Laura Burfitt Discrimination against women in the Darwin Correctional Centre – an essay

Discrimination against women in the Darwin Correctional Centre

Author’s note:

The term ‘Aboriginal’ has been used in this essay to refer to all Aboriginal and Torres Strait Islander people. This term has been chosen due to the word limit and also in recognition of the fact that many Aboriginal people in the Northern Territory dislike the use of the term ‘Indigenous’ and the acronym ‘ATSI’. When referring to victim/ survivors of domestic and family violence, both ‘victim’ and ‘survivor’ are used.

Introduction

Women are the fastest growing cohort of Australia’s prison population. The number of women in Australian prisons has increased by 43 per cent in the past 10 years.1 For Aboriginal women, this increase is even higher at 74 per cent.2 The criminogenic profile of women prisoners is significantly different from men. Perhaps the most important difference is the level of complex trauma owing to a history of domestic and family violence (DFV).3 The focus of this essay is women’s experiences of DFV and the need for specialist DFV counselling in women’s prisons. The locus of this essay is Sector 4 at the Darwin Correctional Centre (DCC), that is, the women’s area. Building on the extensive work undertaken by the Top End Women’s Legal Service Inc. (TEWLS), this essay considers the availability of discrimination protections for women prisoners in Sector 4 with the view to advocate for an independent, specialist DFV counsellor. Part I provides an overview of the Northern Territory (NT) context, establishes the issue of DFV related trauma and its prevalence among women prisoners and outlines the work undertaken by TEWLS to date. Part II offers an alternative approach to statutory protections by considering political advocacy as a potential avenue to secure a DFV counsellor. Parts III and IV look at the discrimination protections available under NT and Commonwealth legislation respectively. Quotes included in the essay are from the women prisoners in Sector 4.

Background

A. The NT Context

Though women represent only six per cent of the NT prison population,4 their rate of incarceration is climbing faster than that of male prisoners.5 The NT has the highest incarceration rate in Australia with 875 prisoners per 100 000 people in the adult population.6 This is more than four times the national average of 202 per 100 000.7 In the last decade, the number of women in NT prisons has nearly doubled, with Aboriginal women significantly overrepresented.8 Aboriginal women account for 82 per cent of the NT women’s prison population,9 yet make up only 15 per cent of the NT female population.10 As of December 2020, there are 63 women incarcerated in the DCC.11

Women prisoners often have higher recidivism rates than male prisoners.12 Two-thirds of women prisoners in the NT have been previously incarcerated.13 The rates of prior incarceration for Aboriginal and non-Indigenous women in the NT are both higher than that of non-Indigenous men.14 This is fundamentally the result of unmet need and demonstrates the ineffectiveness, or indeed absence, of rehabilitative programs for women in prison.

“We need urgent action to reduce the numbers of women re‑offending and returning to gaol.

”15

Prisoner, Sector 4

B. DFV-related trauma

Incarcerated women are some of the most marginalised, vulnerable persons in Australia. Many women prisoners have histories of poverty, housing insecurity, unemployment, poor education, poor health and significantly, violence and abuse.16 Approximately 90 per cent of women prisoners in Australia are survivors of physical, sexual or emotional violence in either childhood or adulthood and the majority have experienced multiple forms of violence.17

A history of violence and abuse is recognised as a key risk factor in women’s offending and re-offending behaviour.18 Multiple studies have demonstrated a clear correlation between incarcerated women who are survivors of violence and abuse, and substance use disorder and mental health issues.19 These factors place DFV victims at an increased risk of offending. Thus, many victims are simultaneously trapped in two cycles: the

cycle of violence and the cycle of offending to try and cope with the trauma.20

“There is almost no access to trauma counselling or any other type of psychology or psychiatry, more needs to be done to get to the core of offending... sentences [are] given to women who have suffered a life of domestic violence and finally fought back... ” 21

Prisoner, Sector 4

There is currently no mental health or DFV counselling services available for the women prisoners in Sector 4.22 The shortage of mental health services for women in prison is widespread and well-known.23 In addition to the lack of mental health supports, the practices and conditions in prison, such as routine strip searching, often emulate the power dynamics present in violent relationships.24 This further traumatises victim prisoners, reinforcing a sense of powerlessness, lack of control, and vulnerability.25 Consecutive reports and inquiries have recognised the high prevalence of trauma among women in prison and called for counselling to be made available.26 Yet despite this longstanding recognition and persistent advocacy, women prisoners remain underserved and the excuses of ‘insufficient numbers of women’ and ‘resource constraints’ continue to be dished out.27

Women prisoners need culturally informed mental health services to address complex trauma. Without these tailored services, they continue to be at increased risk of ‘self medicating, substance abuse, unemployment, mental illness and family breakdown’,28 leading in turn to offending and re-offending. TEWLS is a community legal centre which provides free and culturally appropriate legal services to women living in the Greater Darwin region. TEWLS is the only service which provides consistent civil and family law services to women incarcerated in Sector 4 in the DCC.

In 2019, TEWLS conducted Legal Health Checks (LHCs) over the course of 12 months with the female prisoners in Sector 4. Data from the LHCs was published in their final report, and identified the following:

● 76 per cent of those who took part in the project identified as Aboriginal and

Torres Strait Islander;

● 66 per cent had been incarcerated at least once before;

● 76 per cent of women had experienced DFV either as a child or an adult;

● 63 per cent of those who had experienced

DFV said they would talk to a specialist counsellor if one was available.29

The findings amply demonstrate why TEWLS has been advocating for a DFV specialist counsellor in Sector 4 for several years.

In addition to the publication of this report, TEWLS has made a complaint to the NT Ombudsman and provided a submission to the Productivity Commission (Commonwealth),30 imploring the NT and Commonwealth Governments to set aside funding for a specialist DFV counsellor in Sector 4. So far, there has been no adequate response to these appeals.

Political advocacy

In determining the best pathway to secure funding for a specialist DFV counsellor in Sector 4, it is appropriate to also consider non-legal avenues.

A. Election commitments

The current NT Labor Government, first voted in in 2016, has committed to undertake significant reform across multiple platforms including Aboriginal justice, youth justice, child protection and domestic, family and sexual violence (DFSV).31 Re-elected in 2020, this work is ongoing.

Among the 2016 election commitments are for the NT Government to:

● work with ‘Our Watch’ to develop evidence-based and contemporary strategies to prevent family violence;32

● improve health services overall in the detention system;33 and

● support a community policing approach to working with families to reduce young people offending.34

Our Watch is leading Australia in the field of primary prevention of violence against women. Their resource document ‘Changing the Picture’ presents a targeted primary prevention approach to address violence against Aboriginal and Torres Strait Islander women.35 Our Watch recognises that the cycle of imprisonment experienced by many Aboriginal women prisoners is a product of DFV-related trauma. Citing rehabilitation as a core principle,36 Our Watch calls for a justice reinvestment approach to address the underlying drivers of Aboriginal peoples’ incarceration including improving access to counselling services, drug and alcohol services and DFV programs for prisoners.37 Thus, if the NT Government looks to Our Watch for ‘evidence based and contemporary strategies to prevent family violence’, it will see that specialist counselling services for victims in prison is central to preventing DFV and reducing criminal offending.

Further, in order to effectively work with families to reduce young people offending, it is critical to decrease the risk of family disruption. The vast majority of women in prison are mothers or primary carers.38 The damaging effects of separating mothers from their children is well-documented.39 Children whose mothers are in prison are more likely to be in outof-home care and therefore more likely to commit a criminal offence.40 Ensuring adequate rehabilitation programs for women in

prison not only reduces their risk of reoffending but also decreases the risk of their children entering the criminal justice system.

B. Policy frameworks

NT policy frameworks corresponding to these election commitments include the ‘Domestic, Family and Sexual Violence Reduction Framework 2018-2028’ and the ‘Aboriginal Justice Agreement’. Two key actions from these frameworks are:

● Victims of DFSV receive services that provide timely, accessible, person centred, flexible and appropriate help to meet their immediate safety and recovery needs.41

● Design, develop and deliver trauma-responsive, culturally competent therapeutic programs for Aboriginal prisoners that address the underlying causes of offending and reoffending, including substance misuse, DFV, and mental health.42

These actions demonstrate a clear commitment from the NT Government to providing person-centred, trauma responsive and culturally competent programs and services which meet the recovery needs of DFV victims.

C. Recent events

In February 2021, a protest was held outside NT Parliament House in response to the decision to terminate funding to one of the only women’s support programs in Sector 4. The protest resulted in the decision being rescinded and the funding secured until June 2021. The protest also prompted a statement from the NT Attorney-General, the Hon Ms Selena Uibo: ‘[The NT] Government is committed to reducing incarceration rates and providing the right programs to rehabilitate people.’43 Given these commitments are expressed in policy and there is mounting pressure from the public, this may be the perfect time to advocate to the Attorney-General. Further, it is four years from the next election and now is an opportune time for the Government to commit to something that may be otherwise seen as controversial or contrary to the ‘hard on crime’ rhetoric espoused by political opponents.

PART III

Anti-Discrimination Act 1992 (NT)

The failure to provide DFV counselling to women prisoners at the DCC may be actionable as direct discrimination under the NT Anti-Discrimination Act 1992 (the ADA). The NT Anti Discrimination Commission (ADC) does not receive claims of indirect discrimination,44 nor does it handle representative complaints.45 Thus a complaint made under the NT ADA must be an individual complaint of direct discrimination.

The ADA defines discrimination as:

any distinction, restriction, exclusion or preference made on the basis of an attribute that has the effect of nullifying or impairing equality of opportunity; and harassment on the basis of an attribute, in an area of activity referred to in Part 4.46

A. Can a complaint of direct discrimination be made under the

NT ADA?

To be successful in making a complaint of direct discrimination under the NT ADA, the complaint must satisfy two elements. First, the discrimination must occur on the basis of one of the listed attributes under Section 19 of the Act.47 Second, the discrimination must occur in one of the identified areas of activities laid out in Section 28.48

B. Women in Sector 4

In the case of women prisoners in the DCC, the most tenable complaint would be discrimination on the basis of sex in the area of goods, services and facilities.49 The respondent in this case would be the NT Government, as the provider of correctional services. The act of discrimination would be the failure, on the part of the NT Government, to provide DFV counselling services to women prisoners in the DCC. The need for such services has been amply demonstrated and repeatedly brought to the attention of the NT Government.50 Furthermore, there is an unmistakeable gap in the availability of rehabilitation programs for men and women prisoners in the DCC.51 For example, in the 2004/05 financial year, there were no rehabilitation programs delivered to women prisoners, but there were nine such programs delivered to male prisoners.52

An alternative route may be to claim ‘failure to accommodate special need’.53 However, it is likely that the NT Government would argue under Section 19(3)(b) that the ‘cost of accommodating the special need’ outweighs ‘the number of people who would benefit’,54 given the comparably low numbers of women prisoners in the DCC.

C. Discussion and conclusion

Whilst this complaint of direct discrimination may be easily made out, there are some considerations that must be taken into account. First, an individual complaint can only be made by a single person, hence one prisoner from Sector 4. One prisoner’s experiences may not be as persuasive as the collective experiences of multiple complainants. Moreover, it can be triggering and re-traumatising to recount past trauma and there may not be any women prisoners who are willing to share their story of DFV and carry out the complaint process. A second consideration is whether the DCC can be truly characterised as a goods, services and facilities area. A correctional centre is not identified as a form of accommodation under Section 4 of the ADA. It is unclear whether it is similarly excluded from the areas of goods, services

and facilities. Third, it is important to note that discrimination complaints cannot be submitted to both the ADC and the Australian Human Rights Commission.55 A complainant must choose one agency. A final consideration is the fact that the NT ADC is currently working to modernise the ADA. Adopting a representative complaint model and specifically defining ‘services’ have both been identified as potential reforms to the Act. In light of the above considerations, it may be more appropriate to pursue a discrimination complaint under the federal legislation. Alternatively, a complaint could be delayed until the modernisation of the ADA is complete.

PART IV

Sex Discrimination Act 1984 (Cth)

There are two key benefits to making a complaint under the Sex Discrimination Act 1984 (Cth) (the SDA) rather than the NT ADA. The first benefit is that the complaint can be representative, focusing on the experiences of many women, rather than one individual, and thus illustrating the systemic failures to meet the needs of women prisoners in the DCC. The second benefit is that the subject of the complaint can be indirect discrimination. Indirect discrimination occurs when there are conditions, requirements or practices that unfairly disadvantage some people because of a certain attribute.56 When a complaint involves indirect discrimination, the burden of proof shifts to the discriminator who must demonstrate that the act does not constitute discrimination as per the reasonableness test laid out in Section 7B(2).57 A. Can a complaint of indirect discrimination be made under the

Sex Discrimination Act?

Similar to the NT ADA, there are two elements that must be satisfied in order to make a complaint under the SDA. First, the discrimination that is the subject of the complaint must be in relation to one of the grounds outlined in Part I of the SDA.58 Second, the discrimination must occur in one of the specific areas identified in Part II of the SDA.59 The discrimination must also not be an exemption stipulated in the Act.

For a complaint to be successful, it must withstand the reasonableness test in Section 7B(2). The act of indirect discrimination must not be determined to be ‘reasonable in the circumstances.’60 The ‘matters to be taken into account’ include:

a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

b) the feasibility of overcoming or mitigating the disadvantage; and

c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.61

B. Women in Sector 4

The indirect discrimination experienced by the women prisoners in Sector 4 is the absence of DFV counselling in the DCC. This indirect discrimination occurs on the grounds of sex as per Section 5(2) of the Act.62 This is because women are far more likely to be victims of DFV, especially women in prison. As outlined in Part I, it is estimated that up to 90 per cent of women prisoners have histories of DFV. Findings from TEWLS suggest that three quarters of women prisoners in the DCC have experienced DFV as either a child or an adult, noting DFV victimisation is often underreported.63 In

contrast, it is estimated that far fewer men are victims of DFV: approximately one in four Australian women have experienced violence by an intimate partner since the age of 15 years, compared to one in thirteen men.64 Similarly one in six Australian women and one in ten men have experienced abuse before the age of 15.65

The indirect discrimination is occurring in the area of ‘goods, services and facilities’.66 Section 4 of the SDA provides that services include ‘services of the kind provided by a government, a government authority or a local government body.’67 In the case of women in the DCC, the service in question is correctional services provided by the NT Government.

D. Discussion and conclusion

Counterarguments put forward by the NT Government will draw on the three provisions contained in the reasonableness test. The strength of the complaint will be determined by how these counterarguments can be refuted.

First, the nature and extent of the disadvantage resulting from the absence of DFV counselling is significant and reflected in the high recidivism rates of women in the NT. Untreated complex trauma compounded by re traumatisation in prison settings contributes to the cycles of violence and offending for women prisoners. The impact of this disadvantage is far-reaching as it extends beyond the individual to their children, leading to intergenerational offending.

Second, mitigating the disadvantage is not only feasible but may offer an economic return to the NT Government. The annual cost of imprisonment in the NT is approximately $123m with a total net operating expenditure and capital cost per prisoner per day of $317.73.68 Given 63 per cent of women prisoners in Sector 4 stated that they would engage with DFV counselling, if available, and 66 per cent of women had one or more prior incarcerations, investing in an independent, specialist DFV counsellor would likely reduce women’s recidivism rates and result in a cost saving for the NT Government.69

Finally, the disadvantage experienced by the women prisoners in Sector 4 as a result of the absence of DFV counselling services manifests in their ongoing trauma, disempowerment, re-offending and family breakdown. This disadvantage is vastly disproportionate to the minor cost saving of not providing a much needed rehabilitation service.

Conclusion

DFV-related trauma is a key driver of women’s offending. The NT Government claims it is committed to reducing incarceration rates and providing the right programs to rehabilitate people and yet fails to provide much needed DFV counselling to women prisoners in Sector 4. This failure is actionable as direct discrimination and indirect discrimination under Territory and Commonwealth legislation respectively. However, political advocacy presents the most timely and least resource-intensive option for securing a specialist DFV counsellor in Sector 4. This essay concludes by recommending that TEWLS advocates directly to the NT Attorney-General. If this does not produce the desired outcome, then a sex discrimination complaint to the AHRC is the best option to advocate for and represent the collective voices of the women prisoners in DCC.

Endnotes page 68‑69

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