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2.11 Contact with the criminal justice system

Why is it important?

Aboriginal and Torres Strait Islander peoples experience higher rates of arrest and incarceration than non-Indigenous Australians. Imprisonment impacts on family, children and the broader community. It increases stress, affects relationships and has adverse employment and financial consequences.

Prison populations over-represent people with mental health and substance abuse problems, cognitive impairment, hearing loss, learning difficulties and histories of physical and sexual abuse (Levy 2005). Putt et al. (2005) found that 69% of male Indigenous prisoners had used alcohol at the time of arrest compared with 27% of non-Indigenous prisoners; Indigenous prisoners were also more likely to attribute their crime to drug or alcohol intoxication (ANCD 2013; Kariminia et al. 2012). Kinner et al. (2011) found released prisoners have an increased risk of death compared with the general population, with a disproportionate number dying within the first four weeks of release.

Findings

Youth justice supervision

On an average day in 2012–13, 40% of those under youth justice supervision were Indigenous (around 2,600 out of 6,300) (including estimates for WA and the NT). Given Indigenous youth only make up about 5% of the population aged 10–17 years, they were significantly over-represented in youth justice supervision. Young people may be supervised either in their communities or in secure detention facilities: on an average day most Indigenous youth under supervision are under community-based supervision (81%) with the remainder in detention (19%). However, of the 975 young people in detention, on an average day, half (486) were Indigenous (including estimates for WA and the NT).

In 2012–13, the rate of Indigenous 10–17 year olds under some form of supervision was 188 per 10,000 on an average day. This was 14 times as high as the non-Indigenous rate (13 per 10,000). Males made up 81% of Indigenous young people under supervision (similar to the non-Indigenous proportion). Indigenous 10–17 year olds were 16 times as likely to be in community-based supervision and 28 times as likely to be in detention as non-Indigenous young people (including estimates for WA and the NT) (AIHW 2014z). Over the last five years, there has been a small (5%) decline in the number of Indigenous youth under supervision. The level of over-representation has increased due to a slightly larger fall for non-Indigenous youth (including estimates for WA and the NT) (AIHW 2014ae).

Over-representation of Indigenous young people aged 10–17 years in youth justice supervision occurred in all jurisdictions where data was available (WA and the NT did not supply Juvenile Justice NMDS data for 2012–13). NSW and Qld had the highest level of over-representation in youth justice supervision (15 times each). ACT had the highest rate of Indigenous young people under supervision (233 per 10,000 on an average day) and Tasmania the lowest Indigenous rate (57 per 10,000 and lowest level of over-representation). On an average day in 2012–13, 27% of Indigenous youth under supervision were aged 10–14 years, twice the non-Indigenous proportion (13%).

In 2012–13, a higher proportion of Indigenous young people completed multiple periods of supervision than non-Indigenous young people (22% compared with 14%). Indigenous youth with sentenced supervision orders were 1.3 times as likely to return to youth supervision within both 1 and 2 years as their non-Indigenous counterparts. Indigenous young people spent more time under supervision on average. For those supervised in 2012–13, the average length of time under supervision was 15 days longer for Indigenous young people (195 days) than non-Indigenous young people (180 days).

In 2012–13, on an average day there were 198 Indigenous young people in unsentenced detention. The rate of Indigenous young people on remand was 21 times the rate for non-Indigenous youth. The majority (86%) were in the 14–17 year age group. Indigenous youth spent about 2 weeks longer in unsentenced detention during the year than non-Indigenous youth (47 days compared with 34 days, on average). Indigenous youth were 23 times as likely as non-Indigenous youth to have 6 or more completed periods of unsentenced detention during the year.

In NSW prisons, Aboriginal inmates were twice as likely to report a history of juvenile detention compared with non-Indigenous inmates, and Aboriginal men were more likely to have been in juvenile detention five or more times compared with non-Indigenous men (Indig et al. 2010). In NSW, a higher proportion of young Aboriginal youth in juvenile detention had been placed in out-of-home care as a child (38%) than non-Indigenous (17%) (Indig et al. 2011) (see measure 2.12). In the adult population, nearly half of all Aboriginal inmates in NSW prisons were placed in care as children, twice the non-Indigenous rate (Indig et al. 2010). Aboriginal inmates were also more likely to report their parents had been placed in care as a child (27% of Aboriginal women and 14% of Aboriginal men).

Children of parents who have been incarcerated (particularly boys whose fathers have a criminal record) are more likely to also be in the criminal justice system (Goodwin et al. 2011). The Health of Australia's Prisoners 2012 (AIHW 2013e) found that 1 in 5 Indigenous prison entrants reported their father had been imprisoned; and they were 6 times as likely to have had both their mother and father imprisoned compared with non-Indigenous prison entrants. Aboriginal youth in custody in NSW were twice as likely to have ever had a parent in prison (61% compared with 30%) and 16% had a parent in prison at the time of being surveyed (compared with 4% of non-Indigenous youth). In NSW prisons, one in three Aboriginal inmates had a parent imprisoned during their childhood (3 times the non-Indigenous rate). Aboriginal inmates were also more likely than non-Indigenous inmates to have dependent children (Indig et al. 2010).

Aboriginal youth in NSW juvenile custody were 3 times more likely to have a possible intellectual disability than their non-Indigenous counterparts (Haysom et al. 2014), 92% had a psychological disorder and 83% were risky drinkers (Wallace 2014). In the adult prison population, traumatic brain injuries and cognitive impairment, illicit drug/risky alcohol use, and high psychological distress compound the high rates of mental health disorders (AIHW 2013e).

Figure 2.11-1 Rates of young people aged 10–17 years under community-based supervision and detention, by Indigenous status, 2006–07 to 2012–13
Rates of young people

Figure 2.11-1 shows over the last 7 years, there has been a small 5% decline in the number of Indigenous youth under supervision. Over-representation has increased due to a slightly larger fall for non-Indigenous youth.

Note: WA and the NT did not supply Juvenile Justice NMDS data for 2008–09 to 2012–13

Source: AIHW Juvenile Justice National Minimum Dataset, 2012–13

Figure 2.11-2 Rates of young people aged 10–17 years who completed a period of unsentenced detention, by number of periods and Indigenous status, 2012–13
Rates of young people aged 10–17 years

Figure 2.11-2 shows Indigenous youth were 29 times as likely as non-Indigenous youth to have 6 or more periods of unsentenced detention during the year.

Note: excludes WA and the NT

Source: AIHW Juvenile Justice National Minimum Dataset, 2012–13

Figure 2.11-3 Indigenous Australians reporting trouble with the police or time spent in jail(a) as a family stressor during the last 12 months, by age group, 2012–13
Indigenous Australians reporting trouble

Figure 2.11-3 shows in 2012–13, 10% of Indigenous Australians reported stressors due to themselves, a family member or friend being incarcerated in the last year. In 2012–13, 13% of Indigenous Australians had stressors due to trouble with the police in the last year (five times the rate of non-Indigenous people).

a) respondent/family member/close friend spent time in jail in last 12 months

Source: ABS and AIHW analysis of AATSIHS, 2012–13

Figure 2.11-4 Young people with sentenced supervision orders in 2009–10 to 2010–11 with one or more returns to sentenced youth justice supervision
Young people with sentenced supervision orders

Figure 2.11-4 shows Indigenous youth with sentenced supervision orders were 1.3 times more likely to return to youth supervision within 1 to 2 years compared with non-Indigenous counterparts.

Note: excludes WA and NT

Source: AIHW analysis of Juvenile Justice National Minimum Dataset

Adult imprisonment

As at 30 June 2013, there were 8,430 adult prisoners who identified as Aboriginal and Torres Strait Islander in the National Prison Census, representing 27% of total prisoners. After adjusting for differences in age structure of the two populations, the Indigenous imprisonment rate per 100,000 in the adult population was 13 times the rate for non-Indigenous Australians. The imprisonment rate for Indigenous Australians has increased by 68% since 2000 and the gap has widened.

In 2013, the median age of adult Indigenous prisoners was 31 years compared with 35 years for non-Indigenous prisoners. Indigenous men made up 27% of the total male prisoner population. Indigenous women were also over-represented in the prison population, representing 33% of the female prisoner population. Of all Indigenous prisoners, 91% were male.

In 2013, highest rates of imprisonment of Indigenous Australians were reported in WA followed by the NT and the lowest in Tasmania. In the June Quarter 2014, there were also 11,357 Indigenous Australians in community-based corrections, representing 21% of those in community-based corrections (ABS 2013c).

In 2013, there were proportionally more Indigenous prisoners (77%) than non-Indigenous prisoners (51%) who had a prior adult imprisonment under sentence. Longitudinal analysis shows Indigenous Australians are around 1.7 times more likely to be reimprisoned within 10 years of release from prison compared with non-Indigenous Australians (ABS 2014e).

Three quarters (75%) of Indigenous sentences are under 5 years. The median aggregate sentence for Indigenous prisoners was lower than for non-Indigenous prisoners (24 months compared with 42 months) (ABS 2013g).

A larger proportion of Aboriginal and Torres Strait Islander prisoners had a most serious offence of acts intended to cause injury (34%) compared with other prisoners (15%). They were less likely than other prisoners to be in prison for illicit drug offences (2% compared with 15%) and homicide (6% compared with 10%).

In 2012–13, 10% of Indigenous Australians reported stressors due to themselves, a family member or friend being incarcerated in the last year. In 2012–13, 13% of Indigenous Australians had stressors due to trouble with the police in the last year (five times the rate of non-Indigenous Australians).

In 2008, one in four Indigenous men aged 35 and over reported that they had spent time in prison. Approximately 48% of Indigenous males aged 15 years and over had been formally charged by the police, 22% had been arrested in the previous 5 years and 6% had been incarcerated in the previous 5 years. By age 23, more than three quarters (76%) of the NSW Indigenous population have been cautioned by the police, referred to a youth justice conference or convicted of an offence in a NSW criminal court (non-Indigenous figure was 17%) (Weatherburn 2014).

In 2012, Indigenous prison entrants were twice as likely to have a level of schooling to Year 8 or below compared with their non-Indigenous counterparts who were almost twice as likely to have completed Year 12. Indigenous prison entrants were more likely to be unemployed, sleeping rough or in short-term/emergency accommodation compared with non-Indigenous prison entrants and were also more likely to be facing homelessness on release (see measure 2.01).

Indigenous prisoners (46%) were more likely than non-Indigenous prisoners (39%) to be referred for follow-up care following an initial health assessment in 2012 (AIHW 2014ab). In 2012, Indigenous prison entrants were more likely to test positive to hepatitis B core antibodies, while non-Indigenous prison entrants were more likely to test positive to hepatitis C antibodies (see measure 1.12). In 2012, most Indigenous prison entrants were current smokers (92%), while 59% reported risky alcohol use and 67% reported illicit drug use in the last 12 months. Indigenous prison dischargees were more likely to report not having a Medicare card available on release (17%) compared with non-Indigenous dischargees (10%) (AIHW 2013e). A study of Indigenous inmates in the NT found that 94% had significant hearing loss (Vanderpoll et al. 2012). Hearing loss was associated with altercations with others due to misunderstandings and difficulties communicating within the criminal justice system including during hearings.

National Deaths in Custody data show rates of deaths in prison custody have declined for both Indigenous and non-Indigenous Australians. In 2013 there were 1.1 deaths per 1,000 Indigenous Australians in prison custody compared with 3.4 in 2000. For non-Indigenous Australians, rates were 2.0 per 1,000 in 2013 compared with 2.8 per 1,000 in 2000. Data from 2012–13 indicate that there were 13 deaths of Indigenous Australians in all forms of custody and 58 for non-Indigenous Australians. Four of the Indigenous deaths occurred in police custody, 9 in prison and none in juvenile justice/welfare custody. Seven of these Indigenous deaths were due to natural causes, 4 were accidents and 1 was self-inflicted.

Implications

Findings show a high level of inter-generational disadvantage associated with contact with the criminal justice system, including high rates of parental incarceration and experiences of being placed in care (see measure 2.12). Efforts to reduce Indigenous over-representation in the criminal justice system require recognition of the health and social issues associated with recidivism and non-compliance with court orders.

Primary responsibility for criminal justice issues sits with state and territory governments. The states and territories deliver a range of programmes to reduce levels of Indigenous incarceration and re-offending, including diversionary programmes (e.g. cautions and conferencing), 'circle sentencing' and Indigenous courts, and prisoner through-care arrangements. Crime prevention strategies that consider the needs of victims and communities through justice reinvestment have also been recommended (AHRC 2013). Circle sentencing offers an inter-sectoral strategy to work with communities to address trauma, social difficulties, substance use, low self-esteem and mental health (Wallace 2014).

The Australian Government funds a number of initiatives through its Indigenous Advancement Strategy's Safety and Wellbeing Programme designed to address the factors contributing to Indigenous Australians' high rates of contact with the criminal justice system. For example, the Government funds a range of prisoner through-care and youth diversion activities that seek to support safer communities by reducing Indigenous offending, targeting Indigenous youth and adults who are currently in or recently exited from the criminal justice system. Activities funded include: rehabilitation services to Indigenous prisoners and juvenile detainees (both male and female); intensive case management to Indigenous youth; youth prevention activities to Indigenous youth in regional and remote communities; and community-based mediation services to remote communities.

The Australian Government is also working with states and territories to develop nationally comparable Indigenous offending and victimisation data sets that will assist with identifying areas of greatest need and significant trends. More evidence is required about what prevention strategies and interventions are effective in reducing victimisation, offending and reoffending, and consequent incarceration and contact with the criminal justice system.

Weatherburn (2014) identifies four key risk factors for Indigenous offending: exposure to child neglect (see measure 2.12), school attendance and performance (see measure 2.05), unemployment (see measure 2.07), and drug and alcohol abuse (see measures 2.16 and 2.17). Findings from these measures combined show Indigenous Australians fare worse across all factors, which all play a significant role in contact with the criminal justice system. One study found that the differences in arrest rates between Indigenous and non-Indigenous Australians may explain around 15% of the difference in employment outcomes (Borland et al. 2000). Weatherburn suggests that child and maternal health services provide opportunities to address antecedents of child neglect (substance abuse and maternal depression resulting from poor health, family violence, financial stress, homelessness and traumatic life events). State and territory youth justice agencies provide programmes designed for Indigenous Australians focusing on family violence, alcohol and drug use, education and employment, counselling and family support (AIHW 2014ae).

Prisoner health issues (particularly mental health and substance use issues) affect not only those within the prison system, but also families and communities more broadly; and access to health services is pertinent both prior to imprisonment and post-release (Lloyd et al. 2013). Accessing health care post-imprisonment requires reapplying for a Medicare number, which creates an additional barrier to addressing health issues while managing competing priorities of re-establishing housing, employment and relationships with family and community. Some Aboriginal health organisations have developed their own health programmes for prisoners and their families (Winnunga Nimmityjah Aboriginal Health Service 2007; Commission on Social Determinants of Health 2007). In 2012, 14 prisons in Australia received visits from Aboriginal health services (AIHW 2014ab).

Figure 2.11-5 Age-standardised rate of persons in prison, by Indigenous status, 2000 to 2013
Age-standardised rate of persons in prison

Figure 2.11-5 shows the age-standardised rate of Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians in prison (rate per 100,000 adult population). Data is presented annually from 2000 to 2013

Source AIHW and ABS analysis 2013 Prison Census

Table 2.11-1 People in prison custody by Indigenous status, sex and state/territory, 30 June 2013
Male
Indig.
Female
Indig.
Persons
Indig.
Crude rate (a)
Indig.
Male
Non-Indig.
Female
Non-Indig.
Persons
Non-Indig.
Rate ratio Rate difference (b)
NSW 2,097 202 2,297 1,830 7,014 462 7,476 11.2 1,455.0
Vic 361 28 388 1,330 4,604 348 4,952 10.3 1,078.8
Qld 1,722 174 1,898 1,623 3,818 359 4,178 10.8 1,235.9
WA 1,763 214 1,977 3,593 2,712 234 2,947 18.5 2,786.3
SA 449 46 496 2,141 1,669 97 1,770 12.2 1,710.2
Tas 61 6 70 474 380 34 413 3.2 287.6
ACT 52 3 63 1,529 277 18 286 13.9 1,193.1
NT 1,145 96 1,241 2,793 186 6 195 16.2 2,194.4
Aust 7,650 769 8,430 2,039 20,660 1,558 22,217 13.0 1,598.1

a) Number per 100,000 adult population

b) Rate ratios and differences are age-standardised

Source AIHW and ABS analysis 2013 Prison Census