Aboriginal Overrepresentation in Australia Justice System

Aboriginal Overrepresentation in Australia Justice System

Aboriginal Overrepresentation in Australia Justice System


 Evidence of overrepresentation is overwhelming in the Australian criminal justice system. The aboriginal population comprises 2.5 percent of the Australian populace; however, they are twenty times more at risk of dealing with the criminal justice system in comparison to the non-aboriginal group. The population accounts for over 25 percent of those incarcerated (Jeffries & Stenning 2014, p. 447). The systematic discrimination in criminal justice and welfare system has been cited as the cause of the problem. On this note, this paper aims to explore the dynamics of criminal justice and aboriginal relations and the role of the judiciary in the process. The paper examines the cause of overwhelming overrepresentation among the indigenous people. Also, the paper studies crime theories that explain the appropriate policies for the aboriginal communities. Notably, the paper concludes that the ongoing problem of overrepresentation requires a multi-pronged approach, but more importantly, all proposed strategies designed to address the issue must consider its cultural relevance to the aboriginal people.

The Causal Factors of Aboriginal Overrepresentation in the Australia Justice System

            In the last few decades, scholars have recognized the urgent need for a multifaceted understanding of the over-representation of aboriginal people in the criminal justice system. An adequate explanation involves comprehending the interconnecting issues that cause overrepresentation in the country. Notably, the specific factors that can explain overrepresentation include offending patterns of serious crime among the aboriginals, community policing directed towards them, and legislation laws that discriminate the group indirectly (Gisev et al. 2014, p. 10). Notably, the economic, social, and spatial location of aboriginal people today is an outcome of a sophisticated historical process, which originates from more than two centuries of colonization (Solberg 2016, p. 12). The complex process of social inequality and subsequent systematic discrimination has disadvantaged the community in the justice system. In 1991, the Royal Commission on Aboriginal Deaths in Custody released a report that showed the increasing death rates of this community while in prison (Powell, Weber, & Pickering 2015, p. 114). The increase in crime rates among the aboriginal community result from poor health and housing, low employment among the youths, and dispossession. Besides, the community seems to pass these behaviors from one generation to another. Today, high rates of alcohol use, poverty, and increased unemployment are the primary drivers of crimes in the aboriginal community. The causal factors are similar to those observed by the Commission in the 1990s. However, the Royal Commission failed to explain in its recommendation how to eliminate these factors in future generations; instead, it regarded the social and economic aspects as symptoms of indigenous disempowerment rather than a manifestation of deep-rooted cultural values. Thus, any solution aimed at reducing the current rate of overrepresentation of aboriginals should focus on the social and economic causal factors.

             Most Australia jurisdictions have a provision that is used to sentence offenders from the aboriginal background. However, these provisions have continued to promote systematic racial discrimination in the justice system. The statutory frameworks set out aggravating and mitigating situations, which are relevant to the offense and offender from the aboriginal background (Jeffries & Stenning 2014, p. 461). The court can use the provisions to make sentencing decisions. Therefore, sentences in those jurisdictions are structured in a manner that ensures balance to competitive objectives such as incapacitation, deterrence, and recognition of victims. As such, a court can consider the relationship between the aboriginal offenses and associated social and economic disadvantages to reduce the sentencing severity hence lessen the offender’s blameworthiness. Also, the court could highlight the cultural issues of certain punishment approaches when establishing the offender’s rehabilitation. Thus, most Australian jurisdictions should consider these factors while sentencing aboriginal offenders. However, the state lacks regulation or guidelines on how to consider aboriginality; therefore, the courts apply the general principles of sentencing. As such, the justice system has shifted its sentencing goals from mitigating aggravating circumstances to reducing offender blameworthiness as the aboriginal people are considered as a traditional community. Therefore, courts have aggravated sentencing, thereby increasing the rate of incarceration of indigenous people. 

            Crime theories rarely explain the differences in crime causation among the aboriginals. Therefore, crime causation literature theorizes the communities to represent a dangerous underclass. Mostly, this aspect has affected widespread racial discrimination in the Australian criminal justice system. Criminology in Australia relies on traditional theoretical frameworks to account for high levels of crimes among the aboriginal community. The framework includes theories based on constitutional factors, individual psychopathology, and social deprivation (DeLisi 2016, p. 2). However, the majority of these theories do not offer a comprehensive account of crimes among the aboriginal community. For instance, the Strain theory explanation assumed that the primary cause of crime is manifested in poverty, alienation, stressed conditions, anxiety, and dispossession of the aboriginal people (Weatherburn 2014, p. 66). In practice, the theory implies that aboriginal should be kept under intensive surveillance because of their dangerous nature, which leads to over-policing and eventual racial discrimination. Such theoretical sources have led to an agreed concept of ‘aboriginalism,’ which reflects the idea of racial discrimination. The concept has permeated the justice system hence increasing the disproportionate rate of overrepresentation of aboriginal people. 

Numerous scholars agree that the judiciary plays a critical role in the current overrepresentation problem. Historically, the population has been sentenced unfairly for crimes compared to other populaces because of the prejudicial perception seized by members of the judicial system (Davey 2017, n.p). According to Davey (2017), magistrates and prosecutors believe that aboriginal people are hopeless. Most of the magistrates cannot comprehend the cultural belief of the community. Numerous scholars have tried to examine the unconscious racial among the judiciary, but evidence indicates that most judicial officers ignore the aboriginal histories, customs, cultures, and social status and aggravate their sentences. For instance, Gisev (2014, p. 13) found that aboriginals spend more time in custody compared to non-aboriginal offenders. The judicial officers assert that the aboriginal culture is lacking and traditional. However, such views are racist and oppose the notion of self-determination, which should be applied in sentencing decisions.

Imprisonment is critical in the justice system; however, the current disproportionate rate of incarceration among the aboriginal people indicates that confinement is inadequate. The population is vulnerable and socially marginalized, and unlike other communities, their behavior cannot be adequately understood using conventional criminology theories (Weatherburn 2014, p. 65). The conflict between the aboriginal population and the law requires a unique and precise explanation. Constitutional factors, individual psychopathology, and social deprivation theories do not offer a viable mechanism for explaining the behavior of the community because their culture might be cause for the high rate of crime in the region. Therefore, legal procedures and justice system policing should consider the aboriginal culture rather than social and economic causal factors. Besides, imprisonment leads to significant economic and social costs, thus should be integrated with other approaches to mitigate the problem of persistent criminality in the community. Jacobson, Heard, and Fair (2017, p. 27) indicate that imprisonment is the most expensive approach to crime control. Prison increases the chances of aboriginal communities’ involvement in a crime. In additional, Wahlquist (2017) argues that alternative solutions to incarceration among the indigenous people can help to improve Australia’s economy. Therefore, although culture is essential for assessing criminal behavior among aboriginals, it is vital to consider the social and economic factors that might affect the nation as a result of their increased incarceration.

Recommendations to Mitigate the Overrepresentation

The current problem of aboriginal overrepresentation in Australia requires a multi-pronged approach. One solution that can reduce the level of overrepresentation in the criminal justice system is to invest in preventative programs by involving the community and former prisoners. The approach can reduce the cost of crime while strengthening public safety. The implementation process should entail working with the community to design specific solutions aimed at overcoming the drivers of crimes. In particular, the approach would be more effective if directed at the youth and previous offenders because they are more likely to commit a crime.

South Wales has implemented the preventative program strategy successfully. As a result, the community’s attitude has shifted dramatically, and the aboriginal people now work with the police and other communities to reduce overrepresentation in the criminal justice system (Schwartz & Cunneen, 2017, p. 18). However, it is difficult to eliminate the problem using the preventative program strategy given the current role of the judiciary in overrepresentation. Therefore, the solution should span across all traditional government policies, including health, education, welfare, and human services. Gutierrez, Chadwick, and Wanamaker (2018) demonstrate the importance of considering the culture of aboriginals when designing such programs. The authors note that culture relevance determines the effectiveness of programs targeted towards the community. Thus, the state must give the aboriginal people control and ownership of the proposed solutions to end the overrepresentation problem. In addition, people providing mainstream services must be culturally aware and ready to reduce the rate of incarcerations in all jurisdictions.


The current trend of aboriginal overrepresentation in the Australian criminal justice system requires an assessment of every aspect of the justice system. The indigenous people commit crime disproportionately compared to other populations hence fall victim of the discriminatory justice system. The police and judicial officers initiative to work together in an attempt to reduce the current rate of incarceration has worsened the issue. Most Australian jurisdictions consider certain factors in sentencing aboriginal people; however, there lack clear directives in regards to such provisions. As a result, the judiciary has resorted to aggravating the incarceration rate as a way of warning the aboriginal community against criminal acts. Moreover, the use of common criminology principles to explain the behavior of aboriginals is ineffective, thus cannot help the judiciary to reduce crime rates in the community. The solution lies in involving the community in formulating effective mitigation strategies. The aboriginals should be allowed to oversee the implementation of the proposed policies to ensure an effective reduction of the rate of overrepresentation in the nation. 


Davey, M 2017, “Indigenous Australians unfairly jailed due to racism in the legal system – research,” The Guardian. https://www.theguardian.com/australia-news/2016/jul/07/indigenous-australians-unfairly-jailed-due-to-racism-in-legal-system-research

DeLisi, M 2016, ‘Why psychopathy as unified theory of crime?’ In Psychopathy as Unified Theory of Crime (pp. 1-13). Palgrave Macmillan, New York.

Gisev, N, Gibson, A, Larney, S, Kimber, J, Williams, M, Clifford, A, Doyle, M, Burns, L, Butler, T, Weatherburn, DJ & Degenhardt, L 2014, ‘Offending, custody, and opioid substitution therapy treatment utilisation among opioid-dependent people in contact with the criminal justice system: Comparison of Indigenous and non-Indigenous Australians,’ BMC Public Health, vol. 14, pp. 1–16. https://doi.org/10.1186/1471-2458-14-920

Gutierrez, L, Chadwick, N, & Wanamaker, KA 2018, ‘Culturally relevant programming versus the status quo: A meta-analytic review of the effectiveness of treatment of indigenous offenders,’ Canadian Journal of Criminology & Criminal Justice, vol. 60, no. 3, pp. 321–353. DOI: 10.3138/cjccj.2017-0020.r2

Jacobson, J, Heard, C, & Fair, H 2017, ‘Prison: Evidence of its use and over-use from around the world,’ Institute for Criminal Policy Research http://www.prisonstudies.org/sites/default/files/resources/downloads/global_imprisonment_web2c.pdf

Jeffries, S & Stenning, P 2014, ‘Sentencing, aboriginal offenders: Law, policy, and practice in three countries,’ Canadian Journal of Criminology & Criminal Justice, vol. 56, no. 4, pp. 447–494 https://doi.org/10.3138/cjccj.2014.S03

Powell, R, Weber, L, & Pickering, S 2015, ‘Every death counts An argument for counting deaths in immigration custody in the national deaths in custody collection,’ Current Issues in Criminal Justice27(1), pp.113-121. https://doi.org/10.1080/10345329.2015.12036034

Schwartz, M, Brown, DB, & Cunneen, C 2017, Justice Reinvestment. Schwartz, M., Brown, D., and Cunneen, C. (2017) Justice Reinvestment, Brief21, pp.18-8.

Solberg, P 2016, Indigenous internal self-determination in Australia and Norway.  The University of New South Wales. http://unsworks.unsw.edu.au/fapi/datastream/unsworks:42186/SOURCE02?view=true

Wahlquist, C 2017,“Indigenous prison overrepresentation costs Australia $7.9bn a year, data shows,” The Guardian. https://www.theguardian.com/australia-news/2017/may/25/indigenous-prison-overrepresentation-costs-australia-79bn-a-year-data-shows

Weatherburn, D 2014, Arresting incarceration: Pathways out of Indigenous imprisonment. Aboriginal Studies Press. https://bit.ly/2M7b93q


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