Open Access

Georgina Collins

• Almost 25 years on from the landmark Royal Commission into Aboriginal Deaths in Custody Indigenous imprisonment in Australia continues to rise at an alarming rate, leading to further over representation in the criminal justice system. A number of academics have applied the theory of ‘governing through crime’ in the context of Indigenous imprisonment to argue that the strategic use of crime has led to a targeting of Indigenous offenders in an increasingly punitive and risk based system. If correct this would imply a disconnection between rising imprisonment and actual levels of crime and safety in the community — a finding which could have significant policy implication s. However, evidence to support this claim is currently limited, a gap which this thesis seeks to address through a case study of the Northern Territory. Inquiry is conducted at two levels: firstly by asking what criminal justice law and policy changes could have contributed to rising Indigenous imprisonment and secondly by asking why these changes could have disproportionately impacted Indigenous persons. A mixed methods approach is used, combining a review of academic literature, a review of legislation and policy and analysis of quantitative data sources. Long term crime rates have been trending downwards for most offence categories in the Northern Territory in recent years. Comparison of these trends to the prison population supports the contention that increased imprisonment cannot be adequately explained by increased offending and broader system changes may be playing an important role. The past decade has been one of rapid changes to legislation and policy governing various aspects of the criminal justice system. Significant changes which have potentially impacted on Indigenous imprisonment were enacted in the areas of sentencing, bail, non - custodial sentencing options, alcohol regulation, domestic violence, parole and police powers. From analysis of these changes a number of key trends emerge that support the governing through crime hypothesis. These are: a heightened focus on protection of the community through the use of broad categories of risk; placement of seriousness of the crime as the iii central consideration in decision making to the exclusion of individual offender circumstances; intensified surveillance and enforcement; and encroachment of the criminal justice system into areas traditionally the domain of social policy. Analysis of available data, as well consideration of the contextual circumstances in which these changes apply, suggest s a heavy imp act of many of the changes on the Indigenous population. A typical explanation for this heavy impact relies on high levels of offending among the Indigenous population and a tendency for many of the types of crimes and offenders targeted by changes to correlate with Indigeneity. However, adding another layer to this explanation by looking at the historical context for Indigenous disadvantage and the political context in which law and policy changes are made suggests that this explanation is overly simplistic. By examining these contextual factors it is argued that heavy impacts on Indigenous persons are not merely an unfortunate co incidence but at least in part product of a political process that views crime through a radicalized lens and targets Indigenous persons accordingly. This concerning as it implies that policy makers are being driven by popular fears and conceptions of crime and race rather than rational evidence. As a result many of the changes implemented are directly contrary to a growing evidence base as to what works in both reducing Indigenous d is advantage and reducing crime. Overall support is found for the hypothesis that an increasingly punitive criminal justice system and a shift towards governing through crime is contributing to rising Indigenous imprisonment in the Northern Territory. This finding is qualified by an acknowledgement that this is not a comprehensive explanation and a range of complex factors are at play in Indigenous over representation. Nevertheless, it does highlight the importance of criminal justice law and policy settings in Indigenous over representation and point towards a nee d for structural changes which place impacts on Indigenous persons at the center of the decision making process. Approaches such as racial impact statements are promising in this regard and deserving of further research.