Aboriginal law & justice

Why rocket Aboriginal prison rates through the roof? Does police 'target' Aboriginal people? Find out about missed chances and hopeful programs to get statistics down.

Selected statistics

Percentage of the prison population in the Northern Territory that is Aboriginal. The NT has the highest incarceration rate per 100,000 people.
Percentage of the prison population in Western Australia that is Aboriginal. Proportion of the population who identifies as Aboriginal: 3.5%.
Percentage of the prison population in Australia that is Aboriginal. Aboriginal people make up 3% of the Australian population.
Approximate number of Aboriginal barristers in Australia in 2015.
Times higher: The likelihood that an Aboriginal person is locked up, compared to a non-Aboriginal Australian.
Percentage of youth in prison who have been sexually assaulted as children.
Percentage by which the Aboriginal imprisonment rate of NSW rose between 2001 and 2008.
Times higher: The probability that an Aboriginal person is the victim of a homicide, compared to a non-Aboriginal person. One in 10 homicide victims is Aboriginal.
Percentage of people involved in police custody incidents who are Aboriginal.
Percentage of Australia's Aboriginal prison population who is male.
Average sentence length of Aboriginal prisoners in years (non-Aboriginal: 5.3).
Times higher: The likelihood that an Aboriginal child aged between 10 and 14 is charged by police, compared to a non-Aboriginal child.
Daily rate for a room at the Hilton in Sydney, including WiFi.
Average daily cost to the Australian government to keep a prisoner locked up.
Money the NSW government spends each year to maintain its prison system.
Percentage of Aboriginal people who return to NSW jails after 11 months. 50% of non-Aboriginal inmates return to jail after an average of 13 months.
Percentage of Aboriginal juveniles who end up in court. Same figure for non-Indigenous juveniles: 28%.
Percentage of detainees placed in custody before any finding of guilt, sometimes because family circumstances will not allow them to meet bail conditions. Many of the charges do not even carry a custodial penalty.
Minimum number of Indigenous people being arrested and taken into custody every week in NSW.
Percentage of Aboriginal children who have a family member who has spent time in gaol.
Percentage of Aboriginal homicide offenders in 2007-08. Aboriginal population share: 3%.
Investment the NSW government announced in June 2016 to spend over 4 years to cover 7,000 additional prison beds.
Age of criminal responsibility in Australia, which means children can be be prosecuted, convicted and sentenced to juvenile detention. Most common minimum age of criminal responsibility adopted by nations: 14.

List of articles

If Aboriginal customary law and white law come together and recognise one another, they can change the direction everything is heading in.

— Yidumduma Bill Harney, Aboriginal lawman
A police officer escorts an Aboriginal man in the rain.
There's more than meets the eye in this cartoon. Many Aboriginal people sense there is another reason behind them being singled out—their Aboriginality. Cartoon: Danny Eastwood, Koori Mail

Genocide legal under Australian law

In 1998, the Australian Capital Territory Supreme Court deliberated about a test case brought by members of the Aboriginal Tent Embassy which was erected in 1972 in front of Parliament House in Canberra.

In the test case the Court's Justice Kenneth Crispin found that "there is ample evidence to satisfy me that acts of genocide were committed during the colonisation of Australia". But no-one took notice.

In 1999 the full bench of the Federal Court and later the High Court ruled that there was no law against genocide in Australia, nor does Australia have any effective remedies for crimes against humanity. Even worse is the fact that the counsel for the Prime Minister in the case argued that the Genocide Convention was deliberately not incorporated.

A newspaper at the time stated that "accused war criminals... who have become Australian citizens, will not be effected... because politicians fear that [incorporation]... will also open the way for the Aboriginal claims of genocide."

In July 1949 Australia had ratified the United Nations' Convention on the Prevention and Punishment of the Crime of Genocide which in article 2 defines genocide as

  • "killing members of the group;
  • causing serious bodily or mental harm to members of the group;
  • imposing measures intended to prevent births within the group; [and]
  • forcibly transferring children of the group to another group."

However, the bill Australia passed to ratify the convention did not make genocide a crime under domestic law.

Consequently, the Aboriginal Tent Embassy plaintiffs in 1998 lost their case on appeal to the Federal Court.

Forced removal of Aboriginal communities from their homelands, as happened when Western Australia closed "not viable" communities, fits the UN definition.


Australia has one of the weakest protections of human rights in the Western world, implementing less than half the legal obligations of international human rights treaties.

Homework: Reveal Australia's degree of civilisation

Russian novelist Fyodor Dostoyevski said: "The degree of civilisation in a society is revealed by entering its prisons."

Exploring the situation of Aboriginal people in prison by using the articles in this section, what reveals your research about the degree of civilisation in Australian society?

Does extra police help?

What happens if more police are deployed to Aboriginal communities?

A study has shown that more police in Northern Territory communities reduced alcohol-related problems, but did little to 'invisible' crimes like marijuana use, sexual assault or stealing.

The research found that 'public' problems such as alcohol (46% people reporting improvements) and community violence (45%) had improved most. An interesting finding is that people in remote communities supported an ongoing police presence, with 75% of respondents approving a permanent police presence and 53% believing police did a good job. However, there were vast differences between communities.

Police in some communities are so under-resourced that police officers refuse to continue working there.

Which three sets of rights can Aboriginal people enjoy?


Traditional rights, Australian rights and human rights.


Indigenous Justice Clearinghouse

The Indigenous Justice Clearinghouse is a national resource on Aboriginal justice. It aims to promote discussion and disseminate relevant Aboriginal justice information to government policy makers and those working in the Aboriginal justice field.

The initiative is a collaborative partnership between the Australian Institute of Criminology (AIC) and the Standing Council on Law and Justice.

Indigenous Law Centre (ILC)

The Indigenous Law Centre was established in 1981 to develop and coordinate research, teaching and information services for Aboriginal people and the law.

The ILC conducts legal research, publishes the Indigenous Law Bulletin and Australian Indigenous Law Review, develops curricula and teaching materials and aims to advance community legal education.

The publications aim to provide critical commentary on the relationship between Aboriginal peoples and the law.


View article sources (25)

[1] 'Inmate levels worsen', Koori Mail 454 p.14
[2] [2a] [2b] 'New approach call over jail numbers', Koori Mail 498 p.9
[3] 'Barnett's Petty Law And Order Policy Encourages Deaths In Custody', New Matilda 7/11/2014
[4] 'First silk honour for indigenous barrister Anthony McAvoy', The Australian 25/9/2015
[5] [5a] 'More in prisons', Koori Mail 467 p.19
[6] [6a] 'Enquiry examines jailing of juveniles', Koori Mail 472 p.37
[7] [7a] 'Books plan locked in', Koori Mail 473 p.6
[8] [8a] 'Killings a a far higher rate: Report', Koori Mail 492 p.8
[9] 'Mixed findings in deaths report', Koori Mail 492 p.10
[10] Koori Mail 394 p.16
[11] www.hiltonsydney.com.au, visited 16/2/2015
[12] 'How much does it cost to keep people in Australian jails?', SBS News 2/2/2015
[13] 'Push for recidivist programs', SMH 6/3/2010
[14] 'Reconciliation in Parliament', flyer, 10/2010
[15] 'Legal service DVD drama focus on people's rights', Koori Mail 480 p.26
[16] NSW Aboriginal Legal Service newsletter, 3/2011
[17] 'NSW Budget 2016: $3.8 billion for new jail capacity to cover surge in prison population', SMH 16/6/2016
[18] 'Crime & punishment in Aboriginal law', The Arch (Bond Uni), Spring 2009 p.14
[19] Koori Mail 522 p.20
[20] [20a] 'The struggle to achieve real justice', Koori Mail 506 p.25
[21] Nulyarimma v Thompson (includes two corrigenda dated 2 September 1999) [1999] FCA 1192 (1 September 1999)
[22] 'Aboriginal sovereignty movement asks UN to deny Australia a seat on the Security Council', press release, Michael Anderson, 28/9/2012
[23] 'Australia 'weak on rights'', Koori Mail 401 p.84
[24] [24a] 'Mixed findings', Koori Mail 474 p.15
[25] 'NT death cop admits mistake', Koori Mail 412 p.41

Harvard citation

Korff, J 2021, Aboriginal law & justice, <https://stage.creativespirits.info/aboriginalculture/law>, retrieved 23 April 2021

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