27

4.1 This chapter examines the over-representation of disadvantaged groups within

Australian prisons including Aboriginal and Torres Strait Islander peoples and

individuals experiencing mental ill-health, cognitive disability and hearing loss. Other

issues were also identified such as an increase of juvenile representation in the justice

system, the correlation between the completion of high school and offending

behaviour, as well as the link between incarceration and language impairment.

4.2 In Australia, the upper age limit for treatment as a young person in the justice

system is 17 in all states and territories except Queensland, where the limit is 16.

However, some young people aged 18 and older are involved in the youth justice

system—reasons for this include the offence being committed when the young person

was aged 17 or younger, the continuation of supervision once they turn 18, or their

4.3 The Australian Institute of Health and Welfare (AIHW) administers the

Juvenile Justice National Minimum Data Set (JJ NMDS). Both Western Australia and

the Northern Territory have not contributed to the NMDS since 2007–08. The AIHW

4.4 AIHW data indicated that on an average day in 2011–12, there were almost

7,000 young people aged 10 and older under youth justice supervision. A total of

13,830 young people were supervised at some time during the year. Among those

aged 10–17, this equates to a rate of 26 young people per 10,000 under supervision on

4.5 Most young people under supervision are male and the majority are aged 14–

17. Most young people are supervised in the community with 1,000 (14 per cent) in

4.6 Most young people in supervision were from cities (49 per cent) and regional

areas (40 per cent). Young people aged 10–17 from remote areas were almost four

Bulletin 115, April 2013, p. 3.

Bulletin 115, April 2013, p. 4.

Bulletin 115, April 2013, p. 1.

28

times as likely to be under supervision on an average day as those from major cities

(63 per 10,000 compared with 17 per 10,000), while those from very remote areas

were six times as likely (103 compared with 17 per 10,000). The AIHW added that,

based on postcode of last address, almost 2 in 5 young people under supervision on an

average day were from the areas of the lowest socioeconomic status. Young people

aged 10–17 from the areas of lowest socioeconomic status were five times as likely to

be under supervision as those from the areas of highest socioeconomic status (42 per

4.7 The AIHW commented that nationally, the numbers and rates of young people

under justice supervision have remained relatively stable over the four years from

4.8 The Youth Affairs Council of Western Australia submitted that the daily rate

of young people in detention in Western Australia between 2007 and 2011 increased

information on youth detention, including trends, in Western Australia. While the

number of proceedings taken against young people by police in Western Australia

decreased (by 20 per cent in 2010–11), the average daily population in juvenile

detention grew by 2.1 per cent. Over the five years from 2005, there was a 40 per cent

increase. The Commissioner also noted that Western Australia has the second highest

rate of juvenile detention in Australia, 0.69 young people per 1,000 in detention,

4.9 The cost of detaining juveniles is high. The cost of housing a young person in

a correction facility is significantly higher than the costs of accommodating adult

prisoners. In NSW, just under half of the Department of Juvenile Justice budget is

4.10 Indigenous young people are over-represented in the justice system. Although

less than 5 per cent of young people are Indigenous, on an average day in 2011–12,

39 per cent of those under supervision were Indigenous. In detention, this proportion

was higher, where almost half (48 per cent) are Indigenous. Indigenous young people

under supervision were younger, on average, than non-Indigenous young people.

Bulletin 115, April 2013, p. 6.

Bulletin 115, April 2013, p. 16.

Independent Studies, No. 134, 2013, p. 4.

29

About 1 in 4 Indigenous young people under supervision on an average day were aged

4.11 Nationally, there were 236 Indigenous young people per 10,000 aged 10–17

under justice supervision on an average day in 2011–12, compared with just 15 non-

Indigenous young people per 10,000. Thus, Indigenous young people aged 10–17

were almost 16 times as likely to be under supervision as non-Indigenous young

people.

4.12 This over-representation was most notable in detention where Indigenous

young people aged 10–17 were 15 times as likely as non-Indigenous young people to

be under community based supervision and almost 25 times as likely to be in

data for the NMDS which covers the whole justice system, data is provided for

detentions. In the Northern Territory, there were 39 Indigenous young people aged

10 to 17 in detention on an average night in the June quarter 2011–12. This was a rate

of 3.29 per 1,000 Indigenous young people. In Western Australia, the rate was

4.13 The trend in Indigenous young people under justice supervision is different to

the national trend: between 2008–09 and 2011–12, there was an increase in the rate of

Indigenous young people aged 10–17 under supervision on an average day from

increased in unsentenced detention over the period from 24 to 31 times the likelihood

4.14 There are multiple reasons for the increased juvenile representation in prisons.

These include the disproportionate over-representation of Aboriginal young people

held in detention. The AHIW reported that data collections show that young people

from areas of low socioeconomic status or remote areas and young people who are

homeless or in the child protection are also over-represented in the youth justice

Bulletin 115, April 2013, p. 9.

Bulletin 115, April 2013, p. 10.

Bulletin 115, April 2013, p. 16.

Juvenile justice series No. 11, 2012, p. vii.

30

people being held on remand; the limited implementation of bail and supervision

4.15 Legal Aid NSW commented that young people are often released on bail

subject to onerous conditions such as curfews, requirements to be in the company of a

parent, requirements to follow the directions of a parent, and place restrictions.

Because of the stringency of such conditions, there is an increased likelihood that the

conditions will be breached. Legal Aid NSW also commented that police appear to be

giving more attention to bail compliance checking. As a result, the number of bail

4.16 This trend has several adverse consequences: a young person breaching bail

will end up on remand; and if the young person comes into contact with the adult

criminal justice system at a later stage having breached bail multiple times as a

juvenile, that person is treated by the courts as a person with a lengthy criminal history

which, among other things, decreases the chances of that person being granted bail in

4.17 In addition, a disproportionately larger number of juveniles are currently

being held on remand in comparison to the rest of the prison population, for example,

53 per cent of the 320 juveniles and young people in custody in NSW held on remand.

One of the reasons for remand being that 'a substantial number are refused bail

(NAAJA) observed that on 31 January 2013, 24 of 65 juvenile detainees in the

due to their difficulty in upholding strict bail conditions and yet over 80 per cent of

young people in remand in Western Australia will not receive a custodial sentence

4.18 The offending behaviour of young people is linked to their circumstances:

'there is strong evidence that children who suffer abuse or neglect are more likely to

15 per cent of young people under juvenile justice supervision received homelessness

support in the year before their most recent supervision. There is also an overlap

between youth justice and child protection systems. Almost 10 per cent of those who

Monographs, The Centre for Independent Studies, No. 134, 2013, p. 19.

22 Western Australian Council of Social Services, Western Australian Association for Mental

31

have had some supervision have also had at least one substantiated child protection

4.19 Aboriginal and Torres Strait Islander peoples are the most over-represented in

Australia's justice systems. The Report on Government Services Indigenous

Compendium provided the following information for 2011–12:

prisoners nationally;

2246.3 compared with a corresponding rate of 123.7 for non-Indigenous

prisoners;

adults was 1749.7 compared with a corresponding rate of 129.1 for non-

4.20 It was noted that there has been an increase in the incarceration of Indigenous

prisoners. In 1991, the number of adult Indigenous prisoners was 2,140 and 14 per of

all adult prisoners identified as Indigenous. Currently, Indigenous people comprise

only 2.5 per cent of Australia's population they also incorporate over a quarter of the

Islander peoples are incarcerated at a rate 14 times higher than non-Aboriginal and

Torres Strait Islander peoples. This rate has increased between 2000 and 2010 by

almost 59 per cent for Aboriginal and Torres Strait Islander women and 35 per cent

4.21 The National Justice Chief Executive Officers (NJCEOs) also commented on

the trend in Indigenous incarceration and stated that if the rate of Indigenous

imprisonment is maintained at current levels, in 2021 the number of Indigenous

people in prison on an average day will increase to 10,313. However, if the rate

continues to trend upwards as it has over the last decade, in 2021, the number of

Indigenous people in prison on an average day will reach 13,558. The NJCEOs stated

that this would represent 'a virtual doubling of the number of Indigenous adults in

Services 2013 Indigenous Compendium, pp 8.3–8.4.

Monographs, The Centre for Independent Studies, No. 134, 2013, p. 5. Note: Hudson

commented that the increase in the proportion of Indigenous offenders is partly due to more

Aboriginal offenders identifying as Indigenous and not just the result of increases in offending

rates.

32

4.22 The South Australian Justice Reinvestment Working Group submitted it is the

rate of reoffending of Indigenous people, as well as their over-representation in the

justice system, which is of concern. In 2011, 70 per cent of Aboriginal and Torres

Strait Islander prisoners convicted of a violent offence had a previous conviction and

4.23 Sisters Inside pointed to the increasing incarceration rate of Indigenous

women and stated that not only are Indigenous women the most over-represented

population in prison, they also have the fastest growing rate of imprisonment.

Nationally, the increase in incarceration rates between 2000 and 2010 was greater for

Aboriginal and Torres Strait Islander women than any other cultural group. Over the

last decade there was a 58.6 per cent increase in incarceration for Indigenous women

compared with a 22.4 per cent increase for non-Indigenous women. The increase in

incarceration for Indigenous men was 35.2 per cent. Indigenous women are also more

more likely to be in prison on remand and less likely to be granted conditional release

4.24 Sisters Inside pointed to the significant level of trauma and abuse suffered by

Indigenous women beginning in childhood. Many face high levels of ongoing family

violence which have been connected to their offences and convictions with 80 per cent

of women prisoners in one NSW study stating that they believed their offending was a

direct consequence of their victimisation. The effects of repeated victimisation are

well documented and can lead to low self-esteem, anxiety, depression, other mental

health issues and substance abuse. Sisters Inside concluded:

These factors are all correlated with increased risk of offending and in the

case of substance abuse can constitute an offence in itself. Therefore many

Indigenous women and girls are not only stuck in cycles of abuse as

victims, but also get stuck in cycles of offending in an effort to cope with

4.25 It was noted that violent offending is the primary driver of Indigenous

incarceration and that offences against justice procedures have a considerable impact.

Violent offences account for 48 per cent of all prison sentences and offences against

Submission 71, p. 8.

33

4.26 Other drivers behind the over-representation of Aboriginal and Torres Strait

Islander people in Australia's prisons are linked to disadvantage: high levels of

poverty, poor education outcomes and high rates of unemployment, lack of housing

and homelessness, family dysfunction and loss of connection to community and

schooling also has a direct impact on the growing rates of imprisonment of Aboriginal

incarceration rates is high, with suggestions that 'alcohol is a factor in up to 90 per

4.27 The changes to judicial processes have also been linked to increases in

Indigenous incarceration. For example, submitters pointed to the impact of mandatory

sentencing laws. NATSILS submitted that:

By removing discretion, mandatory sentencing has resulted in inappropriate

sentences of imprisonment, disproportionately high imprisonment rates in

those jurisdictions in which it exists, and has contributed to the

overwhelming overrepresentation of Aboriginal and Torres Strait Islander

4.28 Furthermore, strict bail and monitoring conditions are becoming increasingly

difficult to follow for some individuals with unstable living arrangements or a lack of

financial means. These pose further issues for Indigenous populations 'especially in

cases where an individual does not speak English or seeks to reside in a remote or

continue to use arrest for minor offences, meaning that Indigenous people are far more

likely than non-Indigenous people to be arrested, charged, taken to court and given

4.29 A further matter raised in evidence was 'normalisation' of imprisonment. As a

consequence, imprisonment loses much of its deterrent effect and becomes a 'rite of

passage' for disenchanted young people. Mr Craig Comrie, Youth Affairs Council of

Western Australia, stated:

Unfortunately, I have heard numerous stories—in Western Australia

particularly, given our distance and the location of our juvenile facility in

Perth—of young people in regional areas offending merely so they can be

with their friends and peers, because they know that they are in the prison

here. I think as well there is an element of young people seeing it as a right

of passage. I would hazard to say that I do not think it is the main

contributor that puts young people into the detention system, but it is

34

something that we need to look at, and at providing young people with

better opportunities and better support in their own communities so that it

does not sound like a good thing to head down to Perth to go to Banksia

4.30 A large number of individuals suffering from mental ill-health are contained

in Australia's justice system. The AIHW 2010 National Prisoner Health Census found

that 31 per cent of people coming into prison reported having ever been told that they

had a mental health disorder. Female prison entrants were more likely to have a

history of mental health disorder than males. The proportion of prison entrants with a

history of mental health disorder was about 2.5 times higher than the general

personality disorder and substance use disorder is included as a mental health problem

4.31 This data is supported by the Human Rights Law Centre which stated that:

…around one in every five prisoners in Australia suffers from serious

mental illness. There is both a causal and consequential link between

imprisonment and mental illness; people with mental illness are more likely

to be incarcerated, particularly having regard to the lack of support

provided by the poorly resourced community mental health sector, and

people in prison are more likely to develop mental health problems, with

4.32 The reasons behind the high rates of incarceration for individuals suffering

from a mental illness include their incidence of homelessness and economic

difficulties, the deinstitutionalisation and isolation of those suffering from mental

illness, and increased alcohol and substance abuse among the general population as

4.33 The National Centre for Indigenous Studies and Indigenous Offender Health

Capacity Building Group explained that due to a lack of appropriate mental health

an individual suffering from a mental illness is imprisoned, the situation is often

exacerbated as a result of inadequate prison health care. These individuals are

39 Mr Craig Comrie, Chief Executive Officer, Youth Affairs Council of Western Australia,

Committee Hansard, 17 April 2013, p. 29.

Bulletin 104, June 2012, p. 6.

44 National Centre for Indigenous Studies and Indigenous Offender Health Capacity Building

35

managed in other ways, including through segregation, and such methods can have a

4.34 An individual with a mental illness also has a higher chance of being

incarcerated if that person also abuses drugs or alcohol as it 'drastically increases a

person's risk of negative interactions and outcomes, in particular as it relates to

4.35 The National Congress of Australia's First Peoples also commented on the

association between mental health conditions and imprisonment rates for Aboriginal

and Torres Strait Islander peoples. A recent study of Aboriginal and Torres Strait

Islander people in Queensland prisons found that 72.8 per cent of men and 86.1 per

cent of women had at least one mental health disorder, compared to a prevalence rate

in the general community estimated at 20 per cent. The study concluded that the

overrepresentation of Aboriginal and Torres Strait Islander people in prison, the high

prevalence of mental disorder, and the frequent transitioning to and from prison,

4.36 Another disadvantaged group that is over-represented in the penal system is

those individuals with a history of alcohol and substance abuse. The South Australian

Justice Reinvestment Working Group cited the AIHW's 2010 report on prisoner health

which stated that:

prior to incarceration (compared with 15 per cent of the general population

using illicit drugs in the previous 12 months);

4.37 A high number of prison inmates blame intoxication for their imprisonment.

A review of inmates in NSW and the ACT found that 61 per cent of inmates in NSW

and 72 per cent of inmates in the ACT stated that their current imprisonment was due

to being intoxicated while offending, showing the direct link between alcohol and

46 Alcohol Tobacco and Other Drug Association ACT, ACT Council of Social Service, Mental

49 National Centre for Indigenous Studies and Indigenous Offender Health Capacity Building

36

4.38 Some offences have a high correlation with drug and alcohol use such as

homicide, with 47 per cent of 1,565 homicides over six years being categorised as

alcohol related, with both the victim and the offender having consumed alcohol prior

drunkenness fueling aggression and hostility. Potent stimulants, for example

methamphetamines, can cause severe hostility including aggression, breaking

4.39 Furthermore, drug and alcohol dependency can push an individual with

limited income to commit property crime in order to sustain their habit. Conversely,

an individual may resort to drug dealing to finance their addiction. This can create a

higher chance of further offending as '[a]mong higher level dealers violence is

4.40 For female offenders, there is a stronger association between incarceration

and drug and alcohol dependency than for male offenders. The Women in Prison

Advocacy Network submitted that the reason for this was that 'women are more

inclined to abuse substances as a form of self-medication or coping mechanism for the

historical trauma itself may have been the result of the alcohol and drug abuse of a

4.41 Drug and alcohol abuse can have intergenerational effects, especially for

individuals that have been exposed to alcohol in the womb. Fetal Alcohol Spectrum

Disorders (FASD) are conditions that are unique to an individual who has been

exposed to alcohol during pregnancy and is characterised by:

…a spectrum of conditions which are unique to an individual and which

may be physical and/or neurobehavioural…fetal alcohol exposure is often

noticed as behaviours which result in a disparity between individual

abilities and environmental expectations which increase over time.

Frequently undetected, FASD is referred to as the "invisible disability".

This may be attributed to the current lack of a comprehensive

understanding of FASD among many health professionals and service

4.42 The Royal Australian and New Zealand College of Psychiatrists submitted

that the resulting brain damage from prenatal exposure to alcohol can increase

involvement in criminal activity due to the following characteristics of FASD:

37

4.43 There are other factors that can increase the probability of an individual with

FASD committing offending behaviours. Dr Raewyn Mutch, Telethon Institute for

Child Health Research, explained:

These conditions are characterized by significant central nervous system

dysfunction leading to learning, developmental, sensory and behavioural

problems. They are primary disabilities that then go on to develop

secondary and tertiary disabilities such as depression, school failure, low

self-esteem…They can also go on to develop other mental health disorders

4.44 Dr Mutch also noted that studies from North America have estimated that

juveniles with FASD are 19 times more likely to be incarcerated than those without

4.45 The National Organisation for Fetal Alcohol Spectrum and Related Disorders

also pointed to a North American study which found that '60% of adolescents and

adults diagnosed with FASD had been in trouble with the law and 50% had

experienced a type of confinement'. Other indicators of higher rates of offending

behaviour included '61% of individuals having a disrupted school

experience…35% experienced alcohol and other drug problems and 49% had

4.46 Individuals with an intellectual disability are similarly overrepresented in

Australia's justice system. The Royal Australian and New Zealand College of

Psychiatrists referenced a study that examined '1,325 prisoners in Queensland and

found that 9% of prisoners had an intellectual disability…three times higher than the

57 Dr Raewyn Mutch, Post-Doctoral Research Fellow, Alcohol, Pregnancy and FASD Research

p. 1.

58 Dr Raewyn Mutch, Post-Doctoral Research Fellow, Alcohol, Pregnancy and FASD Research

p. 1.

38

survey that found that 17 per cent of young people in prison had 'cognitive functioning

scores consistent with a possible intellectual disability, and 10 per cent met both IQ

4.47 National Disability Services cited a recent Victorian Law Reform Committee

report which found that 'anecdotal evidence and the limited statistical evidence that is

available strongly suggest that people with an intellectual disability or cognitive

impairment form a large and disproportionate proportion of offenders and victims of

4.48 The explanations given for the over-representation of individuals with

intellectual disabilities are varied. For example, the Advocacy and Support Centre

submitted that there may be some behavioural issues exhibited by people with

disabilities that brings them into contact with the prison system, such as 'poor impulse

control; lack of insight into offending behaviours; lack of self-control; lack of

knowledge around social norms/rules; and difficulties in learning and

4.49 The high rate of incarceration of individuals with an intellectual disability

could also be a result of a possible susceptibility to 'delinquent behaviour' due to

mental disabilities; vulnerabilities in court processes as a result of incomprehension;

particularly difficult for a person with an intellectual disability to communicate

instructions to legal representatives, or understand court processes, or the significance

4.50 Specifically, individuals with a complex cognitive disability 'broadly defined

as a mental health disorder with an intellectual disability' have a much higher rate of

early contact with the justice system than those with a single disability or without a

parole due to a lack of post-release accommodation with appropriate support. In

addition, prisoners with an intellectual disability have a higher average number of

4.51 Recidivism rates of this group are also uncharacteristically high with prisoners

suffering from an intellectual disability in NSW being 78 per cent more likely to

p. 15.

39

4.52 Another issue for individuals suffering from an intellectual disability is the

difficulty these individuals have during exchanges with law enforcement. The

Advocacy and Support Centre submitted as an example that 'a person with an

intellectual disability [is] more likely to admit to offences, including those offences

that they may not have committed, due to a desire to please an authority figure

(police) or a desire to conceal the fact they do not understand the questions being

4.53 Difficulties exist for law enforcement as well due to a lack of training to

identify individuals with signs of mental health issues or a cognitive disability.

NATSILS stated that it:

…often see the failure of police to deal with the mental illness and

cognitive/intellectual disabilities of a person who has come into contact

with the criminal justice system, for relatively minor offending, without

4.54 The absence of a procedural guide for law enforcement with regards to

cognitive disability indicates that these individuals are not necessarily diverted to

occasions when an individual with a cognitive disability has to be detained as there are

4.55 Legal Aid NSW noted that young people with a cognitive disability or mental

health issue are more likely to be placed in care as a consequence of their problematic

behaviour. Legal Aid NSW stated that the police and the justice system are

increasingly being relied upon in lieu of adequate behaviour management, especially

in relation to children with complex needs. For example, a common bail condition

imposed on children in out-of-home care is the condition to 'obey the directions of

carer'. As a result, children are reported to the police for breaching bail by carers and

are subsequently arrested for demonstrating the type of behaviour that, if they were

living in a functioning family environment, may have been dealt with without police

intervention. In addition, both care workers, using occupational health and safety

mandates, and parents have applied for apprehended violence orders (AVOs) against

young people as a way of dealing with their behaviour. Legal Aid NSW stated that

breaches are common because young people with cognitive and mental health

p. 21.

40

4.56 Many submitters commented on the representation of individuals suffering

early contact with the criminal justice system due to problematic linguistic

development during childhood, which results in poor written literacy and

communication, and subsequent poor education and employment outcomes. It was

noted that within the justice system, people with hearing loss are disadvantaged. They

may face more severe penalties if they cannot communicate effectively with police, if

they cannot participate or fully understand court proceedings or cannot understand

4.57 Hearing loss is particularly prevalent in Indigenous communities with over

half of Aboriginal and Torres Strait Islander children experiencing some form of

Strait Islander people suffer hearing loss at ten times the rate of non-Indigenous

4.58 The Anti-Discrimination Commission Queensland submitted that statistical

data on hearing loss was not available for those among the general prison population,

nor for the Indigenous prison population, however 'informed estimates suggest that the

4.59 Other submitters provided evidence of hearing loss in prison populations.

Juvenile Justice NSW referenced a survey conducted in 2009 that found that '18% of

young people [in custody] had mild to moderate hearing loss in one or both ears, with

that an investigation among inmates in the Northern Territory corrections facilities

found that more than 90 per cent of Aboriginal and Torres Strait Islander inmates had

4.60 Hearing loss can have a direct link to recidivism with an individual breaching

parole or bail due to miscommunication. NATSILS provided an example of this in its

submission:

…a client, who has an undetected hearing impairment, indicates that they

understand what has transpired and that they understand the conditions of a

41

bail or parole order when in fact they haven't actually been able to hear a

thing. Consequently, not being aware of their bail conditions, the client is

then released only to unknowingly breach the order and be remanded in

Inquiry into Hearing Health in Australia, expressed concern regarding the links

between hearing impairment and incarceration:

The committee is gravely concerned about the potential implications of

hearing impairment on Indigenous Australian's engagement with the

criminal justice system. Those most vulnerable are Indigenous people from

remote areas who do not have English as their first language, or indeed

who, due to early onset untreated hearing loss, have little means of

4.62 The Community Affairs Committee stated that any improvements in

Indigenous hearing health would have a subsequent positive impact on the reduction

4.63 The committee identified other disadvantaged groups during its inquiry,

including individuals with an oral-language impairment, who experienced difficulties

when interacting with the justice system.

4.64 Oral language impairment is a common factor in young male offenders, with

approximately 50 per cent having deficits in both comprehension and spoken

language. Associate Professor Pamela Snow and Professor Martine Powell submitted

that 'young people with more serious offence histories (i.e. involving interpersonal

Australia, May 2010, p. 147.

Australia, May 2010, p. 147.

42