Australian Institute of Criminology

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Introduction and context

Origins of monitoring deaths in custody: Indigenous over-representation in the criminal justice system

Every death in custody is a personal tragedy, the impact of which affects not only the family and friends of the deceased but the community as a whole. Deaths in custody differ from all other types of death, because they raise questions about the adequacy of care and supervision afforded to prisoners in a custody setting and the appropriateness of the police response when deaths occur during police operations. As noted by a former NSW State Coroner

[w]hen somebody dies in custody, the shift in responsibility moves away from the individual towards the institution...it is entirely proper that any death in custody, for whatever cause, must be meticulously examined (Waller 1993: 3).

One of the main reasons for the RCIADIC was to investigate claims that the actions of prison and police officers were contributing to the deaths of Indigenous persons in their custody. In particular, the RCIADIC was conducted in ‘response to a growing public concern that deaths in custody of Aboriginal people were too common and public explanations were too evasive to discount the possibility that foul play was a factor in many of them’ (RCIADIC 1991: 1.1.2).

Established in 1987, the RCIADIC examined the nature and circumstances surrounding the deaths of 99 Indigenous people that occurred between 1 January 1980 and 31 May 1989. The Commissioners were unable to ‘point to a common thread of abuse, neglect or racism’ (RCIADIC 1991: 1.1.1) among the deaths and ‘did not find that the deaths were the product of deliberate violence or brutality by police or prison officers (RCIADIC 1991: 1.2.2).

Instead, what they found was that

generally, there appeared to be little appreciation of and less dedication to the duty of care owed by custodial authorities and their officers to persons in custody (RCIADIC 1991: 1.2.3).

At the centre of this problem was the issue of Indigenous over-representation at all stages of the criminal justice system. More simply, that the problem of Indigenous deaths in custody arose ‘not because Aboriginal people are more likely to die than others in custody…[but that] too many Aboriginal people are in custody too often’ (RCIADIC 1991: 1.3.3).

Table 5 Indigenous over-representation in custody (%)
Indigenous persons as a percentage of total populationa Indigenous persons as a percentage of total juvenile detention populationb Indigenous persons as a percentage of total adult prison populationc
New South Wales 2.3 48.6 22.1
Victoria 0.7 10.8 6.3
Queensland 3.6 52.9 30.0
Western Australia 3.3 68.0 38.5
South Australia 1.9 41.0 23.9
Tasmania 4.0 20.0 12.4
Northern Territory 30.3 96.9 82.3
Australian Capital Territory 1.3 47.6 16.2
Australia 2.5 46.2 26.1

a: ABS 2011b, 2009a

b: AIHW 2011b

c: SCRCSP 2012

Twenty years have passed since the RCIADIC handed down its 339 recommendations and the problem of Indigenous over-representation in the criminal justice system remains a serious issue (see Figures 1 and 2). It has been observed that ‘Indigenous over-representation is the most significant social justice and public policy issue for the Australian and New Zealand criminal justice systems’ (Allard 2010: 1).

Figure 1 Ratio of Indigenous to non-Indigenous age standardised rates of imprisonment by year (per 100,000 adult population)

a: Data for New South Wales excludes ACT prisoners held in NSW prisons

Source: ABS 2011b, 2010b

Figure 2 Ratio of Indigenous to non-Indigenous age standardised rates of imprisonment by year (per 100,000 adult population)

a: Data for the Australian Capital Territory includes ACT prisoners held in New South Wales, as well as ACT prisoners held in the Australian Capital Territory

Source: ABS 2011b, 2010b

The size of the problem becomes apparent when looking at the statistics, which show that while Indigenous people comprise 2.5 percent of the total Australian population (ABS 2011b, 2009a), they account for almost half (46.2%) of youths in juvenile detention (AIHW 2011b) and more than one-quarter (26.1%) of the total adult prison population (SCRCSP 2012; see Table 5).

Looking more closely at statistics on imprisonment over the last 11 years in Australia, the data showed that for every jurisdiction except Tasmania, the ratio of Indigenous to non-Indigenous imprisonment has increased, with some jurisdictions showing a more pronounced rise than others (see Figures 1 and 2). In simple terms, as of 30 June 2011, Indigenous persons were 3.6 times more likely to be imprisoned in Tasmania than their non-Indigenous counterparts and 11 times more likely to be imprisoned in every other jurisdiction. In Western Australia, Indigenous persons were 18.3 times more likely to be imprisoned on 30 June 2011, after peaking at 21.7 times more likely in 2007.

The factors contributing to the over-representation of Indigenous persons in custody have been closely examined (Allard 2010; Allard et al. 2010, 2009; Baker 2001; Cunneen, Luke & Ralph 2006; House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Fitzgerald & Weatherburn 2001; Joudo 2008; LRC WA 2005; Snowball & Weatherburn 2006; VALS 2011; Weatherburn & Holmes 2010). Some of these factors include mental health issues, alcohol, drug and substance misuse, poorer education and employment outcomes, as well as inadequate housing (House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011).

It should be emphasised that agencies such as corrective services departments and juvenile justice agencies are limited in their capability to reduce Indigenous over-representation, in that they are responding to criminal matters after they have occurred. As Cunneen, Luke and Ralph (2006: 10) note ‘other arms of government including welfare, education, police and the courts play a significant role’ in determining the pathway of Indigenous offenders through the criminal justice system. Efforts to reduce the number of Indigenous persons ending up in prison should therefore be directed further upstream, ideally on community-level initiatives that reduce the likelihood of offending even occurring, but at a minimum, to measures that divert Indigenous offenders out of formal justice processes and into treatment and other support services. It was observed a decade ago that the

greatest leverage for reducing Indigenous imprisonment rates appears to lie in reducing…the rate at which Indigenous persons are arrested, through using alternatives to arrest (Hunter 2001: 1).

Since this research was conducted, significant efforts have been made in developing diversionary alternatives to custody (eg see Allard et al. 2009; Bartels 2010); however, there is mixed evidence about the efficacy and accessibility of this approach.

Reducing Indigenous contact with police

Using NSW police data from the year 2000, Fitzgerald and Weatherburn (2001) found that Indigenous persons were five times more likely than the state average to commit a murder or robbery, seven times more likely to be a break and enter offender, and eight times more likely to be an offender in an incident of grievous bodily harm. It is concluded that the challenge lies in striking the right balance between

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 (Fitzgerald & Weatherburn 2001: 4).

One strategy that endeavours to strike that balance is the use of police diversion, particularly with regards to young Indigenous alcohol and drug-related offenders (Allard et al. 2010; Joudo 2008). Diversion is intended to redirect young and/or less serious offenders away from formal custody and into conferencing and treatment for the underlying issues contributing to offending, such as substance misuse problems. However, for many young Indigenous offenders, the strict eligibility criteria for diversion, combined with a lack of culturally appropriate services, or a lack of services all together due to the geographic location of many Indigenous communities, can all present as barriers that prevent diversion being offered (Joudo 2008). For example, it has been observed in Queensland that Indigenous young people

were 2.9 times less likely to be cautioned than they were to appear in court, two times less likely to have a police conference than appear in court and 1.5 times less likely to be cautioned than attend a conference for their first contact with the system (Allard et al. 2010: 4).

The unfortunate consequence of the unequal application of diversion for young Indigenous offenders when compared with their non-Indigenous counterparts is that the raft of support and treatment services is not made available to those clients most in need. As noted by the Law Reform Commission of Western Australia:

[E]ven if Aboriginal juveniles are referred to diversionary options at the same rate as non–Aboriginal juveniles it will take a long time for the effects of past discriminatory practices to disappear (LRC WA 2005: 96).

Where to from here?

In trying to overcome the long-lasting effects of past practices, the House of Representatives’ Standing Committee on Aboriginal and Torres Strait Islander Affairs recently handed down a report that closely examines Indigenous young people and their contact with the criminal justice system (SCATSIA 2011). What the Committee found was that overcoming the ‘legacy of profound distrust towards police’ (SCATSIA 2011: 196–197) could be achieved through stronger connections between local police and local Indigenous community leaders.

The overarching conclusion from the abovementioned research is that

[the] principle causal factor of Indigenous over-representation in prison is the generally low status of the Indigenous community in Australia, both in socioeconomic terms and in terms of patterns of discrimination (Walker & McDonald 1995: 6).

That is, until such time as the underlying factors that contribute to the comparative disadvantage experienced by Indigenous Australians are addressed, such as education, employment, housing, health and life opportunities, Indigenous people will continue to be over-represented in the criminal justice system.

From the level of investment made in recent years, it can be concluded that the Australian Government is committed to reducing the comparative disadvantage experienced by Indigenous Australians. Analysis conducted by the Productivity Commission showed that 15 percent (approximately $3.3b) of all government expenditure on services for Indigenous Australians in 2008–09 was directed to early child development, education and training services (IERSC 2010). Also of note is the expenditure on Indigenous health services, estimated at $3.8b and initiatives designed to improved economic participation for Indigenous Australians, estimated at $4.4b in 2008–09 (IERSC 2010a).

In March 2012, the Australian Government announced the further commitment of more than a billion dollars of investment for Indigenous programs across a range of different sectors in the Northern Territory, to be progressively rolled out over the next 10 years (Adlam 2012). More specifically

$619 million is to be spent on policing remote communities…the money will be spent on 60 extra full-time police officers, four new police stations, more night patrols, legal services and stepping up the war on substance and drug abuse (Adlam 2012: np).

For a close examination of the improvements made to the lives of Indigenous Australians as a result of increased Australian Government investment and commitment to change over the last decade, see the latest Prime Minister’s Report on Closing the Gap (FaHCSIA 2012). As the report observes ‘Closing the Gap will always be a work in progress’ (FaHCSIA 2012: 120).

The task of reducing Indigenous over-representation in the criminal justice system is not one for the Australian Government alone. Many states and territories have also developed policies and initiatives that endeavour to contribute to the national Closing the Gap targets. One example is the Queensland Government’s Just Futures Strategy 2012–2015, which was launched in December 2011 and sets out

48 practical actions and improvements to current services…[and] seeks to address the underlying causes of Indigenous over-representation, at every point, in and outside the criminal justice system (DATSIMA 2012).

Due to the fact that deaths in custody are one of a few Indigenous-specific indicators of comparative disadvantage in the criminal justice system, the AIC will continue to work closely with custodial authorities to monitor how the progress of this work impacts on Indigenous over-representation in the justice system and the related issue of deaths in custody of Indigenous Australians.