The State’s Responsibility to Care: Aboriginal people, human rights and the justice system

By Kate Johnson

This article is part of our February theme, which focuses on one of the great silences in the human rights conversation in Australia: Prisoners’ Rights. Read our Editorial for more on this theme.

The relationship between Aboriginal people, the justice system and human rights is complex. The state has historically contributed to Aboriginal disadvantage through policy and practice. Demonstrating this tension, the state has a dual responsibility to care for its vulnerable populations, at the same time as sentencing and imprisoning convicted criminals.

Aboriginal people are more likely to be disadvantaged than other Australians. The state has abrogated its role to protect the human rights of Aboriginal people and this has contributed to the current over-representation of Aboriginal people in Australian prisons, comprising 26 per cent of the prison population but only 2.5 per cent of the general population.

Aboriginal over-representation: a human rights issue

Australian prisons no longer exist only to provide punishment. Today, there are programs to rehabilitate prisoners, and provide educational opportunities to support prisoners to re-enter society. Research shows people with a limited education, a history of physical, emotional or sexual abuse and who are unemployed are more likely to have contact with the justice system.

This fact suggests that the social circumstances Aboriginal people face, including racial discrimination, contributes to their over-representation in prisons. These are social issues and they are also human rights issues. A human rights-based approach to the problem of the over-representation of Aboriginal people in prisons provides practical and powerful ways to prevent crime, aid the rehabilitation of prisoners and reduce recidivism.

A human rights approach: general principles

Most people understand human rights belong to all and that those rights are indivisible and inalienable. What is difficult to know is what human rights mean and how their practical application will work. Human rights enable people to live in freedom, equality, dignity and respect and a human rights approach is driven by the principles of participation, accountability, non-discrimination and empowerment.

Human rights enable people to participate in decisions that concern and affect them. They are able to hold the system to account and have access to avenues of redress. They are able to live life without discrimination. They are empowered through the provision of opportunities and choice. They are also able to demand their human rights be respected. The absence of these values can result in disadvantage which can make people vulnerable to criminal activity and result in their imprisonment. If the justice system aims to rehabilitate, human rights, and a human rights-based approach needs to be utilised to create an environment that enables prisoners to re-enter society with an understanding of, and respect for their own, and other peoples’ human rights.

The need for the empowerment of Aboriginals and Aboriginal offenders

It is hard to deny that negative stigma surrounds prisoners, and that Aboriginal people continue to experience racial discrimination. These two facts combined create a serious impediment to rectifying aboriginal over-representation in prisons. If people are treated as lesser human beings, they are likely to be disempowered by internalising those projections, limiting their desire and ability to improve their circumstances.

Empowerment is integral to human rights practice and is pivotal tor peoples’ health and wellbeing. The empowerment of prisoners can be pursued by the system working with prisoners to analyse the circumstances that preceded their conviction and develop personal development plans to address these issues and provide the prisoner with skills and experiences to increase their quality of life both inside and outside of prison. Through addressing the underlying health, economic, psychological or relationship issues of prisoners in partnership with the individual, the likely benefits will be that the prisoner will re-enter society with a greater ability to contribute and also the individual will be empowered through an increased understanding of self with the skills and knowledge to have greater choices for when they leave prison.

Empowering Aboriginal offenders through recognition and respect

Physical detention challenges a persons’ dignity and impacts upon their quality of life because their status as a prisoner conjures a sense of betrayal. Nonetheless, correctional institutions can earn prisoners’ respect by affording respect to others, developing trust, creating consistency in actions and developing respectful relationships through dialogue. The state is provided the opportunity to reverse discrimination and reduce future disadvantage by affording Aboriginal detainees access to their basic human rights, acknowledging them as people with inherent worth and value and respecting the importance of their cultural practices and beliefs. Aboriginal people are diverse and their similarities and differences should be recognised. Whilst Aboriginal people have common ground and a shared history, they are entitled to being treated as individuals. Human rights mindedness places this individuality first and foremost. It presents the opportunity for correctional institutions to see Aboriginal prisoners as equal individuals. It also allows the system to learn from prisoners about how they can be supported to stop the cycle of disadvantage, criminal activity and imprisonment that is a reality for many Aboriginal people.

We need to create an environment that places the prisoner at the centre and works to provide them with an understanding of, and respect for, their own and other peoples’ human rights.

Current initiatives working to provide culturally appropriate responses to Aboriginal justice include the Koori Courts, circle sentencing and the soon to open, culturally sensitive Aboriginal prison in Derby, Western Australia. This facility was designed with consideration of: proximity to land, sea, waterways and family; respect of traditional law and culture; respect for family responsibilities; and promotion of social and economic wellbeing and independence. These examples illustrate where the state has proactively incorporated the cultural rights of Aboriginal people as part of the justice process.

The need for participation: public life and rehabilitation

While some rights are necessarily denied to prisoners, the most obvious being freedom of movement, programs can be developed to protect, promote and fulfil the rights of prisoners within the constraints of certain limitations. Programs can be developed and implemented with necessary supervision to enable prisoners to participate in public life through community service, attending events of cultural or personal significance, and participating in educational or vocational programs in established institutions.

No doubt these would need to be closely managed but there are immediate benefits that spring to mind from these examples Firstly, it would be evident the system respected the quality of life of prisoners and that the system trusted these individuals, as both prisoners and people. We need to create an environment that places the prisoner at the centre and works to provide them with an understanding of, and respect for, their own and other peoples’ human rights. One suggestion is the development of prisoner committees that consult with other prisoners to identify circumstances they believe are infringing upon their ability to successfully rehabilitate, as well as common issues experienced by prisoners accompanied with recommendations for their improvement.

Social benefits

The less prisoners rights are curbed, the better for the individual and society because prisoners will likely have greater respect for a system that respects them. The way prisoners are treated, and the opportunities and choices they have at their disposal will significantly impact upon the type of person that is released from prison. Society will benefit if prisoners have been treated with equality, dignity and respect as they will have better health and social and emotional wellbeing. It has been reported that prisoners released on parole fare better and are less likely to re-offend compared to those released without condition set for them by authorities. Re-entering society with the safety net of a parole officer means the freedom of these ex-prisoners is curbed. It is not suggested that all prisoners released from a correctional facility be placed on parole to support better outcomes. However, perhaps affording prisoners increased access to their rights whilst detained will enable them to support themselves and participate in society in a law abiding and respectful way because they will have had experience exercising their rights and it won’t be a foreign concept. The receipt of respect and dignity cannot be underestimated. It is the cornerstone of personal possibility and a functional, modern multicultural society.


If the modern prison aims to rehabilitate, the state should invest not only in reducing the rate of recidivism, but to utilise the opportunity to provide care, support and equality of opportunity. We can always do more and human rights provide a sound and internationally recognised framework to better protect and support society’s vulnerable and disadvantaged. As the state limits prisoner rights whilst they are in custody, they are responsible for supporting their successful transition back in to society. In order to rectify the tragic over-representation of Aboriginal people in prisons, it will help to take a human rights approach.  Such an approach provides a framework for empowerment, respect, recognition and positive participation from which society as a whole can benefit.

Kate Johnson is completing her Post-Graduate Diploma in Applied Human Rights at RMIT University and completed her Bachelor of Arts at La Trobe University with a focus on politics and philosophy in 2008. She has experience working in Aboriginal health and mental health with a focus on social policy. Kate has also worked for not-for-profit organisations in both Australia and Rwanda using education and relationship building as a tool to address poverty and disadvantage.