• Introduction
• Need for separate consideration of women
• Statistics
• Context of offending
• Discrimination
• Role in the family and the community
• Women’s experience of prison
• Sentencing options and initiatives
• The criminal justice system generally
• Conclusion

6.1 This chapter looks at the sentencing of Aboriginal female offenders. The several reasons for singling out Aboriginal women are set out below; but it is possibly sufficient justification that Aboriginal women are over-represented in prisons to an even greater extent than Aboriginal men, that this over-representation is increasing, and yet Aboriginal women remain largely invisible in the picture of criminal justice. Research, policies, programs and correctional institutions focus almost entirely on the needs of the male offender. As Brooks points out:

[s]ince the Royal Commission into Aboriginal Deaths in Custody, much has been written about the impact of the Australian criminal justice system on Aboriginal and Torres Strait Islander men. By contrast, there is relatively sparse literature on Aboriginal and Torres Strait Islander women and the law.¹

6.3 Although this chapter does not examine the position of Aboriginal women as victims, violence against Aboriginal women by Aboriginal men, particularly in a domestic context, is relevant in several respects to a review of sentencing law and practice. There appears to be a misapprehension that violence against women is accepted in, or even part of, Aboriginal culture, or at least not viewed as seriously as it is in non-Aboriginal culture. This is a fallacy which needs to be dismissed from any view of Aboriginal culture. This is discussed in more detail in Chapter 3, Aboriginal Customary Law. Domestic violence also impacts on offending patterns of Aboriginal women. There is evidence to show a direct correlation between violence and abuse experienced by Aboriginal women, and their patterns of criminal behaviour. This is discussed under the heading “Context of Offending”.

NEED FOR SEPARATE CONSIDERATION OF WOMEN

6.4 In a report on sentencing Aboriginal offenders, separate consideration of Aboriginal female offenders is necessary for the following reasons:

• Aboriginal women have been neglected by the criminal justice system. (See further under the heading “Statistics”) Baldry warns that “[w]omen are a minority within the justice system and vigilance is needed to ensure their particular needs are not subsumed”.³
• Generally, the types of offences committed by Aboriginal women are different from those committed by Aboriginal men. The vast majority of female inmates do not pose a threat to society and are classified as minimum security.⁴
• Aboriginal women frequently have a pivotal role in the family and community. In particular, they are often bringing up children alone, or, at least, unsupported. Any consideration of sentencing of Aboriginal women must take into account the effect on their families and communities. (See “Role in the Family and the Community”)
• There are a number of factors pertaining exclusively to Aboriginal women, as compared with Aboriginal men, which are highly relevant to their offending behaviour and which should be taken into account in determining sentences. (See “Context of Offending”)
• Aboriginal women experience prison differently from Aboriginal men. The effect on women of incarceration needs to be borne in mind, both in considering whether to give a custodial sentence, and in recommending custodial programs and correctional centres. In particular, most mothers are acutely affected by their separation from their children. (See “Aboriginal Women’s Experience of Prison”)
• Aboriginal women experience discrimination for reasons of both race and gender. (See “Discrimination”)
• There is anecdotal evidence to suggest that Aboriginal women are taking responsibility for offences committed by their male partners and relatives, especially if the woman does not have a prior criminal record but the man has a lengthy record. The reported offences range from petty theft and driving offences to robbery.⁵

Numbers in the criminal justice system

6.5 Despite the significant over-representation of Aboriginal people in the criminal justice system in New South Wales,⁶ only a small percentage is female.⁷ Consequently, the special issues surrounding the sentencing of female offenders has largely been overlooked by researchers, relevant authorities and policy-makers. The Minister for Corrective Services, the Hon R J Debus, MP, has acknowledged this deficiency:

All too often, programs and policies are based only on the needs of the majority Anglo-Celtic male population, as though their experiences were generic to the inmate population as a whole.⁸

New South Wales was the major contributor to the national increase in Aboriginal women in prison. Between 1987 and 1991 the number of Aboriginal women in New South Wales prisons rose by no less than 168%. It is worth noting that while the number of Aboriginal women in prison rose by 63% nationally, the corresponding increase for Aboriginal men was 24%. Thus in recent years there has been a general increase in the imprisonment of indigenous people in Australia. However that increase has disproportionately impacted on indigenous women.¹⁰

Deficiencies in statistical information

6.8 Problems exist concerning data collection relating to Aboriginal offenders. The New South Wales Bureau of Crime Statistics and Research does not separately record the number of Aboriginal women convicted, nor give a profile of the types of offences committed by Aboriginal women. Neither do the courts record the number of Aboriginal women coming into the criminal justice system, nor the types of offences bringing them before the courts. The National Prison Census gives a breakdown of Aboriginal and non-Aboriginal inmates, and the offences for which they have been imprisoned, but not a corresponding breakdown of female and male Aboriginal inmates.

6.9 In 1985, a Report of the Task Force on Women in Prison to the Minister for Corrective Services¹¹ observed that there was no research information or clear policy available specifically on Aboriginal women and the criminal justice system, and recommended that funds be sought for a research project on Aboriginal women and imprisonment in Australia. To date, there has been no specific response to, or implementation of, this recommendation.

6.10 In Western Australia, the 1994 Chief Justice’s Taskforce on Gender Bias noted a similar “dearth of readily available official information concerning Aboriginal women”. It concluded that:

proper study does and will reveal the disadvantaged positions of Aboriginal women compared with both other Aboriginal and non-Aboriginal persons. But it is only with full and proper information that the full extent of the problems can be properly revealed.¹²

Recommendation 7

The following statistical information about Aboriginal offenders, with breakdown into gender categories, should be compiled and published at regular intervals:

• the numbers coming into the criminal justice system;

• the numbers being convicted of a criminal offence;

• a breakdown into types of offences for which a conviction is entered;

• a breakdown into types and lengths of sentences given; and

• the numbers in all correctional centres.

6.12 In determining an appropriate sentence, the judicial officer takes into account the circumstances and context of the offence, including the nature of the offence and of the offender.¹⁴ An offender’s Aboriginality is not relevant per se but is relevant in so far as it explains, or throws light on, the circumstances of an offence:¹⁵

The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group.

But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist by reason of the offender’s membership of an ethnic or other group.¹⁶

Historical context

6.14 Over the last two hundred years, Aboriginal women have suffered a loss of position and esteem in their culture which has had a deleterious effect on their sense of purpose and well-being and must, logically, impact on behaviour. It is necessary to understand the high status which women traditionally enjoyed in Aboriginal culture in order to comprehend the extent of their dislocation and disempowerment.

6.15 Women traditionally performed different, but equally important, roles from those performed by men. Contributions made by each gender to the functioning of the community were equally valued. As a result, the status of Aboriginal women was comparable with that of men:

They [had] their own ceremonies and sacred knowledge, as well as being custodians of family laws and secrets. They supplied most of the reliable food and had substantial control over its distribution. They were the providers of child and health care and under the kinship system, the woman’s or mother’s line was essential in determining marriage partners and the moiety (or tribal division) of the children.¹⁷

6.17 Following the arrival of non-Aboriginal peoples in Australia, there was a shift in the balance of power within Aboriginal society, and an undermining of the status of Aboriginal women, which subsequent policies and practices of government perpetuated. Upton submits that:

[t]he differences that revealed Aboriginal women as having a distinct and separate social, religious and legal role in Aboriginal society, and hence a separate, independent and respected voice, were either ignored, trivialised or simply remained undiscovered [by the anglo-European colonisers].¹⁸

The white men arrived and so too did a white value system which saw a different type of person (that is, white and male), placed at the top of the ladder. Along with their racist, pre-conceived notions of Aboriginal people, they brought with them … a belief that women did not have the same importance or significance to society as men. … It has been easy for the new white population to assume that Aboriginal women were not equally important to Aboriginal men. … Aboriginal women face both racism and sexism. … [I]t must be remembered that Aboriginal women have additional barriers which non-Aboriginal women do not have to face, stemming from a drastic and rapid change in lifestyle, changed roles and responsibilities and a shift in power structures within communities.¹⁹

Aboriginal men have been selected and groomed for special positions in the public service. Aboriginal men, in outback Australia, have been taught by non-Aboriginal men to consider themselves superior. … Aboriginal women have also been similarly affected. They have been told so often that it is their men who own the land, know the only sacred sites and rituals and make the decisions. When their own life experiences disagree with the constructs being put upon them by non-Aborigines, they are confused.²⁰

6.21 A further historical factor relevant to offending by Aboriginal women is the “assimilation” policy which resulted in Aboriginal children being taken from their mothers.²¹ This has been described as “[o]ne of the most disempowering acts of all for women.”²² While this was a policy which has impacted on both sexes and “will continue to be a major factor in Aboriginal over-imprisonment for both sexes for a long time to come”,²³ the special effects for women need to be acknowledged. A large proportion of Aboriginal women were either removed as children from their parents by the State, and have survived childhood as wards of the State,²⁴ or have had their own children removed from them, or have experienced the stress of seeing members of their extended family so treated.²⁵ Women who were institutionalised as children had no opportunity to learn parenting skills and undoubtedly face greater difficulties and stresses in bringing up their own children.

Contemporary context

6.22 Many Aboriginal women frequently experience violence, physical and emotional abuse,²⁶ substance abuse²⁷ and economic hardship; the latter, often because Aboriginal women have low levels of education and difficulty finding, and sustaining, employment. Many Aboriginal women are bearing the considerable emotional and financial stresses of having the responsibility for raising children solely, or without adequate support.²⁸

6.23 Payne notes that, in the 1990 National Prison Census, the offences recorded as being most frequently committed by Aboriginal women involved non-payment of fines, drunkenness and social security fraud, which she describes as crimes which are “the result of extreme poverty”.²⁹ Research on women generally as Social Security offenders supports the argument that women’s offending often results from economic need.³⁰

6.24 In relation to Social Security offences, however, attention needs to be drawn to the possibility that some Aboriginal women are simply not understanding their rights and obligations regarding receipt of social security payments. For example, there have been incidences where the woman’s partner has died, a Social Security cheque has been issued shortly after his death and the woman thought she was entitled to keep it.³¹ Awareness of this issue, and the appropriate dissemination of information, could readily eliminate the risk of inadvertent transgressions. The Dubay Jahli report recommended:

[t]hat ATSIC liaise with the National Network of Welfare Rights Agencies to produce an information booklet and other educational materials informing Aboriginal women of their entitlements to Department of Social Security benefits and liabilities for overpayments and fraud.³²

6.26 One study noted that “almost all the Aboriginal women in Mulawa Correctional Centre (“Mulawa”) had, at some stage in their lives, been sexually assaulted and/or physically abused”.³⁶ Another study found, through informal consultation, that almost 90% of Aboriginal women in prison had experienced forms of sexual abuse as children and as adults, by both white and black males.³⁷ The Indigenous Services Unit of Corrective Services conducted an informal survey of a small sample group (18) of Aboriginal female inmates which found that every woman in that group had suffered abuse of some description.³⁸

6.27 Cunneen states that Aboriginal women are more likely to be in prison for assault, than non-Aboriginal women (in 1992, 12.2% compared with 1.1%) and notes that it has been suggested that, because Aboriginal women are the victims of domestic violence, this factor may have some bearing on the number of Aboriginal women imprisoned for offences against the person.³⁹ He draws attention to Canadian literature which has linked high levels of domestic violence to the disproportionate imprisonment of Canadian Indigenous women for crimes against the person.⁴⁰ Cunneen summarises the Canadian author’s arguments as follows:

[T]here may be a strong relationship between the contemporary condition of indigenous men as a result of colonisation, male violence against indigenous women and subsequent criminal activity by indigenous women.

She suggests three ways that indigenous women’s conflict with the law could be related to family violence: firstly indigenous women might retaliate against violence by the use of violence; secondly, by escaping from violent or abusive situations there may be a resort to alcohol or drug abuse; and thirdly, the victimisation of women may itself cause abuse or neglect of others.⁴¹

6.29 The enormous pressures arising from the combined effects of poverty, violence, sole parenthood, alcohol and substance abuse, and gender and race discrimination give some indication of the vulnerability of Aboriginal women to contact with the criminal justice system. The RCIADIC found that the underlying problems affecting most Aboriginal people, of racism, alienation, poverty and powerlessness, had lead to hopelessness and alcoholism. How much greater is the load on Aboriginal women who, in addition, suffer violence, abuse and sexism.⁴³ The RCIADIC was not overstating the position when it found that the 11 Aboriginal and Torres Strait Islander women who died in custody had experienced considerable disadvantage within the wider system, as well as within the criminal justice system. But “until the law recognises the socially and economically oppressed position of Aboriginal and Torres Strait Islander women, it will continue to treat them unequally and, therefore unjustly”.⁴⁴ To this end, it is vital that the criminal law “recognises not only their experiences as women, but as Aboriginal women”.⁴⁵

DISCRIMINATION

6.30 The Report of the Chief Justice’s Taskforce on Gender Bias⁴⁶ cautions that Aboriginal women may be denied power under and before the law on three counts.⁴⁷ It found that Aboriginal women’s experiences with the law were affected by their race, their gender and, in addition, their low socio-economic positions, often lower than many other persons in society, including other women. These factors impact on Aboriginal women’s feelings of alienation and on their levels of self-esteem.⁴⁸

6.31 Cunneen and Kerley argue that the criminal law, from policing to sentencing, treats Aboriginal women more harshly than any other group. They refer to empirical evidence which “suggests strongly that proportionately more Aboriginal women are detained in police custody for minor offences of public disorder [including drunkenness] than other groups.”⁴⁹

We would argue that particular conceptions of gender and Aboriginality have the effect of creating more punitive interventions in relation to Aboriginal women. A reading of the reports into deaths of Aboriginal women in custody by [RCIADIC] supports such a claim. Many of the women had been in prison on previous occasions. Yet what is remarkable in reading through these cases is that the women were being constantly criminalized because of poverty and alcohol addiction. In addition there was pronounced punitiveness to the intervention.⁵⁰

One justice in Western Australia stated that he sentenced Aboriginal and Torres Strait Islander women to terms of imprisonment for ‘welfare’ reasons. ‘Sometimes I sentence them to imprisonment to help them … To protect their welfare I put them inside for seven days. They get cleaned up and fed then’.⁵³

6.33 One of the most significant factors affecting all female offenders concerns their relationship with, and responsibility for, their families and children. The role of Aboriginal women in their immediate and extended families is particularly relevant to sentencing. Aboriginal women have the pivotal role in managing the family infrastructure.⁵⁴ Further, there is a high incidence of Aboriginal families where the father is absent (often because he is incarcerated) or ineffective as a parent due to drug and alcohol abuse, or has died. It has been estimated that more than 80% of incarcerated women are single parents. Even though the numbers of Aboriginal female offenders are far less than men, the impact on the community, and the hardship to others, can be greater if women are jailed. Can and should this factor be considered in determining an appropriate sentence?

6.34 In R v Wirth,⁵⁵ the South Australian Court of Criminal Appeal held that the fact that imposition of a sentence of imprisonment upon an offender is likely to cause hardship to the family, or to others closely connected with him or her cannot be taken into account in mitigation of sentence, except “where the circumstances are highly exceptional, where it would be in effect inhuman to refuse to do so”. However, Bray CJ noted that if imprisonment will bear with special hardship on an offender, that can always be taken into account; “and it may bear with special hardship on him [or her] because of its effect on his [or her] family”.⁵⁶ Further, Bray CJ noted that “circumstances peculiar to the offender himself [or herself], as opposed to circumstances peculiar to his relations, can always be taken into account. His [or her] family circumstances, for example, may explain or excuse the crime or provide the motivation of it”. The high incidence of “crimes of poverty” among female offenders is often motivated by the need to provide for dependent children.

6.35 The Northern Territory Supreme Court in Wayne v Boldiston,⁵⁷ following R v Wirth, found that the fact that the offender’s dependent children would have to be separated and cared for by various relatives if she were to be sentenced to imprisonment was not sufficiently exceptional so as to be a relevant factor.⁵⁸ In R v Burns,⁵⁹ in which the appellant was the mother of two children aged four and ten, the court adopted dicta of Roden J in R v Lux⁶⁰ that “despite the sympathy and compassion [arising from the prospect of the offender’s imprisonment], the courts cannot, by their sentencing decisions, create a class of people who are immune from the normal consequences of their criminal conduct”.⁶¹

6.36 McInnes SM, in a comprehensive submission to the Commission, argues that the precedent set by R v Wirth has a particularly hard impact on Aboriginal women. She urges that legislation should require the sentencing court to take into account the effect of a sentence on dependents where the offender and/or the victim is both a caregiver and the dependents’ primary source of financial and/or emotional support.⁶²

6.37 Chapter 2 explains the Commission’s reasons for not recommending legislative inclusion of principles applicable to sentencing Aboriginal offenders. In accordance with this reasoning, the Commission is unable to make McInnes’s suggested recommendation. However, the Commission recognises that Aboriginal women frequently occupy a position in their families which reinforces the principle of imprisonment as a last resort, and that resources should concentrate on diverting Aboriginal women from the criminal justice system.⁶³ The Commission notes the recommendation of the Standing Committee on Social Issues, in its Report, Children of Imprisoned Parents, that prison should only be used as an option of last resort when sentencing an offender who is the parent of dependent children, irrespective of the existence of mothers’ and children’s units in prison.⁶⁴

6.38 If a custodial sentence must be given, it should be served in institutions, or on programs, which minimise hardship to the family and community. Where a non-custodial sentence is appropriate, thought needs to be given to ways in which the needs of the family can be accommodated within the serving of the sentence. Sentencing options currently available which may be appropriate for mothers, and ideas and recommendations for reform, are examined under the heading “Sentencing Options and Initiatives”.

WOMEN’S EXPERIENCE OF PRISON

6.39 The RCIADIC Report highlights the particular dangers of incarceration for Aboriginal and Torres Strait Islander people, which for Aboriginal women carries additional factors potentially increasing their suffering.

6.40 This chapter has already drawn attention to the central position which many Aboriginal women occupy in the family, the high proportion of sole (female) parent households and the large percentage of single Aboriginal mothers in prison. For all inmates who are mothers, it is likely that imprisonment will be particularly “stressful and traumatic”⁶⁵ because of the separation from their children. Brooks argues that this is likely to apply to a greater degree to Aboriginal and Torres Strait Islander women if their families are matrifocal, or mother-centred, in nature, which they often are in New South Wales:

This matrifocality of many families, which is largely the product of absent or “floating” male partners, places total responsibility for childcare on these women along with the affective stress that this obligation implies. Furthermore, I believe that imprisonment for Aboriginal and Torres Strait Islander women is far more stressful than for women generally. It removes these women from the security of a community life which, frequently is so tightly integrated on the basis of contiguity and kinship as to be totally alien to all but those who live in it. To be removed from children who are solely dependent on them, and from a community on which they are so largely dependent socially and – often – economically, is a compounding effect that only imprisoned Aboriginal and Torres Strait Islander women have to endure.⁶⁶

Kooris would never look at screws in the eyes when spoken to … because our people knew how they felt about us … You [can] … feel or sense the prejudice. Whenever there was a conflict we knew who would cop the consequences. There was one time I remember there was chaos in one wing … [and] most of the blacks got segro for three months.⁶⁸

Recommendation 8

Programs to raise awareness in the judiciary, and all others involved in the sentencing process, of cross-cultural issues should include a component dealing specifically with Aboriginal women offenders. Among other things, such programs should focus on increasing awareness and understanding of:

• the circumstances surrounding the offences committed by Aboriginal women, including their historical and current social contexts;

• the role which Aboriginal women play within the family and community;

• the potential for Aboriginal women to suffer from both racism and sexism; and

• the impact of imprisonment upon women and their families.

6.42 Although the small number of female offenders makes it difficult to justify and finance a wide range of sentencing options, neither is it appropriate to limit the range of options. Sentencing Aboriginal female offenders requires:

• a flexible approach;
• an understanding of underlying causes of offending behaviour; and
• open-mindedness and lateral thinking in finding the most effective ways to punish the crime, rehabilitate the offender and reduce recidivism.

Full-time custodial sentences

6.44 At present, all female inmates are received into either Mulawa or Grafton Correctional Centre (“Grafton”), both of which are classified “variable security facilities”. Provided that they have no drug, alcohol or psychiatric problems requiring attention, some inmates are transferred to Emu Plains Correctional Centre (“Emu Plains”), a minimum security facility. Women are occasionally housed at the Broken Hill Correctional Centre but only if they are from the local area and serving a very short sentence. It is not a satisfactory option for female offenders because it is an institution primarily for men. Women are segregated and there are inadequate facilities for longer term female inmates. Appendix B sets out in greater detail information in relation to the custodial facilities available for female inmates.

6.45 Female offenders from rural New South Wales are disadvantaged by the lack of facilities for women in country areas. The only rural custodial facility is the female wing of Grafton; otherwise, the correctional and transitional centres are located in and near Sydney. Distance from their families and communities increases the strain upon rural women, which can be more acute for Aboriginal women.⁷⁰ On the other hand, a female offender in Grafton may miss out on the more extensive programs and services available to women in single-sex prisons. Because the Grafton Women’s Unit is on the site of a men’s jail, the policies and management are male-orientated. Prison policies and programs are not usually formulated to meet the specific needs of women, much less Aboriginal women.

6.46 In effect, Mulawa and Emu Plains are presently the only facilities available for the majority of female offenders, and yet for some prisoners neither is suitable. Although Corrective Services has planned the building of further facilities,⁷¹ none are planned for women offenders in the State’s west, where there are significant numbers of Aboriginal people. A flexible approach to incarceration, where a custodial sentence must be given, is imperative. Creative alternatives such as mobile prisons, along the lines of those utilised for male offenders,⁷² where female offenders are transported to carry out a particular project, or Women’s Business camps,⁷³ or specialised programs implemented in prisons, or to which offenders are taken, may all be effective in reforming criminal behaviour in Aboriginal women.⁷⁴ At present, there are no women participating in mobile camps because, to do so, an inmate must have a C3 security classification. However, most women with a C3 classification are accommodated at Emu Plains. The use of mobile camps for Aboriginal women may give greater scope for them to perform work closer to their communities and in a more culturally appropriate environment.

6.47 All women in custody face problems with security classification. Most women are classified as minimum security but the only all-female, minimum security facility available is Emu Plains. Mulawa has undergone reclassification from a maximum, to a minimum, to a variable security facility, without tangible practical effect. Women of all classifications are accommodated at Mulawa, making it difficult for benefits and privileges to be given to minimum security inmates. Similarly, the female unit of Grafton takes inmates of all security classifications.

6.48 As a matter of Corrective Services policy, inmates serving short sentences serve them at Mulawa. It is not apparent why this must be so. Officers within Corrective Services are of the view that it would be more appropriate to serve short sentences at Emu Plains. Offenders serving short sentences have not committed a serious offence and would be better off at a minimum security centre where there is a greater degree of integration with the community, as well as pre-release programs.

6.49 There may also be greater opportunity at Emu Plains than at Mulawa to address the specific needs of short-term offenders. This category of inmate is often overlooked in the corrective system simply because there is insufficient time for them to be assessed, assigned to a program and to complete a program, or to be treated in other ways. Consequently, recidivism for minor offences, attracting short custodial sentences, is a problem. Workers within Corrective Services believe there should be more services for this category of offender in order to stop the cycle of recidivism. As well, more support on release, such as provision of short-term and emergency accommodation and the establishment of a Mentor Program, may help to avert further offending.

Recommendation 9

The Department of Corrective Services should give consideration to accommodating women serving short sentences at minimum security correctional centres rather than at Mulawa Correctional Centre.

6.50 In finding suitable work for inmates, Corrective Services frequently liaises with community organisations; many community projects are undertaken by inmates. Corrective Services should ensure that, where possible, it involves Aboriginal women’s organisations in the provision of work to Aboriginal female inmates.

6.51 In June 1994, Corrective Services endorsed the Women’s Action Plan – A Three Year Strategy for Female Inmates in NSW Correctional Centres (“the Action Plan”).⁷⁵ This was a response to the perception that the needs of women in custody have traditionally been subordinated to those of male inmates. It resulted in an upgrade to the facilities and programs available to women in custody. Some of the initiatives for Aboriginal female inmates which Corrective Services has implemented, and which the Commission commends, include the appointment to Mulawa of a female Aboriginal Regional Project Officer and the creation of a “sacred space” within Mulawa for use by Aboriginal inmates. Corrective Services is currently developing Phase 2 of the Action Plan.

Mothers’ and Children’s Program

6.52 At present, mothers who are given custodial sentences may qualify to be placed on the Mothers’ and Children’s Program at Emu Plains or Parramatta. Briefly, this program is open to all female inmates who meet specific criteria, to keep their pre-school aged children with them during their term of imprisonment.

6.53 This is a most commendable approach to meeting the needs of inmates who are mothers, and their families. However, it is limited in several respects:

• school-aged children cannot stay with their mothers, although there is an Occasional Residence Program whereby children can occasionally be accommodated, usually on weekends and school holidays;
• if the woman is serving a long sentence, her child or children may have to be separated from her at some stage;
• most women serving short sentences (say, three months) are accommodated at Mulawa, which does not have a Mothers’ and Children’s Program;
• the Women’s wing of Grafton has a Mothers’ and Children’s Program but it is for babies under 12 months on a short term stay only as the wing is too small to accommodate a full program;
• the program at Parramatta is limited to five mothers.

Recommendation 10

The Department of Corrective Services should institute Mothers’ and Children’s Programs at all correctional centres accommodating women.

Transitional Centres

6.55 Parramatta Transitional Centre, accommodating 22 inmates, is a minimum security, community-based facility. Priority is given to inmates in the last twelve months of their sentence, or who have served a quarter of their sentence elsewhere. Because the centre serves as a transition between a correctional centre and community living, offenders cannot serve a whole sentence there. To be admitted to a transitional centre, an inmate must be the equivalent of a C3 classification (Work or Education Release). The purpose of a transitional centre is to prepare inmates to make the adjustment from full-time custody to living independently and responsibly in the community.

6.56 The transitional centre program is successful in its aims but is assisting only a narrow band of offender. Also, its success is no doubt due in part to the motivation of the women themselves who, in order to reach this stage, have progressed through the prison classification system and have the mettle and determination to reform. That is not to say that the program is redundant. On the contrary, the purpose that it serves is valuable and necessary, and should be continued. It may also be possible, however, to expand the application of the concept to other offenders.

6.57 Chronic recidivists, such as women with chronic drug and alcohol problems, would benefit from the approach of Parramatta, being accommodated in programs which focus on community living skills and effective participation in the community, together with specific programs dealing with the issues giving rise to the recidivist behaviour. The experience of many inmates and ex-inmates with drug and alcohol addictions was that “prison exacerbated their problems, partly because drugs were so readily available inside but also because prison, by its very nature, takes away self responsibility and does not equip someone to return to the community.”⁷⁸

6.58 The Action Plan recommended that two further transitional centres for female inmates be constructed. This recommendation has not been implemented to date. The Commission recommends that further transitional centres be established and, in the process of doing so, that Corrective Services take the opportunity to consider catering to a different type of offender.

Recommendation 11

In accordance with the recommendation contained in its report, Women’s Action Plan – A Three Year Strategy for Female Inmates in NSW Correctional Centres, the Department of Corrective Services should construct additional transitional centres for female inmates in regions of greatest need, and expand the eligibility criteria for all centres.

6.59 Bearing in mind that women with addictions who offend are much more likely than men to have committed theft or fraud rather than a violent offence, a custodial sentence may not be the most appropriate option. An alternative approach to punishment of this type of offender is the use of an intensive supervision order, with attendance at a detoxification unit and drug rehabilitation.⁷⁹

Home detention

6.60 Home detention is an option particularly suitable for women: it enables them “to continue their family responsibilities and relationships with children”;⁸⁰ and because they are likely to be at home with family members, they are less likely to suffer from isolation. The Commission encourages its use in appropriate cases. Chapter 5 discusses shortcomings in the Home Detention Program applicable to Aboriginal offenders generally, including women.

Periodic detention

6.61 Periodic Detention is being under-utilised for female offenders because it is simply too difficult for many women, particularly mothers with dependent children, to report; it is therefore often rejected by female offenders as a sentencing option.⁸¹ Many Aboriginal female offenders do not have a car, nor access to one, and see the distance to centres as too great an obstacle. Mothers with sole childcare responsibilities face difficulties in making themselves available for week-end detention.⁸² This is particularly so if the extended family cannot provide childcare and the woman cannot afford to pay a carer.⁸³

6.62 Campbelltown Periodic Detention Centre provides mid-week detention, but this centre is not open to women. Campbelltown has a large Aboriginal population and Aboriginal workers within Corrective Services have suggested that periodic detention should be available for women there. They also suggest that periodic detention, including mid-week detention, should be available for women at Newcastle, which is central to a number of Aboriginal communities.

6.63 A greater flexibility in the use of existing community centres and institutions as periodic detention facilities, and in the hours when attendance is required, may increase the availability of this option for women. Brand suggests that:

a system of periodic detention that requires female offenders to report to a college, training centre, drug rehabilitation centre or a community corrections centre during school hours, would serve as a true alternative to imprisonment. It would keep the family unit together and provide a means whereby the offender could address the offending behaviour. A number of studies have recognised that periodic detention along these lines would be most suitable for female offenders, particularly those with families.⁸⁴

That the Attorney General direct the Judicial Commission to undertake urgent research into the reasons for the decrease in periodic detention among women.

That the Minister for Corrective Services investigate the reasons for the increase in the cancellation of periodic detention orders, particularly among women, and develop measures to address this issue.

That the Minister for Corrective Services consider the option of women offenders serving their periodic detention order in a rehabilitation or other suitable facility.⁸⁵

6.65 In consultations, it has been submitted to the Commission that the availability of suitable community work, in which periodic detainees are occupied, is insufficient. This acts as a further deterrent to the use of periodic detention as a sentencing option for women. However, this is not an insurmountable obstacle; it merely calls for creative thinking and application to the task of finding suitable work.⁸⁶

Community Service Orders

6.66 A community service order (“CSO”) can be difficult for women with dependent children, particularly very young children, and no extended family, or others, able to provide childcare.

6.67 What is needed is development of specific policies to enable women to fulfil a CSO. Organisations which can arrange childcare, or have a creche in place, or can accommodate the presence of a child without inconvenience, should be targeted and enlisted to provide appropriate work. Alternatives should be sought for ways in which an offender can serve the community. For example, it may be possible for tasks to be performed by the offender in her own home, such as simple clerical work for charity organisations.

6.68 Use should be made of the many women’s committees within Aboriginal communities to make CSOs a more viable option for Aboriginal women. These committees could convene CSO programs, supervise the execution of CSOs and could either provide, or assist in finding, suitable work.

Multi-purpose community centres

6.69 An Aboriginal worker within Corrective Services has advocated to the Commission the setting up of multi-purpose community cultural centres in each regional centre with a significant Aboriginal population. This proposal envisages that such centres would be open to all the community, both Aboriginal and non-Aboriginal, and not just offenders. They could incorporate a creche, and possibly even a pre-school and, ideally, would be located near public transport. The purpose of these centres would be to run courses teaching various vocational and life skills, organise Women’s Business camps for Aboriginal women, organise and co-ordinate programs for community service, including community service camps, operate Personal Development programs satisfying community service orders, and fulfil other community needs. As the centres would benefit the whole community and fulfil needs falling into several different categories, the financial burden of their development could be spread over several government departments. The Commission sees merit in this proposal and recommends its consideration.

Recommendation 12

A multi-purpose community cultural centre should be trialled in a regional area with a significant Aboriginal population. In addition to serving a variety of community needs, the centre should organise and co-ordinate programs satisfying community service orders.

Healing Lodge

6.70 Corrective Services is currently conducting research into a Canadian criminal justice initiative, to assess whether it might be effective within, and can be adapted to, the New South Wales criminal justice system. This initiative is known as the Okimmaw Ohci Healing Lodge. It is a 30 bed treatment facility for Canadian Indigenous women operated by Indigenous staff. Rehabilitation of offenders utilises traditional healing practices, based on healing through Indigenous teachings and culture. The Lodge was developed in accordance with a recommendation of a Canadian Task Force Report into Federally Sentenced Women.⁸⁷

6.71 The Report of the Task Force identified similar problems to those which arise in relation to sentenced women in New South Wales. It found that women were at a disadvantage in comparison with men because of:

• the geographical dislocation of many female inmates from their families, cultures and communities due to the limited availability of provincial facilities for women;
• the security over-classification of these women and the associated lack of significant opportunity for movement to other institutions or lower security facilities; and
• the lack of appropriate women-centred programs, services and assessment tools.⁸⁸

6.73 The main recommendation of the Task Force was that the Prison for Women be closed and that four regional facilities and one Healing Lodge (for Indigenous offenders) be built. It was recommended that the concept of the Healing Lodge be developed by the Correctional Service of Canada in full partnership with Indigenous communities and, more particularly, Indigenous women. It is worth drawing attention, at this point, to the Correctional Service of Canada’s practice of consulting with Indigenous organisations on programs for Indigenous inmates and the establishment, for many years now, of a National Aboriginal Advisory Committee comprised of representatives from the major Aboriginal organisations involved in corrections.

6.74 The Healing Lodge was completed in 1995, with full participation, from conception to implementation, of Indigenous people. The central emphasis of the healing program is on survival of physical and sexual abuse, and freedom from substance abuse, through reconnection with Canadian Aboriginal culture in its broadest sense. The Indigenous Services Unit of Corrective Services is optimistic that a similar initiative, appropriate for Australian Aboriginal women, can be established in New South Wales. It believes that it could be enormously effective in rehabilitating offenders, and in reducing recidivism. The Commission endorses steps to implement a facility along the lines of the Healing Lodge.⁸⁹

Other initiatives

6.75 Other recommendations of the Canadian Task Force included improving inmate programs, incorporating: contracted Aboriginal counselling and Elder services; increased substance abuse programs; therapy for survivors of sexual assault/abuse; increased mental health services; and funding for families of inmates to participate in Private Family Visits.

6.76 The Canadian regional correctional centres, built pursuant to the Task Force’s recommendations, are small facilities accommodating all inmates, regardless of security classification, in community-living houses. A system of classification has been developed specifically for women so that differences in the degree of liberty of movement within a facility is linked to behaviour rather than sentence or offence. The centres are managed on the basis of a wholistic approach to operations, programs and security. The organisational structure is flat, with the potential for staff to get to know each offender, enabling extensive individual interaction. Substance Abuse Treatment Programs have been developed specifically for women. Other programs designed for women which have been implemented include a Living Skills program, Cognitive Skills Training, Parenting Program and a program for violent women, dealing with anger and understanding emotions. It has been found that modifying or adapting programs designed for men is not effective due to the different dynamics and approaches which research has indicated is required for women. A community release strategy specific to women has also been developed. The Commission makes no specific recommendations in relation to these approaches but wishes to draw attention to them as being worthy of consideration.

6.77 In the spirit of the Canadian Healing Lodge and regional centres, Baldry has recommended the development of small, residential centres strategically placed around the State, and run by Aboriginal women, with drug rehabilitation, strong personal support, and living skills and health programs.⁹⁰

6.78 A Canadian research study⁹¹ into the needs of sentenced women released into the community recommended a number of measures to assist these women make the adjustment, and to minimise the possibility of breaching conditions and of re-offending. A number of recommendations have relevance for New South Wales and also deserve consideration. In particular, the study recommended:

• greater flexibility and availability of half-way houses and community programs;
• fewer conditions, as appropriate, imposed for women released on full parole;
• greater availability of low-cost housing, programs for employment, and counselling and programs for the treatment of substance abuse and physical and sexual abuse; and
• financial advice and support.

6.79 An Aboriginal employee of Corrective Services⁹² has suggested the development of a scheme for identifying Aboriginal women both at risk of offending and re-offending. An example of a successfully run scheme to identify female offenders at serious risk of a prison sentence if subsequent offence is committed can be found in North Carolina, USA. Probation and community representatives prepare a “sanction program” which makes use of community services, individual or group counselling, day care provisions and third party supervision. The scheme is a form of intensive supervision.⁹³

6.80 The establishment of a Tresillian-type institution for Aboriginal women would be a useful adjunct to this strategy, as, in many cases, enabling a woman to get away from a male partner who is offending can be an effective preventative measure. The availability of accommodation is a significant issue for Aboriginal women; that there is a need for more “safe houses” is reinforced by evidence of the level of domestic violence which Aboriginal women endure.

6.81 Other Aboriginal workers within the criminal justice system point out that there is very little accommodation for Aboriginal women on Early Release. Most of the accommodation is for men.⁹⁴ Furthermore, of the early release institutions available for women, concerns have been expressed about aspects of the operation of one or two of these. Accreditation of such institutions, setting out clear standards to which they must conform and identifying to whom they are accountable, would be one way of overcoming concerns. Women recently discharged from custody could be also accommodated in the “safe houses” proposed above, while they found more permanent residence.

6.82 Baldry examines other diversionary schemes operating in the USA. These centre on releasing women already imprisoned, and diverting other offenders, into work release and probationary programs. The emphasis is on the individual situations and needs of the offenders. In particular, the emphasis is on addressing financial problems, housing needs, domestic or other violence, drug and alcohol dependency, educational and vocational barriers, mental health, maternal education, childcare issues and life skills training. These programs report low recidivism and a reduction of the numbers of women in prison.⁹⁵

6.83 A report of the Office of the DPP in Queensland into Aboriginal women within the criminal justice system identified:

• a lack of appropriate Indigenous staff within the offices of the DPP and associated agencies in the criminal justice system; and
• a lack of representation by appropriate Indigenous women on advisory bodies and consultative committees which have been established to ensure equity of access to service providers, and to influence policies and programs impacting on Indigenous women.⁹⁶

6.85 A Western Australian Taskforce inquiry into gender bias which looked at Aboriginal women’s experiences of the law⁹⁷ recommended a number of strategies to increase the participation of Aboriginal women in the legal system, thereby giving them greater control over outcomes affecting Aboriginal women. It recommended that:

• more Aboriginal people, particularly Aboriginal women, be encouraged to obtain law degrees and be supported in their studies; the Taskforce noted with approval Pre-law programs run by some universities to help Aboriginal students and an Aboriginal Cadetship program run by the Western Australian Law Society;⁹⁸
• the ability of non-Aboriginal persons to represent Aboriginal women be improved so as to increase the willingness of Aboriginal women to access such services;⁹⁹ and
• positions be provided for Aboriginal women in court offices at all levels, including as support and resource persons.

6.87 The following initiatives available for Aboriginal men appear to be successful and would translate well into similar programs for women:¹⁰¹

• The “Second Chance” program. A similar program for women, incorporating learning Aboriginal culture specifically in relation to females and from a female perspective, would help to increase Aboriginal women’s self-esteem, their sense of identity and the value of their role in Aboriginal society.
• A three day camp-out information seminar is held at Lake Cargellicoe for men only. Again, the emphasis is on increasing self-esteem and social responsibility through cultural teachings. In the 1998-1999 year, Corrective Services ran four camps for women, each accommodating 14 inmates, at Goodooga, in far North-West New South Wales,¹⁰² with a similar aim of increasing self-esteem and social responsibility through developing the women’s Aboriginal identities. The Commission commends this initiative and encourages Corrective Services to continue to hold regular camps. It may also be beneficial to organise cultural camps, or seminars along the lines of those held at Lake Cargellicoe and Goodooga for women at risk of offending. Further, attendance at these camps or seminars may be appropriate for periodic detainees and may satisfy CSOs.
• Doonooche, at Falls Creek outside Nowra, is a residential program for Aboriginal men, accommodating prisoners coming to the end of their term, offenders on bail and self-referrals. A resident Elder takes inmates on culture camps and prepares them for initiation ceremonies. In-house programs include teaching agriculture and numeracy and literacy, and arts and crafts, with other TAFE programs being introduced in the near future. It incorporates a Rehabilitation centre, although it does not cater to those with drug and alcohol problems. It is a highly successful rehabilitative and preventative initiative. The Commission recommends the establishment of a residence for women modelled on Doonooche and catering to the needs of Aboriginal women.

6.88 One of the factors which will be instrumental in the success of sentencing options and diversionary schemes for all offenders is for services to be co-ordinated. Specifically in the context of female offending, Baldry submits that a vital feature of programs to keep women out of gaol is that they be centrally co-ordinated and take the woman’s whole situation into account. She identifies a major problem in New South Wales for female offenders on community service orders as being an absence of co-ordinated services to meet needs associated with physical and mental health, drug and alcohol dependency, social security, housing, employment and childcare.¹⁰³ We would add that not only is there a lack of co-ordination of services, but also, an absence of a wholistic approach to the problem of female offending. This is not confined to those trying to serve CSOs, but extends to women on probation, parole, periodic, week-end and home detention and women who have served a custodial sentence and are trying to avoid re-offending.

6.89 Although a substantial part of this chapter has been devoted to propounding sentencing initiatives and ideas for reform, it is probably of overriding importance to recognise that many solutions will come from within Aboriginal communities. The success of a number of actions taken by Aboriginal women, including night patrols organised by the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council in the Northern Territory, purchase of women-only transport vehicles, collective action against abuse of alcohol in their communities, strategies to prevent family violence, and support schemes for women witnesses and defendants, demonstrate that solutions reside in Aboriginal women and in their communities.¹⁰⁴ On this evidence, the following approach to reform is a valid one:

One important measure to ensure the success of community work remedies is to encourage and facilitate the growth of Aboriginal organisations and infrastructure to provide services to Aboriginal people. … It is through such organisations that the avenue for change will continue to emerge.¹⁰⁵

There has been very little progress for Aboriginal women and their children despite all the myriad reports, Commissions of Inquiry and bureaucratic activity. … I am yet to be convinced, however, that the legal profession and the government have the will and commitment for real justice reform that will restore to Indigenous individuals, our families and communities the ability to rebuild our lives from the multiple intergenerational traumatisations that comprise the colonising impacts. I do, however, have implicit faith in my own people to do the work of healing and rebuilding, of regenerating and restoring. All I ask of government and the legal institutions is that they support us in those endeavours.¹⁰⁶

1. M Brooks, “The Incarceration of Aboriginal Women” in G Bird, G Martin and J Nielsen (eds), Majah: Indigenous Peoples and the Law (Federation Press, 1996) at 267.

2. Australia, Royal Commission into Aboriginal Deaths in Custody, National Report (Five Volumes) (E Johnston, Royal Commissioner, 1991-92) (the “RCIADIC Report”) vol 5 at 82, Recommendation 60: “That Police Services take all possible steps to eliminate violent or rough treatment or verbal abuse of Aboriginal persons including women … by police officers …”. Subsequent reports by bodies such as the National Committee to Defend Black Rights have been critical of the RCIADIC on this point: M Mackay and S Smallacombe, “Aboriginal Women as Offenders and Victims: The Case of Victoria” (1996) 3(80) Aboriginal Law Bulletin 17 at 17. See also M Paxman and H Corbett, “Listen to Us: Aboriginal Women and the White Law” in (1994) 5(3) Criminology Australia 2.

3. E Baldry, “Convicted Women: Before and After Prison” (1997) 8(3) Current Issues in Criminal Justice 275 at 276. Dr Eileen Baldry has been both President and Vice-President of CRC (Civil Rehabilitation Committee, as it then was) Justice Support (1991-1996), has been a Prison Reform Council New South Wales member and is a Lecturer, School of Social Work, University of New South Wales.

4. “This [gender-specific classification] system recognises that most women inmates are not incarcerated for violent offences and generally do not require high levels of security. The system focuses, therefore, on program needs rather than on traditional security classifications. In the past, the same categories were used when classifying male and female inmates although offending patterns, security requirements and program needs were significantly different”: NSW, Department of Corrective Services, Annual Report 1996-1997 at 11.

5. NSW, Department of Corrective Services Indigenous Services Unit, Consultation (11 February 1998).

6. As at 30 June 1999, of the total prison population of 8,382 inmates in full-time custody in NSW, 1,257 were Aboriginal and Torres Strait Islanders, representing 15% of the total prison population: NSW, Department of Corrective Services, New South Wales Inmate Census 1999: Summary of Characteristics (Statistical Publication No 19, 2000) at 3. However, Aboriginal and Torres Strait Islander people comprise only 1.6% of the total population of New South Wales.

7. As at 30 June 1999, of the total prison population of 8,382 inmates in full-time custody in NSW, 552 were women. Twenty per cent of these female inmates were Aboriginal and Torres Strait Islanders: NSW, Department of Corrective Services, New South Wales Inmate Census 1999: Summary of Characteristics (Statistical Publication No 19, 2000) at 4.

8. B Debus, “Women’s Imprisonment: The Politics of Difference” (1996) 8(2) Current Issues in Criminal Justice 201 at 202.

9. Although Aboriginal women are less than two percent of the population, 25% of women imprisoned in 1999 were Aboriginal or Torres Strait Islander. The most recent report indicates that between 1992 and 1998 the number of Aboriginal women in New South Wales prisons rose by 193%: NSW, Department of Corrective Services, Annual Report 1998-1999: Statistical Supplement Table 7.

10. C Cunneen and K Kerley, “Indigenous Women and Criminal Justice: Some Comments on the Australian Situation” in Perceptions of Justice: Issues in Indigenous Community Empowerment (1995) at 84-85. “Nationally, the number of Indigenous women prisoners has increased by 148% from 105 in 1988 to 261 in 1998; the rate of Indigenous women’s imprisonment has increased from 162.8 per 100,000 population in 1988 to 223 per 100,000 population in 1998 – an increase of 36.9%: Australian Institute of Criminology Submission to the New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women (Interim Report, July 2000) at para 3.12.

11. Parliament of NSW, Report of the Task Force on Women in Prison to the Minister for Corrective Services (March, 1985).

12. Western Australia, Taskforce Sub-Committee on Aboriginal Women and the Law, Report of Chief Justice’s Taskforce on Gender Bias (1994) at para 55.

13. NSW, Department of Probation and Parole, Consultation (26 February 1998).

14. For a detailed discussion of sentencing principles see Chapter 2.

15. Toohey J, unpublished address given to the National Criminal Law Congress on Aboriginal Customary Law (24 June 1988); see also Chapter 2.

16. Neal v The Queen (1982) 149 CLR 305 at 326 (Brennan J).

17. S Payne, “Aboriginal Women and the Law” in P W Easteal and S McKillop (eds), Women and the Law (AIC Conference Proceedings No 16, Canberra, 1993) at 65.

18. J C R Upton, “By Violence, By Silence, By Control: The Marginalization of Aboriginal Women Under White and ‘Black’ Law” (1992) 18 Melbourne University Law Review 867 at 867.

19. C Thomas and J Selfe, “Aboriginal Women and the Law” in S McKillop (ed), Aboriginal Justice Issues (AIC Conference Proceedings No 21, Canberra, 1993) at 168.

20. F Gale quoted in J Scutt, Women and the Law: Commentary and Materials (The Law Book Company Limited, 1990) at 22.

21. “During the 1950s and 1960s even greater numbers of Indigenous children were removed from their families to advance the cause of assimilation. Not only were they removed for alleged neglect, they were removed to attend school in distant places, to receive medical treatment and to be adopted out at birth.”: Australia, HREOC, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (April 1997) at 34.

22. S Payne, “Aboriginal Women and the Law” in P W Easteal and S McKillop (eds), Women and the Law at 66.

23. Payne at 66. The RCIADIC documents the connection between the removal of Aboriginal children from their families, and criminal behaviour.

24. “[W]ardship [is] a major contributing factor to later involvement in the juvenile and criminal justice systems”: New South Wales, Legislative Council Standing Committee on Social Issues, A Report into Children of Imprisoned Parents (Report No 12, July 1997) para 3.3. See also E Sommerlad, Aboriginal Juveniles in Custody (Department of Aboriginal Affairs, Canberra, 1977) at 6: “It is not possible to state with certainty that the very high rates of Aboriginal juveniles in corrective institutions and of Aborigines in prison is a direct result of their having been placed in substitute care as children, but that there is a link between them has often been asserted and seems undeniable. In Victoria, analysis of the clients seeking assistance from the Aboriginal Legal Service for criminal charges has shown that 90% of this group has been in placement – whether fostered, institutionalised or adopted. In NSW, the comparable figure is 90-95% with most placements having been in white families.” See also New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women at para 3.58 and 3.66: “Thirty per cent of women [inmates] have reported to the Department of Corrective services that they were removed from their families as children.”

25. S Payne, “Aboriginal Women and the Law” in P W Easteal and S McKillop (eds), Women and the Law at 65-66.

26. Fifty three per cent of the men whose deaths in custody were investigated by RCIADIC had been jailed as a result of their acts of violence against women, in particular, Aboriginal women.

27. “In Kevin’s sample … of 130 women serving full time sentences in NSW between July and October 1993, 62 per cent reported being under the influence of a drug (including alcohol) at the time of arrest and 72 per cent reported a relationship between their drug use and current imprisonment. To this must be added the growing literature reporting the high incidence of women in prison who were sexually and/or physically abused as children … and whose crimes are related to substance abuse”: Baldry “Convicted Women: Before and After Prison” at 278. See: M Kevin, Women in Prison with Drug Related Problems Part 1 (NSW, Department of Corrective Services, Sydney, 1995); NSW Parliament, Report of the New South Wales Task Force on Women in Prison (1985, Sydney); J Heney, “Report on Self-Injurous Behaviour in the Kinston Prison for Women” (1990) 2(3) Forum; R A Robinson, “Intermediate Sanctions and the Female Offender” in J Byrne and A Lurigio (eds), Smart Sentencing: The Emergence of Intermediate Sanctions (1992, Sage, Newbury Park); B Hampton, Prisons and Women (1993, UNSW Press, Sydney) at Chapter 6; B Denton, “Prisons, Drugs and Women: Voices from Below” Report to NCADA La Trobe University, Melbourne, 1994); B O’Connor, “Creating Choices or Just Softening the Blow? The Contradictions of Reform: Inmate Mothers and their Children” (1996) 8(2) Current Issues in Criminal Justice 144 at 146.

28. The Census produced by the Department of Corrective Services does not identify whether an inmate is a parent and the primary carer of children prior to incarceration. The anecdotal evidence to the Committee, however, indicates that approximately 60% of women in prison are parents. Approximately 30 to 40% of these are sole parents: NSW, Legislative Council Standing Committee on Social Issues, “A Report into Children of Imprisoned Parents” Report 12 (July 1997) at 37.

29. S Payne, “Aboriginal Women and the Law” in P W Easteal and S McKillop (eds), Women and the Law at 66.

30. Australian Law Reform Commission, Equality Before the Law: Justice for Women (Report 69, 1994) at 142. See also New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women at para 219-2.20 and 3.60-3.63.

31. Women consulted in the course of the preparation of a report into Aboriginal women and the law said that they needed information on rights and responsibilities in relation to receipt of Social Security benefits: NSW, Ministry for the Status and Advancement of Women, Dubay Jahli: Aboriginal Women and the Law (Report to NSW Parliament, 1994) at 5.

32. NSW, Ministry for the Status and Advancement of Women, Dubay Jahli: Aboriginal Women and the Law at 6.

33. Cunneen and Kerley, “Indigenous Women and Criminal Justice: Some Comments on the Australian Situation” at 81.

34. Cunneen and Kerley, “Indigenous Women and Criminal Justice: Some Comments on the Australian Situation” at 81. See: J Atkinson, “Violence Against Aboriginal Women: Reconstitution of Community Law – The Way Forward” (1990) 2(46) Aboriginal Law Bulletin 6; A Bolger Aboriginal Women and Violence (ANU Casaurina, North Australia Research Unit, 1991); S Payne, “Aboriginal Women and the Law” in P W Easteal and S McKillop (eds), Women and the Law.

35. Baldry refers to such evidence in relation to all women in prison, compared with women in the general population: E Baldry, “Convicted Women: Before and After Prison” at 278. See: C Alder, “Women and the Criminal Justice System” in D Chappell and P Wilson (eds), The Australian Criminal Justice System – The Mid 1990s (Butterworths, 1994) at 143, and studies cited therein; NSW Parliament, Report of the New South Wales Task Force On Women in Prison (Sydney, 1985) at 54; J Heney, “Report on the Self-Injurious Behaviour in the Kinston Prison for Women” (1990) 2(3) Forum; R A Robinson, “Intermediate Sanctions and the Female Offender” in J Byrne and A Lurgio (eds), Smart Sentencing: The Emergence of Intermediate Sanctions (Sage, Newbury Park, 1992); B Hampton, Prisons and Women (UNSW Press, Sydney, 1993) Chapter 6; B Denton, “Prisons, Drugs and Women: Voices from Below” Report to NCADA (La Trobe University, Melbourne, 1994) at 34-35; M Kevin, Women in Prison with Drug Related Problems Part 1 (NSW, Department Of Corrective Services, Sydney, 1995). See also the submissions and research documenting “the high level of violence and childhood abuse experienced by women prisoners” cited in New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women at para 2.19-2.20, 3.64-3.65 and 3.67-3.68.

36. C Thomas, “Addressing the Concerns of Aboriginal Women” in Local Domestic Violence Committees Conference, Papers and Proceedings (NSW Domestic Violence Committee, Sydney: NSW Women’s Co-ordination Unit, 1991) at 87.

37. J Atkinson, “Violence Against Aboriginal Women: Reconstitution of Community Law – The Way Forward” (1990) 2(46) Aboriginal Law Bulletin 6 at 6.

38. NSW, Department of Corrective Services Indigenous Services Unit, Consultation (11 February 1998).

39. C Cunneen, “Judicial Racism” (1992) 2(58) Aboriginal Law Bulletin 9 at 10. See J Atkinson, “Violence Against Aboriginal Women: Reconstitution of Community Law – The Way Forward”.

40. C P La Prairie, “Some Issues in Aboriginal Justice Research: The Case of Aboriginal Women in Canada” (1989) (1) Women and Criminal Justice 1

41. Cunneen and Kerley, “Indigenous Women and Criminal Justice: Some Comments on the Australian Situation” at 81.

42. Cunneen and Kerley, “Indigenous Women and Criminal Justice: Some Comments on the Australian Situation” at 81. See also Atkinson, “Violence Against Aboriginal Women: Reconstitution of Community Law – The Way Forward” and P Dodson, Regional Report of Inquiry into Underlying Issues in Western Australia (1991), and RCIADIC Report, vol 1 at 381.

43. The RCIADIC commented that “Aboriginal women are subject to the structural disadvantages that affect Aboriginal people as well as to the structural disadvantages that affect women generally”: RCIADIC Report, vol 2 at 395.

44. Brooks “The Incarceration of Aboriginal Women” at 272-273.

45. S Yeo, “The Recognition of Aboriginality by Australian Criminal Law” in Majah Indigenous Peoples and the Law at 251.

46. Western Australia, Taskforce Sub-Committee on Aboriginal Women and the Law Report of the Chief Justice’s Taskforce on Gender Bias (Western Australia, 1994). The sub-committee included a majority of Aboriginal women members and consulted additional Aboriginal women about matters of particular concern.

47. Western Australia, Taskforce Sub-Committee on Aboriginal Women and the Law Report of the Chief Justice’s Taskforce on Gender Bias at para 52. See also Australian Law Reform Commission, Equality Before the Law: Justice for Women (ALRC 69, 1994); Brooks, “The Incarceration of Aboriginal Women” at 270-271; M Paxman, “Aborigines and the Criminal Justice System: Women and Children First!” (1993) 18(4) Alternative Law Journal 153 at 156-157; J A Scutt, “Invisible Women? Protecting White Cultural Invisibility on Black Australian Women” (1990) 2(46) Aboriginal Law Bulletin 4. Upton writes: “The marginalisation of Aboriginal women is complicated by the additional and continuing obstacles of language, cultural difference and racism”: “By Violence, By Silence, By Control: The Marginalization of Aboriginal Women Under White and ‘Black’ Law” at 869.

48. These findings are just as applicable to Aboriginal women in NSW, as they are to Aboriginal women in Western Australia.

49. Cunneen and Kerley, “Indigenous Women and Criminal Justice: Some Comments on the Australian Situation” at 78.

50. Cunneen and Kerley, “Indigenous Women and Criminal Justice: Some Comments on the Australian Situation” at 83.

51. Cunneen, “Judicial Racism” Aboriginal Justice Issues at 127.

52. Cunneen, “Judicial Racism” at 127. See also Cunneen and Kerley, “Indigenous Women and Criminal Justice: Some Comments on the Australian Situation” at 82-83.

53. P Dodson, Regional Report of Inquiry into Underlying Issues in Western Australia Royal Commission into Aboriginal Deaths in Custody (AGPS, Canberra, 1991) vol 1 at 136.

54. Aboriginal Women’s Legal Service, Consultation (23 January 1998); NSW, Department of Corrective Services Indigenous Services Unit, Consultation (11 February 1998); NSW, Department of Corrective Services Women’s Services Unit, Consultation (13 February 1998).

55. (1976) 14 SASR 291. See also: Boyle v The Queen (1987) 34 A Crim R 202; R v Wayne (1992) 62 A Crim R 446; R v Maslen and Shaw (1995) 79 A Crim R 199; R v Moffa (No 2) (1977) 16 SASR 155; R v Adami (1989) 51 SASR 229, R v Edwards (1996) 90 A Crim R 510; R v Spiers (1983) 34 SASR 546; Wayne v Boldiston (1992) 108 FLR 252; R v Leslie (1995) 21 MVR 208; R v Alexander (1994) 78 A Crim R 141; and Amagula v White (NT, Supreme Court, No JA92 of 1997, Kearney J, 7 January 1998, unreported).

56. R v Wirth (1976) 14 SASR 291 at 294.

57. (1992) 85 NTR 8.

58. See also R v Maslen and Shaw (1995) 79 A Crim R 199: the Court of Criminal Appeal held that it is only in circumstances where the hardship upon a prisoner’s family is exceptional that it will operate in mitigation; the hardship must be sufficiently extreme going beyond the sort of hardship which inevitably results to a family when the breadwinner is incarcerated – that a “sense of mercy or of affronted common sense imperatively demands that [the sentencing judge] should draw back”.R v Maslen and Shaw applied R v Wirth and R v Boyle (1987) 34 A Crim R 202.

59. (1994) 71 A Crim R 450.

60. (NSW, Court of Criminal Appeal, No 480 of 1987, 26 August 1988, unreported).

61. See also R v Edwards (1996) 98 A Crim R 510; R v Everett [1999] NSWCCA 467; and R v Robinson [1999] NSWCCA 468. In R v Robinson, the court held that it was appropriate to take into account, in assessing the custodial sentence imposed by the trial court, the existence of a Mothers’ and Children’s program within the correctional centre: per Carruthers AJ at 9. The Select Committee on the Increase in Prisoner Population has expressed concern over this ruling on the basis that it is contrary to the Children of Imprisoned Parents Report which specifically recommends that prison be used as a last resort despite the establishment of the Mothers’ and Children’s program: New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women at para 2.14.

62. R McInnes SM, Submission 4 July 1997.

63. In 1996, a report of the Queensland Office of the Director of Public Prosecutions found that “[f]ear of the complete breakdown of their society and kinship structures, which Indigenous women have become responsible for maintaining, has contributed to an even greater urgency in the collective Indigenous women’s appeal to governments at all level to provide culturally sensitive services to address their concerns”: Queensland, Office of the Director of Public Prosecutions, Indigenous Women within the Criminal Justice System (Report, 1996) at 12.

64. New South Wales, Legislative Council Standing Committee on Social Issues, A Report into Children of Imprisoned Parents (Report No 12, July 1997) at Rec 47. The Report documents the trauma, often permanent, that occurs to a family when the mother is imprisoned. The pain and loss suffered by children can result in the child turning to self-destructive behaviour in later life.

65. B Hampton, Prisons and Women (UNSW Press, Sydney, 1993) at 2.

66. M Brooks, “The Incarceration of Aboriginal Women” at 275. An Aboriginal inmate of Mulawa interviewed by Hampton described her feelings of anguish: “the worst part of being in prison was being separated from my three children. I missed them very much. I felt the whole world was taken from me”: Hampton Prisons and Women at 119.

67. NSW, Department of Corrective Services Women’s Services Unit, Consultation (13 February 1998).

68. Hampton Prisons and Women at 140.

69. New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women at para 1.6.

70. The Standing Committee on Social Issues, conducting an inquiry into the adequacy of policies and services to assist children of imprisoned parents, spoke to 57 inmates of Mulawa Correctional Centre, 12 (21%) of whom were Aboriginal mothers. The children of nine of these women lived in rural NSW: New South Wales, Legislative Council Standing Committee on Social Issues, A Report into Children of Imprisoned Parents at 44.

71. A new facility for 300 women at Windsor is planned, due to be completed at the end of 2001. At the same time, 120 beds at Mulawa Correctional Centre will be closed.

72. For example, through the Mobile Outreach Program operated from St Heliers Correctional Centre, inmates performed work for the State Emergency Service, several Shire Councils and various community organisations. The work ranged from storm clean-up operations to forest regeneration and building maintenance: NSW, Department of Corrective Services, Annual Report 1996-97 at 33.

73. The Commission is aware that Corrective Services have organised culture camps, with the participation of an Elder, for Aboriginal inmates. The aim of these camps is to build self-esteem through sharing of Women’s Business and discussion of the women’s personal problems.

74. For example, Ngaimpe Aboriginal Corporation was helped to establish a community-run drug and alcohol residential outpatient program. The program, which is conducted on the NSW central coast, caters for the region’s Aboriginal community, including Aboriginal offenders, under the supervision of Corrective Services. The program is intended to help Aboriginal offenders re-integrate into the community. However, the program is for men only: NSW, Department of Corrective Services, Annual Report 1996-97 at 29.

75. A new Women’s Action Plan is currently being developed by the Women’s Services Unit to update policies, procedures and programs affecting women.

76. In one particular case, Corrective Services demonstrated what can be achieved through flexibility of policy and approach to sentencing Aboriginal offenders, and through an awareness of cultural differences. The Aboriginal woman involved had not previously parented her child without the support of her extended family. She was on the Mothers’ and Children’s Program at Emu Plains and had not been demonstrating good parenting skills. Through a less rigid application of the early release regulations, the offender was given early release into her extended family, with successful outcomes for both herself and the child.

77. New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women, rec 5.166.

78. E Baldry, “Convicted Women: Before and After Prison” at 278.

79. Advocated by Baldry ,”Convicted Women: Before and After Prison” at 278.

80. Western Australia. Policy and Legislative Division, Ministry of Justice, Report on the Review of Services to Adult Women Offenders (May 1997) at 28.

81. In the year ended 30 June 1999, 9.6% of offenders serving their sentences by way of periodic detention were female, of whom 5.5% were Aboriginal: NSW, Department of Corrective Services New South Wales Inmate Census 1999: Summary of Characteristics (Statistical Publication No 19, 2000) at 37-38.

82. A 1992 study of periodic detention found that 72% of the 47 women serving periodic detention orders at the relevant time had the primary care of children: I Potas, S Cumines and R Takach, A Critical Review of Periodic Detention in New South Wales (New South Wales, Judicial Commission, 1992) at 26.

83. The NSW Legislative Council Standing Committee on Social Issues recommended that Corrective Services explore the possibility of introducing childcare facilities at periodic detention centres for women in order to ensure that a periodic detention sentence is realistically available to women: NSW, Legislative Council Standing Committee on Social Issues, A Report into Children of Imprisoned Parents (Report No 12, July 1997) Recommendation 52 at 116. This recommendation has not, to date, resulted in the provision of childcare at periodic detention centres. The Select Committee on the Increase in Prisoner Population reports that the recommendation was not supported by Corrective Services on the grounds that periodic detention centres have a variety of detainees who may well be volatile and the safety of children in this environment would be a major concern: New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women at para 6.89.

84. G Brand, “Alternatives to Imprisonment for Female Offenders” (1993) 5(2) Criminology Australia 25 at 28.

85. New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women Rec 6.94, 6.95, 6.96.

86. The NSW Women in Prison Task Force called for a review of work opportunities for female offenders with a view to reducing the number of domestic and “token” jobs and increasing the number of “non-domestic” duties being performed by women: Report of the New South Wales Task Force on Women in Prison (NSW Government Printer, 1985) at 234.

87. Canada, Creating Choices: The Federally Sentenced Women’s Task Force Report (1990); See “Federally Sentenced Women Initiative: Okimaw Ohci Healing Lodge” <<www.csc-scc.gc.ca/crd/fsw/ fsw30/fsw30e02.htm>>.

88. Canada, Creating Choices: The Federally Sentenced Women’s Task Force Report (1990) referred to in “Federally Sentenced Women Initiative: Okimaw Ohci Healing Lodge”.

89. The Law Society supports the creation of a residential rehabilitation facility, offering a holistic program, for Aboriginal women to which they could be diverted from full-time custody: Law Society of New South Wales Submission to the New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population New South Wales Parliament, Legislative Council, Select Committee on the Increase in Prisoner Population Inquiry into the Increase in Prisoner Population: Issues Relating to Women at para 6.74.

90. E Baldry, “Convicted Women: Before and After Prison” at 280.

91. Canada, Shaw, Solicitor General, The Release Study (1989) <<http://198.103.98.138/crd/fsw28/fsw28e02.htm>>.

92. NSW, Department of Corrective Services Indigenous Services Unit, Consultation (11 February 1998).

93. E Baldry, “Convicted Women: Before and After Prison” at 280: see R Immarigeon and M Chesney-Lind, “Reducing the Rate of Women’s Imprisonment” (1992) 17(8) Corrections Compendium 8-10; M Mauer, “The North Carolina Community Penalties Act: A Serious Approach to Diverting Offenders from Prison” (1988) 52(1) Federal Probation 11-17.

94. Aboriginal Women’s Legal Service, Consultation (23 January 1998).

95. E Baldry, “Convicted Women: Before and After Prison” at 280.

96. Queensland, Office of the Director of Public Prosecutions, Indigenous Women within the Criminal Justice System (Report, 1996) at 12.

97. Western Australia, Taskforce Sub-Committee on Aboriginal Women and the Law, Report of Chief Justice’s Taskforce on Gender Bias (1994).

98. Report of Chief Justice’s Taskforce on Gender Bias para 112 at 122.

99. Report of Chief Justice’s Taskforce on Gender Bias para 113 at 122.

100. Report of Chief Justice’s Taskforce on Gender Bias para 70 at 116.

101. These are discussed in detail in Chapter 2.

102. The Goodooga Mercy Camp: NSW, Department of Corrective Services, Annual Report 1998-1999 at 16. This was pursuant to NSW, Department of Corrective Services, 1996-1998 Action Plan for the management of Indigenous Offenders (November 1996).

103. E Baldry, “Convicted Women: Before and After Prison” at 280-281.

104. ALRC 69 at para 5.32.

105. S Payne in P W Easteal and S McKillop (eds), Women and the Law at 72.