The police play a pivotal role in the separation of Indigenous children and young people from their families and communities. The Inquiry has already documented this role in the history of removal policies. However, police still have a major function in bringing about separations. Most obviously, Indigenous children and young people are separated from their families and communities by being placed in police custody and held in watchhouses, lock-ups or cells.
The Australian Institute of Criminology specifically drew the links between past removal policies and contemporary use of police custody.
For many Aboriginal people, police officers taking children into custody and locking them in the cells, particularly in circumstances where this would not happen to a non-Aboriginal child, is a continuation of the practices of the past that have led to the Inquiry being established (submission 686 page 4).
The issue of Indigenous children and young people in police custody was addressed by the Royal Commission into Aboriginal Deaths in Custody. A key recommendation was `that, except in exceptional circumstances, juveniles should not be detained in police lock-ups' (Recommendation 242). The Convention on the Rights of the Child also requires that arrest and detention following arrest should be measures of last resort (article 37(b)). Alternatives should be utilised unless the circumstances are exceptional. An evaluation of State and Territory responses to Recommendation 242 found that it has not been adequately implemented (Cunneen and McDonald 1997 pages 182-184).
The Australian Institute of Criminology presented an analysis of the results of the August 1995 National Police Custody Survey which shows the extent to which police custody is utilised.
The significance of the survey's findings to the Inquiry is that they help to illustrate the continuing heavy involvement of Indigenous children (compared to non-Indigenous children) in the criminal justice system, in particular the elevated proportion of Aboriginal children being held in the cells by police (submission 686 page 2).
The following table shows the number and percentage of Indigenous and non-Indigenous youth aged 10 to 17 held in police custody nationally during the August 1995 survey period.
| Indigenous youth |
Non-Indigenous youth |
Total |
|||||
| Age |
No |
% |
No |
% |
No |
% |
|
| 10 |
- |
- |
1 |
100 |
1 |
100 |
|
| 11 |
4 |
57 |
3 |
43 |
7 |
100 |
|
| 12 |
24 |
67 |
12 |
33 |
36 |
100 |
|
| 13 |
65 |
59 |
46 |
41 |
111 |
100 |
|
| 14 |
105 |
59 |
73 |
41 |
178 |
100 |
|
| 15 |
151 |
44 |
190 |
66 |
341 |
100 |
|
| 16 |
155 |
38 |
250 |
62 |
405 |
100 |
|
| 17 |
200 |
30 |
474 |
70 |
674 |
100 |
|
| Total |
704 |
40 |
1,049 |
60 |
1,753 |
100 |
Note: It is not possible to distinguish Aboriginal from Torres Strait Islander young people in any juvenile justice data.
Some 40% of all young people held in police custody during the survey period were Indigenous. Indigenous children and young people comprise only 2.6% of the national youth population. In fact, the rate of custody per 100,000 Indigenous young people is 1,333 compared to a rate of 52 for non-Indigenous youth. The over-representation factor is 26.
The majority of children taken into police custody under the age of 15 years were Indigenous. That children of such a young age should be separated from their families, communities and community organisations is highly disturbing, particularly when such separations are not a feature of police interaction with non-Indigenous children. The issue of the relatively young age of Indigenous young people detained in police custody was raised by the ALSWA which told the Inquiry that one in five Indigenous young people detained in WA police cells was 14 years of age or younger. Of these 92% already had an arrest history (ALSWA submission 127 page 334).
The following table shows the distribution of police custody of young people by jurisdiction throughout Australia. Not all States and Territories resort to the use of police custody to the same extent. Nevertheless, the data demonstrate that over-representation of Indigenous young people in police custody is a significant problem and that there are differential patterns of policing Indigenous children and young people compared to non-Indigenous children and young people.
| Indigenous youth |
Non-Indigenous youth |
Total |
||||
| State |
No |
% |
No |
% |
No |
% |
| NSW |
108 |
36 |
192 |
64 |
300 |
100 |
| Vic |
16 |
7 |
209 |
93 |
225 |
100 |
| Qld |
176 |
42 |
245 |
58 |
421 |
100 |
| WA |
228 |
61 |
146 |
39 |
374 |
100 |
| SA |
123 |
39 |
196 |
61 |
319 |
100 |
| Tas |
3 |
9 |
31 |
91 |
34 |
100 |
| NT |
45 |
69 |
20 |
31 |
65 |
100 |
| ACT |
5 |
33 |
10 |
67 |
15 |
100 |
| Aust |
704 |
40 |
1,049 |
60 |
1,753 |
100 |
The majority of young people held in police custody in Western Australia and the Northern Territory were Indigenous young people. This issue is of particular concern in WA where the overall number in police custody is also high: 61% of young people held in police custody were Indigenous.
Other jurisdictions with large Indigenous populations also had relatively high proportions of Indigenous young people in police custody. These included Queensland with 42%, SA with 39% and NSW with 36%. WA also accounted for 32% of all Indigenous young people in Australia who were held in police custody, followed by Queensland which accounted for 25% of the total.
The Australian Institute of Criminology made a number of important points in relation to the use of police custody for Indigenous young people.
While there are many occasions where police officers will need to detain children who have committed offences or who are at risk of coming to harm, holding them in the cells at police lockups can rarely if ever be justified. In many cases, doing so breaches the police's own standing orders and perhaps legislation. Apart from the most exceptional circumstances (and that surely cannot be 61% of the time in WA!) it breached Recommendation 242 of the Royal Commission into Aboriginal Deaths in Custody (submission 686 page 4).
In WA detention in police cells is often not related to criminal matters at all. In the Kimberley region over 50% of juveniles detained in police cells were there because of alcohol use (ALSWA submission 127 page 334 referring to Crime Research Centre research). Public drunkenness is not a criminal offence in WA, although police retain the power to detain intoxicated persons. In addition, the Inquiry was told that the Young Offenders Act 1994 (WA) permits too much discretion to police officers by failing to place a positive onus on them to find alternatives to police cells when a young person is intoxicated (ALSWA submission 127 page 347).1
The Convention on the Rights of the Child article 37(c) requires the separation of juveniles from adults when young people are deprived of their liberty (see also ICCPR article 10(2)(b)). Article 37(c) of CROC also requires that every child is to be treated in a manner which takes into account the needs of persons of his or her age. The Commonwealth Government submitted a reservation on the relevant sections of both treaties,2 arguing that geography makes total segregation difficult to achieve and that responsible authorities should have the discretion to `determine whether it is beneficial for a child or juvenile to be imprisoned with adults' (quoted by Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 on page 205). The available empirical evidence strongly suggests that the `discretion' disadvantages Indigenous young people.
The detention of Aboriginal youth is a form of child removal. This cannot be denied or ignored. Incarceration and its ensuing deprivation of liberty is a destructive and dehumanising experience (ALSWA submission 127 page 340).
Concern about the over-representation of Indigenous young people in detention centres developed from the early 1980s. Most of the research was State-based, reflecting the nature of separate juvenile justice jurisdictions across the nation. There was great difficulty in deriving comparable national data on Indigenous over-representation. Indeed, the Royal Commission into Aboriginal Deaths in Custody noted, `At no level of the criminal justice system is statistical information more inadequate than it is with respect to juvenile offenders' (National Report 1991 Volume 2 page 254). Although acknowledging the difficulties of interpreting the available data, there was a perception that the over-representation of Indigenous young people was increasing (National Report 1991 Volume 2 page 263).
Some of the data provided to the Inquiry indicate the upward trend in the incarceration of Indigenous young people during the late 1980s and early 1990s. The NSW Government noted that the proportion of Indigenous young people in detention centres had increased in the four years to 1994 (interim submission page 81). No explanation was given as to why this may have occurred.
All Australian States and Territories have submitted quarterly returns to the Australian Institute of Criminology on the number of juveniles held in detention centres since 1982. However, it is only since 1993 that national information has been included which identifies whether a young person is Indigenous or not, thus permitting comparisons to be made.
Nationally some 36% of youth in juvenile correctional institutions on 30 June 1996 were Indigenous. The rate of incarceration was 540 per 100,000 Indigenous young people compared to a non-Indigenous rate of 25 per 100,000.
| Indigenous youth |
Non-Indigenous youth |
Total |
|||||||
| State |
Noa |
% |
Rateb |
Noa |
% |
Rateb |
Noa |
% |
|
| NSW |
102 |
30 |
746 |
238 |
70 |
36 |
340 |
100 |
|
| Vic |
4 |
6 |
132 |
66 |
94 |
13 |
70 |
100 |
|
| Qld |
84 |
61 |
594 |
53 |
39 |
14 |
137 |
100 |
|
| WA |
61 |
57 |
734 |
45 |
43 |
23 |
106 |
100 |
|
| SA |
18 |
22 |
572 |
65 |
78 |
42 |
83 |
100 |
|
| Tas |
6 |
23 |
301 |
20 |
77 |
37 |
26 |
100 |
|
| NT |
9 |
69 |
110 |
4 |
31 |
29 |
13 |
100 |
|
| ACT |
1 |
14 |
324 |
6 |
86 |
17 |
7 |
100 |
|
| Aust |
285 |
36 |
540 |
497 |
64 |
25 |
782 |
100 |
Sources: Australian Institute of Criminology submission 686 and Atkinson and Dagger 1996.
a These figures do not include young people over the age of 17 years who are held in juvenile correctional centres. Some jurisdictions (such as NSW) have significant numbers of young people in this category. Nationally, at 30 June 1996 an additional 37 Indigenous young people 18 years or older were held in juvenile institutions (Atkinson and Dagger 1996).
b Rate per 100,000 of the relevant population. Rates quoted by the Australian Institute of Criminology are correct to two decimal places. The above rates have been rounded for ease of reading.
This table shows the number of Indigenous and non-Indigenous young people held, the percentage of the total which each group comprised and the rate of incarceration for each group. The majority of young people in juvenile correctional institutions in NT (69%), Queensland (61%) and WA (57%) were Indigenous.
However, NSW had the highest number of Indigenous young people incarcerated (102) as well as the highest rate (746 per 100,00). WA's rate of 734 was only slightly lower than that in NSW. Queensland and SA also had extraordinarily high rates (594 and 572 respectively). Nationally some 87% of Indigenous young people in detention are held in only three States: NSW, WA and Queensland.
Jurisdictional differences also indicate important considerations in relation to policy development. For example, unless we assume that Indigenous youth in WA are six times more criminal than Indigenous youth in Victoria, we need to consider what it is about government policy and legislation that leads to greater levels of incarceration of young people in the former State. Similarly the variations in incarceration by jurisdiction also have a positive side to them. They indicate that patterns of imprisonment `are not the product of immutable factors. They can vary. They can change. They can be improved' (Dodson 1995 page 20).
| Age |
NSW |
Vic |
Qld |
WA |
SA |
Tas |
NT |
ACT |
Aust |
| 10-17 |
20.5 |
9.8 |
41.1 |
31.6 |
13.7 |
8.2 |
3.8 |
19.0 |
21.3 |
This table shows the level of over-representation of Indigenous young people to non-Indigenous young people in correctional institutions by comparing the rates of incarceration in each jurisdiction. Thus in Queensland for example an Indigenous young person is 41.1 times more likely to be in juvenile correctional institutions than a non-Indigenous young person. Queensland has the highest level of over-representation, followed by WA and NSW. For Australia as a whole, Indigenous youth are 21.3 times more likely to be in a detention centre than non-Indigenous young people.
The sex of a young person is also a significant factor as the following table shows.
| Males |
Females |
Total |
||||
| No |
% |
No |
% |
No |
% |
|
| Indigenous |
258 |
90.5 |
27 |
9.5 |
285 |
100 |
| Non-Indigenous |
465 |
93.6 |
32 |
6.4 |
497 |
100 |
| Total |
723 |
92.5 |
59 |
7.5 |
782 |
100 |
Young males comprise the majority of youth in detention centres, irrespective of whether they are Indigenous or not. Most separations which arise directly as a result of criminalisation and incarceration affect young Indigenous males.
However, the table above also shows that Indigenous girls form a higher proportion of all girls in detention centres than Indigenous boys for all boys. Indigenous girls comprise 46% of all girls incarcerated while Indigenous boys comprise 36% of all boys.
Both of these points have important implications for the development of policy responses. To reduce the extent to which Indigenous young people are separated from their families and communities by incarceration requires a consideration of gender. The greatest possible reduction in separations would be achieved by policies that reduce Indigenous male incarceration. However, policies also need to consider the specific factors that may lead to the incarceration of girls such as previous physical and sexual abuse, drug and alcohol problems, homelessness and so on. These factors clearly have a greater impact on Indigenous girls than non-Indigenous girls since they constitute nearly half of all girls incarcerated.
A further point raised by the Australian Institute of Criminology relates to the extent to which Indigenous young people are held in correctional institutions on remand. At 30 June 1996, some 40% of Indigenous youth in institutions were on remand. The remaining 60% were serving custodial sentences. The data relating specifically to Indigenous girls showed that 59% were detained on remand. An analysis of the data over the period 1993 to 1996 showed that `at a national level, the gap between sentenced and remanded Indigenous juveniles appears to be closing ... Queensland appears to demonstrate the most consistent trend in this direction' (Australian Institute of Criminology submission 686 pages 6-7). Policy reforms are needed to secure further reductions in the numbers of Indigenous young people detained on remand.
Australian Institute of Criminology data enable a consideration of changes in the rate and number of incarcerated young people based on quarterly reports for the three year period September 1993 to June 1996.
September 1993 to 30 June 1996
| Indigenous |
Non-Indigenous |
|||
| No |
Rate |
No |
Rate |
|
| Sept 93 |
211 |
408.0 |
472 |
24.1 |
| Dec 93 |
220 |
425.4 |
511 |
26.0 |
| Mar 94 |
257 |
486.8 |
525 |
26.8 |
| June 94 |
271 |
513.3 |
479 |
24.4 |
| Sept 94 |
248 |
469.7 |
465 |
23.7 |
| Dec 94 |
249 |
471.6 |
462 |
23.5 |
| Mar 95 |
309 |
585.3 |
509 |
25.9 |
| June 95 |
260 |
492.5 |
527 |
26.9 |
| Sept 95 |
274 |
519.0 |
497 |
25.3 |
| Dec 95 |
254 |
481.1 |
491 |
25.0 |
| Mar 96 |
276 |
522.8 |
478 |
24.4 |
| June 96 |
285 |
539.8 |
497 |
25.3 |
There were 26% more Indigenous young people in detention at the end of June 1996 than there were at the end of September 1993. The rate per 100,000 of the Indigenous youth population incarcerated increased by 24% from 408.0 to 539.8. During the same period, the number of non-Indigenous young people in detention centres increased by 5%, while the rate increased by a similar percentage (4.7%). There has been a fluctuating but overall increase in Indigenous rates of incarceration in NSW and WA. In Queensland there was a steady rate of increase until early 1995 and then a levelling out of the rate (Atkinson 1996 page 6).
The Australian Institute of Criminology concluded,
There appears to be little cause for optimism in relation to the over-representation of Indigenous juveniles in detention. Of particular concern are the consistently high numbers of Indigenous youth in detention in NSW, Queensland and WA; the likelihood that very young detainees will be Aboriginal, the steady increase in the rate of detention of Indigenous juveniles in Australia; and, an apparent upward trend in the proportion of Indigenous remandees to sentenced Indigenous detainees. The level of over-representation of Indigenous juveniles in detention in Australia appears to be rising (submission 686 page 8).
A further factor to be considered is the location of detention centres. Most detention centres in Australia are hundreds, if not thousands, of kilometres away from many Aboriginal communities from which the detention population is drawn. The distance makes it extraordinarily difficult for parents and relatives to visit incarcerated young people and therefore exacerbates the effects of removal. This particularly affects Indigenous children and young people because they are more likely to come from a non-urban background (Luke and Cunneen 1995). The problem has received attention previously in the research literature (Wilkie 1991 page 156, Cunneen and White 1995 page 236) and in evidence to the Inquiry (NSW Government supplementary information, WA Government supplementary information).
Finally, Indigenous children tend to enter the juvenile justice system at an earlier age and stay in the system for longer (Queensland Government interim submission page 90, Criminal Justice Commission 1995 page 16 and Wundersitz 1996 page 204). Not only is the rate of removal of Indigenous young people from their families much higher than non-Indigenous young people, they are comparatively younger and more geographically isolated from their family and kin.