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


    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
    Indigenous Total Prisoners
    Indigenous Males
    Indigenous Females

    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
    Rate per 100,000 [19]
    Total men
    Rate per 100,000
    Non ATSI women
    Rate per 100,000
    ATSI women
    Rate per 100,000 [20]

    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]

    All inmates
    Over-representation rate
    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]

    Non-ATSI women
    Previously imprisoned
    Sentenced ATSI women
    Previously imprisoned

    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]

    % 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 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
    Had self-harmed
    Had not self-harmed
    Total [78]

    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]


    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.


    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]


    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

    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.

    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,

    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,, 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.\

    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.