    imprisoned
    62
    5
    39
    9
    64
    1
    9
    0
    189
    -(%)
    (72.1)
    (83.3)
    (62.9)
    (90)
    (69.6)
    (50)
    (60)
    0
    (69.2)

    Preliminary findings
    of a Victorian study on the prison population found a rate of re-offending
    of 71 percent among Indigenous women compared to a rate of 61 percent
    average in 2000 among the female population. The report noted:

    The emerging pattern
    amongst this group of offenders is that they have had a history of contact
    with the criminal justice system throughout all of their adult lives.
    Such a pattern appears to be directly linked to the fact that the majority
    of women suffered from some sort of long term drug addiction that required
    constant funding.[37]

    Statistics in relation
    to previous offending are a useful indication of a prison's achievements
    in rehabilitating offenders, [38] and these figures
    suggest a need to focus on the women prisoners offending and background
    with a view to effective interventions.[39] Development
    and support of effective programs for Indigenous women is clearly a priority
    to reduce rates of re-offending. The investigation of offences and sentencing
    patterns should be supported in order to clearly identify patterns which
    result in repeated use of custodial options.

    The pattern of recidivism
    or repeat offending contributes to the trend of increasing over-representation
    of Indigenous women. Investigation of the causes and conditions which
    place Indigenous women at risk of repeated imprisonment is a pressing
    concern.

    c) Types
    of crime committed by Indigenous women

    There are some limitations
    to the statistical information on crimes committed by Indigenous women.
    Prison census data, for example, records prisoners on the date of the
    census. Prisoners who served short sentences and are no longer present
    on the census day are not recorded. Therefore, these figures underestimate
    Indigenous women coming through the prison system on shorter sentences
    for more minor offences.

    Prison census data
    records the most serious crime for which an inmate is convicted. Therefore,
    other offences which might contextualise the criminal behaviour are generally
    not recorded. For instance, a person in possession of drugs at the time
    of an armed robbery will be recorded as an armed robber. The primary offence
    is recorded, but an apparent drug addiction is not represented in the
    figures.[40]

    Categories of criminal
    behaviour influence the image of criminal conduct provided by statistical
    records. For example, a broad range of events may be referred to as 'escape',
    'assault' or 'fraud'. The word 'escape' may refer to a planned violent
    break out from a gaol, but it most commonly refers to the action of prisoners
    who are serving the end of their sentence in a minimum security facility,
    and who leave prior to the end of their sentence. Another example is 'assault',
    which conjures up images of a violent attack, but it may equally refer
    to less violent forms of physical contact or generating the fear of physical
    contact. Fraud may refer to complex deceptions, but it may also refer
    to the conduct of omitting to inform Centrelink of a de-facto relationship
    while claiming a supporting parent's pension.[41]

    The importance of
    these distinctions is not intended to minimise criminal behaviour, but
    rather to signal the range of incidents and cultural contexts from which
    the statistical data is derived.

    Statistics on crimes
    committed by Indigenous women indicate that there is a considerable degree
    of variation in criminal behaviour across jurisdictions and within regions.
    Table 5 shows rates of commission of particular crimes
    by Indigenous women across Australia between 1994 and 2001.

    Table
    5: Most Serious Offence, Indigenous Women Prisoners, Australia 1994-2001

    [42]

      1994
    No
    1995
    No
    1996
    No
    1997
    No
    1998
    No
    1999
    No
    2000
    No
    2001
    No
    1994-2001
    % change
    Homicide 18 17 17 25 28 30 33 36 100
    Assault
    and related
    40 39 42 53 48 91 69 91 127
    Sex
    offences
    1     1   2 3 1  
    Robbery 10 16 29 25 27 29 43 54 440
    Extortion       1 1 1 4 4  
    Break
    and enter
    32 24 28 39 45 43 42 51 59
    Fraud 8 9 9 12 18 18 9 12 50
    Theft
    and related
    16 20 32 30 32 28 37 36 125
    Property
    damage
    4 7 4 7 3 2 4 9 125
    Justice
    procedures
    16 18 25 23 35 49 30 38 137
    Weapons       1       1  
    Good
    order
    2 1 2 3 5 11 6 4 100
    Drugs 5 7 6 3 3 7 6 11 120
    Driving
    and related
    3 5 10 10 16 20 22 14 366
    Other 3 1 2   1 1 3 8 166
    Total 158 164 206 233 261 332 308 370 134

    This table shows
    the various categories of offences for which Indigenous women were in
    prison at the time of the census. While underestimating the numbers of
    women serving short sentences for minor offences, the table shows a steady
    and significant increase in most categories of offences. Thus, there were
    100% more Indigenous women in prison for homicide related offences in
    2001 than 1994, 127% more for assault and related offences, 440% more
    for robbery, and so on.

    The increases were
    reasonably comparable across many offence categories, although of particular
    significance has been the increase in imprisonment for robbery offences,
    which outstripped all other changes. Imprisonment for fraud and break
    and enter convictions, although increasing over the period, did so less
    significantly than other categories of crime.

    The rise in robbery
    offences clearly requires investigation to determine factors contributing
    to this increase. In a recent study of Indigenous women in prisons in
    Victoria, property and robbery offences were by far the most commonly
    committed with a significant increase in robbery offences.[43]
    It was noted that robbery 'offences appeared to be directly linked to
    long term drug use'.[44]

    Nationally, Indigenous
    women comprise nearly 80% of all cases where women are detained in police
    custody for public drunkenness.[45] Similarly, by comparison
    to non-Indigenous women, Indigenous women are more likely to be incarcerated
    for violence.[46] In a number of jurisdictions there
    has been a rise in the numbers of Aboriginal women arrested and imprisoned
    for assaults. In Western Australia, 'Aboriginal females were over thirty
    six times more likely to be arrested for such offences than non-Aboriginal
    females'.[47] In Queensland, 'Indigenous female offenders
    are often incarcerated for violent offences and of these assault offences
    comprise the greatest proportion'.[48] Recent consultations
    by the Aboriginal and Torres Strait Islander and Women's Policy Units
    in Queensland found that community groups and correctional personnel expressed
    the need to address the links between alcohol use and violence by women.[49]

    Statistics on drug
    and alcohol related offences vary between jurisdictions. There has been
    a past general trend of low numbers of Indigenous people imprisoned for
    drug offences. In some jurisdictions this appears to be changing. Survey
    data from New South Wales and Victoria indicate wide use of drugs including
    narcotics. In a recent Victorian study, 'the offending behaviour of twelve
    of the fourteen women was directly linked to their drug addiction'.[50]

    In a recent survey
    the New South Wales Aboriginal Justice Advisory Council's Research Teams
    asked:

    … Aboriginal
    women in custody whether they thought that alcohol and/ or drugs were
    a contributing factor in their offending behaviour and current imprisonment.
    The figures show that four out of five Aboriginal women in custody believed
    that alcohol or drugs was an underlying issue in their offending with
    approximately 80% of participants responding in the affirmative.[51]

    In further discussions
    the Researchers asked Aboriginal women about this relationship. One woman
    who was a single mother to two children said that 'the reason why I am
    in here is because I assaulted someone…I was on speed at the time,
    and if I wasn't on that, then I wouldn't have done the assault.' The same
    woman had three prior convictions as an adult and mentioned that the first
    time she had been convicted was 'on fraud charges…I was twenty and
    got six months…the circumstances behind the offence was drugs...to
    pay for somewhere for us to live'.[52]

    This report of the
    New South Wales Aboriginal Justice Advisory Council into the needs of
    Aboriginal women in custody also found that:

    Approximately 68%
    of Aboriginal women were on drugs at the time of the offence. 14% were
    under the influence of alcohol and 4% were on both drugs and alcohol
    at the time of committing the offence. At least 18% of Aboriginal women
    in custody were not under the influence of drugs or alcohol at the time
    of offending, however two of those women said they were heroin users
    at the time of the offence were not under the influence of drugs.[53]

    In Queensland, however,
    only 2 per cent of Indigenous women were imprisoned for drug offences
    compared to 15 per cent of the non-Indigenous female prison population.
    [54] The use of illicit drugs is particularly low in
    north Queensland. [55] Instead, 'alcohol is often the
    drug of choice for Indigenous female offenders and a contributing factor
    to the offence for which they are incarcerated'.[56]

    A further significant
    factor in the incarceration of Indigenous women is fine defaulting. Different
    jurisdictions deal with fine default in different ways, with varying impacts
    on Indigenous communities. It is important that the use of fines as a
    non-custodial option does not translate into a prison sentence for fine
    default. Alternatives for fine default must be developed to ensure that
    already financially disadvantaged people are not burdened with impossible
    sanctions.[57]

    d) Over-policing

    A further concern
    about Indigenous women's contact with criminal justice processes relates
    to the potential over-policing of Indigenous women. As Chris Cunneen notes:

    Surveys of people
    held in police custody regularly reveal that Aboriginal and Torres Strait
    Islander women comprise around 50 per cent of all women taken into police
    custody in Australia… The 1995 Police Custody Survey revealed that
    Indigenous women were 58 times more likely to be held in police custody
    then non-Indigenous women; by comparison Indigenous men were 28 times
    more likely to be held in police custody than non-Indigenous men.[58]

    In NSW, 'Aboriginal
    people are over represented generally among persons arrested by police'.[59]
    In Western Australia:

    Aboriginal women
    comprise three-quarters of all women held in police custody and in the
    Northern Territory the proportion is close to 90 per cent of those detained.
    The police custody survey shows that women in general are detained in
    police custody proportionately more for offences of public disorder
    than are men, and that Indigenous women are particularly susceptible
    to being detained.[60]

    Studies in WA also
    indicate that once a woman has been arrested it is very likely she will
    be arrested again. One WA study showed an 85% likelihood that a woman
    would be arrested again, after her first arrest.[61]

    e) Sentencing
    patterns for Indigenous women

    Indigenous women
    tend to receive shorter sentences than non-Indigenous women. General rates
    of over-representation tend to indicate that Indigenous women are not
    being provided with non-custodial sentencing options. Shorter sentences
    also appear to be linked to high rates of incarceration for public order
    offences.

    As Chris Cunneen
    notes in relation to developments in the decade since the Royal Commission:

    Indigenous women
    are invariably serving short sentences, many of which relate to fine
    default and to convictions for public order offences… Although
    the offence may be relatively minor, such as swearing in public or drinking
    alcohol in public, the full impact of the intervention may well result
    in imprisonment in a maximum security prison, particularly if fines
    imposed by the court for minor offences are not paid.

    A recent NSW report
    found that a greater proportion of Aboriginal women were imprisoned
    for minor offences than non-Aboriginal women, imprisonment arising from
    the failure to pay fines for a range of minor traffic and public transport
    offences, such as disobeying traffic signs, driving with an unrestrained
    child, travelling on a bus with an incorrect ticket and avoiding railway
    fares.

    In Western Australia,
    some 20 percent of the offences for which Aboriginal and Torres Strait
    Islander women were gaoled related to public disorder, including disorderly
    conduct, drunkenness and other good order offences. Less than 3.5 per
    cent of sentenced non-Indigenous women were in prison for similar offences.[62]

    A recent study of
    deaths in custody found that a large proportion of women who died in custody
    had been detained for good order offences and that over half of the offences
    related to public drunkenness. Similarly:

    the likelihood
    of detention for good order offences was greater for Indigenous women.
    One out of two Indigenous women and 28 percent of all non-Indigenous
    women who died in custody, were detained for such offences.

    The Final Report
    of the Royal Commission into Aboriginal Deaths in Custody (1991)
    noted the high incidence of good-order offences in the criminal histories
    of the women whose deaths it investigated. Similarly, in 1995, the National
    Police Custody Survey also found that Indigenous people were held in
    custody at higher rates than other Australians and that detention for
    public drunkenness was a serious problem among Indigenous women in particular.[63]

    Despite concerns
    about connections between public drunkenness and incarceration expressed
    in the Royal Commission, Queensland, Tasmania and Victoria have yet to
    decriminalise public drunkenness.[64] It has been noted,
    however, in a Victorian study that Indigenous people have expressed concerns
    that decriminalisation of public drunkenness would not produce a fall
    in arrests for good order offences:

    They believed that
    if public drunkenness were no longer an offence, police would simply
    use other public order offences and resisting arrest as a means for
    detaining or arresting Koorie people.[65]

    Payne points to another
    problem arising out of the decriminalisation of public drunkenness, in
    the absence of accessible, effective centres to house intoxicated people:

    By not providing
    alternatives to police cells, such as sobering-up centres or detoxification
    units for detaining those excessively affected by alcohol, one answer
    has been to take them home. It is often the wives, mothers and grandmothers
    who are left to deal with the consequent violence and mental and physical
    problems.[66]

    There is currently
    discussion about abolishing shorter sentences to imprisonment in Western
    Australia in order to deal with Indigenous over-representation in custody.

    The Western Australian
    Government has recently introduced a bill to Parliament which abolishes
    all sentences of 6 months or less.[67] This action was
    taken because the Western Australian Government was of the view that 'short
    prison sentences serve no useful purpose and that it is more appropriate
    to manage such offenders under a community sanction'.[68]

    The bill is intended
    to reduce imprisonment rates for Indigenous people which were described
    by the Minister as a national disgrace. Western Australia had previously
    proscribed three month sentences, and required judicial officers to provide
    written reasons as to why no other form of punishment was appropriate,
    where they sentenced offenders for six months of less. The Government
    sees the abolition of sentences of six month or less as a natural progression.[69]
    The bill would also reverse a Court of Criminal Appeal decision in 1998,
    which ruled that non-custodial options could not be imposed for imprisonable
    offences. If the bill is passed this may also contribute to a reduction
    in rates of imprisonment of Indigenous women for driving offences in Western
    Australia.

    In NSW it is considered
    that a similar move would have a significant impact on Indigenous imprisonment
    rates. As Chris Cunneen notes:

    Aboriginal men
    and women tend to be more concentrated among those serving sentences
    less than five years than non-Aboriginal people…Although the abolition
    of six month sentences would only provide for 82 less Aboriginal male
    prisoners and 12 less Aboriginal women prisoners on a particular day,
    we could expect that the overall significance would be considerably
    greater on the number of Aboriginal people entering the prison system.
    Other research has suggested that if Aboriginal people given sentences
    of six months or less were given non-custodial sanctions instead, then
    the number of Aboriginal people sentenced to prison would be reduced
    by 54% over a twelve month period.[70]

    f) Characteristics
    of Indigenous women who are imprisoned

    In general Indigenous
    women in gaol are slightly younger than non-Indigenous women. The majority
    are aged between 20 and 30 years old. There are no national figures for
    Indigenous women prisoners with children, but a majority of incarcerated
    women are mothers. In New South Wales, 54 per cent of incarcerated Indigenous
    women are single and 86 per cent have children. [71]
    In Western Australia, 70 percent of Indigenous women had children.[72]
    In Victoria, 80 percent of incarcerated Indigenous women were mothers,
    most with young children.[73]

    Indigenous women
    also often enter custody with poor physical or mental health. A recent
    Queensland report noted:

    In general Indigenous
    female offenders entering custody have a poor health profile. For example,
    Indigenous female offenders report higher rates of sexually transmitted
    diseases, higher rates of current pregnancies, higher rates of respiratory
    conditions and diabetes and lower rates of contraception use than non-Indigenous
    women… Mental health problems are reported in similar proportions
    both Indigenous and non-Indigenous women…Domestic violence is identified
    as a health and safety risk for Indigenous female offenders. Indigenous
    female offenders represent a significant proportion of female offenders
    in incidents of self mutilation (40% of all reported incidents for the
    year ending June 1999).[74]

    A recent Victorian
    study also found that the majority of women incarcerated had dealt with
    or were dealing with serious psychiatric or suicide issues.[75]

    In Queensland, Indigenous
    women are 'over-represented in 'at risk' statistics, admissions to Crisis
    Support Units and self-mutilation incidents'.[76]

    Research in Victoria
    has revealed that many women self harm soon after release from prison.
    This includes drug overdose & other types of self harm. In Western
    Australia, a recent study noted that 'Self-harming behaviour (such as
    cutting oneself) is more prevalent amongst female prisoners, as compared
    to their male counterparts. The majority of women (84%) have not self-harmed
    since their imprisonment. A higher proportion of Aboriginal women (22%)
    than non-Aboriginal women (13%) had self-harmed since entering prison'.[77]
    The rates and proportions of women who have self-harmed since imprisonment
    is shown below in Table 6.

    Table
    6: Western Australia: Female prisoner respondents: women who have self-harmed
    since imprisonment; October/November 2001

    Self-harmed
    since imprisonment
    Non-Aboriginal
    Aboriginal
    Total
    Count
    %
    Count
    %
    Count
    %
    Had
    self-harmed
    10
    13
    11
    22
    21
    16
    Had
    not self-harmed
    68
    87
    40
    78
    108
    84
    Total
    [78]
    78
    100
    51
    100
    129
    100

    When asked what led
    the women to self-harm or attempt suicide the respondents indicated that
    'previous abuse, grief and loss, imprisonment and sentencing, family/relationship
    problems, isolation (particularly from family), depression, stress and
    a sense of hopelessness were the most common factors'.[79]

    Indigenous women
    are victims of a complex frame of dynamics upon their lives including
    violence, poverty, trauma, grief, loss, cultural and spiritual breakdown.
    There is a consistent pattern indicating that incarcerated Indigenous
    women have been victims of assault and sexual assault at some time in
    their lives. A recent NSW study stated:

    The relationship
    between Aboriginal women and violence also highlights how the separation
    between 'victim' and 'offender' is not clear at all. In reality many
    Aboriginal people in the criminal justice system are both offenders
    and victims, for example, some 78% of Aboriginal women in prison have
    been victims of violence as adults. More than four in ten Aboriginal
    women in prison were victims of sexual assault as an adult (44%).[80]

    In NSW, Aboriginal
    women are over represented as victims of violent crime. In comparison
    to a NSW non-Indigenous woman, an Aboriginal woman is:

    • Four times more
      likely to be murdered;
    • More than twice
      as likely to be the victim of sexual assault, or sexual assault against
      children;
    • Four times more
      likely to be a victim of assault;
    • Seven times more
      likely to be a victim of grievous bodily harm.[81]

    Consistent with this,
    in Western Australia 67 percent of Indigenous women incarcerated in October/November
    2001 reported having experienced abuse as children or adults.[82]

    Accompanying these
    factors is a strong argument that Aboriginal women receive poor responses
    from police to complaints about violence and other disturbances.[83]
    One reason suggested for under-policing in relation to alleged assaults
    is a perception that family violence is part of Aboriginal culture or
    a 'tribal norm'.[84] Another connected reason is the
    view that Aboriginal women are undeserving of police protection.

    In 2001, HREOC consulted
    with Indigenous women in rural NSW about their experiences with police.
    They stated:

    • 'Rapes, bashings
      and sexual assault are always overlooked - instead people want to focus
      on the crime in the town that sees our kids put on death row.'

    • 'The police do
      a bad job - they have a hands off approach, they will see a fight and
      just drive off in the other direction.'

    • 'The police do
      nothing in this town, they just drive, stand by and watch people fighting.'

    • 'The police do
      no community consultation and do not come to any of our meetings, including
      our working party meetings.'

    • 'Police come to
      this town just to get their stripes.'

    • 'There is one
      female police officer, however she wants nothing to do with women's
      issues - if you approach her because you've been bashed by your husband
      she does nothing. She is only interested in doing her job as a cop'.[85]

    As Chris Cunneen
    notes:

    There are strong
    historical continuities in the nature of police responses to Aboriginal
    women. For instance the current allegations of police sexual abuse of
    Aboriginal women has a direct link with the sexual exploitation of Aboriginal
    women during earlier periods of colonisation. Similarly, the failure
    to take action against those responsible for violence against Aboriginal
    women rests on a long tradition of seeing Aboriginal women and men as
    being undeserving of police protection - of being essentially outside
    the protection of the law. Thus policing permits violence against Aboriginal
    women.[86]

    This stands in stark
    contracts to 'how police use their discretion to draw Aboriginal women
    into the criminal justice system for minor offences'.[87]

    Judy Atkinson reports
    the following incident in Queensland which shows the complexity of policing
    and the burden which falls to Aboriginal women:

    A thirteen year
    old girl was recently raped in a small Aboriginal community. The child
    needed urgent medical attention because of her injuries. The State Police
    refused to take her to the nearest hospital which was 30 kilometres
    away. They would not investigate the assault, claiming it was the responsibility
    of the local Aboriginal Community Police. On the other hand, the Aboriginal
    Community Police said they did not have the power to conduct investigations
    of this nature and/or make arrests. Finally, an Elder woman was able
    to find a car and driver who was willing to drive her and the child
    into town to the hospital. There was a paralysis within the community
    to the child's urgent medical needs, as well as a paralysis in legal
    response to the criminal assault. This paralysis has links to the historical
    consequences of previous police inactivity on issues of Aboriginal interpersonal
    violence which they label as 'cultural'; the religious attitudes of
    missionaries in the community, which promote shame and denial that such
    things happen; and the closeness of family relationships in such small
    communities.[88]

    Another aspect in
    the relationship between Indigenous women and police is the tendency for
    Indigenous women to be seen as criminals.[89] Indigenous
    women who seek assistance from police as victims of crime can be vulnerable
    to unsatisfactory treatment as a result.

    Recent trends in
    incarceration also indicate that Indigenous women are increasingly gaoled
    for violent assaults, and some commentators suggest there is a relationship
    between violent behaviour by victims of violence. Carol La Prairie's investigations
    of similar statistics in Canada suggest that there are three ways Indigenous
    women living in violent situations may end up convicted of violence offences:
    'they may retaliate with violence against abusive family members; they
    may resort to drug and alcohol abuse to escape abuse; or their victimisation
    may lead to the abuse or neglect of others'.[90]

    Anecdotal evidence
    suggests increased arrest for violence is the result of Indigenous women
    who behave violently to protect or defend themselves, because they know
    that they would not receive police protection.

    Indigenous scholars
    also argue that the violent responses to violence by Australian Indigenous
    women may be more structured than the retaliation La Prairie suggests.

    Customary law punishments
    for violent attacks are practiced in many communities, often with the
    co-operation of the non-Indigenous legal system. In other communities,
    the term customary law punishment may not be used, but physical payback
    systems are generally used to settle a dispute or to right a wrong.[91]
    Women's violence may not always be so much unsystematic retaliation
    as it is implementation of payback or customary law.[92]

    This is not an excuse
    for violence, but rather a way to understand the violence, to acknowledge
    the history which has shaped violent conduct and to recognise the need
    to incorporate cultural knowledge and traditional remedies into solutions
    for Indigenous women. Recognition of the causes of violence is crucial
    to developing solutions.

    Policy debates
    about Indigenous women in corrections and human rights

    While there are limits
    on the statistics that are available on Indigenous women in corrections,
    there is sufficient data to indicate serious problems underlying Indigenous
    women's contact with corrections. Historically, however, there has been
    little attention devoted to understanding these issues.

    There is considerable
    diversity among Indigenous women. Identifying the specific causes of incarceration
    of the different groups will require further consultation, research and
    analysis. However, it is clear that the causes of the rise in rates of
    imprisonment of Indigenous women are complex and inter-related.

    The reasons derive
    in part from a combination of the ongoing impact of colonisation on the
    culture, laws and traditions of Indigenous communities, poverty and other
    forms of socio-economic disadvantage. This manifests in many ways including
    alcohol and drug use, homelessness and violence. Research has identified
    a strong correlation between imprisonment of Indigenous women and the
    experience of sexual assault and separation from family.[93]
    The impact of alcohol related crime, and increasingly in some jurisdictions,
    drug related crime requires further investigation.

    Poverty and disadvantage
    are widely recognised indicators for offending behaviour.

    Although further
    research is needed to confirm the links, Cunneen notes the correlation
    between the highest rates of imprisonment of Indigenous people in the
    most disadvantaged areas of New South Wales. The ATSIC Murdi Paaki region
    (in western NSW) has the highest rate of matters proven before the local
    courts. Murdi Parki is also the ATSIC region classified as most disadvantaged
    in New South Wales. Kamilaroi region has the second highest rate of Aboriginal
    people appearing for local court matters and is the second most disadvantaged
    ATSIC region in New South Wales.[94]

    In 2000, the Committee
    against Torture considered Australia's compliance with the Convention
    against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
    The Committee recommended that:

    The State party
    continue its efforts to address the socio-economic disadvantage that,
    inter alia, leads to a disproportionate number of Indigenous Australian
    coming into contact with the criminal justice system.[95]

    The International
    Covenant for Economic, Social and Cultural rights provides for the progressive
    realisation of rights to work, housing, food, clothing, health, social
    security and education. In 2000 the Committee considered Australia's compliance
    with the Covenant and commented on the disadvantage faced by Indigenous
    people:

    The Committee expresses
    its deep concern that, despite the efforts and achievements of the State
    party, the indigenous populations of Australia continue to be at a comparative
    disadvantage in the enjoyment of economic, social and cultural rights,
    particularly in the field of employment, housing, health and education…

    The Committee encourages
    the State party to pursue its efforts in the process of reconciliation
    with Australia's indigenous peoples and its efforts to improve the disadvantaged
    situation they are in.[96]

    A further factor
    for the high incarceration rates is the frequency of arrest of Indigenous
    women and the frequent use of custodial sentences rather than non-custodial
    options.

    While the link of
    incarceration to factors relating to the impact of colonisation was graphically
    illustrated by the Royal Commission into Aboriginal Deaths in Custody,
    this has largely been applied to the experiences of Indigenous males.
    Indigenous advocate Sharon Payne has observed the lack of recognition
    of difference in representations of Aboriginal women in anthropological
    studies. In 1991 she noted:

    [I]f they appeared
    at all, [Aboriginal women] were portrayed as the passive victims of
    white and Aboriginal men alike, and Aboriginal men as the freedom fighter.
    Male social and psychological researchers unquestioningly refer to the
    compromising of traditional male roles with the domestic or welfare
    economy, while describing women as conforming more easily to the welfare
    identity, implying that there is no difference between Aboriginal and
    Anglo cultures at least in relation to women.[97]

    The result has been
    an underestimation of the effect of colonisation on women, and a reluctance
    to understand and respond to its impact on Indigenous women.

    These factors are
    compounded by structural issues in relation to effective research and
    development of responses to the needs of Indigenous women. Tracking national
    trends in crime and sentencing is impeded by the manner in which data
    is collected. In smaller jurisdictions such as the ACT and Tasmania, the
    actual numbers of Indigenous women from which the statistical data is
    derived is comparatively small, compared with the overall offender population.
    Statistical measures based on such small numbers may result in outcomes
    which appear disproportionate to the true conditions. It is for this reason
    that the ABS does not publish rates by sex for a number of the small States/Territories.
    This reduces the extent to which meaningful analysis can be undertaken.[98]

    The outcomes of the
    Royal Commission into Aboriginal Deaths in Custody resulted in Indigenous
    status of prisoners being a mandatory data item for collection by corrections
    agencies at time of reception into custody. However, the statistical information
    provided to the ABS is calculated from data received from a number of
    sources, and the methods of data collection and uniformity of those methods
    is still seen as an area that can improve further. The ABS standard is
    for each person to self-identify based on a standard Indigenous status
    question. While overall prisoner data on Indigenous status is seen as
    robust, there are concerns that some information is being collected on
    the basis of the physical appearance of the subject rather than self identification.

    These deficiencies
    in focusing on the specific situation of Indigenous women have been mirrored
    through the international human rights system where recognition of Indigenous
    women's identity and experience in human rights discourse is a relatively
    new development. The absence of this recognition in the international
    human rights instruments is a result of the way in which human rights
    were articulated in the post-war era of decolonisation. If the features
    of identity of Indigenous women or the human rights which attach to those
    features were considered at the time of discussion and drafting, it was
    not in any way as a distinct class of rights. Consequently, a catalogue
    of Indigenous women's rights must be constructed from the rights as they
    were expressed by the drafters at the time, and the comments and recommendations
    of the monitoring committees. The linking of these features of identity
    and classes of rights in order to accurately represent Indigenous and
    other peoples is described as intersectionality.

    In a general sense,
    intersectionality refers to the connection between aspects of identity,
    such as race, gender, sexuality, religion, culture, disability and age.
    An intersectional approach asserts that aspects of identity are indivisible
    and discussing them in isolation from each other results in concrete disadvantage.
    'Intersectional discrimination' refers to the types of discrimination
    or disadvantage that compound on each other and are inseparable. In terms
    of effective rights-based protection, those who dwell at the places of
    intersection of enunciated rights bear the greatest risk. Providing for
    people at the intersections means the creation of a more comprehensive
    system of rights.

    Intersectional discrimination
    is not understood by merely adding together the consequences of race,
    class and gender discrimination. That is, an Indigenous women's life is
    not simply the sum of the sexism she experiences because she is a woman
    plus the racism she experiences because she is Indigenous plus
    the disadvantage she experiences because of poverty and exclusion from
    services. A person may be discriminated against in qualitatively different
    ways as a consequence of the combination of the aspects of their identity.

    The intersection
    between race, gender and class is of particular relevance to Indigenous
    women. The kinds of human rights abuses Indigenous women experience will
    generally cross the boundaries of race, gender and class at least. For
    example, the Tasmanian Aboriginal Issues Unit submitted to the Royal Commission
    into Aboriginal Deaths in Custody:

    Of particular concern
    to the community is the attitude of police officers to Aboriginal women.
    During arrest and detention, Aboriginal women are consistently abused,
    verbally with terms such as 'black slut' 'whore', etc…The attitudes
    expressed by police in these instances refer directly to an historical
    stereotype which maintains that Aboriginal women can be regarded as
    available for the convenience of those in power, and accorded little,
    if any, respect.[99]

    A recent meeting
    of the Expert Committee of the United Nations Division for the Advancement
    of Women, reported on Gender and Racial Discrimination. The Expert Committee
    recognised the discriminatory impact of criminal justice systems on, inter
    alia
    , Indigenous women, noting the consequent over-representation,
    the impact on children and stating the following:

    The Expert Group
    Meeting discussed the increase in the rates of incarceration of racialised
    women in industrialised and developing societies. Incarceration policies
    have been addressed by racial justice advocates but this advocacy has
    focused predominantly on men. In many countries, racialised women, including
    indigenous women, represent the fastest growing segment of the prison
    population.

    Further, women
    in prison tend to suffer multiple oppression. Many have experienced
    violence and other forms of abuse that contributed to their circumstances
    leading to their incarceration. Most are low income, and, unlike racialised
    men who may have been convicted of violent crime, many have been incarcerated
    for non-violent offences, such as welfare fraud. All women, and particularly
    racialised women, are more likely to be subject to custodial rape by
    police and other criminal justice personnel. They also run the risk
    of gender discrimination in the judicial process. Because the majority
    of female inmates are mothers, the effects of the increase of female
    incarceration will have long-term cumulative adversive effects.[100]

    The discrimination
    faced by Indigenous women is more than a combination of race, gender and
    class. It includes dispossession, cultural oppression, disrespect of spiritual
    beliefs, economic disempowerment, but from traditional economies, not
    just post-colonisation economies and more. Non-discrimination includes
    more than an aspiration for standards identical to those of the dominant
    culture; it requires respect for equal respect for difference.

    International human
    rights mechanisms have begun, albeit belatedly, to request that governments
    address specific issues faced by women. They have recognised, for example,
    the need to prioritise gender based data in the development and evaluation
    of government policies. In 2000, the Committee on the Elimination of Racial
    Discrimination noted that 'some forms of discrimination have a unique
    and specific impact on women' and announced its intention to 'enhance
    its efforts to integrate gender perspectives, incorporate gender analysis,
    and encourage the use of gender-inclusive language in its inter-sessional
    working methods'. Accordingly, they requested governments:

    to describe as
    far as possible in quantitative and qualitative terms, factors affecting
    the difficulties experienced in ensuring the equal enjoyment of women,
    free from racial discrimination, of rights under the Convention. Data
    which have been categorised by race or ethnic origin, and which are
    then disaggregated by gender within those racial or ethnic groups, will
    allow the States parties and the Committee to identify, compare and
    take steps to remedy forms of racial discrimination against women that
    may otherwise go unnoticed and unaddressed.[101]

    International human
    rights bodies have requested state parties to collect and provide information
    on the conditions which contribute to poverty and disadvantage. In relation
    to Article 6 of the ICCPR, the right to life, the Human Rights Committee
    requires state parties to provide information on the particular impact
    on women of poverty and deprivation that may pose a threat to their lives.[102]

    General Comment 28
    of the United Nations Human Rights Committee also requires state parties
    (or governments) to report on the impact of other forms of discrimination
    on women:

    Discrimination
    against women is often intertwined with discrimination on other grounds
    such as race, colour, language, religion, political or other opinion,
    national or social origin, property, birth or other status. States parties
    should address the ways in which any instances of discrimination on
    other grounds affect women in a particular way, and include information
    on the measures taken to counter these effects.[103]

    In General Recommendation
    19 on Violence against Women, the Committee on the Elimination of Discrimination
    Against Women notes the effects of family violence on women and requires
    state parties to compile statistics and research on the extent, causes
    and effects of violence, and on the effectiveness of measures to prevent
    and deal with violence. State parties are required to report on gender
    violence, to monitor its impact on women, and to put in place services
    and measures to reduce the incidence of violence against women.

    Good policy directions
    and compliance with human rights standards need to be based on sound and
    comprehensive research. The standard of research can be enhanced through
    increased liaison between the Australian Bureau of Statistics, crime researchers,
    correctional departments and Indigenous peoples.[104]

    Experiences
    of Indigenous women in corrections

    This section provides
    an overview of the specific experiences of Indigenous women in the correctional
    system. It is through these experiences that the intersections of race
    and gender are most felt.

    Disruption
    to family life

    One of the greatest
    impacts of imprisonment on Indigenous women is the disruption to the family
    life of children through taking mothers into custody. This disruption
    impacts on the women, the children and the community who remain to take
    care of the children.

    The consequences
    of the separation of mothers from their children through the policies
    of forced removal have been thoroughly documented in the Report of the
    National Inquiry into the Separation of Aboriginal and Torres Strait Islander
    Children from their Families.

    Some correctional
    institutions have programs which provide for women to have care of their
    children (under five years) in prison. In NSW a Mothers and Children Program
    exists for women at Emu Plains Correctional Centre and Parramatta Transitional
    Centre. The Program consists of a number of options including full time
    care, occasional care and care in an alternative supported environment.
    Inmates are required to meet certain eligibility criteria.

    Of the Indigenous
    women surveyed recently by the New South Wales Aboriginal Justice Advisory
    Committee:

    Only 2% had ever
    used the Mothers and Children program, for occasional care. Many Aboriginal
    women had said they had 'never heard of the program before', or 'had
    no information about the program, but would probably use the program'
    or 'they could not access because they could not meet the required stages',
    or 'did apply, but nothing came through, I'm still waiting' or 'currently
    trying to access the program'.[105]

    The importance of
    programs for Indigenous women which provide improved access and care of
    their children while in custody was expressed by this woman:

    I think there should
    be a program for Koori mothers to have their children more accessible
    to them, because a lot of Koori inmates have kids and while they are
    in gaol they worry that their kids will go to DOCs and never be able
    to get them back or it will take time and a lot of effort to get the
    kids back when they are released from custody.[106]

    A disincentive to
    use of the program is that a woman can only have one child with her. Indigenous
    women who have more than two children are reluctant to nominate one child
    rather than another. In this way, the program is inappropriate for Indigenous
    child-raising practices.[107]

    Women had strong
    feelings about the ways in which they were able to engage with their children
    during visits. 'Many women noted that when they did see their children,
    they often felt stripped of the humanity and cultural responsibility as
    a mother, and that often access to plain familiar clothes would make a
    difference to their children'.[108] One woman said:

    wearing the white
    overalls while visitors are here makes us feel uncomfortable because
    the children ask why we wear them and the overalls make us look ridiculous.
    We have visits and we are strip searched before and after the visits.[109]

    In Queensland Indigenous
    women are subjected to a full 'cough and squat' strip search after every
    family and legal visit. Women must decide that in order to see their family
    they will undergo this indignity. For women who have been previously sexually
    assaulted the search procedure may result in the woman becoming re-traumatised.[110]

    In Western Australia,
    the mother or primary care giver of a child, less than 12 months of age
    may apply to the Superintendent of the gaol to have the child live with
    the prisoner:

    Both sentenced
    and remand prisoners may apply for permission for their child to reside
    in prison. In deciding whether to allow a child to reside in the prison,
    the primary considerations will be the maintenance of the custody of
    the mother/primary care-giver and the welfare of the child. A secondary
    consideration will be the likely impact of the decision on the mother/primary
    care-giver during imprisonment or on release.[111]

    Human rights instruments
    set standards for situations where children are separated from their families
    through conditions such as detention. Article 2 of the Convention on the
    Rights of the Child provides that:

    State Parties shall
    take all appropriate measures to ensure that the child is protected
    against all forms of discrimination or punishment on the basis of status,
    activities, expressed opinions, or beliefs of the child's parents, legal
    guardians, or family members.

    Indigenous children
    are not protected against the impact of the discriminatory practices of
    over-representation of their mothers in the criminal justice system. They
    are not protected against the impact of the status of their parents as
    prisoners.

    The state has an
    obligation to care for the children of women who are incarcerated. As
    Winsome Matthews has stated:

    A risk assessment
    should be conducted to establish the situation of a woman's children
    as soon when she enters custody. If a single mother with a young family
    is incarcerated, for example, the 12 year old daughter might take on
    the role as head of the family. She takes on those cultural responsibilities.
    She needs to look after her brothers and sisters, she becomes a child
    at risk. The Housing Commission comes and removes the house, because
    there is no adult to hold the lease. The children are considered at
    risk and DOCS can remove the kids. Or, if no one is paying the rent
    while the woman is incarcerated, the woman comes out and there is no
    house - the Housing Commission has evicted her because she has outstanding
    arrears.[112]

    Pregnancy

    General Comment 28
    of the Human Rights Committee, articulates the obligations of parties
    in accordance with Article 9 of the ICCPR, in relation to arbitrary deprivation
    of liberty. It states:

    Pregnant women
    who are deprived of their liberty should receive humane treatment and
    respect for their inherent dignity at all times, and in particular during
    the birth and while caring for their newborn children; States parties
    should report on facilities to ensure this and on medical and health
    care for such mothers and their babies.[113]

    Pregnant women need
    prenatal support, support during labour and access to family and their
    baby after birth. Contact between mothers and babies is crucial to development
    of a physically and emotionally healthy baby. Indigenous women in detention
    often present with compromised health. When these women give birth their
    children may require hospitalisation in intensive care units until they
    are stabilised. It is very important that the mothers of those babies
    are able to access their children to breastfeed where possible, bond and
    care for the baby.

    Article 24.1 of the
    Convention on the Rights of the Child states:

    State Parties recognise
    the right of the child to the enjoyment of the highest attainable standard
    of health and to facilities for the treatment of illness and rehabilitation
    of health. State Parties shall strive to ensure that no child is deprived
    of his or her right of access to such health services.

    In north Queensland,
    Indigenous women prisoners attend the local hospital to give birth. Mothers
    are not able to breast feed their babies. The baby is released into the
    care of the family if possible, and it is the family's responsibility
    to transport the baby to the prison for feeding. Regular transport to
    the prison is usually impossible so the baby misses out on the benefits
    of breast feeding. The baby's health could be maximised by providing a
    method for allowing mothers to breastfeed. A higher standard of health
    for the baby, in compliance with CROC would be attainable by a protocol
    between the hospital and the correctional institution which sets out procedures
    for breastfeeding.[114]

    Provision
    of health care

    Where women are treated
    in hospitals outside the correctional facility, it is important to prove
    a standard of care which meets requirements for privacy. In north Queensland,
    Indigenous women are brought for health check-ups to the hospital in handcuffs.
    Their details are taken at the reception area of the hospital in public
    view. There is no secure area of the hospital where the women can be received
    in privacy and without the public embarrassment of attending in handcuffs.

    If a woman requires
    treatment she is handcuffed to the bed by her hands and legs. She is accompanied
    by a correctional officer, frequently a man, and the officer is present
    while the women is examined, and treated.[115] The
    patient's confidentiality is compromised and treatment may also be compromised
    if women are not able to express themselves openly in this environment.

    General Comment 16
    on Article 17 of the ICCPR requires that body searches be carried out
    by personnel as the same sex as the prisoner. In the spirit of this right,
    same sex security personnel should be provided for escort, and secure
    facilities should be provided to ensure confidentiality.

    Protocols between
    the correctional institution and hospital for dealing with inmates could
    prevent this experience for women. A secure area where women could be
    received and treated within the hospital may alleviate some of the problems.

    Visits
    with Family and Friends

    A recent survey of
    the needs of Indigenous women prisoners in New South Wales, noted the
    following:

    Overall Aboriginal
    women in custody required longer visits with family members and significant
    others, more appropriate visiting space, and alternative days for visits
    to occur. Aboriginal women suggested that access to visits would improve
    for Aboriginal women in general if there was additional accommodation
    and travel support in particular for families who come from remote areas.
    One woman had not received a visit because the public transport system
    does not travel from the remote area on weekends, so expanding the visiting
    times made common sense, as well as the need to have financial support
    for accommodation, especially for families in regional and remote area
    of NSW.[116]

    Families are often
    not aware of the exact location of prisoners, or of conditions attached
    to visits. The need for liaison officers to reach communities with information
    about their incarcerated family members was stressed.[117]

    In Queensland, it
    is reported that:

    Indigenous women
    in Brisbane Women's Prison are subjected to a full strip search including
    cough and squat after every visit (family - legal). If the Indigenous
    woman is menstruating she is required to remove her tampon or pad and
    hand it to the screw for disposal. This is an enormous decision for
    Indigenous women to make. They have to decide to be subjected to this
    indignity and sexual abuse in order to see their family or have legal
    counsel…Given the sexual abuse statistics constant strip searching
    can be life shattering for some women. They relive their previous sexual
    assault and become re-traumatised. Some decide not to see their families
    because of this… Strip-searching is an abusive process for women
    screws, as well, they too are women who think, feel and menstruate.
    They tend to become desensitised and abusive, stressed or leave, remember
    the culture (prison culture) allows 'no weakness'.[118]

    Principle 19 of The
    Body of Principles for the Protection of All Persons under Any Form of
    Detention or Imprisonment states:

    A detained or imprisoned
    person shall have the right to be visited by and correspond with, in
    particular, members of his family and shall be given adequate opportunity
    to communicate with the outside world, subject to reasonable conditions
    and restrictions as specified by law or lawful regulations.

    It is arguable that
    strip searching, as a condition of a family visit, is not reasonable.
    Article 17 of the International Convention on Civil and Political Rights
    also provides that:

    No one shall be
    subjected to arbitrary or unlawful interference with his privacy, family
    home or correspondence, nor to lawful attacks on his honour or reputation.

    General Comment 10
    of the Human Rights Committee, in interpreting this provision, states:

    So far as personal
    and body search is concerned, effective measures should ensure that
    such searches are carried out in a manner consistent with the dignity
    of the person who is being searched. Persons being subjected to body
    search by State officials, or medical personnel acting at the request
    of the State, should only be examined by persons of the same sex.

    Many women prisoners
    are subjected to strip searches for a number of reasons. The practice
    has a detrimental impact on women who have been previously assaulted or
    sexually assaulted. The following description of strip search practice
    gives an idea of the degrading nature of the process.[119]

    Prisoners are required
    to remove each and all articles of clothing one at a time and hand them
    to the prison officer. The prison officer wears rubber gloves and examines
    each article of clothing individually, and discards them onto the ground.
    'The process of removing ones clothes and having them searched usually
    leaves a prisoner standing naked in front of staff and other prisoners
    for some minutes'.[120] The following directives are
    given by an officer:[121]

    1. Bend your head
    forward and run your fingers through your hair.

    2. Bend your head
    back and open your mouth.

    3. Remove any
    dentures if used.

    4. Pull down your
    bottom lip.

    5. Pull up your
    top lip.

    6. Lift and wiggle
    your toes.

    7. Turn your head
    to the right and pull back you ear.

    8. Turn your head
    to the left and then to the right to (to allow officers to look in your
    ear canal).

    9. Hold both your
    arms out and show the officers the front and back of your hands, between
    your fingers and under your arms.

    10. Turn around
    and pull the cheeks of your buttocks apart.

    11. Female prisoners
    are required to remove any sanitary device and squat on the ground twice
    as well as bending over and pulling the cheeks of their buttocks apart.

    12. Lift your
    right foot and wiggle your toes.

    13. Lift your
    left foot and wriggle your toes.

    14. Get dressed.
    ('It is part of the procedure that you are told to "get dressed".
    It is the last little insult to demonstrate just how powerless you are
    that they even instruct you to put on your clothing.')[122]

    Invading the physical
    privacy of women in a manner which degrades and humiliates women, especially
    women with a history of the degradation of sexual assault fails to provide
    the practice in a 'manner consistent with the dignity of the person who
    is being searched.'

    The following case
    study shows the detriment that can result from strip searching women who
    are particularly vulnerable to the effect of the procedure.

    In September 2002,
    Melbourne Coroner Ms Heffey investigated the death of Rebecca Richardson,
    a 23-year-old Aboriginal woman who died while inmate of the Deer Park
    women's prison in Victoria in 1998.

    The inquest heard
    that Ms Rebecca Richardson, who was in jail for breaching parole, hanged
    herself at the Metropolitan Women's Correctional Centre a day after the
    state Government launched a review of prison safety. In July 1998, two
    male and two female prison officers strip-searched Ms Richardson and cut
    her clothes with a knife after she concealed a drink can believed to be
    used as a water pipe for smoking marijuana.

    Lawyers for Ms Richardson's
    family earlier told the inquest that the strip search was inappropriate
    and insensitive, as Ms Richardson had been raped five times in the past
    - the last instance while working as a prostitute shortly before her incarceration
    in April 1998.

    Rebecca Richardson
    was found hanging by a plastic shower curtain shortly after being put
    in an empty cell for assaulting an accommodation supervisor. Ms Heffey
    found Ms Richardson simulated suicide because 'she felt extreme remorse
    after assaulting Ms (Gail) Johnston, an officer of whom she was very fond'.
    Ms Heffey described strip-searching Ms Richardson as 'unnecessary and
    invasive'; however, she cleared the former private operators of Deer Park
    women's prison of wrongdoing over the death.[123]

    Disruption
    to cultural responsibilities and dislocation from community

    Indigenous women
    often bear great responsibilities to their families and communities even
    while in custody. As NSW AJAC notes:

    The concept of
    responsibility is something that does not seem to leave Aboriginal women
    while they are in custody. They are worrying for their family members
    (sometimes who they usually provide care for) and children, as well
    as being homesick for their community.

    Outside of prison
    Aboriginal women perform significant roles in their communities and
    families as carers. Most of the women (interviewed by AJAC) had children
    with approximately one third having between 2 and 4 children and almost
    half of them were single mothers. Almost one third of women in prison
    (29%) cared for children other than their own biological children. Also
    almost (29%) said they were normally responsible for the care of other
    people principally their mother, father and other family members.

    Fundamentally the
    imprisonment of Aboriginal women has a significant impact on broader
    Aboriginal community causing further strain on limited resources and
    providing stresses for Aboriginal families. Potentially the removal
    of a primary carer can place children and others in situations of greater
    risk and without the support of a primary care giver.[124]

    A recent survey of
    Aboriginal women incarcerated in Sydney gaols found that 73% felt they
    would have the support of their family and community on release, but 28%
    either felt that would not have this support or were not sure.[125]
    The women stated that family and community support was very important.
    An individual woman's sense of shame can be a powerful block to accessing
    vital support. In some instances women may also be facing payback and
    may not tell authorities about it: 'Consequently they may avoid returning
    to the community and become itinerant in the next town'. [126]

    Dislocation
    from Services

    Indigenous women
    experience dislocation from services as a result of incarceration. This
    may be experienced as loss of housing and loss of medical or dental programs
    among others.

    Indigenous women
    find may find that access to services is difficult because of the compound
    issues they are faced with. For example:

    many domestic violence
    shelters exclude people with drug problems, and many hostels exclude
    women with children. Given that for women prisoners, coping with drug
    related issues and motherhood are often critical to their re-integration
    back into the community, these sorts of exclusions can seriously impede
    successful re-integration into the general community.[127]

    Indigenous women
    in remote communities suffer particular dislocation from services. Women
    from Alice Springs and surrounding areas who are convicted and sentenced
    to prison are sent to serve the sentence in Darwin.

    Housing

    Consultations with
    Indigenous women in Darwin indicated that a major issue faced by women
    incarcerated is the knowledge that they may lose their homes. Culturally
    when imprisoned, the women's children are left in the care of their father's
    mother and the children are cared for in their grandmother's home. The
    father remains in the family home but often, for unknown reasons, does
    not upkeep the payments because the children are cared for in the grandmother's
    home. The house is generally rented by the women from the NT Housing Commission,
    but if the father does not pay the rent, the house will no longer be available
    for the woman and her children on her release.[128]

    Dr Emma Ogilvie makes
    the following observations about housing for inmates:

    At present, housing
    assistance for prisoners post-release is plagued with difficulties.

    Within Victoria
    it has been noted that even though prisoners may have been suffering
    housing crises of homelessness prior to incarceration, they are 'not
    currently able to apply for public housing through any of the priority
    Segmented Waiting List (SWL) categories because they are not deemed
    to be "homeless" in prison' (Victorian Homelessness Strategy
    (a), 2001:2).

    Additional difficulties
    are also involved in prisoners being cut off waiting lists for public
    housing, through being incarcerated and hence under 'state care' already
    and the fact that prisoners currently inside incarceration are often
    not aware of the exact time they may be released (pending parole etc)
    and so are unable to apply for public housing while within prison. These
    service difficulties are compounded for women as a range of additional
    factors come into play, most particularly in relation to the needs of
    their children. As noted by the Victorian Homelessness Strategy, for
    women, issues of housing usually have to take account of factors such
    as the number of children, access to schools, and (often) child protection
    agencies (Victorian Homelessness Strategy (b), 2001).[129]

    Chronic homeless
    and the loss of accommodation due to incarceration creates one of the
    most urgent needs of Indigenous women post-release.

    Addressing
    the needs of Indigenous women in corrections

    It is not always
    to the offender that we need to look to understand the causes of increasing
    incarceration. Election driven law and order campaigns primed to drive
    up incarceration, a lack of government action to implement the recommendations
    of the Royal Commission into Aboriginal Deaths in Custody and lack of
    judicial activism to implement the recommendation of the Royal Commission
    on non-custodial sentences are some obvious and ongoing causes of over
    representation.

    In some instances,
    the causes of over-representation are more complex and profound. Offender
    focused answers frequently identify the effects of colonisation as the
    cause of offending behaviour. For example, issues such as unresolved trauma,
    loss and grief are identified as core problems with 'social issues/problems
    such as family violence, crime/imprisonment, alcohol and drug abuse, suicide,
    low self-esteem, ill-health, self-haring, etc. etc are in the periphery
    and are the symptoms'.[130] Understanding intergenerational
    violence, for instance, requires us to consider the impact of colonisation,
    the breakdown of cultural norms, and repeated abuse. The symptoms and
    the causes need to be identified and addressed.

    Criminal conduct
    by Indigenous women must be viewed as a symptom and offenders as the casualties
    of colonisation. Seen in the context of surviving colonisation it:

    becomes easier
    to understand why there are so many casualties in this process; these
    are the statistics we always hear about, such as mortality rates, suicide,
    mental illness, substance abuse and crime in Indigenous communities.
    The latter, of course, is where we come in. The Indigenous offenders
    whom we see in our work are the casualties whose problems took a form
    where they broke the law. These people are the life-blood behind that
    abstract thing I've been referring to as 'indigenous overrepresentation
    in the criminal justice system'. This way of looking at the situation
    may help us remember to put current Indigenous struggles into an accurate
    context, and this in turn can help define the shape that programs for
    Indigenous offenders need to take.[131]

    Links must be drawn
    and holistic models developed and supported which address the connections
    between culture, drug use, alcohol use, separation from family, violence,
    poverty, spiritual needs, housing, health, boredom, race discrimination
    and gender discrimination.

    Indigenous people
    are constructing, reconstructing and participating in programs and models
    for dealing with criminal justice issues. These include community policing,
    night patrols, Community Justice Panels and Groups, circle sentencing,
    and participation in courts such as the Nunga court (SA), Murri court
    (Qld) and Koori court (Vic).

    Programs have now
    been developed and evaluated, particularly around family violence for
    women, men and children, and Indigenous participation in drug court trials.
    These indicate that it 'is very important to give responsibility back
    to the community, through the case management, future planning and post
    release programs and services. The community must also be properly supported
    in these initiatives'.[132]

    Indigenous people
    have looked to new models and in so doing, look to the past for answers.
    One example is the development of restorative justice models to deal with
    violent behaviour within communities. Restorative justice models engage
    community, victim and offender. The victim's rights to safety and security
    are paramount, and the participation of Indigenous Elders is essential.[133]

    In Canada, there
    has been considerable success with residential Healing Lodges.[134]
    A women's centre, Okimaw Ohci Healing Lodge, is a 30-bed treatment facility
    for Canadian Indigenous women located in Cypress Hills, Nekaneet First
    Nation. The lodges are based on aboriginal ethics, values and principles,
    while maintaining the statutory mandate of the Correctional Services of
    Canada (CSC). They were planned in full partnership with the aboriginal
    community. The majority of staff, including the wardens, are aboriginal.
    A body of aboriginal community members monitors the lodges' operations
    and provides advice on further development. Inmates and staff are reported
    to be enthusiastic about the lodges; evaluations, to date, have been very
    positive.

    The Healing Lodge
    was completed in 1995. Rehabilitation of offenders utilises traditional
    healing practices, based on healing through Indigenous teachings and culture.
    The central emphasis of the healing program is on survival of physical
    and sexual abuse, and freedom from substance abuse, through reconnection
    with Canadian aboriginal culture in its broadest sense.

    Correctional Services
    of Canada recently conducted a follow-up of the 412 Aboriginal offenders
    admitted to several Healing Lodges. The results showed that 286 or 69.4%
    have completed the program (others are still resident in the program).
    Of those completing, 6% had been returned to federal custody for committing
    a new offence while on conditional release. In contrast, the national
    federal recidivism rate was 11% in 1997-98 (for full parole and statutory
    release). According to the CSC, this means that the relatively low federal
    recidivism rates among Aboriginal Healing Lodge participants are an early
    indication of having made a positive impact. It also means that CSC is
    encountering some success in its mandate to safely and successfully reintegrate
    offenders.

    This approach has
    been considered by the Indigenous Services Unit of New South Wales Corrective
    Services with the view of developing a similar initiative for Aboriginal
    women in New South Wales. The New South Wales Law Reform Commission, during
    the course of an inquiry into Aboriginal sentencing, stated that such
    an initiative could be enormously effective in rehabilitating offenders,
    and in reducing recidivism. The Commission endorsed steps to implement
    a facility along the lines of the Healing Lodge. Support has also been
    provided for the development of small, residential centres strategically
    placed around the state, and run by Aboriginal women, with drug rehabilitation,
    strong personal support, and living skills and health programs. In 2000,
    the New South Wales Law Society also supported the creation of a residential
    rehabilitation facility, offering a holistic program for Aboriginal women
    to which they could be diverted from full-time custody.

    An organisation called
    Yulawirri Nurai Indigenous Association Incorporated has been working with
    Indigenous people providing pre- and post-release support since 1996.
    Yulawirra have secured land through the Indigenous Land Fund on which
    they propose setting up the Yula-Panaal Cultural and Spiritual Healing
    Program. Women will be encouraged to have access to or care of their children.
    The program will run for three to six months. The proposed healing centre
    would meet the most urgent need of women when they are released, that
    is housing. But it would also provide respite experience of incarceration,
    a chance to begin reintegration into the community and most importantly
    an opportunity to identify and heal the issues and traumas which underlie
    the offending behaviour.

    Programs such as
    Yula Panaal Cultural and Spiritual Program need to be supported, and evaluated
    in order to continue the capacity building in Indigenous communities,
    and the support of Indigenous women post release. Despite the above support
    for programs such as this one, the transitional residential program for
    Indigenous women offenders remains unfunded.

    In Australia, Indigenous
    women need a range of services from housing to healing, from counselling
    to assistance with sufficient identification to open a bank account to
    access Centrelink payments.[135] The profound and the
    mundane are equally powerful when it comes to facing post release life.

    The Importance
    of Pre- and Post-Release Programs for Indigenous Women

    Chairperson of the
    Aboriginal Justice Advisory Council in New South Wales, Winsome Matthews,
    gave the following evidence to the NSW Select Committee on the Increase
    in Prisoner Population:

    When you mention
    post release programs, in our community they say the missing in action
    person list because you never see them. This is the feedback from the
    community but also inmates themselves getting ready for post release.[136]

    Indigenous women
    are disadvantaged by the lack of services designed for them. This is an
    example of intersectional discrimination. It is a consequence of a rights
    and policy structure which identifies groups of needs and rights holders
    such as women and Indigenous people, but fails to provide for the needs
    of people who dwell at the intersection of these groups.

    It is essential to
    recognise and provide for Indigenous women as a distinct group. For too
    long women's services have been compromised by a lack of identified programs
    and facilities. Women end up having to use either Indigenous men's services,
    or mainstream services for women. They are disadvantaged both ways.[137]

    In relation to programs
    dealing with violence Judy Atkinson notes:

    Aboriginal women
    say they have asked for such programs for a considerable time but that
    their requests are being ignored by those people in government who are
    responsible for implementing a structural response to issues of violence
    in society. Most women I work with are feeling that even when they choose
    to use the programs and systems being made available, sometimes 'women
    only' services, sometimes 'generalist services', these services are
    not meeting their needs. The women often experience another level of
    victimisation.[138]

    It is essential to
    recognise the diversity of needs of Indigenous women. While there are
    some similarities, women in rural and urban areas will have different
    needs, women in remote areas will have different needs again.

    There is a need to
    provide services and information to women in prison is as soon as they
    enter the institution, as well as upon release. Women need to know that
    they can keep their house, and that their kids are looked after: 'If she's
    stuck in Mulawa, wondering how her kids are - that's a terrible stress'.[139]

    Case management for
    Indigenous women pre-release is of particular importance. As Winsome Matthews
    notes:

    During the time
    the woman is in prison, they need help to do some 'future planning'.
    They need future planning so they can aspire to something. They need
    something to distract them from the depression and from going back to
    crime or the circumstances which caused the problem.

    It is very important
    to look at the connections between the incidence of sexual assault and
    custody. It is essential to set up sexual assault, violence and safety
    initiatives in gaols.

    Case management
    inside prison is very important at the pre release stage. It is important
    to take a holistic view and look to the individual woman's circumstances.
    She needs help with legal issues of family and kids, housing, employment,
    training, health and it needs to be linked to post release services
    and programs.

    It is important
    to take a managed approach to the woman's aspirations. It is important
    to be based in culturally and spiritually framed concepts that reduce
    dependence on the criminal justice system.[140]

    There should also
    be recognition that community extends into gaols. Elders recognised this
    long ago and have been visiting the large numbers of incarcerated Indigenous
    people for many years. Programs like CDEP could be run in gaols.[141]

    The many successful
    programs now running in communities could be adapted for Indigenous women
    in gaol. For many women, gaol is a time of reflection and a time where
    culturally appropriate programs would be extremely beneficial.

    By contrast, there
    is an increasing understanding of the vulnerability of Indigenous women
    to the impact of a lack of post-release resources.[142]

    Evidence indicates
    that women are at serious risk of self-harm and harm from others in the
    period immediately after incarceration. While there is limited research
    on this point specifically on Indigenous women, the figures for women
    in general give cause for concern:

    The high death
    rate of those serving community corrections orders is an issue that
    is receiving increasing attention. In 1989, Haege noted that the death
    rate of people serving community corrections orders was 6 times that
    of people in a comparable age group, with the most common cause being
    suicide, and the most common period being a few weeks after release
    from prison (Haege cited in Aungles, 1994: 207).

    Similar research
    conducted by Biles, Harding and Walker (1999) notes that deaths of people
    on community corrections orders exceed both prison populations, and
    those of the general community, and Cook and Davies (1998) report that
    the mortality rate for women on parole is three times higher than that
    for men.[143]

    Similarly, in Victoria:

    between 1987-1997,
    93 women were identified as dying shortly after release from prison…Traditionally
    it was not seen as the role for correctional services to take responsibility
    for offenders post release and in the past our attempts to reintegrate
    women have been minimal. We spend on average $55,000 a year to keep
    someone in prison and only about $300 a year on post release. However
    this attitude is gradually changing as it becomes clear that structured
    pre and post release support has a crucial role to play in intervening
    in a cycle of recidivism which results in almost two thirds of offenders
    re-offending and returning to the system.[144]

    Dr Emma Ogilvie states
    that the current state of post-release programmes for Indigenous and non-Indigenous
    inmates is 'behind the game'. There is thus a clear need for research
    which focuses upon three key criteria:

    1. Identifying
    what purpose we want post release programs to serve,
    2. Identifying how best to achieve our specified goals and;
    3. Identifying how best to work across organisations in order
    to achieve these goals.[145]

    A recent survey of
    Aboriginal women in NSW found that although 91% had received support to
    draw up a pre- and post-release plan, most felt that they needed the support
    of an Aboriginal worker who understood their situation.[146]
    Indigenous women seek Indigenous-run, culturally and spiritually appropriate
    services. Programs for Indigenous women need to be run by Indigenous people,
    and be linked into other Indigenous specific programs such as crime prevention
    strategies.

    Article 10.3 of the
    ICCPR states the duty of the state to provide rehabilitation options for
    offenders: 'The penitentiary system shall comprise treatment of prisoners
    the essential aim of which shall be their reformation and social rehabilitation.'

    Rehabilitation of
    prisoners is a primary goal of pre- and post-release programs. Rehabilitation
    is a form of healing. Indigenous-specific programs that currently exist
    take an holistic approach aimed at healing on a general level. This holistic
    approach requires broad community support and participation. It recognises
    that for some women the goal will not be re-integration but 'rather the
    challenge of integration as a "new" experience'.[147]

    A New South Wales
    Aboriginal Justice Advisory Council study suggests that:

    Aboriginal women
    were needing to have ongoing support from professionals in a cultural
    sense, and calling for more Aboriginal specialists, to provide appropriate
    counselling on a one to one basis to help them deal with problems such
    as sexual assault and drug abuse issues, especially concerning their
    inherent fears upon release and then the ongoing maintenance within
    the community, that supports them in their traditional roles as mothers
    and family carers. Aboriginal women particularly, felt that local communities,
    and Aboriginal female Elders had a rather significant role to play in
    this.[148]

    Finnish academic
    Matti Laine reported to the United Nations Asia and Far East Institute
    for the Prevention of Crime and the Treatment of Offenders that rehabilitation
    must be tailored to the individual:

    The idea that we
    can find a universal form of rehabilitation has vanished. Matching should
    as a general principle of probation services institutions and prisons.
    Match the program to the offender and the cognitive style of offender
    and the cognitive style of the staff member. These should be matched
    as closely as possible. Problems of cognitive injury and damage should
    be recognised. The cultural matching of the program to the offender
    is important. The elements of the programs and methods must not be culturally
    strange to the offenders.[149]

    It is important that
    rehabilitation be undertaken in prison and continued on release. Rehabilitation
    is important of itself, but it is also crucial in preventing recidivism.[150]

    What Issues
    Should Pre- and Post-Release Programs Address?

    Housing
    issues

    Housing has been
    identified as the most important basic need of women leaving gaols. Some
    women may be able to access public housing, but this needs to be in place
    before their release date. Others may not be eligible due to previous
    problems with the department. These women need support with at least temporary
    accommodation until they are established and can attempt to access to
    private housing market. Transition accommodation is perhaps the most important
    service for women, especially if they have children. Ultimately,

    finding somewhere
    to live is one of the major problems faced by ex-offenders. Without
    an address, it is difficult to claim benefits, almost impossible to
    get a job and harder to avoid resorting to crime. The links between
    homelessness and offending suggest that a decent ands secure housing
    plays a vital part in the resettlement process and in reducing the likelihood
    of people committing crime.[151]

    A recent report on
    homeless Indigenous women in Brisbane noted that:

    Indigenous women
    who are discharged from correctional facilities without support, appropriate
    transitional accommodation or money also often find their way to inner
    city parks and public spaces. Many would return home but do not have
    enough money, and so go to the parks looking for a loan or for company...
    These women are vulnerable to a range of factors including re-arrest
    for street/public order offences.[152]

    Ogilvie notes the
    importance of stable housing for women prisoners generally:

    stable accommodation
    can have significant consequences in other areas of the prisoners' life.
    For example, satisfactory accommodation arrangements are crucial with
    respect to women regaining access to children who have been placed in
    'care' situations of one type of another. This can mean that in the
    absence of any alternative, some women may feel compelled to return
    to violent partners post release (Cook and Davies, 1999). Quite apart
    from the extent to which these sorts of issues can be implicated in
    criminality - we also need to recognise the extent to which they are
    associated with poor health and premature death.[153]

    Lawrie notes the
    importance of supported accommodation for women seeking rehabilitation
    from drug dependency. Noting the success of Drug Court and the MERIT programs,
    she states that many Aboriginal women fail to meet the eligibility criteria
    because they:

    have either lived
    on the streets or in the inner city regions… What is needed is
    a supported accommodation service that actively rehabilitates drug usage
    by Aboriginal women, that can establish and support the connection between
    Aboriginal families.[154]

    Coordinator of Guthrie
    House, the only half-way house for women in New South Wales, states that
    in 1999 she was forced to turn 90 women away, because the half way can
    only accommodate 8 women and children. She gave the following evidence
    to the NSW Select Committee on the Increase in Prisoner Population:

    Our client had
    to go some where quite early in the morning and she was on her way to
    the station. She walked through Belmore Park near Central and she found
    one of our turnaways, a young Aboriginal woman lying on the grass just
    waking up from her night's sleep. She had been pretty stoned, drug affected,
    and my client stopped to talk to her and ask her how she was going.
    The young women replied that she was not going very well, she thought
    she would be dead very soon and she was pretty desperate and did not
    know what to do.[155]

    Indigenous post release
    support agency, Yulawirri Nurai has been attempting to launch a post release
    transitional residential program for Indigenous women. They have land,
    a house and equipment, but are consistently unable to achieve core funding
    for the project.

    Dealing
    with Violence

    Effective pre- and
    post-release programs should include community based, Indigenous specific
    programs to help women deal with the effects of violence and to help women
    develop alternative strategies for coping with violence in the future.[156]
    People require protection from violent behaviour and alternative structures
    for prevention and punishment of violent behaviour which provide more
    than imprisonment with all its risks and consequences.

    After examining the
    relationship between victim and offender, Fitzgerald and Weatherburn stated
    the urgent need to provide means of dealing with violence without increasing
    Indigenous over-representation in the criminal justice system.

    In the long term
    it is important to address the structural causes of Aboriginal crime
    and victimisation (e.g. poverty, unemployment, family breakdown). Levels
    of violence and crime in Aboriginal communities, however, are severe
    enough to warrant immediate action. Unfortunately the short-term options
    for dealing with violent crime are fairly limited. A reduction in alcohol
    consumption will help where the violence is alcohol related. The conventional
    response to problems such as sexual assault and the sexual abuse of
    children, however, is to encourage greater reporting of the offence
    so that offenders can be identified, prosecuted and sanctioned. The
    difficulty with this option is that, at least in the short term, it
    will further exacerbate Aboriginal over-representation in the criminal
    justice system. The policy challenge, then, is to find ways of bringing
    immediate relief from crime to Aboriginal people (particularly women
    and children) without further increasing the already high levels of
    contact between Indigenous Australians and the criminal justice system.[157]

    Indigenous people
    have been developing and implementing models such as Strong Culture, Strong
    Families (Western Australia). The Kapululangu Aboriginal Women's Association
    project is aimed at revitalising cultural practices and principles to
    challenge and overcome family violence. The project activities include
    a series of camps on traditional bush and cultural experiences including
    medicine and food gathering; programs on substance abuse; programs for
    young women, young mothers and young families; activities aimed at children
    and the community including banners, murals, music and sports programs;
    training Aboriginal health workers, teachers, wardens and parents in counselling
    and support skills.[158] Programs such as Strong Culture,
    Strong families could be adapted to be suitable as an option for Indigenous
    women in Western Australia.

    The We Al-li project
    in Queensland provides a series of educational/therapeutic programs for
    workers and for victims and perpetrators of age, gender, race or class
    violence. The workshops enable individuals to 'own' their violent experiences
    and behaviours, to become aware of the many forms of violence in our society,
    and to be empowered to change their own victim/victimising behaviours.
    Many people who have been involved in workshops have moved beyond victim/victimising
    behaviours. The Central Queensland University is presently negotiating
    with Bookoola Research Pty Ltd, the organisation responsible for this
    project, to run the programs in Indigenous Therapies. The project received
    an Australian Institute of Criminology Crime Prevention Award in 1996.[159]
    Evaluation of this project for adaptation into a prison environment may
    result in a valuable program for Indigenous women.

    The methods for dealing
    with violence outside the gaol system, include development of restorative
    justice models. Kelly describes restorative justice as follows:

    Any restorative
    justice program must be framed in the context of Aboriginal community
    justice. It must be a grass-roots community initiative. The entire Aboriginal
    community must be consulted and involved with eh whole process of establishing
    the program….An essential element that must be met in order to
    implement restorative justice practices for Aboriginal family violence
    is that the rights of the victims must be maintained. The importance
    of Aboriginal women Elders and community leaders in facilitating the
    process designed to address family violence must be stressed…Finally
    any restorative justice scheme musty be part of an holistic strategy.[160]

    The benefits of a
    model which provide for extensive participation by Indigenous Elders will
    allow a place for the criminal behaviour to be seen through the appropriate
    cultural context. Atkinson notes:

    Aboriginal people
    often know the circumstances which are part of offending behaviours.
    Elders need to be included in the court/sentencing process. They are
    better able to decide on appropriate punishment and treatment for offenders.[161]

    Effective pre- and
    post-release programs need to recognise and treat the complexity of the
    experience of Indigenous individuals who are both victims and perpetrators
    of violence. Programs will also need to provide support for Indigenous
    women to reintegrate back into the community. The types of support required
    by each woman will be determined by her location and other issues. For
    instance, for some women there may be issues of payback, and she may not
    be able to return to her community until those issues are resolved. Other
    women may need to return to small communities, where contact with the
    perpetrator of violence cannot be avoided.

    Pre- and post-release
    programs should include assistance for past injuries suffered by women,
    and strategies for dealing with these issues in the future. Where drug
    and alcohol use, associated with incidents of violence has become problematic
    programs should address these needs.

    Children
    and Families

    Tauto Sansbury, Chair
    of the National Aboriginal Justice Advisory Committee, has identified
    the need for programs to assist mothers and children with the impact of
    high incarceration rates. He states:

    In a population
    where incarceration rates have been so high for so long, we need to
    consider what the effect of this is upon the next generation - the impact
    does not end with the generation that is in prison now...the impact
    will continue to be felt by every child who has been deprived of a parent,
    who has seen their parent locked up, who has know what it is to fear
    the justice system. We know that Aboriginal women are far more likely
    to be imprisoned than non-Aboriginal women...we also know that imprisonment
    of a mother is more damaging for child than imprisonment for a father.
    A child whose parent goes to prison has committed no offence, however,
    when a mother is given a jail sentence, a child is given a life sentence.
    We are already seeing the effects of family separartion in those families
    who were divided by the assimilation policies of the past - yet while
    the Government deeply regrets this shameful past, Aboriginal families
    are being divided by incarceration in the shameful present.[162]

    Women need support
    to maintain contact with their children while they are incarcerated. Where
    that is not possible, they need to be provided with information as to
    the well being of their children. Women need support when they resume
    contact with their children. Women need practical advice on how to deal
    with family court procedures and departments of community services.

    Women in New South
    Wales identified a need to have more flexible and more frequent visits
    with children and family.[163] Consideration should
    also be given to ensuring culturally appropriate residential placements
    for children for the duration of their mother's sentence. Women may need
    assistance readjusting to their role as mother while re-establishing themselves
    in the broader community.

    Kinship
    Obligations

    Aboriginal women
    are an integral part of the cultural, economic, and family life of an
    Aboriginal clan and community. But the removal of Aboriginal women from
    the family and community places a burden on them beyond the loss of one
    member of a family unit. Aboriginal clans and communities are already
    highly vulnerable and stressed by poor standards of health, housing, poverty
    and the loss of men to the criminal justice system. Taking women and mothers
    from these family structures leaves an important gap which places further
    stress on adults and children.

    Aboriginal women
    in custody are ever-conscious of the impact their absence has on the day
    to day lives of their families and children. This creates stress on them
    during the period of their custodial sentence, and creates additional
    stresses on them when they return home. Programs which are sensitive to
    the kinship obligations of Indigenous women and supportive of these roles
    are important. Indigenous women have identified help with family and community
    relationships as an issue they want help with. Sixty percent of women
    surveyed in NSW felt that programs dealing with relationships would benefit
    them.[164]

    A Queensland study
    found that in some communities the reintegration of an Indigenous woman
    may be complicated by kinship obligations:

    payback and retaliation
    when the offender returns to the community, particularly if the victim
    is still residing there. These issues are often complicated by kinship
    issues within the communities... While practices very in different communities,
    Indigenous female offenders may be left homeless or their time in secure
    custody may be increased. The practice has the effect of punishing the
    offender twice for the same offence.[165]

    Some women may face
    another form of dispossession because of the impact of violent relationships
    on their lives. They may not be able to return to their home community,
    as a result of their own or other people's violence.[166]
    In either scenario, women need support to re-enter potentially volatile
    situations. Pre- and post-release programs need to be sensitive to kinship
    obligations, and to support Indigenous women to work with their customary
    obligations and to positively re-integrate into the community in which
    they will live.

    Financial
    Issues, Employment, Education and Training

    There is an absence
    of consistent data in relation to educational background of prisoners
    available. Research analyst, Margaret Cameron of the Australian Institute
    of Criminology notes:

    Unfortunately,
    background information on the educational levels of prisoners and whether
    they were employed is not available. These questions are included in
    the National Prison Census questionnaire, however, they do not appear
    to be systematically administered. In some correctional institutions,
    for example, prisoners' responses are recorded, while in other the questions
    appear to have been ignored completely. Nevertheless, education levels
    are important to consider.[167]

    Cameron observes
    the importance of this information for policy and planning of programs,
    in view of evidence that unemployment is a predictor for recidivism.[168]
    On the issue of employment and education programs within the prison
    Cameron notes that 'no formal consideration has been given to the needs
    of ATSI women'.[169] Statistical analysis, based on
    sound data is required in order for Australia to meet its obligations
    to international human rights bodies, and it is important for development
    of good policy.

    According to a recent
    survey of the needs of Aboriginal women in custody:

    [a] significant
    concern was the one quarter of women who stated that their income came
    solely through the proceeds of crime. It is evident that these women
    are becoming increasingly entrenched in a cycle of drug dependency,
    crime and imprisonment.[170]

    The need for education
    and training is clear. A recent survey of NSW women noted that 84% of
    the women said they would like to work on release.[171]

    Access
    to health services

    The high incidence
    of health problems among Aboriginal women is an indicator that pre- and
    post-release programs should target the health needs of Aboriginal women.
    The high incidence of deaths in custody attributable to natural causes
    indicates an urgent need for better health care while in custody, and
    better health care on release.

    There is also a specific
    need to address drug abuse among Indigenous women. As the recent study
    by NSW AJAC into the needs of incarcerated Indigenous women in NSW stated:

    The most significant
    findings of this study are the level of serious drug addiction among
    women in prison and the causal role that addiction has played in their
    current imprisonment. Fundamentally significant is the levels of abuse
    that has been suffered by the women and the clear link those women have
    drawn between that abuse and their drug use, their drug use and their
    current imprisonment… It is clear from this study that unless the
    abuse experienced by Aboriginal women is effectively addressed they
    will continue with their drug habit and continue to offend.[172]

    Conclusion

    This chapter has
    provided a broad overview of issues that Indigenous women face in criminal
    justice processes. Due to the general dearth of research and statistics
    it is necessarily broad in its focus, and points to areas requiring follow
    up action and further investigation. Despite these limitations, what is
    clear is that there is a crisis in the level and type of contact of Indigenous
    women with correctional systems in Australia. There is insufficient attention
    devoted to their circumstances when in custody and insufficient attention
    to the environmental factors which contribute to their being in custody
    at all. Indigenous women indeed live in 'a landscape of risk' and suffer
    at the crossroads of race and gender.


    1
    Kerley, K and Cunneen, C, 'Deaths in Custody in Australia: The Untold
    Story of Aboriginal and Torres Strait Islander Women' in Canadian Journal
    of Women and the Law
    vol 8, no 2, 1995, p533.

    2
    Cameron, M, 'Women Prisoners and Correctional Programs' No 194, Australian
    Institute of Criminology, Feb 2001, p1.

    3
    Social Justice Report 2001, p15.

    4
    The RCIADIC did, however, receive evidence and provided analysis and instructive
    comment on the treatment of Indigenous women.

    5
    Australian Bureau of Statistics, Prisoners in Australia, Summary of
    Findings
    , Canberra, 2002.

    6
    ibid.

    7
    Cameron, M, op cit, p1. Note: differences in methods of statistical collection
    explain the difference in measures provided in the tables and text in
    this section.

    8
    ABS, op cit, Table 2.

    9
    ibid.

    10
    This rate for women is inflated by the inclusion of rates of incarceration
    of Indigenous women in the statistical calculation.

    11
    Australian Bureau of Statistics, op cit.

    12
    Cameron, M, op cit, p1.

    13
    ibid.

    14
    ABS, op cit, Table 3.

    15
    See Table 3 below.

    16
    Cunneen, C, NSW Aboriginal Justice Plan - Discussion Paper, 2002,
    p26.

    17
    Hassing, C, Indigenous Female Prisoner Profiles, 2002, unpublished,
    commissioned by the Aboriginal and Torres Strait Islander Social Justice
    Commissioner, HREOC, p9.

    18
    Cameron, M, op cit, p1.

    19
    Figures taken from the Estimated Resident Population by Sex and Age,
    State and Territories of Australia
    series (ABS cat. no. 3201.0). Cameron,
    M, op cit, p1.

    20
    The ATSI population is based on numbers received directly from the ABS,
    and uses the high level estimates as seen in ABS (1996). Cameron, M, ibid.

    21
    'Corrective Services Australia', June Quarter 2002. Australian Bureau
    of Statistics, Catalogue No. 4512.0, n.p. - not published.

    22
    NSW Department of Corrective Services Research and Statistics Unit, Indigenous
    Inmates Statistics Report
    , 6 October 2002, p1.

    23
    Community Profile Series 2001 Census, Indigenous Profile, NSW, 2001, Australian
    Bureau of Statistics, Commonwealth of Australia, Canberra, 2002. Calculated
    from Table 1 02.

    24
    Aboriginal and Torres Strait Islander Women's Policy Unit of the Department
    of Corrective Services, Queensland, Options for Diversion from Secure
    Custody for Indigenous Female Offenders
    , May 2002, p8.

    25
    ibid, p7.

    26
    'Prisoner receptions by sex and race, 1996-97 to 2000-01' in Statistical
    Report; Attachment One: Indigenous contact with the Criminal Justice System
    ,
    Indigenous Issues Unit, Department of Justice Victoria, 2002, p20.

    27
    Brenner, K, Indigenous Women in the Victorian Prison System 2002: a
    snapshot
    , Department of Justice, Victoria, June 2002, p4.

    28
    'Prison Census data records the information gathered from inmates in the
    institution on the nominated census day. Examination of quarterly prison
    statistics shows that numbers may fluctuate through throughout the year.
    Statistics based on reception data includes all prisoners received, and
    includes women who may serve short sentences and be absent on the census
    date.' Kerley, K and Cunneen, C, op cit, p536.

    29
    Department of Justice, Western Australia, 'Receivals (Including Recaptures
    following Escape) from 01/01/01 to 30/06/02'. The total number of women
    received for the period was 887. There were 459 Indigenous women received
    in the period. Twice as many women aged between 20-35 were received into
    WA prisons than any other age group.

    30
    Community Profile Series 2001 Census, Indigenous Profile, Western Australia,
    2001, Australian Bureau of Statistics, Commonwealth of Australia, 2002.
    Calculated from Table 1 02.

    31
    Northern Territory Correctional Services, Annual Report 2000-2001,
    Northern Territory Government, Government Printer of the Northern Territory,
    2001, p73.

    32
    Community Profile Series 2001 Census, Indigenous Profile, Northern Territory,
    2001, Australian Bureau of Statistics, Commonwealth of Australia, 2002.
    Calculated from Table 1 02.

    33
    Australian Bureau of Statistics, op cit. 'Previous imprisonment
    rates are an indication of recidivism, although offender may re-enter
    prison for reasons unrelated to a prior offence.' Cameron, M, op cit,
    p2.

    34
    Cunneen, C, NSW Aboriginal Justice Plan - Discussion Paper, 2002,
    p25.

    35
    Lawrie, R, Draft of Speak Out Speak Strong: Researching the Needs of
    Aboriginal Women in Custody
    New South Wales Aboriginal Justice Advisory
    Council, 2002, p25.

    36
    National Prison Census 1999 (ABS) unit record file.

    37
    Brenner, K, op cit, p13.

    38
    Cameron, M, op cit, p2.

    39
    ibid.

    40
    ibid.

    41
    Telephone consultation, 5 December 2002.

    42
    Source: ABS, Prisoners in Australia, National Prison Census, 1994-2001.
    Tabulated by Chris Cunneen.

    43
    Brenner, K, op cit, p11 .

    44
    ibid, p13 .

    45
    Cunneen, C, Conflict, Politics and Crime Aboriginal Communities and
    the Police
    , Allen & Unwin, Sydney, 2001, p165.

    46
    ibid, p167.

    47
    Fernandez, J A, and Loh, N S N, Crime and Justice Statistics for Western
    Australia: 2001
    , University of Western Australia Crime Research Centre,
    November 2002, p44.

    48
    Aboriginal and Torres Strait Islander and Women's Policy Units of the
    Department of Corrective Services, Queensland, Options for Diversion
    from Secure Custody for Indigenous Female Offenders
    , May 2002, p4.

    49
    ibid, p23.

    50
    Brenner, K, op cit, p11.

    51
    Lawrie, R, op cit, pp29-30.

    52
    ibid, p30.

    53
    ibid, p29.

    54
    Falk, P, Criminal Justice and Indigenous Incarceration, unpublished,
    p14. Based on statistics from 30 June 1998.

    55
    Aboriginal and Torres Strait Islander and Women's Policy Units of the
    Department of Corrective Services, op cit, p16.

    56
    ibid.

    57
    For instance, an inquiry into fines and fine default in each state might
    establish whether the recovery of debt, is 'being won at the cost of discrimination
    against the poorest individuals and families in community.' Vinson, T,
    Comparison of the Sentencing of Indigenous and non-Indigenous Prisoners
    in New South Wales
    , Uniya Social Justice Centre, November 2002, p50.
    Sobering-up shelters, incremental repayment schemes for fines, investigation
    of discriminatory policing of Indigenous people's use public space could
    also provide some benefits.

    58
    Cunneen, C, Conflict, Politics and Crime Aboriginal Communities and
    the Police, op cit
    , p165.

    59
    Fitzgerald, J and Weatherburn, D, 'Aboriginal Victimisation and Offending:
    The Picture from Police Records', Crime and Justice Statistics,
    December 2001, NSW Bureau of Crime Statistics and Research, Bureau Brief,
    p4.

    60
    Cunneen, C, Conflict, Politics and Crime Aboriginal Communities and
    the Police, op cit
    .

    61
    ibid.

    62
    ibid, p167.

    63
    Collins, L, and Mouzos, J, Deaths in Custody: A Gender-specific Analysis,
    Trends and Issues in criminal justice, No 238, Australian Institute of
    Criminology, Canberra, September 2002, pp5-6.

    64
    ibid. See also Drugs and Crime Prevention: Inquiry into Public
    Drunkenness, Final Report
    , Drugs and Crime Prevention Committee, Parliament
    of Victoria, June 2001 Government Printer for the State of Victoria, Melbourne,
    2001.

    65
    Drugs and Crime Prevention Committee, op cit.

    66
    Payne, S, 'Aboriginal Women and the Law', in Women and the Law,
    Weiser Easteal, P and McKillop, S (Eds), Proceedings of a conference
    held 24-26 September 1991
    , Australian Institute of Criminology, Canberra,
    1993, p69.

    67
    The Sentencing Legislation Amendment and Repeal Bill passed the
    House of Assembly and was read in the Legislative Council on the 3 December
    2002. The bill will be considered by Council when parliament resumes on
    25 February 2003.

    68
    Stephens, T, Second Reading Speech, Hansard, Parliament of Western Australia,
    3 December 2002.

    69
    ibid.

    70
    Cunneen, C, NSW Aboriginal Justice Plan - Discussion Paper, op cit,
    p27 citing Baker, J, 'The Scope for Reducing Indigenous Imprisonment Rates'
    Crime and Justice Bulletin No 55, New South Wales Bureau of Crime
    Statistics and Research, Sydney 2001.

    71
    Lawrie, R, op cit, p53.

    72
    Western Australian Department of Justice, Community and Juvenile Justice
    Division, Planning, Policy and Review, Profile of Women In Prison,
    June 2002, Table 5.8, p32.

    73
    Brenner, K, op cit, p21.

    74
    Aboriginal and Torres Strait Islander Women's Policy Unit of the Department
    of Corrective Services, Queensland, op cit, p16.

    75
    Brenner, K, op cit, p11.

    76
    Aboriginal and Torres Strait Islander Women's Policy Unit of the Department
    of Corrective Services, Queensland, op cit, p4.

    77
    Western Australian Department of Justice, Community and Juvenile Justice
    Division, op cit, p19.

    78
    Note: 5 non-Aboriginal and 6 Aboriginal women did not respond to the survey.

    79
    Western Australian Department of Justice, Community and Juvenile Justice
    Division, op cit.

    80
    Lawrie, R, op cit, p41.

    81
    Fitzgerald, J and Weatherburn, D, 'Aboriginal Victimisation and Offending:
    The Picture from Police Records', Crime and Justice Statistics,
    December 2001, NSW Bureau of Crime Statistics and Research, Bureau Brief,
    p2.

    82
    Western Australian Department of Justice, Community and Juvenile Justice
    Division, Planning, Policy and Review, op cit, p56.

    83
    Cunneen, C, Conflict, Politics and Crime Aboriginal Communities and
    the Police, op cit
    , p161.

    84
    ibid, p162.

    85
    HREOC Rural NSW Consultation, Thursday, 26 July 2001.

    86
    Cunneen, C, Conflict, Politics and Crime Aboriginal Communities and
    the Police, op cit
    , p164.

    87
    ibid, p165.

    88
    Atkinson, J, 'A Nation Not Conquered' in Indigenous Law Bulletin,
    vol 3, at http://www.law.unsw.edu.au/centres/ilc/ilb/vol3/may/atkinson.html#commissions

    89
    Cunneen, Chris, op cit, p175.

    90
    ibid, p167.

    91
    Consultation with Indigenous woman, 5 December 2002.

    92
    Consultation with Indigenous woman, 6 December 2002.

    93
    Atkinson, J, 'Violence Against Aboriginal Women' in Aboriginal Law
    Bulletin
    , vol 2, No 46, 1990 and Lawrie, R, op cit.

    94
    Cunneen, C, NSW Aboriginal Justice Plan - Discussion Paper, op cit,
    pp17-18.

    95
    Committee against Torture, Concluding observations of the Committee
    against Torture: Australia
    . 21/11/2000, A/56/44,paras.47-53(Concluding
    Observations/Comments)

    96
    E/C.12/1/Add.50. (Concluding Observations/Comments) Concluding Observations
    of the Committee on Economic, Social and Cultural Rights: Australia. 01/09/2000
    paras 15 and 25.

    97
    Payne, S, op cit, p1.

    98
    For this information I am indebted to Robert Letheby of the Australian
    Bureau of Statistics. Consultation and correspondence of 17 December 2002.

    99
    Wooten, J H, Commissioner the Honourable, Regional Report of Inquiry
    in New South Wales, Victoria and Tasmania, Royal Commission into Aboriginal
    Deaths in Custody
    , AGPS, Canberra, 1991.
    http://www.austlii.edu.au/au/other/IndigLRes/rciadic/regional/nsw-vic-tas/227.html.

    100
    United Nations Division for the Advancement of Women, Report of the Expert
    Group Meeting, Gender and Racial Discrimination, 21-24 November
    2000, Zagreb, Croatia.

    101
    CERD/C/56/Misc.21/Rev3 paras 3, 4, 5. General Recommendation 25: Gender
    Related Dimensions of Racial Discrimination.

    102
    CCPR/C/21/Rev.1/Add.10, CCPR General Comment 28. (General Comments) para
    10.

    103
    UN Doc: CCPR/C/21/Rev.1/Add.10, CCPR General Comment 28 (General Comment)
    para 30.

    104
    See example: Lawrie, R, op cit; Brenner, K, op cit.

    105
    Lawrie, R, op cit, p45.

    106
    ibid, p46.

    107
    Telephone consultation, September 2002.

    108
    Lawrie, R, op cit, p46.

    109
    ibid.

    110
    Kilroy, D, Sisters Inside Inc, The White Wall Syndrome: An Indigenous
    Framework for Practice Operating within the Women's Prison
    . Paper
    presented at Best Practice Interventions in Corrections for Indigenous
    People Conference
    , Sydney, Australian Institute of Criminology, 8-9
    October 2001, p7.

    111
    Director General, Western Australian Department of Justice, Prisoner
    Mothers - Primary care Givers and their Children
    , 14 May 2001. Primary
    care-givers are defined as individuals, either male or female, who are
    responsible for the custody or care of a child or children.

    112
    Matthews, W, Consultation Meeting, Sydney, 19 November 2002.

    113
    UN Doc: CCPR/C/21/Rev.1/Add.10, CCPR General Comment 28. (General Comments)
    para 15.

    114
    Telephone consultation, 6 December 2002. Practical alternatives such as
    expressing milk should be explored. Hospitals could develop a secured
    area for women prisoners. This could provide some privacy for women, babies
    and families.

    115
    ibid.

    116
    Lawrie, R, op cit, p47.

    117
    Telephone consultation, 6 December 2002.

    118
    Kilroy, D, op cit.

    119
    Adapted from Appendix A, Strip Searching of Prisoners, Minogue, C, 'An
    Insider's View: Human Rights and Excursions from the Flat Lands' in Brown,
    D and Wilkie, M, (Eds) Prisoners as Citizens, Federation Press,
    Sydney, 2002 pp 209-10.

    120
    ibid, p209.

    121
    Orders specifically for men include the requirement to lift the scrotum
    and men may be required to peel back their foreskin. ibid.

    122
    ibid.

    123
    Adapted from Milovanovic, S, 'Prison cleared over inmates death' The
    Age
    , September 10 2002, http://www.theage.com.au/articles/2002/09/09/1031115997628.html.

    124
    Lawrie, R, op cit, p53.

    125
    ibid, p49.

    126
    HREOC Consultation notes, Darwin, op cit, p7.

    127
    Ogilvie, E, Post Release: the Current Predicament and Potential Strategies,
    http://www.aic.gov.au/crc/reports/ogilvie.html,
    p2.

    128
    HREOC Consultation notes, Darwin, op cit, p7.

    129
    Ogilvie, E, op cit, pp3-4.

    130
    Morseu-Diop, N, 'You say you hear us, but are you really listening or
    are we just noise in the distance?' Australian Institute of Criminology,
    Best Practice Interventions in Corrections for Indigenous People Conference,
    Sydney, 8-9 October 2002, p3.

    131
    Jones, R, 'Indigenous Programming: A National and International Literature
    Review', Australian Institute of Criminology, Best Practice Interventions
    in Corrections for Indigenous People Conference, Sydney, 8-9 October 2001,
    p4.

    132
    Matthews, W, Consultation Meeting, ibid.

    133
    Kelly, L, Developing a Restorative Justice Approach to Aboriginal Family
    Violence
    , (unpublished and forthcoming), p8.

    134
    The following material on the Healing Lodges is from Cunneen, C, The
    impact of crime prevention on Aboriginal Communities
    , Institute of
    Criminology, University of Sydney, September 2001, pp118-20.

    135
    Interim Report: Issues Relating to Women, Select Committee on the Increase
    in Prisoner Population, July 2000, NSW Legislative Council, p146. See
    Recommendation 6.192: 'The Minister for Corrective Services ensure that
    any issues relating to an inmate requiring identification when released
    from prison, such as for Medicare, Centrelink and the opening of bank
    accounts, are part of the inmate's case management plan and are resolved
    prior to release. This should occur in all prisons. This should be extended
    to include all dependent children.'

    136
    ibid, 142-43.

    137
    Matthews, W, Consultation Meeting, op cit.

    138
    Atkinson, J, 'A Nation Not Conquered', op cit.

    139
    Matthews, W, Consultation Meeting, op cit.

    140
    ibid.

    141
    ibid.

    142
    Ogilvie, E, op cit, p2

    143
    ibid, p4.

    144
    Armytage, P, et al, p14.

    145
    Ogilvie, E, op cit, p8.

    146
    Lawrie, R, op cit, p48.

    147
    Ogilvie, E, op cit, p2.

    148
    Matthews, W, 'Managing holistic programs', Best Practice Interventions
    in Corrections for Indigenous People Conference, Sydney, Australian Institute
    of Criminology, 8-9 October 2001, p4.

    149
    Laine, M, 'Some old and some new experiences: Criminal justice and correction
    in Finland', Principal Lecturer at Prison Personnel Training Centre, Finland.
    109th International Training Course Effective Treatment Measures for Prisoner
    to Facilitate their Reintegration into Society. UN Asia and Far East Institute
    for the Prevention of Crime and the Treatment of Offenders. www.unafei.or.jp\

    150
    Ogilvie, E, op cit, p5.

    151
    National Association for the Care and Resettlement of Offenders (UK) in
    Dutreix, C, Offenders Aid and Rehabilitation Services, SA, Women's
    Accommodation Support Service and other Post Release Issues from a Client
    Perspective
    , Best Practice Interventions in Corrections for Indigenous
    People Conference, Australian Institute of Criminology, Sydney, 8-9 October
    2001, p2.

    152
    Coleman, A, 'Sister, it Happens to Me Everyday: An exploration of the
    needs of and responses to, Indigenous Women in Brisbane's Inner City Spaces',
    Brisbane City Council, the Department of Families, the Department of Aboriginal
    and Torres Strait Islander Policy and the Department of Premier and Cabinet,
    Office for Women, 2000, p13.

    153
    Ogilvie, E, op cit, p4.

    154
    Lawrie, R, op cit, p31.

    155
    Webb, A, Coordinator, Guthrie House, evidence, Interim Report, op cit,
    pp147-8.

    156
    CEDAW General Recommendation 19, Specific recommendation 24 (k) States
    parties should establish or support services for victims of family violence,
    rape, sexual assault and other forms of gender-based violence, including
    refuges, specially trained health workers, rehabilitation and counselling.

    157
    Fitzgerald, J and Weatherburn, D, 'Aboriginal Victimisation and Offending:
    The Picture from Police Records', Crime and Justice Statistics,
    December 2001, NSW Bureau of Crime Statistics and Research, Bureau Brief.

    158
    Cunneen, C, op cit, p59.

    159
    ibid, p58.

    160
    Kelly, L, op cit, p8.

    161
    Atkinson, J, 'A Nation is Not Conquered', op cit.

    162
    Sansbury, T, Indigenous Community Expectations of Best Practice,
    Corrections for Indigenous People Conference, Australian Institute of
    Criminology, Sydney,13-15 October 1999, p6.

    163
    Lawrie, R, op cit, p47.

    164
    ibid, p51.

    165
    Queensland Report, p23.This report was provided but it has no title page,
    so the title is unknown. The effects of customary law and customary practice
    may be that the offender is punished twice, unless prior arrangement is
    made with authorities. It is important that this effect is noted.

    166
    Matthews, W, Consultation Meeting, op cit.

    167
    Cameron, M, op cit, pp2-3.

    168
    ibid, p4.

    169
    ibid.

    170
    Lawrie, R, op cit, p54.

    171
    ibid, p51.

    172
    ibid, p54.

    19
    March 2003.