Punishment in Australia

Prior to the arrival of Europeans, the Indigenous people of Australia - Aboriginals and Torres Strait Islanders - had their own traditional punishments which they carried out on people who broke tribal customary law.[4] These included:

• Spearing - a corporal punishment where someone is pierced with a spear, often through their leg.[17][4]
• Singing - an elder sings, which is believed to call evil spirits/misfortune upon the offender. There are reports of this happening as recently as 2016.[4]
• Duelling[17]
• Public shaming[17]
• Compensation - such as by adoption or marriage.[17]
• Exclusion from the community[17]
• Death - this could be either directly through execution, or indirectly through magic.[17]

New South Wales, as the founding site for British colonisation Australia in 1788, has had prisons for as long as Australia has had European settlement. The first Australian colony was founded at Port Jackson (now Sydney) on 26 January 1788, and marked the commencement of many decades of convict arrivals from the United Kingdom. Penal colonies were also founded in what is now the states of Queensland, Tasmania, and Western Australia.

Two penal colonies were briefly founded in the area that is now Victoria. Both were abandoned shortly after. Later, after a free settlement had been established, some convicts were transported to the region.

No penal colonies were located in the areas that have now become South Australia, the Northern Territory and the Australian Capital Territory.

Norfolk Island (an external territory of Australia), the site of two penal colonies from 1788–1814 and 1824-1856,[18] has no prisons at all in the 21st century. When Glenn McNeill was sentenced in 2007 to 24 years in prison for murder on Norfolk Island, the absence of prisons meant he was imprisoned in NSW.[19]

Convicts in the 19th century were subject to forced hard labour, such as quarrying sandstone. William Ulthorne, an English Catholic Bishop described convict labourers in the 1830s: “They are fettered with heavy chains, harassed with heavy work, and fed on salt meat and coarse bread, [...] Their faces are awful to behold, and their existence one of desperation.”[20]

Additionally, there was the punishment of young children. John Hudson was reportedly only nine years old when sentenced for burglary and 13 when transported to Australia. He was one of 34 children on the First Fleet in 1788.[21]

On 3 February 1967 Ronald Ryan was the last individual to be executed in Australia after he killed a prison officer whilst attempting to escape Pentridge Prison.[22] A few years later the Federal Parliament passed the Death Penalty Abolition Act 1973, abolishing the death penalty amongst federal law however not prohibiting its use in state or territory law.[23]

The various states and territories all formally legally abolished capital punishment in their laws, with the first being Queensland in 1922 and the last being New South Wales in 1985.[24][23]

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty outlining the obligations of its parties to respect and promote the civil and political rights of individuals. Article 6 of the ICCPR states the death penalty may only be used in countries that have not abolished capital punishment for the severest of crimes.[25] The Second Optional Protocol to the ICCPR was created as an accompaniment to the ICCPR and altered Article 6 to ensure the abolishment of the death penalty in all cases worldwide.[26]

In Australia the second optional protocol to the ICCPR has been signed and ratified into domestic law. This is seen through the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010. The act fully abolished the death penalty and effectively ensured no state or territory is able to reintroduce it.[2]

Flogging (also called whipping, lashing), a form of corporal punishment, was used from 1788 up until 1958. The Australian folk ballad Jim Jones at Botany Bay, dated to the early 19th century, is written from the perspective of a convict wanting to take revenge on those who flogged him.[27] The last men flogged in Australia were William John O'Meally and John Henry Taylor, at Pentridge Prison, Victoria on 1 April 1958 (technically William was flogged second, and so was the last).[3]

As of August 2020, the Global Initiative to End All Corporal Punishment of Children reports that "Prohibition is still to be achieved in the home in all states/territories and in alternative care settings, day care, schools and penal institutions in some states/territories".[28]

Corporal punishment of school children is legally banned in public schools nationwide, but remains legal in private schools in Queensland.[29][28]

In the June quarter of 2018, there were 42,855 people imprisoned in Australia, which was an incarceration rate of 222 prisoners per adult 100,000 population,[5] or about 172 prisoners per 100,000 total population.[6]

Australia's prison population is now at the highest it has ever been, after a 20-year long surge in incarceration.[51] From 2007 to 2017, the prison population of Australia is grew quickly in both total numbers and incarceration rate per capita. The highest rate of increase was seen among prisoners on remand (ie: unsentenced, awaiting trial or sentencing), women and Indigenous Australians.[52] From 2012 to 2017 the number of people in prison on remand grew 87 percent. This might be due to more people being refused bail, and a backlog of cases in the courts.[52]

In the 30 years from 1988 to 2018, Australia's incarceration rate per 100,000 adults more than doubled.[31]

In 2017 males made up 91.9% of prisoners,[8] despite males only being roughly half the adult population.

The number of female prisoners in Australia rose 47% between 2009 and 2019. They are often victims of crime themselves, such as domestic violence and assault. The majority are jailed for relatively minor, non-violent crimes which are often related to poverty and homelessness. In addition, Aboriginal and Torres Strait Islander women and women with disabilities are disproportionately represented in the statistics.[53] Until amendments to legislation were introduced in 2020, many women in Western Australia were imprisoned for non-payment of fines. The amendments were partly the result of recommendations of the coronial inquest into the death of Ms Dhu, who died in police custody.[54]

In 2021 the female imprisoned population in Australia was 7.7% of the total adults who are incarcerated. The percentage of the total female prison population rose from 7.2% of the population in 2000 to 12.8% in 2021 (from 1,385 to 3,302 per 100,000), based on the national population (with these figures approximately doubling if based on the national female population).[55]

Debbie Kilroy, founder of Sisters Inside, is a well-known advocate for prison reform for female prisoners, who has noted several ways in which the current criminal justice system has failed in its mission to punish and rehabilitate women.[56]

From 2008 to 2017 there was an increase in the rate of Indigenous people imprisoned, from 1.8% of the Aboriginal and Torres Strait Islander population to 2.43%.[57]

In 2017, Indigenous people were over 15 times more likely than non-Indigenous people to be imprisoned.[58] As of June 2018, the total Aboriginal and Torres Strait Islander population in Australia aged 18 years and over was approximately 2%, while Indigenous prisoners accounted for just over a quarter (28%) of the adult prison population.[59] As of August 2022, 40 per cent of women in prison in the state of New South Wales are Indigenous women.[60]

The Attorney-General for Australia commissioned the Australian Law Reform Commission (ALRC) in October 2016 to examine the factors leading to the disproportionate numbers of Aboriginal and Torres Strait Islander peoples in Australian prisons, and to look at ways of reforming legislation which might ameliorate this "national tragedy". The result of this in-depth enquiry was a report titled Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, which was received by the Attorney-General in December 2017 and tabled in Parliament on 28 March 2018.[61] The report listed 13 recommendations, covering many aspects of the legal framework and police and justice procedures, including that fine default should not result in the imprisonment.[62][63]

Various programs in New South Wales have been having a positive effect on keeping Indigenous people out of prison. In Bourke, a project called Maranguka Justice Reinvestment has police officers meeting with local Indigenous leaders each day, helping to identify at-risk youth, and includes giving free driving lessons to young people. There have been reductions in domestic violence and juvenile offending (such as driving without a license), and an increase in school retention. Project Walwaay in Dubbo sees an Aboriginal youth team help to build relationships and engage young people in activities on a Friday night, which is now the second lowest day of crime, compared with being the busiest day before. The activities are also a pathway to the Indigenous Police Recruitment Delivery Our Way (IPROWD), an 18-week program run through TAFE NSW, which encourages young people to become police officers. This was first run in Dubbo in 2008 and has now been expanded to other locations across the state.[64] Since 2021, yarning circles have been introduced in men's and women's prisons across NSW, starting with Broken Hill Correctional Centre, in a bid to connect Indigenous inmates with their culture, and reduce reoffending and the high rates of incarceration of Aboriginal and Torres Strait Islander people.[60]

According to the Australian Bureau of Statistics as of 30 June 2017 the number of adult prisoners according to each state and territory were as follows:[65]

†Note that Indigenous Australians make up 25% of the Northern Territory's population, compared to under 5% in all other states and territories, and 2.8% nationally.[66]

In 2017 the Northern Territory had by far the country's highest incarceration rate at 878 per 100,000 adult population. This was more than 3 times the national imprisonment rate. However, it was a decrease from 923 per 100,000 the previous year.[67] In June 2018 this had increased to 965.[68]

Prisoners in 2017, by most serious crime committed:[69]

• Illicit drug offences - 6155 individuals - 15% of all prisoners
• Sexual assault - 4785 individuals - 9.8%
• Homicide - 3110 individuals - 7.7%
• Acts intended to cause injury - 9659 individuals
• Unlawful entry with intent - 4378 individuals
• Offences against justice procedures - 3066
• Robbery/extortion - 3255

From 2013-2017, the largest increase was in prohibited weapons crimes, and illicit drug crimes.[69]

In 1990, 1347 people were in prison with the most serious offence being an illicit drug offence. This was 10% of all prisoners (total of 12,965).[70]

Federal prisoners

Federal prisoners are persons sentenced under commonwealth (federal) law, or transferred from another country to serve their sentence in Australia. In June 2018 there were 963 federal prisoners serving sentences in Australia.[68]

Overall, foreign-born people are less likely to be imprisoned than people born in Australia. In 2017, foreign-born people were 35% of the adult population, but only 18% of the prison population.[71]

The incarceration rate differed depending on country of birth. People born in Australia, New Zealand, Vietnam, Lebanon, Iran, Iraq, Somalia, Sudan, South Sudan, Samoa, Afghanistan and Tonga all had incarceration rates higher than the national average. Meanwhile people born in China, Hong Kong, India, Sri Lanka, Philippines, South Africa, United States, United Kingdom, Canada, Italy, Turkey, Greece, Germany, Taiwan, South Korea and Fiji had incarceration rates lower than the national average.[72]

However, these rates are not age-standardised, meaning they do not account for the fact that different groups tend to be younger or older on average. This matters, because teenagers and young adults are much more likely to commit crime than older adults. For instance the Sudanese-born population tends to be much younger on average, and this can help to explain their over-representation in the prison population.[73]

In Australia, life imprisonment is of indeterminate length. The sentencing judge usually sets a non-parole period after which the prisoner can apply for release under parole conditions, or in the case of a criminal who has committed particularly heinous crimes, the sentencing judge may order that the person is "never to be released".

The gatehouse of Fremantle Prison

For extremely high-risk offenders, Australia operates several supermax prisons.

History and statistics

In 2018, 18.4% of prisoners in Australia were held in private prisons.[8]

Modern prison privatisation began in the U.S. and Australia followed shortly thereafter.[74] On 2 January 1990, Borallon Correctional Centre opened as the first private prison in Australia, located in Queensland. Borallon was managed by the Corrections Company of Australia[75] (which was owned by John Holland Group, Wormald International and Corrections Corporation of America).[76] In 2007 Serco won the bid to take over the prison.[75] In 2012 Borallon closed.[77] In 2016 it reopened as a government-operated prison.[78]

In 1992, the Arthur Gorrie Correctional Centre opened, as the second private prison in Queensland, managed by GEO Group Australia.[79]

In 1993, New South Wales became the second Australian state to privatise prisons after Queensland, when Junee Correctional Centre was opened.[74]

As of November 2018, there were no private prisons located in Tasmania, the Northern Territory or the Australian Capital Territory.

Violence and overcrowding

In June 2018, an investigation by the ABC revealed high rates of inmate violence, prison guard brutality and overcrowding at Arthur Gorrie Correctional Centre in Queensland. At that time, the contract for the prison was up for tender. In 2016, the rate of prisoner assault at the prison was more than double the next highest prison.[79]

Arguments for and against

A 2016 article by Anastasia Glushko (a former worker in the private prison sector) argues in favour of privately operated prisons in Australia. According to Glushko, private prisons in Australia have decreased the costs of holding prisoners and increased positive relationships between inmates and correctional workers. Outsourcing prison services to private companies has allowed for costs to be cut in half. Compared with $270 a day in a government-run West Australian jail, each prisoner in the privately operated Acacia facility near Perth costs the taxpayer $182. Glushko also says that positive prisoner treatment was observed during privatisation in Australia by including more respectful attitudes to prisoners and mentoring schemes, increased out-of-cell time and more purposeful activities. As Australia’s prison population has grown and existing facilities have aged, public-private partnerships have provided opportunities to build new correctional centers while enabling governments to defer much needed cash flow. Glushko points out that at Ravenhall Prison in Victoria, the operator is compensated on the basis of the recidivism rate, and this strategy may make the operator more concerned about the wellbeing of its inmates after prison which in return would benefit the entire Australian correctional system.[80]

Conversely, a 2016 report from the University of Sydney found that in general, all states of Australia lacked a comprehensive approach to hold private prisons accountable to the government. The authors said that of all the states, Western Australia had the "most developed regulatory approach" to private prison accountability, as they had learnt from the examples in Queensland and Victoria. Western Australia provided much information about the running of private prisons in the state to the public, making it easier to assess performance. However the authors note that in spite of this, overall it is difficult to compare the performance and costs of private and public prisons as they often house different kinds and numbers of prisoners, in different states with different regulations. They note that Acacia Prison, sometimes held up as an example of how private prisons can be well run, cannot serve as a general example of prison privatisation.[81]

Additionally, community corrections orders have been argued to be cheaper and equally as effective as public or private incarceration. See the section on community corrections for more details.

List of private prisons in Australia

Former private prisons

• Borallon Correctional Centre - Australia's first private prison, currently a government operated prison.[78]
• Wandoo Reintegration Facility - Opened in 2012 on former site of Rangeview Juvenile Remand Centre. Managed by Serco until 2018 when it came back into public hands. Now a women's drug rehabilitation facility.[82]
• Arthur Gorrie Correctional Centre - Management transitioned to Queensland Corrective Services in 2020. [83]
• Southern Queensland Correctional Centre - Private management contract with Serco was revoked as a result of higher levels of assaults, with Queensland Corrective Services taking over control in July 2021.[84]

In 2016-17, Australia spent A$3.1 billion on prisons.[10]

According to a 2018 SBS article, around 600 children under 14 are locked up in Australian prisons each year.[85]

On an average night in June 2019, there were 949 young people imprisoned in Australia. Of these:[93]

• 90% were male;
• 83% were aged 10–17 (the remainder 18–20);
• 63% were unsentenced;
• 53% were Aboriginal and/or Torres Strait Islander youth.

In the year ending 30 June 2020, there were almost 600 children aged 10 to 13 in detention in Australia.[93]

From June 2015 to 2019, the Northern Territory had the highest rate of young people in detention on an average night.[93]

In 2016 the ABC aired a Four Corners report which revealed abuse of youth occurring at Don Dale Youth Detention Centre in the Northern Territory. This included an incident where, in 2015, Dylan Voller, then a minor, had his face covered with a spit hood and was strapped into a mechanical restraint chair for 2 hours. As a result the Australian government established the Royal Commission into the Protection and Detention of Children in the Northern Territory.[94]

In 2022, a Tasmanian Government inquiry revealed that 55 workers at Ashley Youth Detention Centre had been accused of child sex abuse by former child detainees. One former worker was accused of abusing 11 children over the course of 3 decades. Another former staff member was accused of using sexual violence and intimidation, including forced masturbation, against 26 former child detainees. The alleged crimes span from recent years back to the 1970s.[95] In September 2021, it was announced that Ashley Youth Detention Centre would close within three years, and be replaced by two new facilities.[96]

Indigenous Australians are highly over-represented among deaths in custody, they were only 3.2% of the general population in 2021.[98] This led the government to establish a Royal Commission into Aboriginal Deaths in Custody in 1987, which delivered its report in 1991. However, in general there has been a lack of action on reports into deaths, including a failure to implement the recommendations of the 1987 royal commission, and Indigenous deaths in custody remain disproportionately high as a proportion of the general population.[99]

From 2008-2018, 56% of Indigenous people who died in custody had not been found guilty. They were on remand, died while fleeing police or during arrest, or were in protective custody. A majority were suspected of non-indictable offences, which typically carry sentences of less than five years.[100]

Of the 34 deaths that occurred in police custody in 2013-2015, 50% resulted from gunshot wounds. Of those, 13 were police shootings while 4 were self-inflicted.[97]

7 of the 34 occurred during motor vehicle pursuits, while 6 occurred in sieges and 2 in raids. 10 were listed as "other".[101]

From 1989-1991 until now, people aged 25–39 have been overall the most represented group in police deaths, followed by people aged under 25, then 40-54 year olds, then people aged 55+. However, as noted above, in 2013-2015 the majority of deaths were people aged over 40. Furthermore from 1989-1990 to 2014-2015, the overall most common situation for deaths in police custody to occur, was during a motor vehicle pursuit.[101]

7/10 prison deaths were due to natural causes, and 1/3 of those were due to heart disease. The rate of deaths per 100,000 prisoners was 0.16 for sentenced prisoners (ie prisoners who were convicted and serving a sentence) and 0.18 for unsentenced prisoners (ie: in prison awaiting trial).[97]

In 1979-1980, there were only 15 deaths in prison custody. This increased until in 1997-1998 there were 80 deaths in prison custody. Deaths then decreased sharply to 28 in 2005-2006, before rising again to 54 in 2013-2014 and 61 in 2014-2015. In the late 1990s there was a large disparity between the rate of death (per 100,000 prisoners) for sentenced and unsentenced prisoners, peaking at 1.18 for unsentenced prisoners to 0.28 for sentenced.[102]

Prison deaths by state/territory:

From 2000-2018 there have been dozens of deaths in immigration detention, many from suicide. Additionally, some people have died after being released, for reasons connected with being detained.[103]

Community Corrections is the term used for various punishments and court orders in Australia that do not involve prison time. Types of community corrections include:[1]

• Home detention
• Suspended sentence
• Good behaviour bond
• Community service order
• Parole
• Non-conviction bond - where a person is found guilty, but does not get a criminal record provided they go for a certain period without committing another crime

Statistics

In the June 2018, there were 69,397 people in community corrections, an increase of 1,406 (4%) from June 2017. 55,867 (81%) were male and all of the remainder were female[114] (Australia allows people to legally register as X/third gender on some identity documents).[115]

In June 2013 there were 57,354 people in community corrections.[114] From 2013 to 2018, females serving community corrections orders increased by 40% compared to males by 26%.[114]

In June 2006, there were 52,212 persons in community-based corrections in Australia.[39]

In June 2018 most common type of community corrections orders were, in order:[114]

• Sentenced probation
• Parole
• Community service

Please note that people may receive two or more different corrections orders at the same time.[114]

Cost and effectiveness

In 2016-2017 financial year, Australia spent $500 million ($0.5 billion) Australian dollars on community corrections.[10]

An article in The Age, citing a report by the Institute of Public Affairs (a conservative think tank) as well as other figures, said community correctional orders are argued to be significantly cheaper than the cost of private or public incarceration (roughly 10% of the cost of putting people behind bars), "16 per cent of offenders who completed a CCO returned to corrective services within two years" compared to the nearing 50% in traditional prisons. Community-correctional orders CCOs are increasingly commonplace in Victoria and show that crime rates can be meaningfully affected.[116]

Additionally, a June 2018 report from the Australian Institute of Criminology also found that in the short term, for a certain kind of prisoner (comprising roughly 15% of prisoners in Victoria), dealing with them via community corrections orders had similar outcomes to prison but was 9 times cheaper.[117]

These include:

• Monetary fines[118]
• Confiscation of property (eg: impounding cars used in offences, confiscating contraband) etc.[119][120]
• Apprehended violence order (a type of injunction or restraining order)[121]

A recreation 1855 cell in Fremantle Prison

Former Australian prisons which are now open to the public as museums.

• Old Dubbo Gaol
• Boggo Road Gaol
• Fremantle Prison
• Fannie Bay Gaol
• Old Gladstone Gaol
• J Ward
• HM Prison Geelong
• Adelaide Gaol
• Mount Gambier Gaol
• Redruth Gaol
• Maitland Gaol
• Wentworth Gaol
• Old Melbourne Gaol
• HM Prison Beechworth

• HM Prison Fairlea
• HM Prison Geelong
• HM Prison Sale
• HM Prison Morwell River
• HM Prison Pentridge