Regarding Rights

Academic and activist perspectives on human rights

Women in Australian prisons and why they need human rights protections

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Oath 2009, by Carolyn McKay.  Reproduced with permission of the artist.

Oath 2009, by Carolyn McKay.
Reproduced with permission of the artist.

By Anita Mackay

Monash University

The ACT Human Rights Commission is currently conducting an audit and review of the treatment of women in the Alexander Maconochie Centre (AMC). This raises the broader question of “what human rights do women in Australian prisons have?”[1]It is a particularly important question given the growth in the female prison population nationally. The Australian Bureau of Statistics reported on 6 December 2012 that “the number of female prisoners has increased at a rate 21 times higher than the number of male prisoners since 2011.”[2]

The overrepresentation of Indigenous women in prisons is particularly stark. The Indigenous Justice Clearinghouse has noted that:

Indigenous women’s imprisonment rate for the March 2012 quarter was 380 per 100,000,

16.5 times that of the general female population; this is a higher degree of overrepresentation than for Indigenous men (13.4 times). In addition, although Indigenous women’s imprisonment rate was lower than for Indigenous men, they accounted for a higher proportion of their respective prison population (35% vs 26%).

I start this post with an overview of the characteristics of the female prison population in Australia before examining what human rights women in prison have. Given that there is no human rights legislation in most of the Australian states and territories (only the ACT and Victoria have such legislation) the focus will be on why human rights protection is needed for women in prison.

Women in Australian prisons

Women currently comprise approximately 7% of the Australian prison population.

Women tend to commit types of criminal offences that mean they are of less danger to other members of the community than men. For example, the Victorian Sentencing Council provides the following breakdown of gender differences in sentencing:

Men predominate in offences such as assault (11.8% of men versus 7.5% of women), sex offences (18.5% versus 3.5%) and unlawful entry with intent (burglary) (11.0% versus 6.0%), while women most commonly appear in prison with property offences (including theft) (21% of women versus 6.1% of men) and deception offences (10.0% versus 3.1%).

Women are also predominantly sentenced to imprisonment for shorter periods of time than men. The median sentence length for women is 24 months compared to 42 months for men. In relation to Indigenous women, it has been observed that “Indigenous women serve shorter sentences, meaning they are imprisoned for very minor offences—such as driving infringements and non-payment of fines” (3).

Women in prisons are a particularly vulnerable group. For example, it has been estimated that between 57 – 90% of women in prison have been victims of childhood sexual abuse. Furthermore, 87% of women in Victorian prisons have been victims of sexual, physical or emotional abuse prior to their incarceration.

Women in prison also exhibit high rates of mental illness. The Australian Institute of Health and Welfare has found that 43% of women report a history of mental health problems upon entry into prison and 51% report a high level of psychological distress. This may be compared to 37% and 39% of male prison entrants respectively, and psychological distress levels in the general population of 13% for women and 9% for men. These statistics are quite concerning given that the World Health Organisation has recognised that the nature of imprisonment is likely to worsen people’s mental health if they have problems upon entry, or cause mental health problems in some people who are healthy upon entry. This is due to factors such as the disciplinary regime, lack of choice about activities and the people that they spend time with, and limited communication with family (especially children) and friends. The result is high levels of violence, aggression, self-harm and suicide.

In addition to the mental health implications of imprisonment, it is also very disruptive to peoples’ lives. It has been argued that for women this disruption is disproportionate, given the nature of the offences they have committed and the minimal danger they are likely to pose to the community. The Victorian Parliamentary Drugs and Crime Prevention Committee has argued that “[t]he impacts of short sentences for women are arguably disproportionate to the crimes committed; for example, they can lead to women’s children entering state care, the loss of housing, income and all personal possessions” (29).

This is particularly the case given that the majority of women sentenced to imprisonment are the primary caregivers for dependent children. On average, two-thirds of women in prison are primary caregivers.  This figure is higher for Indigenous women, for example it was recently found to be 80% in Victoria. Research has found that “when mothers are incarcerated it is typically maternal grandmothers and other kin, not children’s fathers, who step up to care for them if they are not fostered out”.

The impact on children of having their mother sentenced to imprisonment includes problems for their “physical, behavioural, emotional, social and academic development”; “social isolation/withdrawal, social stigma and a range of strong emotions such as grief and loss, depression and shame are also common” (75).

As the female imprisonment rate continues to rise, there are some difficult questions that we need to ask ourselves as a society about whether the danger posed to the community by the types of offences typically committed by women justifies these results for the women and children concerned (not to mention the burden placed on those caring for children while their mothers are incarcerated).

What human rights do women in Australian prisons currently have?

Given that the female imprisonment rate is continuing to grow, it is important to consider what human rights women in prison have currently. Australia is a party to the International Covenant on Civil and Political Rights (ICCPR) which contains a number of provisions relevant to people in prisons. These include:

  1. Article 7, which provides that “[n]o one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment”;
  1. Article 10(1), which provides that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”; and
  1. Article 10(3), which provides that “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”.

International human rights law also provides that people in prison retain all their rights other than the right to liberty. This principle is found in the United Nations General Assembly’s “Basic Principles for the Treatment of Prisoners” (Principle 5).  This means that people in prison retain their right to life, personal security, privacy, the right to equality and not to be discriminated against, as well as other rights.

Despite Australia being a party to the ICCPR, it does not form part of Australian law except to the extent it has been enacted in domestic legislation. There are no legislative protections for the human rights of imprisoned people at the national level. There is the Standard Guidelines for Corrections in Australia (2004), but these are not enforceable.[3]

Furthermore, most states and territories (which are responsible for prison administration, rather than the Federal government) have not enacted domestic legislation to protect the human rights contained in the ICCPR. The only two that have done so are the ACT (Human Rights Act 2004) and Victoria (Charter of Human Rights and Responsibilities Act 2006), and neither have included a provision that has the effect of Article 10(3) of the ICCPR.

Thus, the human rights of women in the majority of Australian prisons are not protected by domestic legislation. However, in light of the characteristics of the Australian female prison population outlined above, and the nature of the prison environment, it is arguable that human right protections are particularly important for women in prison. I discuss key examples of where these protections are required in the next section.

What human rights protections are needed?

There are a number of human rights concerns raised by the imprisonment of women that are equally important, so the following list should not be seen as one that is ranked by level of importance. It is also not an exhaustive overview, and instead offers examples.

Strip searching is a common occurrence in prison. It is used to find contraband items, such as drugs. Being subject to a strip search is a traumatising experience for anybody, but it is particularly so for the high percentage of women in prison who have previously been victims of sexual abuse/assault. It has been described as “sexual assault by the State”. Under the provisions of the ICCPR the prohibition of torture and cruel, inhuman, or degrading treatment and the right to be treated with “humanity and with respect for the inherent dignity of the human person” both require that strip searching be used minimally, if at all.

It has recently emerged that there has been widespread sexual assault of women in the Brisbane Women’s Correctional Centre by a prison officer. This clearly involves a criminal offence, but it also violates the right to personal security as provided for by international human rights law.

Treatment for mental illness is a priority for women in prison given the high percentage with mental health problems. The UN Special Rapporteur on the right to the highest attainable standard of health, Mr Anand Grover, visited Australia in 2009 and found that mental health services in prisons were inadequate for the high percentage of people with mental illnesses there. Under international human rights law people in prison have the right to “the highest attainable standard of physical and mental health,”[4] and are also entitled to health services of an equivalent level to services provided in the community.

The majority of women in prison are mothers and it is important for both the women and their children, as well as for other family members, that they have continuing contact during their incarceration. Research has found that the availability of visits impacts on the quality of women’s ongoing relationships with their children following their release. Because there are fewer women’s prisons they are often located in remote areas, making it difficult for family members and carers of children to visit. The remoteness of these prisons can also separate Indigenous women from their communities and country. Human rights law provides for the protection of the family, and so supports ongoing contact. Additionally, Indigenous women in prison have the right to enjoy their culture with members of their community (under Article 27 of the ICCPR).

Many women wish to use their time in prison to further their skills through education, work or both. This improves their chances of being able to support themselves and their children following their release, and decreases the chances of recidivism. Educational programs and work opportunities are often not provided to women in prison to the same extent as they are for men because of the small number of women imprisoned. As noted above, the goal of imprisonment under the ICCPR is rehabilitation, which requires that education and vocational training be made available. The right to equality before the law and not to be discriminated against requires that such programs be made available equally to men and women in prison.


Nelson Mandela observed that “no one truly knows a nation until one has been inside its jails.  A nation should not be judged by how it treats its highest citizens, but its lowest ones”.[5] The concerns raised by the treatment of women in Australian prisons, in light of the statistics highlighted in this post, include:

  • being subject to conditions that are likely to worsen their mental health (especially in light of the mental health issues they face upon imprisonment, their history of abuse and victimisation, and being subjected to strip searching and some cases sexual assault while in prison);
  • being separated from their dependent children and other family members, which is in the majority of cases harmful to both the mother and her children, and of particular significance to the high percentage of Indigenous women in the Australian prison population who are often being imprisoned long distances from their country and communities; and
  • not being provided with adequate mental health services, education and vocational training aimed at rehabilitation.

Human rights law is certainly not a panacea for the harm caused by imprisonment of this segment of the population, and it would be preferable to consider alternatives to imprisonment. However, if as a society we are going to continue to imprison women at ever increasing rates, they are clearly a group that needs access to protections. Human rights law offers one such protective mechanism.

Regarding Rights would like to thank Carolyn McKay for giving us permission to use her art in this week’s post. More information about Carolyn and her work can be found here:

[1] This post draws substantially on the Castan Centre for Human Rights Law submission to the ACT Human Rights Commission which was prepared by Associate Professor Bronwyn Naylor and Anita Mackay.

[2] Note that the ACT provides an exception to this trend as the number of females in prison has remained fairly stable.  For example, in 2010 there were 15 women imprisoned in the ACT, whereas during the March quarter of 2013 there were 13 – Australian Bureau of Statistics, Corrective Services, Australia, March 2013 (13 June 2013) 14.

[3] The preface states that the guidelines “constitute outcomes or goals to be achieved by correctional services rather than a set of absolute standards or laws to be enforced” (3).

[4] Article 12 of the International Covenant on Economic, Social and Cultural Rights, to which Australia is a signatory.

[5] Nelson Mandela, Long Walk to Freedom: The Autobiography of Nelson Mandela (Back Bay Books, 1995).

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