Why Are So Many Indigenous Australians Incarcerated?

In mid-January Australia faced questioning by the United Nations Human Rights Council, as part of its universal periodic review. The review is a process that takes place every five years, and provides the opportunity for countries to demonstrate the actions they have taken to improve human rights, but also affords other states the opportunity to scrutinize their claims. While the review spent considerable time focusing on Australia’s policy of offshore detention for asylum seekers, another major concern was the consistent and continuous overrepresentation of Indigenous Australians in the country’s prison system – a problem that Australia seems reluctant to truly confront.

The statistics on the incarceration of Indigenous Australians are glaring. While Indigenous Australians comprise just 3.3 percent of the Australian population, they account for 28 percent of the prison population. Around one in five male Indigenous Australians have been incarcerated at some point in their life. In regard to youth detention the problem becomes even more pronounced. Indigenous Australians are 6 percent of young people between the ages of 10 and 17, yet make up 57 percent of those in youth detention. This percentage rises again to 78 percent for those between the ages of 10 and 13. 

Indeed more than two dozen countries used the review to inquire about why Australia’s age of criminal responsibility remains at 10 years old. In 2019 the U.N.’s Committee on the Rights of the Child recommended that 14 years old be the minimum age of criminal responsibility globally. Contact with the criminal justice system at a young age frequently traps children within the chain of reoffense and reimprisonment. According to a 2016 report by the Sentencing Advisory Council in the state of Victoria, 94 percent of children who are placed in detention between the ages of 10 and 12 return to prison by the time they are 18.

There are two broad reasons as to why this level of incarceration occurs in Australia. First, there are the social factors such a continued economic disadvantage, the intergenerational trauma of colonization and dispossession, lower educational outcomes, substance abuse, and homelessness. Second, there are structural biases and discriminatory practices within the justice system. The justice system pursues Indigenous Australians with greater force than it does other groups, imposes punitive bail conditions, and demonstrates a failure to recognize cultural differences in both policing and judicial practices, which often lead to negative misunderstandings. 

In 2008 the Council of Australian Governments – the body that manages relations between the federal and state governments – launched a nationwide strategy known as “Closing the Gap” to find ways to address these inequalities. A number of targets were set to address Indigenous disadvantage and reduce the disparities in early childhood education, school attendance, literacy and numeracy attainments, and employment outcomes. These outcomes have a direct effect on incarceration rates. 

Yet according to a study published in a major public health journal in May last year, progress on these issues has been “negligible.” Only minor gains have been made with early childhood education and the completion of high school. Although not a focus of the Closing the Gap strategy, urban poverty for Indigenous Australians has also reduced in the past decade.

However, over the period since Closing the Gap was launched, rates of Indigenous incarceration have increased. Although the Indigenous youth incarceration rates have dropped in raw numbers, the percentage of incarceration in comparison to other Australian groups has increased. This indicates that while the justice system has taken a different approach to youth detention overall, Indigenous Australians are still far more likely to find themselves in detention at an early age.

This is clearly a domestic embarrassment, but by gaining the attention of the U.N. Human Rights Council Australia’s difficulty in providing pathways to human flourishing for its Indigenous population is now also an international embarrassment. Of course, disingenuous criticism from countries like China about Australia’s treatment of its ethnic minorities should not distract from the fact that there are very real issues that require serious attention.

A 2020 report titled “Overcoming Indigenous Disadvantage” by the Productivity Commission indicated that increasing the minimum age of criminal responsibility from 10 to 14 could lead to a decrease of around 15 percent in the number of Indigenous Australians who are being incarcerated. At the very least, Australia should be looking to bring itself in line with this international norm as a pathway toward addressing the vast overrepresentation of Indigenous Australia’s in the country’s prison system.