The Good, the Incarcerated and the Drunk: a reflection on Indigenous Australians and the criminal justice system

It is said that a picture paints a thousand words. With respect to Indigenous disadvantage, the same can be said about statistics. 

Despite making up only 2.5% of Australia’s population, Indigenous Australians account for 27.6% of the national jail population. In the Northern Territory, where Indigenous Australians are 30% of the population, they account for 85% of the jail population. Nationally, Indigenous adults are 15 times more likely to be imprisoned than their non-indigenous counterparts. The rate is even worse for Indigenous youth, who are 31 times more likely to be in jail than their counterparts.[1]

Australia’s Indigenous people are one of most imprisoned people groups in the world.[2] This mass-incarceration also has flow-on community effects, which should not be forgotten, such as an estimation that more than one in five Indigenous children will experience a parent in jail.[3] Perhaps most representative of the alarming disadvantage faced by Indigenous Australians is the fact that they are more likely to be re-incarcerated than to finish high school.[2] 

The over-representation of Indigenous Australians in the criminal justice system extends beyond imprisonment. In reality, the problem begins with police discretion regarding diversion, cautioning, arrest and charging, and continues to bail and sentencing options. At each stage, Indigenous Australians are less likely to benefit from an exercise of discretion and are more likely to receive a punitive option. The over-policing of Indigenous Australians also creates a multitude of problems, including charges for low-level offending that would otherwise remain undetected in non-Indigenous communities. Increased contact with police only increases the likelihood that an interaction will escalate and lead to the charges such as the ‘classic trifecta’ of resisting arrest, assaulting police and offensive language.[2] Cases like Police v Shannon Thomas Dunn highlight how easily this situation can arise.[4] In Dunn, a young Aboriginal man was approached by police in community on the suspicion that he was riding a stolen bike. An order to take the bike into custody, lead to Dunn swearing at police, which resulted in an altercation between the two groups and the classic trifecta of charges. When the case got to court, the theft charge had been dropped, leaving only the trifecta that ultimately arose from the original misuse of police discretion. 

Most confronting, however, is the continued rise in Indigenous imprisonment. In the 23 years since the landmark Royal Commission into Aboriginal Deaths in Custody, the Indigenous imprisonment rate has doubled. Such outcomes reflect a failure to address what has been, and remains, the cause of Indigenous crime: poor socioeconomic conditions and severe alcohol abuse and dependency.[5] Recent legislation in the Northern Territory only highlights the ongoing nature of this failure.

In an effort to reduce alcohol-driven crime, the Northern Territory recently introduced Alcohol Protection Orders (‘APOs’) and Alcohol Mandatory Treatment (‘AMT’). APOs are issued by the police to individuals who have allegedly committed a ‘qualifying offence’ where the police believe the individual was affected by alcohol at the time. A ‘qualifying offence’ is one that attracts a prison sentence of six months or more, anything from loitering to drink-driving to shoplifting. Individuals are subject to APOs for 3-12 months, and are restricted from consuming or possessing alcohol, and from entering licensed venues. Breaching an APO results in criminal charges and punishment of up to three months in jail and/or $3,600 in fines.[6] In contrast, AMT affects adults who have been taken into Police Protective Custody three or more times in two months for being intoxicated in public. After the third time, the individual is assessed to ascertain whether they meet the criteria for AMT and appears before the AMT Tribunal, which has the power to place the individual in a treatment service for up to three months or to impose community management schemes such as income management.[7]  

APOs and AMT essentially criminalise drinking and remove the civil liberties of innocent members of the community. Both legislative measures target chronic drinkers and alcoholics, however, the over-policing of the Indigenous population means that Aboriginal drinkers will most likely be targeted in practice. In response to complaints about APOs, the Minister for Alcohol Policy, David Tollner, said:

I find all these concerns illegitimate, but even if they were true, big deal. Big whoop, who cares? In many cases we do not care about the liberties we take away from [people  issued with APOs]. The fact is, we want these people off the streets.[8]

Tollner’s comment only further highlights the failure of these measures to address the social context in which alcohol is a cause of criminal behaviour. Taking drunk Indigenous Australians ‘off the streets’ and placing them into AMT or jails (for breaching their APOs) will not address alcoholism. While in the Northern Territory, I heard many stories from lawyers and locals in support of this fact, most commonly of people finishing their APO or leaving their AMT and walking straight into the nearest club or bottle store.

The above is not to say that Indigenous Australians do not wish to address issues of alcohol abuse and dependency. Rather, I want to suggest that laws and policies should not solely focus on imprisonment as the solution to Indigenous criminal behaviour. Laws and policies should seek to also address socioeconomic disadvantage and alcohol abuse as causes of crime. One such policy example is the justice reinvestment model, which advocates for savings in the corrections budget to be directed to communities with a high number of offenders. These savings are then to be used for programs aimed at addressing the social problems within that community, such as alcohol and drug treatment services, improved housing, and education programs. Only when we tackle both the cause and effect, will it be possible for us to ‘paint’ a different picture of what it is like to be an Indigenous Australian.


Steph Colquhoun recently completed a five week Aurora Project internship with the North Australian Aboriginal Justice Agency (‘NAAJA’ - Aboriginal Legal Aid) in Darwin, NT.

            To find out more about the Aurora Project:

            To find out more about NAAJA:


[1] Australian Bureau of Statistics, ‘Prisoners in Australia’ (Report 4517.0, 2013).

[2] Melanie Schwartz, ‘Redressing Indigenous over-representation in the criminal justice system with justice reinvestment’ [2013] (September/October) Precedent 38.

[3] Michael Levy (2008) ‘Children of prisoners: an issue for courts to consider in sentencing’. Presentation to Federal Criminal Justice Forum, 29 September, Canberra. 

[4] See David Heilpern, ‘Police v Shannon Thomas Dunn’ (1999) 24(5) Alternative Law Journal 238. 

[5] Australian Bar Association, ‘Australian Bar Association again calls for urgent action to address unacceptable Indigenous imprisonment rates’ (Media Release, 1 August 2014).

[6] Alcohol Protection Orders Act 2013 (NT).

[7] Alcohol Mandatory Treatment Act 2014 (NT).

[8] Similar comments have been made by David Tollner on other occasions, as evident in articles such as this from the NT News,