Aboriginal and Torres Strait Islander offenders remain overrepresented in the criminal justice system, according to the Australian Bureau of Statistics, which last week revealed that Aboriginal and Torres Strait Islander people appear before the courts at a much higher rate than their non-indigenous counterparts.

The ABS report Criminal Courts, Australia presents data between July 2013 and June 2014. Aboriginal and Torres Strait Islander people were disproportionately represented among the 580,000 people seen in criminal courts, and state by state, (data was not available for all states) they made up:

  • 15% of defendants in New South Wales;
  • 24% of defendants in Queensland;
  • 17% of defendants in South Australia; and
  • 78% of defendants in the Northern Territory, where 30% of the population identify as indigenous.

Indigenous people only make up 3% of Australia’s general population, but the data from the previous five years show the proportion of indigenous people facing court is increasing (for example, in 2009-10 about 20% of people facing court in Queensland were indigenous). The biggest increase was seen in the Northern Territory, where 68% of defendants were Aboriginal and Torres Straight Islander in 2012-13, as compared to 78% last year.

According to social policy researcher and emeritus professor Jon Altman, the rate of indigenous incarceration has been going up for the last 20 years, a problem exacerbated by attempts to solve it. “What’s happening in the Northern Territory is that with increased surveillance since the 2007 intervention, and increased policing, you are seeing more and more people being incarcerated for a range of reasons. Some of those reasons are quite spurious, like not being able to pay fines, because they have unregistered vehicles or were driving without a licence,” Altman said.

“Research shows that indigenous people are far more likely to be arrested for crimes like public disobedience or public drunkenness than non-indigenous people. So there is systemic discrimination in the system in terms of people being arrested, and there is a lack of tolerance of cultural difference in sentencing.”

According to the ABS statistics, Aboriginal and Torres Strait Islander people are brought before the court for public order offences, a category that includes loitering and public drunkenness, far more often than non-indigenous people. To return to Queensland:

  • 31.9% of indigenous people before the court were charged with a public order offence; but
  • Only 16.2% of non-indigenous people before the court were charged with public order offences.

The opposite holds true for drug offences:

  • In New South Wales, 8.1% of indigenous offenders were charged with an illict drug offence, compared to 18% of non-indigenous offenders; and
  • In South Australia, where marijuana possession has been decriminalised, 2.9% of Aboriginal offenders were charged with drug offences, compared to 15.1% of non-indigenous offenders.

But when it comes to violent crime, we see a higher representation of Aboriginal and Torres Strait Islander people in all states, and in the Northern Territory particularly:

  • In Queensland, 11.6% of indigenous people found guilty were charged with acts intended to cause injury, compared to 8.1% of non-indigenous people;
  • In South Australia the numbers are 27.1% compared to 19.9%;
  • In NSW, 40% of indigenous people found guilty were charged with violent crimes, versus 34.5% of non-indigenous offenders; and
  • In the Northern Territory, the difference goes up to 45.7% to 26.3%.

Indigenous offenders are imprisoned at twice the rate of non-indigenous offenders, and, in the Northern Territory, indigenous offenders are also found guilty more often than non-indigenous offenders. The ABS statistics show that:

  • In New South Wales, 24.2% of indigenous offenders were sent to a correctional institution, compared to only 12.4% of non-indigenous offenders; and
  • In the Northern Territory, those numbers are 52.6% compared to 22.9%.

Non-indigenous offenders are 10% more likely to be given fines than indigenous offenders. Altman says the problem was exacerbated by the Northern Territory intervention, when it was decided that Aboriginal custom could not be taken into account in sentencing.

Racial bias exists within our criminal justice system, and, according to Altman, the reasons are myriad. He said: “There are compounding factors that result in the escalation of the socio-economic difference between indigenous and non-indigenous in this country. While the government has a project of improvement for indigenous people, what we see are gaps in areas like incarceration, employment and poverty that are growing, and these things are all connected.”

It starts early. Of the juveniles in custody in this country, almost half identify as Aboriginal and Torres Strait Islanders. Young indigenous men, and increasingly women, appear before the courts far more often than non-indigenous people, and when they are found guilty, they are sent to prison at double the rate of non-indigenous offenders. Many more indigenous than non-indigenous offenders are aged between 10 and 19, and that trend holds across all states.

The ABS statistics provide a snapshot of increasingly disparate treatment for Aboriginal and Torres Strait Islanders compared to non-indigenous Australians in our criminal justice system. The numbers are increasing, and have been for a long time. Altman said: “In Australia what we see is a punishing of the poor, a punishing of the different, a punishing of the black, and increasingly a punishing of people who live remotely. And in all those categories, indigenous people are overrepresented.”