In September 2022, the Australian High Court upheld a law that effectively allows “preventative incarceration,” or the imprisonment of people even after their sentence has been served, based on whether or not a court thinks the prisoner might be at risk of committing a future crime.
Indigenous people make up 4% of the population of Western Australia, but 40% of the state’s prisoners are Indigenous.
At Western Australia’s Banksia youth prison, 75% of incarcerated youth are Indigenous.
Australia allows for the imprisonment of children as young as 10 years old.
Casuarina prison is a sprawling, concrete jungle on the southern outskirts of Perth, Western Australia (WA). It is a maximum-security, adult facility, home to people who may never leave its confines. However, on July 20, the penitentiary “welcomed” a new cohort of prisoners: 17 kids under the age of 18, who had been moved from the Banksia Hill Juvenile Detention Center to Casuarina […].
When current WA Premier Mark McGowan was elected in 2017, his Labor party promised to lower the rate of Indigenous incarceration in the state, which is the highest in the nation. First Nations people are 16 times more likely to be incarcerated in WA than non-Indigenous people, a number that has only risen despite the promise of the government.
Dr. Hannah McGlade, a Noongar academic and human rights lawyer, isn’t surprised by the state’s failure to uphold its promise. “Our government cares little for Aboriginal lives,” McGlade told The Diplomat. […]
In the past month, the Australian High Court upheld a law designed to keep the worst offenders in prison indefinitely, even after their sentences have been complete.
Known as the High Risk Serious Offenders Act (HRSOA), the legislation was challenged in Australia’s apex court when Peter Garlett, a 23-year-old Noongar man, was imprisoned after stealing AU$20 and a necklace while pretending to be armed. Despite this being his first adult offense, when his sentence was up, the Western Australian government asked the High Court to keep Garlett, now 28, in prison.
The court agreed, effectively paving the way for preventative incarceration in Australia.
Though five of the seven High Court judges upheld the constitutional validity of the HRSOA, many academics, lawyers, and activists who deal with the lives of First Nations people inside the legal system on a regular basis, note that this will only further trap Indigenous Australians in the carceral system. Garlett had been in near-continuous detention since he was 12, and this became the rationale for keeping him in prison beyond his criminal sentence.
One of the judges even hypothesized that the law could “potentially lead to the imprisonment of one seventh of the entire prison population of Western Australia for offenses that they have not committed.” […]
“This is a crystal-clear example of an indirectly discriminatory law: one that is not discriminatory in its express terms but is discriminatory in its practical effect.” […]
Though Indigenous people make up less than 4 percent of the state population, nearly 40 percent of Western Australia’s prison population is Indigenous. That is particularly troubling given the horrific record of Australian prisons. Since the Royal Commission into Aboriginal Deaths in Custody in 1991, over 500 First Nations people have died while imprisoned in Australia. In 2020-2021 alone, 13 prisoners died in custody in WA – five of them Aboriginal.
No custodial or police officer has ever been found criminally responsible for any of these deaths.
The structural forces pushing Indigenous people into Australia’s prisons start early. In the Banksia Hill Juvenile Detention Center, three-quarters of the inmates are Indigenous. Despite its mandate to rehabilitate people for their eventual release, reports show some of the prisoners receiving as little as five hours of education a month. In April, the state’s prison watchdog outlined a series of “cruel, inhumane, and degrading” treatments in the facility’s Intensive Support Unit. Children have reportedly made suicide pacts due to their treatment, with some being kept in isolation for 23 hours a day. […]
Penglis and McGlade point to the age of imprisonment in Australia being only 10 years old as devastating. […]
Text by: Dechlan Brennan. “How Western Australia Criminalizes Indigenous Children.” The Diplomat. 7 October 2022. [Italicized first lines/heading in this post added by me.]
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