Briefing: Reduce the high incarceration rate of Indigenous adults in the ACT

The high rate of incarceration of indigenous people is a feature of the ACT criminal justice system, just as it is across Australia and in other settler societies.[1]  

Many reports with no implementation of recommendations

Advocacy by Indigenous organisations and communities has led to many national and ACT inquiries examining the operation of not just policing, prisons, and courts, but also the health, education and child protection systems, including forced removal of children.[2] These inquiries have documented the significant impact of intergenerational trauma.[3] The recommendations of inquiries are rarely fully implemented, and incarceration rates remain unacceptably high nationally and in the ACT.  

Imprisonment rates in the ACT are increasing

In 2009 the imprisonment rate[4] for Indigenous adults in the ACT was 580.5 per 100,000 adults. By 2023 it had almost tripled to 1593.2 per 100,000 adults.[5] By comparison, the rate for non-Indigenous adults in the ACT was 74.9 per 100,000 adults. The rate peaked in 2018 (1,924,3 per 100,000) and has been slowly reducing since – but it remains far higher than a decade ago.

The imprisonment ratio of Aboriginal people in the ACT (in 2021-22), at 19.6 times the non-Aboriginal rate, is the highest in Australia. One reason is the very high rates of recidivism in the ACT, the highest in Australia.  90% of Indigenous offenders reoffend and return to jail.[6] Jailing is failing.

What factors explain such high rates of incarceration?

There are many complex reasons which lie behind these high rates of  incarceration, among them: systemic racism within the criminal justice system and its various parts (policing, courts, prisons); intergenerational trauma caused by the historical and ongoing impacts of colonisation; lack of treatment options for drug and alcohol abuse; poverty, exclusion and homelessness; the child protection system; failure of courts to require and consider cultural rights and perspectives[7] at sentencing; criminalisation of disability (31% of those in custody have a disability[8]); jail not providing sufficient training, education and work opportunities, therapeutic programs or good throughcare; and inadequate housing/supports on release.

What needs to happen?

• A whole-of-government strategy should be developed by the ACT government to systematically address all the individual and structural drivers of these incarceration rates (among them, lack of access to justice, lack of self-determination, limited mental health supports, lack of drug and alcohol treatment, limited family violence prevention, significant numbers of child removals, intergenerational trauma and poverty). We need to strengthen pathways that lead people away from the criminal justice system.
• Implementation of report recommendations, including the latest independent review into implementation of the Pathways to Justice Report and incarceration rates in the ACT.
• Reduce the number of Indigenous people held on remand at the AMC due to a lack of housing and meet the housing and other support needs of Indigenous people leaving jail.

The ACT Government, through the ACT Aboriginal and Torres Strait Islander Agreement 2019-2028 with the Aboriginal and Torres Strait Islander Elected Body, has committed to achieving parity between Indigenous and non-Indigenous imprisonment rates by 2031.[9] In the ACT that would mean no more than 5 Indigenous prisoners, rather than the current average of around 100. The Closing the Gap target is to reduce overrepresentation by at least 15% by 2031.

In mid-2023, the ACT Government announced an independent review of the overrepresentation of First Nations’ people in the ACT Criminal Justice system by a First Nations-led consultancy, Jumbunna Institute at the University of Technology, Sydney. Their final report is due in late 2024.

Winnunga Nimmityjah Aboriginal Health  and Community Services CEO, Julie Tongs, is wary of interpreting the Independent Review as a sign of government action, telling ABC News in June 2023 that ‘It’s not about the government committing to this community and to do something about it, it’s them committing to do what they should have done years ago.’[10] Julie Tongs also questioned the remit of the independent review saying: ‘They’ve got to look at poverty and homelessness — they are two of the biggest drivers that are driving our people, my people, into the system.’

What does this cost?

With an average of over 100 Indigenous people in the ACT prison on any one day, at the current cost of $543 per day per prisoner ($198,000 per year), the yearly cost is around $19 million. Justice Reinvestment would direct these funds to programs likely to reduce imprisonment rates.

To contact ANTAR ACT: https://antaract.org.au/contact-us/

Authorised by Janet Hunt on behalf of ANTAR ACT.

July 2024

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[1] Cunneen (2006) ‘Aboriginal Deaths in Custody: A Continuing Systematic Abuse,’ Social Justice vol 33, no 4.

[2] Royal Commission into Aboriginal Deaths in Custody (RCIADIC) 1991. National report , Canberra. HREOC (1997) Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Canberra; ALRC, Pathways to Justice—Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report No 133 (2017).

[3] Atkinson, J. (2002) Trauma Trails. Recreating Songlines, North Melbourne: Spinifex.

[4] All rates given are age standardised.

[5] Productivity Commission, ‘Socio-Economic Outcome Area 10 – Aboriginal and Torres Strait Islander adults are not overrepresented in the criminal justice system’ https://www.pc.gov.au/closing-the-gap-data/dashboard/se/outcome-area10.

[6] Productivity Commission, Australia’s Prison Dilemma 2021, p45, Fig 2.13(b)

[7] Such “Gladue Reports” are considered in Canadian courts when sentencing Indigenous people.

[8] ACT 2022 Healthy Prisons Review.

[9] ACT Aboriginal and Torres Strait Islander Agreement 2019-2028: Phase Two Focus Area Action Plan – Justice < https://www.act.gov.au/__data/assets/pdf_file/0010/2381329/ACT-Aboriginal-and-Torres-Strait-Islander-Agreement-2019-2028-Phase-2-Focus-Area-Action-Plan-Justice.pdf>.

[10] Burnside, N (2023) ‘Indigenous advocate says ACT government review into incarceration rates doesn’t go far enough’ ABC Online, 2 June 2023 < https://www.abc.net.au/news/2023-06-02/act-review-into-reducing-canberra-indigenous-incarceration-rate/102427510>.