The great divide

Indigenous women are the fastest-growing incarcerated demographic in Australia. Yet they’re often the first to be sidelined during legal debates. A new cross-disciplinary research project is set to change the way gender, Indigenous identity and sentencing are analysed, and enable Indigenous women to affect meaningful change in Australia’s criminal justice system.

Australia’s approach to imprisonment is reaching a crisis point, divided along racial and gendered lines. Despite the urgent recommendation of the 1991 Royal Commission into Aboriginal Deaths in Custody to adopt measures to reduce the Indigenous prison population, 25 years later the number of Indigenous people in custody continues to rise.

Indigenous women are now the fastest-growing incarcerated demographic in Australia, and criminal justice reform has failed to address their circumstances.

Commissioner Elliott Johnston, in his report to the Royal Commission into Aboriginal Deaths in Custody, referred to the fact that “in certain circumstances Aboriginal people may receive longer sentences for the same offence than non-Aboriginal people”.

Accordingly, the Commission recommended that sentences other than prison be promoted for Indigenous offenders. In the context of law and order agendas, governments have not implemented this recommendation, instead they have introduced legislation that has increased maximum penalties, reduced non-parole periods and expanded mandatory prison penalty regimes.

In 1992, the Supreme Court of New South Wales accepted submissions of the Commission and introduced the Fernando principles. The principles are a series of very particular, legal questions that are supposed to account for the unique circumstances of Indigenous offenders and to promote non-prison sentences.

More than 20 years later, in 2013, the High Court’s widely-publicised decision of Bugmy determined that childhood “deprivation” is relevant to reducing a prison sentence. However, it did not give any allowance for considering systemic Indigenous circumstances in postcolonial society.

In short, neither the Fernando nor Bugmy decisions provided precedent for sentencing Indigenous women specifically, and so sentencing law remains silent on whether gender’s role in the lives of Indigenous women can be accounted for, and how.

The reality is, the Fernando principles offer little reprieve for the sentencing issues facing Indigenous women. Their experiences of deprivation and systemic circumstances are informed by the contribution that gender makes to their postcolonial experience. And the factors accounted for in Fernando don’t closely resemble the deprivation of Indigenous women at all.

Similarly, a gendered analysis of Bugmy reveals much of Indigenous women’s colonial ‘deprivation’ – like family violence and the removal of their children – is not played out during childhood (and therefore not relevant to reducing a prison sentence).

The result? Indigenous women are left in a race-blind sentencing gap.

Most Indigenous women in prison have committed minor offences and cycle in and out of prison. Their crimes primarily relate to unlawful driving, property and breach of court orders. These women have a lack of specialised ‘throughfare services’ (like housing, education, and financial, family violence and other assistance services) before, during and after prison.

Many have also experienced adverse state interventions, including the removal of their children and over-policing, while simultaneously experiencing little by way of support when they are victimised.

The majority of Indigenous women’s sentences are handed down by lower courts, which are under-resourced to provide support, to supervise or administer non-prison sentences, and, in some cases, to adequately investigate the Fernando principles or other factors that might reduce an Indigenous woman’s sentence.

Couple this with underfunded Aboriginal legal services and even the flawed sentencing options that are presently available to Indigenous women go under-utilised.

Ultimately, the crisis in the over-imprisonment of Indigenous women who are affected by colonisation reflects an unshakeable pillar of criminal justice around which social justice has been trying to negotiate – individualised justice.

Bugmy and Fernando are interpretations of individualised justice – courts must account for the same sentencing principles afforded to any other offender in order to give a fair sentence. From this perspective, considering some forms of deprivation that are linked to the circumstances of an Aboriginal person is one way to ensure Aboriginal people get individualised justice.

Of course, individualised justice is not without its hazards. It seriously restricts the ability of lawyers to advocate based on the long-standing and systemic disenfranchisement of Aboriginal peoples. It also tangles the narrative of sentencing advocacy in a psycho-social conversation about individual faults, illness or weakness that can dehumanise offenders.

Even where those arguments succeed (from a body of case law we can see that for Indigenous women Fernando principles are not often raised) the law’s therapeutic approach is limited by law-and-order politics, resource constraints and a failure to link trauma to offending. That de-contextualised and individualised pathology of colonial trauma should concern us.

So, what can be done to loosen the tightening carceral net around Indigenous women? UTS Law’s Associate Professor Thalia Anthony, Director of Jumbunna Research Larissa Behrendt, and myself are setting out on an Australian Research Council-funded project to find out.

Although the project is in its early stages, it heralds a promising shift in the way gender, Indigeneity and sentencing are analysed, and will account for the expertise of the judiciary, legal services and incarcerated Indigenous women alike. Such an analysis has never been more crucial.

In this project, we are also building on established knowledge. We know, based on the literature, that a significant problem underpinning reform efforts is that they are focused on the patterns of risk and deprivation experienced by Aboriginal men.

What is needed is an informed, interdisciplinary conversation about the intergenerational, gendered impacts of colonisation, and the Indigenous relationship to the settler criminal justice system. We are drawing on the expertise of Indigenous women who work in the community to support other Indigenous women, including those who have interactions with the criminal justice system, as advisors who direct this vital research.

We have witnessed the consequences of sidelining Indigenous women in this conversation. To begin to meaningfully address the criminal justice system’s failings, it must be led by them.