Punishment in Australia arises when an individual has been accused or convicted of breaking the law through the Australian criminal justice system. Australia uses prisons, as well as community corrections (various non-custodial punishments such as parole, probation, community service etc.). When awaiting trial, prisoners may be kept in specialised remand centres or within other prisons.
The death penalty has been abolished, and corporal punishment is no longer used. Prison labour occurs in Australia, with prisoners involved in many types of paid work. Before the colonisation of Australia by Europeans, Indigenous Australians had their own traditional punishments, some of which are still practised. The most severe punishment by law which can be imposed in Australia is life imprisonment. In the most extreme cases of murder, and some severe sex offences, such as aggravated rape, courts in the states and territories can impose life imprisonment without parole, thus ordering the convicted person to spend the rest of their life in prison.
Prisons in Australia are operated by state-based correctional services departments, for the detention of minimum, medium, maximum and supermax security prisoners convicted in state and federal courts, as well as prisoners on remand. In the June quarter of 2024, there were 44,403 adults imprisoned in Australia, which represents an incarceration rate of 208 prisoners per 100,000 adult population, or 172 per 100,000 total population. This represents a sharp increase from previous decades. In 2016-2017 the prison population was not representative of the Australian population, for example, 91% of prisoners were male, while males were only half of the population, and 27% of prisoners were Aboriginal or Torres Strait Islanders, while Indigenous people were only 2.8% of the population. In 2018, 18.4% of prisoners in Australia were held in private prisons.
In the 2016-17 financial year, Australia spent $3.1 billion on prisons and $0.5 billion on community corrections.
Australia also detains non-citizens in a separate system of immigration detention centres, operated by the federal Department of Home Affairs, pending their deportation and to prevent them from entering the Australian community. Controversially this includes the detention of asylum seekers, including children, while their claims to be refugees are determined. In 2023, the High Court of Australia ruled that indefinite detention was unconstitutional if the detainees had no foreseeable prospect of deportation (for instance stateless individuals). The court stated that in such cases indefinite detention amounted to punishment, which is the purview of the courts - not the executive government. It has been stated the different purposes make little practical difference between immigration detention and imprisonment, and that detainees often experience immigration detention as if it were punishment.
History.
Traditional Indigenous punishments.
Prior to the arrival of Europeans, the Indigenous people of Australia - Aboriginals and Torres Strait Islanders - had their own traditional punishments which they carried out on people who broke tribal customary law. These included:
Colonial times.
New South Wales, as the founding site for British colonisation Australia in 1788, has had prisons for as long as Australia has had European settlement. The first Australian colony was founded at Port Jackson (now Sydney) on 26 January 1788, and marked the commencement of many decades of convict arrivals from the United Kingdom. Penal colonies were also founded in what is now the states of Queensland, Tasmania, and Western Australia.
Two penal colonies were briefly founded in the area that is now Victoria. Both were abandoned shortly after. Later, after a free settlement had been established, some convicts were transported to the region.
No penal colonies were located in the areas that have now become South Australia, the Northern Territory and the Australian Capital Territory.
Norfolk Island (an external territory of Australia), the site of two penal colonies from 1788–1814 and 1824-1856, has no prisons at all in the 21st century. When Glenn McNeill was sentenced in 2007 to 24 years in prison for murder on Norfolk Island, the absence of prisons meant he was imprisoned in NSW.
Convicts in the 19th century were subject to forced hard labour, such as quarrying sandstone. William Ulthorne, an English Catholic Bishop described convict labourers in the 1830s: “They are fettered with heavy chains, harassed with heavy work, and fed on salt meat and coarse bread, [...] Their faces are awful to behold, and their existence one of desperation.”
Additionally, there was the punishment of young children. John Hudson was reportedly only nine years old when sentenced for burglary and 13 when transported to Australia. He was one of 34 children on the First Fleet in 1788.
Capital punishment in Australia.
On 3 February 1967 Ronald Ryan was the last individual to be executed in Australia after he killed a prison officer whilst attempting to escape Pentridge Prison. A few years later the Federal Parliament passed the Death Penalty Abolition Act 1973, abolishing the death penalty amongst federal law however not prohibiting its use in state or territory law.
The various states and territories all formally legally abolished capital punishment in their laws, with the first being Queensland in 1922 and the last being New South Wales in 1985.
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty outlining the obligations of its parties to respect and promote the civil and political rights of individuals. Article 6 of the ICCPR states the death penalty may only be used in countries that have not abolished capital punishment for the severest of crimes. The Second Optional Protocol to the ICCPR was created as an accompaniment to the ICCPR and altered Article 6 to ensure the abolishment of the death penalty in all cases worldwide.
In Australia the second optional protocol to the ICCPR has been signed and ratified into domestic law. This is seen through the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010. The act fully abolished the death penalty and effectively ensured no state or territory is able to reintroduce it.
Corporal punishment in Australia.
Flogging (also called whipping, lashing), a form of corporal punishment, was used from 1788 up until 1958. The Australian folk ballad Jim Jones at Botany Bay, dated to the early 19th century, is written from the perspective of a convict wanting to take revenge on those who flogged him. The last men flogged in Australia were William John O'Meally and John Henry Taylor, at Pentridge Prison, Victoria on 1 April 1958 (technically William was flogged second, and so was the last).
As of August 2020[ [update]], the Global Initiative to End All Corporal Punishment of Children reports that "Prohibition is still to be achieved in the home in all states/territories and in alternative care settings, day care, schools and penal institutions in some states/territories".
Corporal punishment of school children is legally banned in public schools nationwide, but remains legal in private schools in Queensland.
Adult imprisonment.
Each state and territory runs its own department to oversee correctional services; for example the South Australian Department for Correctional Services is responsible for prisoners and the provision of the rehabilitation opportunities in South Australia.
Number of prisoners.
In June 2022, there were 40,591 people imprisoned in Australia, and an incarceration rate of 201 prisoners per 100,000 adult population.
In the 30 years from 1988 to 2018, Australia's incarceration rate per 100,000 adults more than doubled. However, since 2018 it has decreased. The highest rate of increase was seen among prisoners on remand (ie: unsentenced, awaiting trial or sentencing), women and Indigenous Australians. From 2012 to 2017 the number of people in prison on remand grew 87 percent. This might be due to more people being refused bail, and a backlog of cases in the courts.
Males.
In 2017 males made up 91.9% of prisoners, despite males only being roughly half the adult population.
Females.
The number of female prisoners in Australia rose 47% between 2009 and 2019. They are often victims of crime themselves, such as domestic violence and assault. The majority are jailed for relatively minor, non-violent crimes which are often related to poverty and homelessness. In addition, Aboriginal and Torres Strait Islander women and women with disabilities are disproportionately represented in the statistics. Until amendments to legislation were introduced in 2020, many women in Western Australia were imprisoned for non-payment of fines. The amendments were partly the result of recommendations of the coronial inquest into the death of Ms Dhu, who died in police custody.
In 2021 the female imprisoned population in Australia was 7.7% of the total adults who are incarcerated. The percentage of the total female prison population rose from 7.2% of the population in 2000 to 12.8% in 2021 (from 1,385 to 3,302 per 100,000), based on the national population (with these figures approximately doubling if based on the national female population).
Debbie Kilroy, founder of Sisters Inside, is a well-known advocate for prison reform for female prisoners, who has noted several ways in which the current criminal justice system has failed in its mission to punish and rehabilitate women.
Indigenous Australians.
From 2008 to 2017 there was an increase in the rate of Indigenous people imprisoned, from 1.8% of the Aboriginal and Torres Strait Islander population to 2.43%.
In 2017, Indigenous people were over 15 times more likely than non-Indigenous people to be imprisoned. As of June 2022, the total Aboriginal and Torres Strait Islander population in Australia aged 18 years and over was approximately 2%, while Indigenous prisoners accounted for 32 percent of the adult prison population. As of August 2022[ [update]], 40 per cent of women in prison in the state of New South Wales are Indigenous women.
The Attorney-General for Australia commissioned the Australian Law Reform Commission (ALRC) in October 2016 to examine the factors leading to the disproportionate numbers of Aboriginal and Torres Strait Islander peoples in Australian prisons, and to look at ways of reforming legislation which might ameliorate this "national tragedy". The result of this in-depth enquiry was a report titled "Pathways to Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples", which was received by the Attorney-General in December 2017 and tabled in Parliament on 28 March 2018. The report listed 13 recommendations, covering many aspects of the legal framework and police and justice procedures, including that fine default should not result in the imprisonment.
Various programs in New South Wales have been having a positive effect on keeping Indigenous people out of prison. In Bourke, a project called Maranguka Justice Reinvestment has police officers meeting with local Indigenous leaders each day, helping to identify at-risk youth, and includes giving free driving lessons to young people. There have been reductions in domestic violence and juvenile offending (such as driving without a license), and an increase in school retention. Project Walwaay in Dubbo sees an Aboriginal youth team help to build relationships and engage young people in activities on a Friday night, which is now the second lowest day of crime, compared with being the busiest day before. The activities are also a pathway to the Indigenous Police Recruitment Delivery Our Way (IPROWD), an 18-week program run through TAFE NSW, which encourages young people to become police officers. This was first run in Dubbo in 2008 and has now been expanded to other locations across the state. Since 2021, yarning circles have been introduced in men's and women's prisons across NSW, starting with Broken Hill Correctional Centre, in a bid to connect Indigenous inmates with their culture, and reduce reoffending and the high rates of incarceration of Aboriginal and Torres Strait Islander people.
State and territory prison populations.
According to the Australian Bureau of Statistics, as of June 2022, the number of adult prisoners according to each state and territory were as follows:
†Note that Indigenous Australians make up 25% of the Northern Territory's population, compared to under 5% in all other states and territories, and 2.8% nationally.
State and territory incarceration rates.
As of June 2022, the Northern Territory had by the country's highest incarceration rate at 1,027 per 100,000 adult population, which is over five times the incarceration rate of the country overall and an increase from 2017, when the territory's incarceration rate was 878 per 100,000. With the exception of the Northern Territory and Queensland, all other states and territories saw a decrease in incarceration rate over the same time period.
By crime.
The Australia Bureau of Statistics classifies prisoners (sentenced and unsentenced) according to the "most serious" crime with which they are charged. In 2022, statistics for charges were as follows:
Federal prisoners are persons sentenced under commonwealth (federal) law, or transferred from another country to serve their sentence in Australia.