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Government’s institutional brutality (Part 5)

Part Thirty of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.

On 29 May 2017, during an A.B.C. Q&A programme marking the 50th anniversary of the 1967 referendum, Cape York Partnership founder Noel Pearson outlined some of the problems Indigenous People in Australia continue to face, including high incarceration rates.

Mr Pearson said: “We’ve made progress in the last 50 years but some of the profound indicators of our problems – children alienated from parents, the most incarcerated people on the planet Earth, and youths in great numbers in detention – obviously speak to a structural problem.” [Emphasis added].

Is that right?

Australian Bureau of Statistics data show that the Indigenous incarceration rate in 1991 was 14.4 per cent. It was 27.4 per cent in 2015. It was even higher during 2016: 28 per cent.

Indigenous People still amount to 3 per cent of the population in Australia.

Last year, for every 100,000 Indigenous People, 2,253 were in prison – an increase from 1,232 in 1991. For every 100,000 non-Indigenous People, 146 were in prison – an increase from 102 in 1991. This makes an Indigenous adult 15.4 times more likely to be in prison than a non-Indigenous person.

But there are a number of limitations with prison data collections.

To begin with, official prison measurements are point-in-time: they reflect the number of prisoners on a certain day in any given year – mainly as at 30 June. They do not represent the through-flow of prisoners across a year. Indigenous People are more likely to receive shorter sentences, and more likely to cycle in and out of prison. So it is likely that the over-representation of Indigenous People in prisons over the course of the year is greater than the official statistics suggest.

Professor Stuart Kinner, a Griffith University expert on criminal justice, found that the annual ‘flow’ of Indigenous People through Australian prisons significantly exceeds the daily number.

Before the Royal Commission into Aboriginal Deaths in Custody handed down its report in 1991, there were few statistics on numbers of Indigenous women in custody. Data now permit a more nuanced understanding of the prison demographic. The Royal Commission also made a special point about the inadequate information in relation to juvenile prisoners at the time.

Among prisoners, Indigenous children and Indigenous women are currently the most over-represented compared to their non-Indigenous counterparts. Still, it is not easy to compare changes across all demographics.

One of the factors affecting the higher proportion of Indigenous in Australian prisons is the way juvenile offenders are treated by the justice system. 59 per cent of people in juvenile detentions are Indigenous. And Indigenous children are 26 times more likely to be in juvenile detention than non-Indigenous children.

A blanket understanding of increases in prison rates does not reflect the prisoners who are sentenced and those on remand. 27 per cent of Indigenous People in custody in 2015 were on remand – either un-sentenced, un-convicted or awaiting trial. The media time spent in remand in 2015 was 2.7 months. And between 2014 and 2015 the rate of prisoners overall in remand was 21 per cent – the highest rise in a decade. The rate of sentenced prisoners rose just 3 per cent for the same period.

Statistics can vary depending on the agency collecting them and the methodologies employed, leading to small discrepancies whether one examines the statistics of the corrections system, Australian Bureau of Statistics or other research bodies. (Data gaps mean Indigenous incarceration rates may be even worse than we thought, Thalia Anthony, The Conversation, 27 July 2016).

When asked for sources to support his statement, a spokesperson for Mr Pearson referred to data from the United States Bureau of Justice Statistics and the Australian Bureau of Statistics, and said that the U.S. has the highest rate of imprisonment – in number and by percentage of population.

In the United States the African-American people are the most incarcerated by percentage of their population: 2,207 per 100,000.

Indigenous People in Australia are the most incarcerated by percentage of their population: 2,346 per 100,000.

Therefore, the statement that Indigenous People in Australia are the most incarcerated people in the world is true.

Of course, it depends on what one means by ‘people’, which is a complex term to define and will mean different things to different audiences.

For the purposes of the consulted FactCheck, one was confined to checking Mr Pearson’s statement on Indigenous People incarceration rates with the best available data on national incarceration rates in other countries.

Indigenous People incarceration rates in Australia were also checked against the rate at which Indigenous populations are imprisoned in other countries, as well as the rate for African-Americans.

One can compare rates of incarceration in countries around the world using the World Prison Brief, an international database hosted by the Institute for Criminal Policy Research at Birbeck, University of London. It reports the number of adults incarcerated per 100,000 of the total population in 223 jurisdictions.

Mr. Pearson’s spokesperson was accurate to say that the United States had the highest overall rate of imprisonment in 2010, but things have changed since then.

The World Prison Brief now names Seychelles as the country with the highest adult imprisonment rate. That is based on data from 2014, which showed Seychelles had an imprisonment rate of 799 adults per 100,000 people.

The United States is currently in second place, having reported 666 adult prisoners per 100,000 people in 2015.

As a total population – including both Indigenous and non-Indigenous persons – Australia currently ranks 93rd on the World Prison Brief list, with an imprisonment rate of 162 adults per 100,000 of the total population in 2016.

But, as Mr Pearson highlighted on Q&A, one obtains a very different result when one looks at the incarceration rate for Indigenous people in Australia.

The World Prison Brief does not report the adult imprisonment rate for Indigenous People as a subset of the Australian population. But it is possible to calculate an estimate to compare to the international figures, using Australian Bureau of Statistics data and population estimates.

In 2015 the Indigenous population in Australia was approximately 729,000 people. In that year there were 9,885 Indigenous adult prisoners. That is an imprisonment rate of roughly 1,356 adults per 100,000 of the total Indigenous population.

Therefore, Mr Pearson’s statement that Indigenous people in Australia are “the most incarcerated people on the planet Earth” is correct if considering Indigenous incarceration rates alongside incarceration rates in countries listed by the World Prison Brief.

But how does Australia’s Indigenous imprisonment rate compare with those of other Indigenous and marginalised communities around the world?

Data on Indigenous imprisonment rates are not consistently measured or reported in many countries. Thus it is difficult to gauge how Australia’s Indigenous imprisonment rate compares with Indigenous People or marginalised groups internationally.

Credible data are available for a number of groups in several countries: Australia, Canada, New Zealand and the United States.

And the following figures are reported per 100,000 of the adult population, not the total population as used by the World Prison Brief.

Starting with the United States, a spokesperson for Mr Pearson’s accurately quoted U.S. Bureau of Justice Statistics which showed African-Americans were the most imprisoned racial group in the U.S. in 2010, with an adult imprisonment rate of 2,207 per 100,000 African-American adults. In the same year, Indigenous People in Australia were imprisoned at a higher rate: 2,303 per 100,000 Indigenous adults.

In 2015 the adult imprisonment rate of Indigenous People in Australia was still higher than that of African-Americans. In that year 1,745 per 100,000 African-American adults were incarcerated, compared to 2,253 per 100,000 Indigenous adults in Australia. (By 2016 the incarceration rate of Indigenous People in Australia had risen another 4 per cent to 2,346 adult prisoners per 100,000 adults).

The imprisonment rate for Indigenous Americans in the U.S. in 2010 was 895 per 100,000 Indigenous adults in America. The imprisonment rate for Canada’s Indigenous People in 2010-11 was estimated to be 1,400 per 100,000 Aboriginal Canadian adults.

One may calculate the imprisonment rate for New Zealand’s Māori using statistics from the Department of Corrections and Stats New Zealand. In 2015 the Māori adult imprisonment rate was approximately 1,063 per 100,000 Māori adults.

To conclude: Indigenous People in Australia were imprisoned at higher rates than Indigenous people in the U.S. in 2010, in Canada in 2010-11 and in New Zealand in 2015, and at higher rate than African-Americans in 2015.

Mr Pearson’s statement that Indigenous people in Australia are “the most incarcerated people on the planet Earth” is correct. based on the best available international data. (FactCheck Q&A: are Indigenous Australians the most incarcerated people on Earth?, Thalia Anthony and Eileen Baldry, The Conversation, 6 June 2017).

* * * * *

Almost one year since the findings of the Inquest by State Coroner Ms Ros Fogliani in the case of Ms Dhu’s death were delivered, not much has happened in Western Australia to change the condition of Indigenous People in trouble with the majesty of the law.

In a statement, W.A.’s Attorney-General, the Hon. John Quigley said that the State Government was working to address the overrepresentation of Indigenous People in gaol, with the incarceration figures amongst the highest in the country.

“Western Australia’s Indigenous incarceration rates are scandalous … the McGowan Labor Government does not shy away from this problem.” he said.

He also said that he would be introducing “a package of amendments to the Fines, Penalties and Infringement Notices Enforcement Act 1994 (W.A.), the effect of which will be to reduce the number of people imprisoned for fine default alone. … “I have examined the approach taken in other jurisdictions in relation to jailing for fines and I will be in a position to bring forward a reform package to Cabinet before the end of the year.”

The Attorney General also said that “the McGowan Labor Government has committed to introducing the Custody Notification Service.” (Aboriginal woman jailed over unpaid fines after police call, 10 months on from Miss Dhu inquest, Sarah Collard, A.B.C., 30 September 2017).

Less than a month after, a Nyoongar 35-year-old woman was arrested for fines totalling $ 3,900 after a standard-practice background check was carried out when the police was called to her Joondalup home.

The mother of the woman said that she had called the police because her daughter wanted to speak to officers about “certain things.” “They took her to Joondalup police station … from there they transferred her to Melaleuca women’s prison,” she said.

The woman was sentenced to two weeks in gaol but was worried for her young children, her mother said. “She has got five children … she doesn’t want to be made homeless,” she said.

In a statement, the Western Australia Police said that officers had no discretion when carrying out court orders. “They are lawful orders to WA Police officers to take into custody the person named on the warrant and there is not capacity for those officers to ignore or defer that order,” the statement said.

Police also said that the officers had ensured that the woman and her family were treated reasonably and had “considered the welfare of all persons.”

“In this particular matter, a review has been conducted and WA Police is satisfied that both the woman and her family were afforded all reasonable care,” a spokesperson said.

“The officers who handled this matter conducted themselves in accordance with policy and met the standards required when dealing with these difficult situations.” (Aboriginal woman jailed over unpaid fines after police call, 10 months on from Mis Dhu inquest).

The family is closely related to Clinton Pryor, who walked from Perth to Canberra to raise awareness of the plights of Indigenous People.(!)

At mid-October 2017 a 23-year-old Indigenous woman in Western Australia disclosed that she was being threatened with gaol over unpaid fines, under the same laws that saw 22-year-old Yamatji woman Ms. Dhu die in police custody in 2014. The pregnant single mother told NITV that she was being harassed by police over $4,123.45 in unpaid fines, claiming that police had been “banging on my back door with their torches” late at night, threatening to gaol her for six days if she does not pay at least $1,000 of her debt and causing her to fear authorities would take away her young son. (Heavily pregnant single mother threatened with jail over unpaid fines, Madeline Hayman-Reber, NITV, 17 October 2017).

Continued Friday with: Much law, scarce justice (Part 1)

Previous instalment: Government’s institutional brutality (Part 4)

Dr Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. He may be reach at


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