2.11 Contact with the criminal justice system

Key messages

• The majority of Aboriginal and Torres Strait Islander (First Nations) people have never been incarcerated. However, First Nations people experience contact with the criminal justice system at much higher rates than non-Indigenous Australians.
• Imprisonment compounds existing social and economic disadvantage and affects family, children, and the broader community with intergenerational effects. This cycle can lead to a normalisation of incarceration where prison is no longer a deterrent but instead a fact of life. Imprisonment also has social and health effects following release, such as adverse employment, financial, housing, and mental health or other health consequences.
• The AIHW Youth Justice National Minimum Data Set shows that there were 2,182 First Nations young people under youth justice supervision on an average day in 2021–22. Of these young people, 132 were aged 10–13 (6.0%), 1,649 were aged 14–17 (75.6%), and 401 were aged 18 and over (18.4%). Nearly 8 in 10 First Nations young people under supervision were male (78.5%).
• 80.0% of First Nations young people under youth justice supervision were under community-based supervision (1,746 young people), and 20.7% were in secure detention facilities (452). (Some were supervised in both the community and detention on the same day, and so the sum of the percentages exceeds 100%).
• In 2021–22, First Nations young people were 17 times as likely as non-Indigenous young people to be under community-based supervision on an average day (93.9 compared with 5.4 per 10,000 young people) and 24 times as likely to be in detention (28.3 compared with 1.2 per 10,000 young people).
• Between 2012–13 and 2021–22, the rate of community-based supervision among First Nations young people aged 10–17 declined from 147 per 10,000 young people to 94 per 10,000 young people. Using linear regression analysis, this corresponded to a decline in the rate for First Nations young people by 34% between 2012–13 and 2021–22, and a narrowing of the gap by 33%.
• The rate of First Nations young people in detention generally trended downwards over the decade from 2012–13 (when it was 34 young people in detention on an average day per 10,000 population) to 2021–22 (28 per 10,000 young people). Based on linear regression, the rate of First Nations young people in detention declined by 25% between 2012–13 and 2021–22, with the gap declining by 26%.
• In 2022, based on National Prisoner Census data, the imprisonment rate for First Nations adults was 14 times the adult imprisonment rate for non-Indigenous adults (based on age-standardised rates). Between 2013 and 2022, there was an increase of 31% in the age-standardised imprisonment rate for First Nations adults (from 1,630 to 2,151 per 100,000 adults), while change in the age-standardised imprisonment rate for non-Indigenous adults was not statistically significant.
• Between June 2017 and June 2021, young First Nations people made up a higher proportion of those in unsentenced detention (an average of 66% in each quarter) than those in sentenced detention (an average of 34%). The consequences of this are severe and include separation from family and community; lack of access to therapeutic programs; a greater likelihood of receiving a remand period following a future court appearance and receiving a sentence of imprisonment compared with young people who are released on bail; and greater risk of repeated contact with the criminal justice system in the future.
• In 2022, based on the National Prisoner Health Data Collection, 79% of First Nations prison entrants who completed an entrants survey form said they were current smokers, compared with 64% for non-Indigenous prison entrants. First Nations prison entrants were 1.7 times as likely as non-Indigenous entrants to be considered at high risk of alcohol-related harm in the previous 12 months (56% compared with 32% in 2022).
• An evaluation measuring court appearances (from 2005 to 2019) and attendance of Circle Sentencing sessions (from 2005 to 2018) found that offenders who participated in Circle Sentencing were 52% less likely to be incarcerated and 9.6% less likely to reoffend than offenders who never participated in Circle Sentencing.
• Research suggests promising practices of First Nations youth justice programs include the importance of having adequately resourced, culturally appropriate and competent services; effective collaboration; addressing multiple and complex needs of offenders; and family engagement and parental training.
• The Yoorrook Justice Commission report identified how First Nations people have historically faced systemic injustices, including dispossession, child removal, and criminalisation, rooted in colonial policies and practices. These actions have led to enduring issues such as intergenerational trauma, over-representation in the child protection and criminal justice systems, and systemic racism.
• Of 200 First Nations adults discharged from prison who completed a dischargees survey form in 2022, 65% reported receiving culturally appropriate health care while in prison, and 26% reported receiving treatment or consultation in prison from an Aboriginal Community Controlled Health Organisation or Service (ACCHO) and/or Aboriginal Medical Service (AMS).
• While most participant ACCHOs had delivered services to people in the community upon release from prison, opportunities to deliver primary health care services to individuals in prisons were very limited. Two key barriers to implementing holistic and culturally appropriate health care in prisons were lack of access to people in prison and lack of a sustainable funding to deliver services in prison.

Why is it important?

The majority of Aboriginal and Torres Strait Islander (First Nations) people have never been incarcerated (ABS 2016). However, First Nations people experience contact with the criminal justice system –  as both offenders and victims – at much higher rates than non-Indigenous Australians (AIHW 2021b, 2021c; Royal Commission into Aboriginal Deaths in Custody 1991; SCRGSP 2020; Senate Community Affairs References Committee 2010).

Imprisonment compounds existing social and economic disadvantage and affects family, children, and the broader community with intergenerational effects. This cycle can lead to a normalisation of incarceration where prison is no longer a deterrent but instead a fact of life (Brown 2010). The incarceration of parents has the potential to significantly impact on the health and wellbeing of their children. Moreover, there is strong criminological evidence that criminal behaviour may be transmitted between generations of the same family (intergenerational offending) and that the imprisonment of parents can increase the risk of their children experiencing incarceration themselves. A study examining the prevalence and characteristics of intergenerational incarceration among adults in prison and young people in youth justice centres found that 32.0% of First Nations adults and 66.4% of First Nations youth had a parent who had been incarcerated, compared to 16.9% of all adults and 52.6% of all youth surveyed (Remond et al. 2023). Imprisonment also has social and health effects following release, such as adverse impacts on employment, finances, housing, and mental or other health consequences (Weatherburn 2014; Woodward 2003; Legal and Constitutional Affairs References Committee 2013). First Nations offenders are more likely than non-Indigenous offenders to have additional contact with the justice system, and First Nations people in prison are more likely to have served a prior prison sentence (Allard 2010).

Weatherburn (2014) identified 4 key risk factors for offending by First Nations people: exposure to child neglect (see measure 2.12 Child protection); school attendance and performance (see measure 2.04 Literacy and numeracy); unemployment (see measure 2.07 Employment); and drug and alcohol abuse (see measures 2.16 Risky alcohol consumption and 2.17 Drug and other substance use including inhalants).

The effects of these risk factors, along with child removals, poverty, higher rates of stressful life events, psychological distress, and mental health issues, are linked to the higher rates of contact with the criminal justice system (Australian Medical Association 2015; McCausland et al. 2017; Shepherd et al. 2017).

Preventing engagement in crime and subsequent contact with the criminal justice system by First Nations people has been identified as a critical measure to reduce over-representation of First Nations people in the justice system. A key element of successful prevention is to address the socioeconomic drivers of crime. 

Connection to community, place and culture contributes to the wellbeing of First Nations people. The final report of the Royal Commission into Aboriginal Deaths in Custody found that steps need to be taken to enhance levels of self-determination among First Nations people. The Royal Commission noted that Aboriginal Community Controlled Organisations are best placed to work with their communities and other stakeholders to identify communities’ needs, priorities and aspirations at the regional level (Australian Government Publishing Service 1991). This will enable communities to articulate long-term agendas that address social, economic and cultural development.

Self-determination is an important principle in program design and delivery. First Nations community ownership, design and control can ensure services address the unique needs of communities and foster community buy-in (Stringfellow et al. 2022).

The National Agreement on Closing the Gap (the National Agreement) was developed in partnership between Australian governments and the Coalition of Aboriginal and Torres Strait Islander Peak Organisations (Coalition of Peaks). The National Agreement has been built around 4 Priority Reforms that have been directly informed by First Nations people. These reforms are central to the National Agreement and will change the way governments work with First Nations people, including through working in partnership and sharing decision making, building the Aboriginal community-controlled sector, transforming government organisations, and improving and sharing access to data and information to enable informed decision making by First Nations communities. The National Agreement has identified the importance of addressing the over-representation of First Nations people (young people and adults) in the criminal justice system. To support these outcomes the National Agreement specifically outlines the following targets to direct policy attention and monitor progress:

• Target 10: By 2031, reduce the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15 per cent
• Target 11: By 2031, reduce the rate of Aboriginal and Torres Strait Islander young people (10–17 years) in detention by at least 30 per cent.

This HPF measure includes data related to these targets and some of the supporting indicators, such as the proportion of young people entering the youth justice system aged 10–13; the unsentenced detention rates for First Nations young people; and for First Nations adults, the proportion of people in prison previously incarcerated. For more information on the Closing the Gap targets, see the Closing the Gap Information Repository.

What does the data tell us about youth justice supervision?

The youth justice system is the set of processes and practices for managing children and young people who have committed or allegedly committed an offence when aged 10–17. People aged 18 and over may also be supervised in the youth justice system if they were 18 or over when they were apprehended for a crime (allegedly) committed when they were 17 or younger; if their existing supervision continues once they turn 18; or if a court determines that they should be detained in a youth justice facility due to their vulnerability or immaturity (reasons vary depending on the state or territory) (AIHW 2020).

In 2021–22, 4,217 First Nations young people aged 10 and over were in youth justice supervision at some time during the year, representing 47% of all young people (8,982) in youth justice supervision in the same period (AIHW 2023d: Table S2b).

On an average day in 2021–22, 2,182 First Nations young people aged 10 and over were under youth justice supervision. Of these First Nations young people under supervision:

• 132 were aged 10–13 (6.0%), 1,649 were aged 14–17 (75.6%), and the remaining 401 were aged 18 and over (18.4%)
• 78.5% were male and 21.4% were female
• 80.0% were under community-based supervision (1,746 young people), and 20.7% were in secure detention facilities (452). (Some were supervised in both the community and detention on the same day, and so the sum of the percentages exceeds 100%) (AIHW 2023d: Tables S5a, S35a, S73a).

In 2021–22, on an average day, First Nations young people aged 10 and over represented:

• 48% of all young people under youth justice supervision (2,182 of 4,536 young people)
• 47% of all young people under community-based supervision (1,746 of 3,742 young people)
• 55% of the young people in secure detention facilities (452 of 822 young people) (AIHW 2023d: Tables S5a, S35a, S73a).

Among young people aged 10–13 under youth justice supervision on an average day in 2021–22, about three-quarters (74%) were First Nations young people (132 of 178 young people) (AIHW 2023d: Table S5a).

Youth justice supervision and child protection

Of First Nations young people under youth justice supervision during 2020–21, almost 2 in 3 (64%, or 2,600 of 4,055 First Nations young people) had an interaction with the child protection system in the 5 years from 1 July 2016 to 30 June 2021 (AIHW 2022: Table S1a). This was higher than the proportion among non-Indigenous young people under youth justice supervision (46%, or 2,292 of 4,975 non-Indigenous young people). Note that these statistics are based on data linkage, and as a result of the linkage process, the total counts of young people in the youth justice system in these data are slightly less than those cited elsewhere in the measure (in part due to young people being linked across states and territories).

Multiple periods of supervision

Among First Nations people aged 10 and over who completed a period of youth justice supervision during 2021–22, 23% had completed multiple periods of supervision; this was higher than for non-Indigenous young people (15%) (AIHW 2023d: Table S28).

The average length of time under supervision for First Nations young people aged 10 and over was 189 days – this was 5 days longer than for non-Indigenous young people (184 days) (AIHW 2023d: Table S30).

Among young people who were released from sentenced community-based supervision during 2020–21:

• 64% of First Nations young people returned to sentenced youth justice supervision within 12 months, compared with 50% of non-Indigenous young people
• 67% of First Nations males returned to sentenced supervision within 12 months, compared with 53% of non-Indigenous males
• 54% of First Nations females returned to sentenced supervision within 12 months, compared with 40% of non-Indigenous females (Table D2.11.6, Figure 2.11.1).

This analysis is limited to those aged 10–16 (rather than 10–17) at the time of release to ensure that those who returned to sentenced supervision within 12 months of release were aged under 17 at the time of offence (the upper age limit of the youth justice system).

Among young people released from detention during 2020–21:

• 88% of First Nations young people returned within 12 months, compared with 79% of non-Indigenous young people
• 89% of First Nations males returned within 12 months, compared with 80% of non-Indigenous males
• 73% of First Nations females returned within 12 months, compared with 67% of non-Indigenous females (Table D2.11.6, Figure 2.11.1).

Figure 2.11.1: Proportion of young people aged 10–16 years released from sentenced supervision in 2020–21 who returned to sentenced supervision within 12 months, by Indigenous status, sex and type of sentenced supervision

Note: Calculations are based on the number of young people aged 10–16 at the time of release from sentenced supervision (during 2020–21), to ensure that those who returned to sentenced supervision within 12 months of release were aged up to 17 and therefore still in the youth justice system (during 2020–21 and/or 2021–22).

Source: Table D2.11.6. AIHW Youth Justice National Minimum Data set (YJ NMDS).

Across the states and territories, the rate of First Nations young people returning to sentenced supervision within 12 months ranged from 45% in South Australia to 74% in Queensland (excludes Tasmania and the Australian Capital Territory due to small numbers) (Table D2.11.22).

Rates of youth justice supervision

Nationally, on an average day in 2021–22, the rate of youth justice supervision among First Nations young people aged 10–17 was nearly 19 times the rate for non-Indigenous young people (121.1 compared with 6.5 per 10,000, respectively) (Table D2.11.1).

Across states and territories, for First Nations young people aged 10–17 on an average day in 2021–22, the rate of supervision across states and territories ranged between 47 per 10,000 young people (in Tasmania) and 175 per 10,000 young people (in Queensland) (Table D2.11.1, Figure 2.11.2). Note that the rate of youth justice supervision in states and territories can be impacted by differences in state-based legislation, policies and practices, including the available types of supervised orders and options for diversion.

Figure 2.11.2: Rate of supervision of young people aged 10–17 years on an average day, by Indigenous status and state and territory, 2021–22

Source: Table D2.11.1. AIHW Youth Justice National Minimum Data set (YJ NMDS); and ABS population estimates and projections (ABS 2019a, 2022) for calculation of rates.

Across all states and territories, the rate of supervision on an average day was higher for First Nations young people than for non-Indigenous young people. The largest relative difference was in Western Australia, where the rate for First Nations young people was 25 times as high as the rate for non-Indigenous young people (172.0 compared with 6.8 per 10,000 young people) (Table D2.11.1).

Rates of community-based supervision

Nationally, on an average day in 2021–22, there were 1,746 First Nations young people aged 10 and over under community-based supervision, with 79% aged 10–17 (1,381 young people) (AIHW 2023d: Table S38a).The rate of community-based supervision for First Nations people aged 10–17 nationally was 93.9 per 10,000 young people, 17 times the rate for non-Indigenous young people (5.4 per 10,000 young people) (Table D2.11.30).

Across states and territories, the rate of community-based supervision for First Nations young people ranged between 41 per 10,000 young people (in Tasmania) and 136 per 10,000 young people (in Queensland). Relative to the rate for non-Indigenous young people, the rate of community-based supervision among First Nations young people ranged from 5.6 times as high in Tasmania to 21.9 times as high in Western Australia (Table D2.11.30).

Rates of youth detention

On an average day in 2021–22, there were:

• 452 First Nations young people aged 10 and over in detention, with 416 (92%) of these aged 10–17
• 367 non-Indigenous young people aged 10 and over in detention, with 279 (76%) of these aged 10–17 (AIHW 2023d: Table S76a).

The rate of First Nations young people aged 10–17 in detention on an average day in 2021–22 was 24 times as high as for non-Indigenous young people – 28.3 compared with 1.2 per 10,000, respectively (Table D2.11.29).

Change over time in youth justice

To describe trends in youth justice, linear regression has been used to calculate the per cent change over time. This means that information from all years of the specified time period are used, rather than only the first and last points in the series (see Statistical terms and methods).

Some data are included from the period during which COVID-19 and related social restrictions were present in Australia, specifically between March 2020 and June 2022. COVID-19 and the associated social restrictions have had a substantial impact on the operation of youth justice services. For example, COVID-19 restrictions led to temporary closures of courts and the deferral of cases, which may have an impact on the number of young people under youth justice supervision. The direct impact of COVID-19 and related social restrictions on the number of young people under youth justice supervision is difficult to determine due to a range of factors including: variability of the data; variations in state-based legislation, policy and practice; and small numbers of young people under supervision. More research is required to better understand the impact of COVID-19 and related social restrictions on youth justice supervision across Australia (AIHW 2023d).

Between 2012–13 and 2021–22, the rate of youth justice supervision for First Nations young people aged 10–17 on an average day declined from 180 to 121 per 10,000 young people. Based on linear regression, this corresponded to a decline of 32% in the rate of supervision for First Nations young people. The gap between First Nations and non-Indigenous young people narrowed by 32% (based on rate difference) (Table D2.11.1, Figure 2.11.3).

The reduction in the gap reflects a larger absolute reduction in the rate for First Nations young people than for non-Indigenous young people (annual decline of 6.6 compared with 0.6 young people in supervision per 10,000 young people) (Figure 2.11.3).

The relative difference in rates between First Nations and non-Indigenous young people, as measured by the rate ratio, generally increased over the decade (from 15 to 19). This reflects a larger relative reduction in the rate for non-Indigenous young people (43% compared with 32% for First Nations young people) (Table D2.11.1, Figure 2.11.3).

Figure 2.11.3: National rate of supervision of young people aged 10–17 years on an average day, by Indigenous status, 2012–13 to 2021–22

Note: Rate difference is the rate for First Nations people minus rate for non-Indigenous Australians. Rate ratio is the rate for First Nations people divided by rate for non-Indigenous Australians.

Source: Table D2.11.1. AIHW Youth Justice National Minimum Data set (YJ NMDS); and ABS population estimates and projections (ABS 2019a, 2022) for calculation of rates.

Between 2012–13 and 2021–22, Western Australia and the Australian Capital Territory had the largest absolute declines in youth justice supervision for First Nations young people, with rates for First Nations young people aged 10–17 declining by 54% in each (from 367 to 172 per 10,000 youth for Western Australia, and from 171 to 64 per 10,000 young people in the Australian Capital Territory). The rate of First Nations young people under supervision also declined in Victoria (by 52%, from 126 to 53 per 10,000), South Australia (42%, from 164 to 104 per 10,000), and New South Wales (39%, from 147 to 87 per 10,000), with no statistically significant change in Queensland, Tasmania or the Northern Territory. Note that the percentage changes given are based on linear regression of all data points in the period, and may differ to that derived using the rates in the first and last year of the time period.

Between 2012–13 and 2021–22, the rate of non-Indigenous young people under supervision on an average day declined in all states and territories, with reductions ranging between 34% (in New South Wales, from 11 to 7 per 10,000) and 63% (in Tasmania, from 29 to 8 per 10,000) (Table D2.11.1; trend analysis excludes the Northern Territory due to small counts in some years).

Trends in community-based supervision

From 2012–13 to 2021–22, the rate of community-based supervision among First Nations young people aged 10–17 declined from 147 per 10,000 young people to 94 per 10,000 young people, while the rate for non-Indigenous young people declined from 10.8 to 5.4 per 10,000 young people. Over the same period, the absolute gap in rates between First Nations and non-Indigenous young people in community-based supervision declined from 136 to 88 per 10,000 young people, respectively (Table D2.11.30).

Based on linear regression, the rate of community-based supervision on an average day among First Nations young people aged 10–17 declined by 34%, while the gap in rates between First Nations and non-Indigenous young people declined by 33%. The reduction in the gap reflects a larger absolute reduction in the rate for First Nations young people than for non-Indigenous young people (annual decline of 5.7 compared with 0.6 per 10,000 young people, respectively) (Table D2.11.30).

There were statistically significant declines in the rate of community-based supervision among First Nations young people across all jurisdictions except Queensland, Tasmania and the Northern Territory (Table D2.11.30). The percentage reduction in the rate ranged between 34% (in New South Wales), and 61% (in the Australian Capital Territory, based on linear regression).

Trends in youth detention

The rate of First Nations young people in detention on an average day in 2021–22 was higher than in 2020–21 (28 compared with 23 per 10,000 young people); however, the rate has shown an overall downwards trend over the decade since 2012–13 (when it was 34 per 10,000 young people). The rate for non-Indigenous young people remained similar over the period 2012–13 to 2021–22 (from 1.5 to 1.2 per 10,000 young people) and the gap declined from 33 to 27 per 10,000 young people (Table D2.11.29). Note that data are included from the period during which COVID-19 and related social restrictions were present in Australia, which may have an impact on these trends.

Based on linear regression, the rate of First Nations young people aged 10–17 in detention on an average day declined by 25% nationally between 2012–13 to 2021–22, with the gap declining by 26% (Table D2.11.29, Figure 2.11.4).

Across states and territories, in the decade from 2012–13 to 2021–22, the rate of First Nations young people aged 10–17 in detention on an average day:

• declined in New South Wales, Western Australia and South Australia (by 54%, 43% and 43% respectively, based on linear regression)
• increased in Queensland (by 28%)
• did not change significantly in the Northern Territory or Victoria.

Trend analysis of rates was not possible for Tasmania and the Australian Capital Territory due to small numbers.

Looking separately at sentenced and unsentenced detention on an average day among First Nations young people aged 10–17, between 2012­–13 and 2021–22, the rate of sentenced detention declined from 13.7 to 6.4 per 10,000 young people nationally, while there was no clear trend for unsentenced detention.

Considering the 6 states and territories where trend analysis based on linear regression was possible over the decade to 2021–22:

• both sentenced and unsentenced detention declined in New South Wales (by 71% and 40%, respectively).
• in Queensland, the rate of sentenced detention declined by 40% while the rate of unsentenced detention increased by 50%.
• in Western Australia, the rate of sentenced detention declined by 70%, while there was no significant change in the rate for unsentenced detention
• in the Northern Territory, the rate of sentenced detention declined by 39%, while there was no significant change in the rate for unsentenced detention (Table D2.11.29).

Figure 2.11.4: National detention rate of young people aged 10–17 years on an average day and changes in the gap, by Indigenous status, 2012–13 to 2021–22

Note: Rate difference is the rate for First Nations people minus rate for non-Indigenous Australians. Rate ratio is the rate for First Nations people divided by rate for non-Indigenous Australians.

Source: Table D2.11.29. AIHW Youth Justice National Minimum Data set (YJ NMDS); and ABS population estimates and projections (ABS 2019a, 2022) for calculation of rates.

What does the data tell us about adult imprisonment?

On 30 June 2022, there were 12,902 First Nations adults in prison, based on information from the National Prisoner Census. This corresponds to a rate of 2,330 people in prison per 100,000 First Nations people aged 18 and over (crude rate), or about 2 in every 100 First Nations adults (Table D2.11.7).

At 30 June 2022, about 9 in 10 (91%) First Nations adults in prison were males (11,744). The rate of adult imprisonment among First Nations people was highest for males aged 35–39 (7,301 adults in prison per 100,000 adult males in this age group) followed by males aged 30–34 (6,984 per 100,000 adult males). The adult imprisonment rate among First Nations females was highest among those aged 35–39 (834 adults in prison per 100,000 adult females) followed by those aged 30–34 (766 per 100,000 adult females) (Table D2.11.7).

At 30 June 2022, First Nations adults accounted for about 32% of all adults in prison. First Nations women accounted for 39% of the total female adults in prison, whereas First Nations men accounted for 31% of the total male adults in prison (Table D2.11.8).

Adult imprisonment rates were higher for First Nations people than non-Indigenous Australians across all age groups, with the largest (absolute) difference for those aged 30–34 and 35–39 (Figure 2.11.5). At 30 June 2022, after adjusting for differences in the age structure between the two populations, the imprisonment rate for First Nations adults was 14 times the rate for non-Indigenous adults (2,151 per 100,000 adults compared with 151 per 100,000 adults, respectively). (Table D2.11.8).

At 30 June 2022, nearly 4 in 10 (39% or 5,004) First Nations adults in prison custody were unsentenced, slightly higher than the proportion for non-Indigenous adults in prison (35% or 9,717) (Table D2.11.9).

Figure 2.11.5: Adult imprisonment rate, by age group and Indigenous status, 30 June 2022

Source: Table D2.11.7. ABS National Prisoner Census data (from: ABS 2023). 

Imprisonment rates by state and territory

By state and territory, the highest rate of imprisonment of First Nations adults as at 30 June 2022 was in Western Australia (3,569 per 100,000 adults), followed by the Northern Territory (3,142 per 100,000 adults) (based on crude rates). The lowest imprisonment rate of First Nations adults was in Tasmania (731 per 100,000 adults) (Figure 2.11.6, Table D2.11.8).

After adjusting for differences in the age structures of the two populations, the gap in imprisonment rates between First Nations and non-Indigenous adults was largest in Western Australia (rate difference of 3,020 per 100,000 adults), and lowest in Tasmania (550 per 100,000 adults) (Table D2.11.8).

Figure 2.11.6: Imprisonment rate of First Nations adults, by state and territory, 30 June 2022

Source: Table D2.11.8. AIHW and ABS analysis of ABS Prisoners in Australia 2021.

Recidivism, sentence length and nature of offences

First Nations adults in prison were more likely than non-Indigenous adults in prison to have had a prior imprisonment (that is, they were known to have been imprisoned under sentence in an adult prison). At 30 June 2022:

• 81% of the 7,860 First Nations sentenced adults in prison had a prior imprisonment, compared with 51% of the 17,675 non-Indigenous sentenced adults in prison
• 72% of the 5,004 First Nations unsentenced adults in prison had a prior imprisonment, compared with 54% of the 9,717 non-Indigenous adults in prison
• Overall, 78% of the 12,902 First Nations adults in prison (including sentenced, unsentenced, and post-sentence detention order) had a prior imprisonment, compared with 52% of the 27,446 non-Indigenous adults in prison (Table D2.11.9).

The median aggregate sentence was lower for First Nations adults in prison (2.5 years) than for non-Indigenous adults in prison (4.5 years). Three-quarters (72%) of sentences for First Nations adults in prison were under 5 years, compared with 50% for non-Indigenous adults in prison (ABS 2023: Table 26).

As at 30 June 2022, among First Nations adults in prison, 38.4% were in prison due to ‘acts intended to cause injury’, 11.1% for ‘unlawful entry or intent/burglary, break and enter’, 10.2% for ‘sexual assault and related offences’ and 9.1% for ‘robbery, extortion and related offences’ (Table D2.11.21).

First Nations adults in prison were more likely than non-Indigenous adults in prison to have ‘acts intended to cause injury’ as their most serious charge (38% compared with 20%) (Table D2.11.21). The number of First Nations adults in prison with ‘acts intended to cause injury’ as their most serious charge increased from 2,499 (33%) in 2010 to 4,951 (38%) in 2022 (Table D2.11.20). As at 30 June 2022, a smaller proportion of First Nations than non-Indigenous adults in prison were in prison for illicit drug offences (3.4% compared with 18.4%, respectively) and homicide (5.4% compared with 9.3% respectively). The proportion of adults in prison who had ‘traffic and vehicle regulatory offences’ as their most serious charge was similar for the two populations (0.8% for First Nations adults in prison, and 1.1% for non-Indigenous adults in prison) (Table D2.11.20).

Findings from the 2014–15 National Aboriginal and Torres Strait Islander Social Survey

In 2014–15, an estimated 22% of First Nations males aged 35 and over had been incarcerated at some time in their life, based on self-reported information from the 2014–15 National Aboriginal and Torres Strait Islander Social Survey (NATSISS). Other findings from the NATSISS based on self-reported information for First Nations males and females aged 15 and over, included an estimated:

• 47.6% of First Nations males and 23.0% of First Nations females were formally charged by the police at some time in their life.
• 20.4% of First Nations males and 9.2% of First Nations females were arrested in the past 5 years.
• 5.3% of First Nations males and 1.1% of First Nations females were incarcerated in the past 5 years (ABS 2016: Table 15.3).

Change over time in adult imprisonment

To describe trends in adult imprisonment, linear regression is used to calculate the per cent change over time. This means that information from all years of the specified time period are used, rather than only the first and last points in the series (see Statistical terms and methods).

Between 2013 and 2022, the rate of imprisonment for First Nations adults increased from 1,912 to 2,330 per 100,000 adults (based on crude rates). Age-standardised rates adjust for changes in the age-structure of the population over time. The age-standardised adult imprisonment rate for First Nations people increased from 1,630 per 100,000 adults in 2013, to 2,151 per 100,000 adults in 2022 (Figure 2.11.7, D2.11.12).

Based on linear regression of all data points over the period, there was a 31% increase in the age-standardised adult imprisonment rate for First Nations people between 2013 and 2022. There was no statistically significant change in the age-standardised adult imprisonment rate for non-Indigenous Australians between 2013 and 2022. As a result, the absolute gap (rate difference) in the imprisonment rate between First Nations and non-Indigenous adults increased from 1,497 to 2,000 per 100,000 adults between 2013 and 2022, and the relative difference increased from 12 times as high for First Nations people to 14 times as high (from a rate ratio of 12.2 to 14.3) (Table D2.11.12, Figure 2.11.17).

The age-standardised rate of imprisonment increased in all states and territories between 2013 and 2022 for First Nations adults except the Australian Capital Territory (where there was no significant change). The gap (rate difference) in adult imprisonment rates between First Nations people and non-Indigenous Australians increased in most states and territories except the Northern Territory and the Australian Capital Territory (Table D2.11.12).

Figure 2.11.7: Age-standardised adult imprisonment rate, by Indigenous status, 2013 to 2022

Note: Rate difference is the age-standardised rate for First Nations people minus the age-standardised rate for non-Indigenous Australians. Rate ratio is the age-standardised rate for First Nations people divided by the age-standardised rate for non-Indigenous Australians.

Source: Table D2.11.12. AIHW and ABS analysis of ABS Prisoners in Australia 2021.

What does the data tell us about health of people in prison?

The National Prisoner Health Data Collection (NPHDC) provides information on the health and wellbeing of adult (aged 18 and over) people in prison. The NPHDC was last conducted in 2022, with data collected over a 2-week period in each state and territory (except Victoria, which did not participate) (AIHW 2023b).

In 2022, the NPHDC collected information from 371 adult prison entrants, including 183 (49%) who were First Nations people. In 2022, 10% of the First Nations adult prison entrants had completed Year 12 at school, compared with 29% of the non-Indigenous adult prison entrants (excluding Victoria data) (Table D2.11.23). First Nations adult prison entrants were more likely to have been unemployed and looking for work in the 30 days prior to imprisonment than non-Indigenous adult prison entrants (32% compared with 19%, respectively) (Table D2.11.24). First Nations adult prison entrants were 2.4 times as likely to have had a parent or carer imprisoned as non-Indigenous adult prison entrants (36% compared with 15%, respectively) (Table D2.11.26).

Just over 7 in 10 (71%) adult prison entrants said they were current smokers. First Nations adult prison entrants (79%) were more likely to be current smokers than non-Indigenous adult prison entrants (64%) (AIHW 2023b: Table S75). The proportion of First Nations adult prison entrants who smoked was higher than among all First Nations adults (43% of those aged 18 and over in 2018–19) (AIHW 2023a, 2023b). First Nations adult prison entrants (56%) were 1.7 times as likely to be considered at high risk of alcohol-related harm in the previous 12 months (as measured by the AUDIT-C) as non-Indigenous adult prison entrants (32%) (AIHW 2023b: Table S70).

The 2022 NPHDC included data on 431 adult prison dischargees, including 200 (46%) who were First Nations people.

In 2022, the proportion of adult prison dischargees who had visited the prison health clinic was similar (92% for First Nations and 94% for non-Indigenous), while the proportion who had access to Medicare services on the day of their release was slightly higher for First Nations (93%) than for non-Indigenous adult dischargees (87%) (AIHW 2023b: Table S116, S129).

Prison dischargees were asked whether they received services from an Aboriginal Community Controlled Health Organisation (ACCHO) or Aboriginal Medical Service (AMS) while in prison. Of the 200 First Nations adult prison dischargees who completed the dischargees form in 2022, 26% reported receiving services from an ACCHO and/or an AMS. Prison dischargees were also asked if they received culturally appropriate health care while in prison – of the 200 First Nations adult dischargees, 65% reported receiving culturally appropriate health care while in prison (AIHW 2023b: Tables S136, S138).

In 2016, the National Prison Entrants Bloodborne Virus and Risk Behaviour Survey found a higher prevalence of hepatitis B antibody among First Nations adult prison entrants than non-Indigenous adult prison entrants (31.6% compared with 7.6%, respectively) (see measure 1.12 HIV, hepatitis and sexually transmissible infections) (Table D2.11.28).

What does the data tell us about deaths in custody

In Australia, deaths that occur in prison, police custody and youth detention are monitored by the National Deaths in Custody Program managed by the Australian Institute of Criminology.

In 2021–22, there were no (First Nations or non-Indigenous) deaths in youth detention. In 2021–22, there were 84 deaths in prison custody. Of these, 16 (or 19%) were deaths of First Nations people (Table D2.11.15). Manner of death refers to the accountability or responsibility for the death and is determined by the coroner (McAlister & Bricknell 2022). In 2021–22, the manner of death was recorded for 9 of the 16 First Nations deaths in prison custody. Of these, the manner of death was recorded as natural causes for 5 deaths and self-inflicted for 4 deaths. All 4 self-inflicted deaths were due to hanging and related complications.

In 2021–22, the death rate of First Nations adults in prison was 0.12 per 100 adults in prison, lower than the death rate of non-Indigenous adults in prison (0.24 per 100 adults in prison). Deaths in prison custody have fluctuated over time. The death rates of First Nations adults in prison were consistently lower than the death rates of non-Indigenous adults in prison. Between 2012–13 and 2021–22, there was little change in rates of death in prison custody for both First Nations and non-Indigenous adults in prison (Table D2.11.16).

There were 22 deaths in police custody and custody-related operations in 2021–22, with 8 (or 36%) of these deaths of First Nations people (Table D2.11.15). The manner of death information was available for 7 of the 8 First Nations deaths in police custody. Three of the deaths were due to accident or misadventure (following on foot pursuits), two were justifiable homicides and one was self-inflicted. The manner of one death was unknown as the cause of death was unable to be ascertained at autopsy. Gunshot wounds were the cause of death for the 2 justifiable homicides.

A great deal of research has been conducted on identifying risk factors and characteristics of First Nations people who have had contact with the criminal justice system. The findings have highlighted the complex effects of entrenched social disadvantage and intergenerational trauma, spanning across the life course. Some research moves beyond this to identify potential ways forward to improve how the justice system treats First Nations people at various points along the life course and the justice continuum. The Indigenous Justice Clearinghouse website is a useful resource that provides relevant First Nations justice information to help policy makers.

The determinants that prevent contact with the criminal justice system for First Nations people are positive early life experiences, engagement with education, sustainable and meaningful employment opportunities, a healthy relationship with drugs and alcohol, high social and emotional wellbeing, stable housing and strong community governance and inclusive networks (Weatherburn 2014; Australian Law Reform Commission 2017; Nous Group 2019).

There is very strong evidence for the effectiveness of prevention through maternal health programs and family-based programs in reducing offending in later life (Weatherburn 2014; Davis & Higgins 2014). Evidence suggests that family-based programs, and parenting skills programs for young people are also effective for parents of older children and youth (including those at high-risk, such as those in out-of-home care) (Richards K et al. 2011). Every effort should also be made to divert people from the justice system, because contact with the criminal justice system is itself criminogenic and imprisonment contributes further to disadvantage (Clancey et al. 2020).

A recent paper summarising the best available evidence of effectiveness of 12 types of intervention in reducing juvenile offending and antisocial behaviour found the most effective interventions were: parent training, focused deterrence, child skills training, cognitive-behavioural therapy, mentoring, and family therapy. Anti-bullying programs, anti-cyberbullying programs, and pre-court diversion programs are quite effective. School exclusion, after-school programs, and boot camps are least effective (Farrington et al. 2022).

Efforts to address systemic injustices

Studies have found that structural and systemic factors can also contribute to the high rates of offending by First Nations people, including laws, policies and practices that can unintentionally operate to the detriment of First Nations people (Allard 2010; Blagg et al. 2005).

In March 2022, the Australian Human Rights Commission (AHRC) published the National Anti-Racism Framework Scoping Report 2022 (Australian Human Rights Commission 2022). The report describes that significantly, both First Nations and non-Indigenous participants advised the AHRC that First Nations people have unique dealings with the justice system because of ongoing over-policing, removal of children and disproportionate conviction rates. This was widely recognised by participants as a concern in need of urgent attention. Justice oversight and accountability within the criminal justice system, particularly in relation to the systemic discrimination experienced by First Nations people was called for by many organisations, service providers, government departments and agencies as well as community members. Participants advocated for the provision of safe complaint mechanisms, community-centred supports, and services for those caught in the criminal justice system, as well as culturally safe and unhindered legal assistance.

A submission to the AHRC also stated that ‘Aboriginal people are more likely to be questioned by police than non-Indigenous Australians. When questioned, they are more likely to be arrested than proceeded against by summons. If they are arrested, Aboriginal people are much more likely to be remanded in custody than given bail. Aboriginal people are much more likely to plead guilty than go to trial, and if they go to trial, they are much more likely to be convicted. If Aboriginal people are convicted, they are much more likely to be imprisoned than non-Indigenous people, and at the end of their term of imprisonment they are much less likely to get parole than non-Indigenous Australians’ (submission from the Northern Territory Department of the Attorney General and Justice, quoting former Chief Justice of Western Australia Wayne Martin, National Anti-Racism Framework (NARF) project, May 2021–April 2022) (Australian Human Rights Commission 2022).

The AHRC heard that the lack of access to customary law pathways within the justice system available to First Nations people disregards the intersectional and cultural needs of those within the system. Such access was identified as vital in facilitating more equitable outcomes through communities’ participation in the legal system. A submission to the AHRC stated that ‘At a minimum, the avenue for redress should ensure that victims have access to resources, such as lawyers, to allow them to pursue justice unhindered by other factors’ (submission by the National Association of Aboriginal and Torres Strait Islander Health Workers and Practitioners, NARF project, May 2021–April 2022) (Australian Human Rights Commission 2022).

Through submissions and consultations, participants emphasised the need for grassroots, community-controlled supports, and service provision for First Nations families. Genuine community engagement in the development of responses to supporting First Nations people in the criminal justice and child protection systems was also highlighted as a key need. The AHRC was told that these processes allow access to culturally safe and effective response mechanisms for First Nations communities (consultation with Aboriginal advocacy organisation, NARF project, May 2021–April 2022).

The Yoorrook Justice Commission was established in Victoria to address systemic injustices faced by First Nations people in sectors like child protection and criminal justice. Yoorrook is looking into past and ongoing injustices experienced by Traditional Owners and First People in Victoria in all areas of life since colonisation. Yoorrook’s work to achieve truth, understanding and transformation prioritises and centres First Nations people’ voices, experiences, cultural and human rights, and their right to self-determination.

In 2022, Yoorrook launched an inquiry into the Victorian child protection and criminal justice systems prompted by evidence it had received about the injustice experienced by First Nations people. Yoorrook employed a comprehensive methodology to gather evidence and insights to produce the Yoorrook for Justice report (Yoorrook Justice Commission 2023). This involved receiving direct evidence through 33 submissions from organisations and 88 submissions from individuals; 12 roundtables across Victoria with experts, people working in the criminal justice and child protection systems and people affected by these systems; and 84 witnesses across 27 days of hearings. This evidence was then thematically analysed to develop key themes and lines of inquiry. Yoorrook also received more than 4,000 documents from the Victorian Government in response to Notices to Produce. Yoorrook examined evidence from previous major inquiries and subsequent actions to inform its findings and recommendations. The report also utilised data analysis, with much of the statistics being requested specifically by Yoorrook.

The Yoorrook report identified how First Nations people have historically faced systemic injustices, including dispossession, child removal, and criminalisation, rooted in colonial policies and practices (Yoorrook Justice Commission 2023). These actions have led to enduring issues such as intergenerational trauma, over-representation in the child protection and criminal justice systems, and systemic racism. The ongoing lack of understanding and accountability by the state government perpetuates these challenges, underscoring the need for transformative change.

Existing social and health determinants

First Nations people that have contact with the criminal justice system are more likely than their non-Indigenous counterparts to:

• have experienced family violence and sexual assault (Corrigan 2018)
• have mental illness or cognitive disability (Heffernan et al. 2012; Korff 2020)
• have substance abuse issues (Australian Medical Association 2015; Weatherburn 2014)
• have worse health problems (Australian Medical Association 2015; Levy 2005), particularly for some specific diseases, such as hepatitis B and hepatitis C (Butler T & Simpson 2017)
• have entered into the child protection system as children (Roettger et al. 2019)
• have earlier and more frequent criminal justice contact – including police contact and incarceration (Weatherburn 2014)
• be living in unstable housing or homeless (Weatherburn 2014)
• have hearing loss (Vanderpoll & Howard 2012)
• be unemployed (Woodward 2003)
• have learning difficulties and lower levels of educational attainment (Corrigan 2018)
• have had a parent or carer in prison while growing up (AIHW 2019).

The House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs inquiry into First Nations young people in the criminal justice system explored the link between health and the youth justice system. The Inquiry identified alcohol and other drugs; Fetal Alcohol Spectrum Disorders (FASD); mental health and emotional wellbeing; and hearing loss as key health factors for First Nations young people entering the youth justice system (House of Representatives Standing Committee on Aboriginal Affairs 2011).

There are major gaps in data and information on the health of young Australians in youth detention centres (AIHW 2018). A 2015 report by Amnesty International into First Nations young people in detention made several recommendations that would rely on improved data to implement. These included developing justice indicators to be disaggregated by disability status; identifying the national data required to implement a ‘justice reinvestment’ approach; and identifying unmet need for bail accommodation – particularly of young people with mental health issues and cognitive impairments including FASD (Amnesty International 2015). In 2016, the AHRC recommended that the Australian Institute of Health and Welfare (AIHW) and the Australasian Juvenile Justice Administrators (AJJA) work together to generate additional publicly available data on characteristics of youth justice detainees, their treatment and conditions (Recommendation 4) (Australian Human Rights Commission 2016). As a result, the Health service utilisation and preventable mortality in justice-involved young people project commenced in 2019. This project is funded by the National Health and Medical Research Council (NHMRC) and aims to link the Youth Justice National Minimum Data Set (YJ NMDS) to health data sets in order to investigate key health outcomes among the youth justice population. The project is led by Professor Stuart Kinner from Curtin University, in conjunction with the AIHW. The National Youth Justice Health Advisory Group was established in August 2016 to assist the AIHW to conduct a feasibility study during 2016–17 into potential data developments. The long-term aim of the development work was the creation of a national youth justice health data collection to monitor the health of young people under youth justice supervision and inform the planning, delivery and quality of youth justice health services. It was recommended that a national data collection on the health of young people under youth justice supervision be developed, using a combination of data linkage with the Juvenile Justice National Minimum Data Set, and administrative data available from youth detention centres (AIHW 2018).

Many people in prison come from disadvantaged backgrounds, with poorer physical and mental health outcomes than the general population, and reported a previous diagnosis of a mental health condition. They are less likely to have accessed health care services in the community, and more likely to have a history of risky behaviours, including smoking, alcohol and other drug use that can affect health and wellbeing (AIHW 2023a).

Mental health conditions and self-harm are relatively common among First Nations offenders in the criminal justice system. Many offenders, especially First Nations women, have unmet mental health needs. For First Nations people, offences are often minor, and corresponding periods of imprisonment are often short. Many mental health programs in prison do not reach First Nations people who are serving short sentences or who are awaiting sentencing. There are few programs that focus on improving mental health outcomes for those in contact with the criminal justice system. More work needs to be done to assess the prevalence of mental health conditions in First Nations ex-prisoners at the national level; the effectiveness of alternative court systems, such as Indigenous-specific sentencing courts, on mental health outcomes for First Nations people (AIHW 2021a).

People in prison have substantial and complex health needs, which are often chronic. They have higher rates of mental health conditions, chronic disease, communicable disease, acquired brain injury, tobacco smoking, high-risk alcohol consumption, recent illicit drug use, and recent injecting drug use than the general population (AIHW 2019). Improving mental health of people in prison, and maintaining those improvements after prison, is associated with reductions in the likelihood of recidivism (Wallace & Wang 2020).

Social and health effects of imprisonment

The social and health effects of imprisonment on First Nations people include (Weatherburn 2014; Legal and Constitutional Affairs References Committee 2013):

• adverse employment and financial consequences (Woodward 2003)
• lack of positive male role-models in Indigenous society (Woodward 2003)
• people in prison taking health problems and problematic behaviours out into the community, for example hepatitis C, substance abuse, violence (Butler Tony & Milner 2003; Woodward 2003)
• challenges for continuity of health care following incarceration and release, for example for Hepatitis C, or for treatment involving pharmacotherapies and psychotropic medications (Krieg 2006)
• mental and other health problems for children who have a parent in prison custody (20% of First Nations children have a parent in custody at some stage) (Levy 2005)
• increased risk of antisocial behaviour and imprisonment, mental and physical health issues, substance use, academic difficulties, and social marginalisation or exclusion in offspring among children whose parents offend (Roettger et al. 2019).

In 2016, Delaney-Thiele et al. examined the effects of incarceration and the return of former inmates to their communities on family members and how primary health care services might provide better support to First Nations families and communities. They highlighted the need to identify which organisations are the key duty bearers for former inmates and family members and how best to support them to ensure they can access their rights to health and wellbeing. The study found that the key to effective post-release support is a linked and collaborative service network model so that when families and former inmates seek support, primary health care providers are ready to activate the network as well as provide targeted health interventions as needed (Delaney-Thiele et al. 2016).

Systemic issues and over-representation in the justice system

Research shows that children and young people who have been abused or neglected are at greater risk of engaging in criminal activity and of entering the youth justice system. Using data from the child protection and youth justice supervision linked data collection, the AIHW identified more than half (53%) of young people under youth justice supervision during 2020–21 had an interaction with the child protection system in the 5-year period. Almost one-third (30%) were the subject of a substantiated notification for abuse or neglect. First Nations young people under youth justice supervision were more likely than non-Indigenous young people to have had an interaction with the child protection system. About 1 in 5 young people under community-based supervision had at least one placement in out-of-home care at some point in the last 5 years; of these, for 75%, at least one placement was in residential care (AIHW 2022).

Imprisonment for First Nations females is increasing faster than for First Nations males and non-Indigenous males and females. In New South Wales, overall female incarceration rates climbed 33% between March 2013 and June 2019, with almost one-third of them (32%) being First Nations females. This was driven by a significant increase (66%) in the proportion of women on remand, rather than a growth in crime (Phelan et al. 2019).

Females in prison (First Nations and non-Indigenous) are often the victims and survivors of violence and may use violence as a strategy to respond to their victimisation. Structural factors related to bail and sentencing laws also appear to be contributing, with around 40% of all females in prison in Australia being unsentenced (on remand) (Heffernan et al. 2015; Wilson et al. 2017; Australia’s National Research Organisation for Women’s Safety Limited 2020).

High proportions of First Nations females in prison are survivors of childhood sexual and other abuse (Lawrie 2003a, 2003b; Wundersitz 2010; Productivity Commission 2016). First Nations women are vastly over-represented in prisons and suffer high rates of post-traumatic stress disorder (from the sudden death of a loved one, being the victim of serious domestic violence or sexual assault, or observing serious physical violence in the home as a child), and co-occurring mental disorders, for which many did not or could not access mental health care prior to incarceration (Heffernan et al. 2015).

Over the four year period June 2017–June 2021, young First Nations people made up a higher proportion of those in unsentenced detention (an average of 66% in each quarter) than those in sentenced detention (an average of 34%) (AIHW 2021b). The consequences of this are severe and include separation from family and community; lack of access to therapeutic programs; a greater likelihood of receiving a remand period following a future court appearance and receiving a sentence of imprisonment compared with young people who are released on bail (Richards Kelly & Renshaw 2013); and greater risk of repeated contact with the criminal justice system in the future (Amnesty International 2017; Jesuit Social Services and Effective Change Pty Ltd 2013).

A recent study modelled the costs of First Nations and non-Indigenous offending and found more prolific offending among First Nations people resulting in much higher costs across the justice continuum compared with non-Indigenous Australians. Between the ages of 10 and 31, chronic First Nations offenders are estimated to each cost the criminal justice system over $380,000, compared with just under $75,000 for non-Indigenous offenders. This is primarily due to the greater frequency and length of youth justice sanctions for the First Nations chronic offending cohort – in particular, probation orders and detention. The greater frequency may be due to the greater churn or frequency of contact with the criminal justice system for the First Nations chronic offenders’ cohort over their young adult life, compared with the non-Indigenous chronic offenders’ cohort. It may also partly be due to the somewhat greater rate of violent offending among the First Nations chronic offenders cohort, which may affect their eligibility for diversionary options or particular sanction types, as well as potentially affecting the length of their sanctions (Allard et al. 2020).

Evaluations

In 2009, the Australian Government funded the evaluations of 20 First Nations Australian justice programs to build the evidence base to support the National Indigenous Law and Justice Framework (2009).

The evaluations reviewed programs designed to reduce the rates of offending for First Nations people, incarceration and recidivism, particularly among First Nations young people and perpetrators of violent crime. The evaluations were published in 2013 and identified elements of programs that were good practice and well-managed, finding:

• Indigenous courts and conferences provide a more culturally appropriate and inclusive process and encompass the wider circumstances of offenders and victims, and may contribute to reducing recidivism.
• Community participation in supporting offenders’ reintegration post-release and preventing reoffending has brought ownership of the justice process and improved accountability and support for offenders.
• Effective service coordination and partnerships with allied services can help offenders to navigate the complex justice system and gain access to the services they need.
• Monitoring and evaluation of programs need to be embedded in the program design with clear objectives and goals (Cultural Indigenous Research Centre Australia 2013a, 2013b).

Similar promising practices of First Nations youth justice programs include the importance of having adequately resourced, culturally appropriate and competent services; effective collaboration; addressing multiple and complex needs of offenders; and family engagement and parental training. However, there is a lack of evidence on whether prevention and early intervention programs are working to reduce the over-representation of First Nations young people in the criminal justice system (Davis & Higgins 2014). Areas that require further in-depth research and evaluation include how First Nations participants fare in mainstream justice programs; the sustainability of the outcomes; whether collaborative case management in youth crime prevention and reduction programs is effective for First Nations young people; and the effectiveness of the structured, cognitive behavioural programs based on ‘Western’ psychological theories (Davis & Higgins 2014).

Many of the evaluations conducted of Australian Indigenous sentencing courts have relied on quantitative analyses of reoffending, finding little or no impact on recidivism, despite there being some evidence, derived mainly from qualitative analyses, that they have had an impact on: increasing the level of participation of First Nations communities within criminal justice processes; and improving perceptions of the fairness and cultural-appropriateness of courts in dealing with First Nations offenders. Marchetti (2017) argued that limited quantitative measurement of outcomes such as failure to reduce reoffending does not necessarily mean First Nations -focused justice programs have failed, but rather suggests that important aspects of their contribution, such as the cultural complexities that drive and influence these programs, are not being measured (Marchetti 2017).

Circle sentencing (CS) is an alternative criminal justice process that involves the presiding magistrate working with a group of First Nations Elders and respected members of the community, victims and the offender’s family to determine the appropriate sentence. It has been in operation in Nowra, New South Wales since 2002, and has been expanded to other districts within the state. While prior qualitative research (Cultural and Indigenous Research Centre 2008) found that CS increased the offender’s awareness of the consequences of their actions and increased confidence in more appropriate sentencing outcomes among those involved, quantitative research (Fitzgerald 2008) using court outcomes from 2002 to 2007, did not find the program helpful in reducing reoffending rates when comparing offenders that participated in CS with those who did not. A follow-up quantitative evaluation, a decade after an initial evaluation in 2008, measured court appearances (from 2005 to 2019) and attendance of CS sessions (from 2005 to 2018) and found that offenders that participated in CS were 52% less likely to be incarcerated than offenders who never participated in CS. Investigating whether the reduced incarceration would increase reoffending, the study found that offenders that participated in CS were 9.6% less likely to reoffend than those who did not. When they did commit a new offence, offenders who participated in CS took 55 days longer to reoffend. However, the evaluation was unable to address the possibility that selection bias was driving the estimates, and thus they should be interpreted with caution (Yeong & Moore 2020).

The Tiwi Islands Youth Development and Diversion Unit in the Northern Territory provides a 12‑week diversion program engaging Tiwi youth (typically first‑time youth offenders) in prevention activities that aim to benefit the offender, the victim and the community (Davis & Higgins 2014; Stewart et al. 2014).

• An independent evaluation of the program found it was effective in reducing adverse contact between Tiwi youth and the criminal justice system (Stewart et al. 2014). Individual re‑offence data from the Northern Territory Police for program participants showed that 20% of participants (13 of 65 young people) had contact with the police for alleged offences in the year following commencement with the program – below what would be expected for this population without the intervention.
• Qualitative data found the program was useful in reconnecting young people to cultural norms, was culturally ‘competent’ and directly addressed the factors that contribute to offending behaviour, such as substance misuse, boredom and disengagement from work or education.

The Australian Government has funded the Time to Work Employment Service (TWES) in response to the 2016 Council of Australian Government’s Prison to Work Report. TWES is a voluntary in-prison program for eligible First Nations people in prison. It aims to improve and support the transition of people in prison to post-release employment service providers to achieve better engagement with First Nations people in prison from employment services and smoother pathways into employment support following release. An evaluation in 2021 found TWES complements state-based in-prison training, employment and reintegration programs by supporting the most disadvantaged and high-risk cohorts who cannot access other training and employment programs due to a range of challenges experienced including literacy. However, the evaluation found that due to the program being voluntary, not all people in prison choose to participate and the rate of completion of the program was low (NIAA 2021).

Drug and Alcohol Services Australia provides an initiative that serves as an alternative to custody for First Nations women using a community-based approach to address high incarceration rates and reoffending. The alternative to custody is a 26-week program which provides 10 residential beds for First Nations women who take part in one-on-one case management, group therapy, cultural activities and engage with relevant support services. The Mparntwe/Alice Springs Alternative to Custody (ATC) Program is an innovative, community-based approach to reducing Aboriginal incarceration and recidivism. Central Australian Aboriginal Congress (Congress) is funded to deliver psycho-therapeutic services under a separate contract with the Mental Health, Alcohol and Other Drugs Branch in the Northern Territory Department of Health. The ATC delivers targeted, tailored rehabilitation programs to Aboriginal women at risk of offending or reoffending who have been diverted, defected, mandated by courts, police or others or self-referred (Drug and Alcohol Services Australia 2023). The evaluation of the ATC program identified positive outcomes or indications of positive outcomes for women participating in, and particularly among those who complete, the ATC Program such as clients having greater awareness of triggers that contribute to reoffending, clients with alcohol and other drug issues abstaining from use during the program, no reoffending during the program, improved relationships with family and children, and improved client compliance with post sentence conditions. All the short-term and some medium-term outcomes demonstrated progress towards being met or were met to some degree. There is also evidence that successful completion of the ATC Program contributes to a reduction in reoffending. This evaluation has found that the ATC Program makes a positive contribution to the physical health and wellbeing of participants (Pandanus Evaluation 2022).

An example of best practice in improving the criminal justice system for First Nations people is through the adjustment of court sentencing procedures. For example, the Walama Court List pilot in the New South Wales District Court, which commenced in February 2022, is an alternative sentencing procedure for First Nations people who have matters before the New South Wales District Criminal Court. The Walama Court List adopts a community-based approach to sentencing, where First Nations Elders and other respected persons are included in the sentencing process alongside the presiding judge. Walama provides a therapeutic and holistic approach to sentencing eligible First Nations offenders. Walama achieves this by working with Elders and respected community members, government, and non-government services to address underlying needs and risk factors related to offending behaviour. The Walama List aims to reduce re-offending, keep communities safe and reduce the over-representation of First Nations people in the criminal justice system (District Court New South Wales 2021). An evaluation of the pilot is underway using a two-armed randomised controlled trial to measure the impact of the Walama List on sentencing and reoffending (NSW Department of Communities and Justice 2023).

The findings and research in this Measure show a high level of intergenerational disadvantage associated with contact with the criminal justice system. Supporting children and their families through wrap-around services and programs designed and led by First Nations people, can reduce the intergenerational effects of incarceration (Roettger et al. 2019). Many First Nations people do not offend despite the presence of the common risk factors for offending. Further research into resilience and protective factors will aid approaches to prevention (Wundersitz 2010).

Primary responsibility for criminal justice issues sits with state and territory governments. The states and territories, as well as non-government organisations, deliver a range of programs to reduce levels of First Nations incarceration and reoffending, including diversionary programs (for example cautions and conferencing), circle sentencing and Indigenous courts, and prisoner through-care arrangements (AHRC 2013). The Australian Government also funds a number of activities to complement efforts by states and territories to improve justice and community safety outcomes for First Nations people, such as Custody Notification Services and First Nations-specific through-care programs. The Victorian government recently published Wirkara Kulpa - Aboriginal Youth Justice Strategy 2022-2032 led by the Aboriginal Justice Caucus, under the umbrella of the Aboriginal Justice Agreement, and is a key initiative of Burra Lotjpa Dunguludja and the Youth Justice Strategic Plan 2020–2030. Wirkara Kulpa is written for and by Aboriginal children and young people and captures the aspirations and changes Aboriginal children and young people, their families and communities want to see. Wirkara Kulpa is focused on supporting Aboriginal children and young people so they remain outside the youth justice system and can live culturally rich lives.

The National Agreement on Closing the Gap (the National Agreement) was developed in partnership between all Australian governments and the Coalition of Peaks. Each party to the National Agreement has developed their own Implementation Plan and will report annually on their actions to achieve the outcomes of the agreement. Plans have been developed and will be delivered in partnership with First Nations partners.

Under Priority Reform One of the National Agreement (formal partnerships and shared-decision-making), the Australian Government has taken a leadership role to bring all states and territories, the Coalition of Peaks, and First Nations independent representatives together, through the Justice Policy Partnership (JPP). The JPP will identify opportunities to work more effectively across governments to reduce the rates of First Nations incarceration and youth detention, recognising states and territories largely have responsibility for the criminal justice system.

The JPP is focussed on the collective effort required to address the drivers of youth detention and adult incarceration. Building a strong foundation for First Nations people to work together with governments through formal partnerships and shared decision-making is an important and respectful first step towards achieving Targets 10 and 11 of the National Agreement.

Action on other targets in the National Agreement will also help reduce the over-representation of First Nations people in the criminal justice system. These include actions to ensure families are safe, young people are meaningfully engaged in education and thrive in their early years, adults are employed, all people have good health and wellbeing, and that connections to cultures, languages, lands and waters are strong.

Crime prevention strategies have been recommended by the Australian Law Reform Commission. Justice Reinvestment initiatives in Australia have taken the form of programs designed to empower First Nations people to identify the drivers of crime and develop tailored, place-based solutions. These solutions are chosen for their potential to prevent crime (for example, night patrols or alcohol restrictions) and reduce recidivism (for example by rehabilitating people in prison returning to the community) (Australian Law Reform Commission 2017; Desmond Dawes & Davidson 2019).

The Australian Government as well as most, if not all, of the states and territories, have taken steps to explore the potential of Justice Reinvestment strategies (Willis & Kapira 2018). The Australian Government has committed $91.5 million to expand and establish First Nations-led justice reinvestment initiatives across the country. Funding of $69 million over 4 years will support up to 30 community-led justice initiatives to address the underlying causes of incarceration. A further $12.5 million over 4 years has been committed to establish an independent National Justice Reinvestment Unit to coordinate and support justice reinvestment initiatives at a national level. The Australian Government has also committed an additional $10 million over 4 years for justice reinvestment in Central Australia through the $250 million A Better, Safer Future for Central Australia measure.

Originating from the United States in the early 2000s (Tucker & Cadora 2003), Justice Reinvestment is a ‘comprehensive strategy’ (DeMichele & Payne 2009) that aims to reduce prison numbers by determining more effective means of managing offenders and addressing reasons for their offending (Garland 2007). The Government’s commitment to justice reinvestment recognises that First Nations people hold the solutions to the issues that affect them. Justice reinvestment is a long-term, community-led approach that aims to prevent crime, address the drivers of contact with the justice system, and improve justice outcomes for First Nations people in a particular place or community. In many cases, these strategies have focused on the over-representation of First Nations people in the justice system, as well as changes to the youth justice system (Schwartz 2010). In jurisdictions that have shown greater progress in Justice Reinvestment implementation, this has been achieved through the collaborative efforts of government, service providers, community representatives and academics.

First Nations people are more likely to return to prison than non-Indigenous Australians, as they are more likely to experience risk factors for re-offending. Culturally appropriate wrap-around support models, such as First Nations-specific through-care models, are designed to help address risk factors for reoffending through offering tailored support to First Nations people while incarcerated and for an extended period following release from prison (Australian Law Reform Commission 2017; Legal and Constitutional Affairs References Committee 2013).

In April 2016, the Council of Australian Governments (COAG) agreed to develop methods to address barriers to employment on release and to support First Nations people as they transition from incarceration to employment. The COAG Prison to Work Report, identified the need for investments in the development of culturally appropriate through-care models and services (Council of Australian Governments 2016). In response, the Australian Government embarked upon a co-design process for adult and youth through-care that culminated in the funding of 9 through-care providers across all states and territories except the Australian Capital Territory. These through‑care services provide a voluntary holistic journey of intensive case work and client support during the pre-release and post-release phases to address the needs of detainees and to support reintegration into the community and reduce the risks of re-offending.

Availability and flexibility of community-based sentencing options has been recommended by the Australian Law Reform Commission to prevent First Nations people returning to the justice system (Australian Law Reform Commission 2017).

Efforts to address the over-representation of First Nations people in the criminal justice system include:

•        maternal health, parenting skills and family-based programs
• holistic intensive programs for First Nations young people in out-of-home care
•  actions targeting those at high risk of offending
• therapeutic and holistic support to address criminogenic needs
• programs targeting aggression and problem sexual behaviour
• prison-based rehabilitative programs, including prison services for people with a cognitive disability
• prisoner through-care programs, including employment-focused re-entry programs
• access to appropriate legal services (Australian Law Reform Commission 2017)
• early intervention, prevention, justice reinvestment and diversion initiatives (Pricewaterhouse Coopers 2017).

A strong attachment to culture is associated with better outcomes on a range of indicators, including the probability of being arrested or reoffending (Dockery 2010; Lafferty et al. 2016; Shepherd et al. 2018). Culturally appropriate law, legal and court services (Aboriginal and Torres Strait Islander Legal Services, Koori courts, circle sentencing, and restorative justice) that meet complex legal, cultural and language needs can help First Nations people to navigate the justice system and mitigate systemic factors that disadvantage First Nations people (Australian Law Reform Commission 2017; Urbis 2019).

Two main principles upon which the Australian youth justice system is based, and which are incorporated in state and territory legislation, are that young people should be detained only as a last resort and for the shortest appropriate period (Chrzanowski & Wallis 2011).

Another way to reduce the number of young people entering youth justice detention centres is through the use of diversion. The rationale is to divert young people away from traditional criminal justice interventions and ideally into programs aimed at helping them take responsibility for their actions, make reparations for the harm they caused, and limit their chance of becoming entrenched in the justice system (Clancey et al. 2020). Diversionary options may create better opportunities to identify any family, behavioural and health problems contributing to the offending behaviour, and they may enable the child to participate meaningfully in the proceedings. Diversionary options may also save resources for law enforcement and criminal justice agencies (Human Rights Commission 2001).

In most jurisdictions in Australia, young people aged 10 or over are deemed to have criminal responsibility. It is the states and territories that hold most of the levers in youth justice, policing and family services, including relevant criminal laws. However, raising the age of criminal responsibility will require changes to state, territory and Commonwealth legislation and implementation will require an increase in essential wrap-around support services. Some jurisdictions have begun legislative processes to make these changes.

The Australian Government is working closely with state and territory governments through the Standing Council of Attorneys-General and the JPP to raise the minimum age of criminal responsibility. The Northern Territory has raised their minimum age of criminal responsibility to 12 years old. The Australian Capital Territory has passed laws to raise the age of criminal responsibility to 12 and then to 14 (with some exceptions) in 2025. In April 2023, Victoria has made an announcement to raise the criminal age of responsibility to 12 years by the end of 2024, and to 14 years in 2027. In June 2022, Tasmania committed to raising the age of criminal detention from 10 to 14 years old (AIHW 2023c).

The JPP provides a forum to discuss matters such as the minimum age of criminal responsibility and support for young people as an alternative to youth detention. The JPP work plan includes improving justice outcomes for First Nations children, with a focus on children under 14 years old.

Research needs to consider the effectiveness of different forms of diversion and alternatives to detention for addressing the over-representation of First Nations young people in the justice system, particularly those in remand and unsentenced detention.

Following the National Agreement, in 2022 the Indigenous Justice Research Program was established to fund academic research to identify and analyse:

• the nature and drivers of the over-representation of First Nations people in the criminal justice and related systems
• First Nations people’s contact with and experience in the criminal justice and related systems
• policies, programs or other activities that will contribute to a reduction in the over-representation of First Nations people in the criminal justice and related systems
• First Nations approaches to crime and criminal justice.

Another critical issue in supporting First Nations Australians who have contact with the justice system is ensuring that universal services are accessible and able to meet their need.

The Our Youth, Our Way, Commission for Children and Young People, report presents the findings and recommendations of the Koori Youth Justice Taskforce and the Commission’s systemic inquiry into the over-representation of Aboriginal children and young people in Victoria's youth justice system. The Commission found that services designed, controlled and delivered by the Aboriginal community have the greatest potential to produce the best outcomes for Aboriginal children and young people in contact with the youth justice system (Commission for Children and Young People 2021). The Yoorrook Justice Commission, the first formal truth-telling process into historical and ongoing injustices experienced by First Peoples in Victoria, also emphasised that successful programs are First Peoples designed, led and delivered and focus on providing culturally aligned support.

A study exploring the role of Aboriginal Community Controlled Health Services (ACCHSs) to provide holistic primary health care for First Nations individuals inside or leaving prisons identified experiences and challenges for ACCHSs to deliver culturally appropriate and effective services to First Nations people in prison. Findings showed that while most participant ACCHSs had delivered services to people in the community upon release from prison, opportunities to deliver primary health care services to individuals in prisons were very limited. Two key barriers to implementing holistic and culturally appropriate health care in prisons were lack of access to people in prison and lack of sustainable funding to deliver services in prison (Pettit et al. 2019).

Additionally, access to health services is needed both prior to imprisonment and post-release (Lloyd et al. 2013). Accessing health care post-imprisonment may require 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 programs for people in prison and their families (Nettleton et al. 2007; Tongs et al. 2007).

The Australian Government is working with First Nations communities and organisations and state and territory counterparts through the JPP and the Health Ministers Meeting to improve health outcomes for First Nations people in the justice system. Through the Aboriginal and Torres Strait Islander Health Roundtable, First Nations health leaders and Health Ministers have agreed to further explore opportunities to improve access to culturally safe and appropriate health care in prisons and hospitals. This includes considering strengthening the role of ACCHSs in custodial settings.

The Department of Health and Aged Care has commissioned an independent Review to consider current state and territory approaches, barriers to culturally safe health care for First Nations people in prison and youth detention, and opportunities for systemic reform. The Review will include comprehensive stakeholder consultation with government custodial and health representatives, the ACCHS sector and key experts, and will include consideration of relevant coronial inquiries. The final report and recommendations from the Review will be provided to Health Ministers in mid-2024.

Alongside the Review, the Department is also considering the role of the ACCHS sector in delivery of health care for First Nations people within correctional facilities. The Department is working in partnership with the National Aboriginal Community Controlled Health Organisation and ACCHSs to identify which service delivery models are effective and to build the evidence base on the impacts of services led by ACCHSs on prisoner health care and outcomes. A further area in which improvements are needed is in the collection of data to allow the needs of First Nations people in prison to be identified and addressed. The Australian Government is working with states and territories to develop nationally comparable First Nations offending and victimisation data sets that will help with identifying areas of greatest need and monitoring trends. However, more evidence is required regarding which prevention strategies and interventions are effective in reducing victimisation, offending and reoffending, and contact with the criminal justice system. There are also a number of gaps in the evidence regarding youth justice supervision, children intersecting between the child protection and youth justice systems, tracking movement into adult detention, and the health of those under youth justice supervision.

The Australian Bureau of Statistics is working with corrective services agencies to explore ways to improve prisoner flow data to build a more accurate picture of incarceration (ABS 2019b). National reporting of prison separations will help inform through‑care services for those released from prison (Avery & Kinner 2015).

 

The policy context is at Policies and strategies.

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