Legislation, policy and practice provide the framework within which removals occur. Indigenous young people, like other young people in Australia, are subject to the criminal law and a range of other laws. `Juvenile justice legislation' refers primarily to the legislation which establishes a separate system for dealing with young people when they have been suspected of committing, charged with or convicted of a criminal offence. In all Australian jurisdictions, except Tasmania, welfare matters have been separated from justice matters. In other words, children or young people who are deemed to be in need of care and protection are dealt with separately and in a different way from young people charged with a criminal offence. The separation has been accomplished in various jurisdictions either through separate legislation for criminal matters and welfare matters such as in NSW (the Children (Criminal Proceedings) Act 1987 and the Children (Care and Protection) Act 1987) or within the same legislation such as in Victoria where the Children and Young Person's Act (1989) establishes separate divisions of the Children's Court - the Family Division and Criminal Division - effectively separating welfare matters from criminal. Tasmania is the only Australian State to continue to operate under a system that mixes welfare and criminal matters (Child Welfare Act 1960). However, Tasmania is currently considering separating the jurisdictions by way of a Youth Justice Bill and Children and Their Families Bill (Cunneen and White 1995 pages 189-193, Tasmanian Government submission page D-23).
The formal separation of welfare and juvenile justice is not always apparent in practice, however. Indeed, young people who have contact with the child welfare system are more likely to come into contact with the juvenile justice system.
Our belief is that there is actually a link between the two [juvenile justice and child welfare] in the sense that those who are taken from their families and placed in alternate care or out of home care, whether in institutions or foster care, are much more likely to come before the attention of the criminal justice system (SNAICC submission 309 page 28).
This phenomenon is particularly apparent with Indigenous young people.3 The formal separation has had effects which have not necessarily been beneficial. Some commentators have argued that a `justice' model emphasising the `rule of law' and `due process' has in fact lead to a failure to consider discretionary issues particularly as they are exercised by police. Factors such as the utilisation of police discretion on the street, over-policing, police-youth conflict and racism have been ignored (O'Connor 1994 page 210, Naffine et al 1990) although they are the very issues likely to lead to disproportionate criminalisation of Indigenous young people (Cunneen 1994).
Juvenile justice legislation varies between jurisdictions and there are differences as to precisely what is covered by the legislation in each jurisdiction. Generally speaking, juvenile justice legislation covers,
* principles applicable to dealing with young people accused or found guilty
of offending,
* definitions of a `young person' or `child',
* police powers to proceed against a young person through the use of arrest,
attendance notices or the issue of summons, as well as stipulating a preference
for the use of attendance notices or summons rather than arrest,
* diversionary schemes (such as cautioning, panels or family group conferences)
and how they should be utilised.,
* special considerations for young people relating to release on bail or
detention in custody,
* the Children's Court's special jurisdiction over children, what criminal
matters the Children's Court can determine and which matters must be dealt
with by a higher court,
* appealing against a Children's Court decision,
* sentencing options,
* special requirements relating to restitution and compensation, and
* establishment of detention centres and their operations (Cunneen and White
1995 page 177).
Indigenous young people, like other young people, are also subject to a range of general criminal laws and laws relating to criminal procedure. An Indigenous young person is most likely to come before the Children's Court for a violation of the law under the Crimes Act or Criminal Code. Young people are also subject to the law governing public order under the various Summary Offences Acts and Police Offences Acts in different States and Territories. Again a sizeable proportion of young people brought before the courts will be there for violations of public order governed by this type of legislation. Public order charges are particularly prevalent against Indigenous youth.
Indigenous young people may also be subject to any general sentencing laws. For instance, in NSW the Sentencing Act 1989 sets out requirements in relation to fixed terms, minimum terms and additional terms of imprisonment, as well as the relationship between parole periods and imprisonment. In some cases specific sentencing requirements covering such matters as mandatory sentences or additional terms will be included in the juvenile justice legislation. The WA Young Offenders Act 1994 and recent amendments to the NT Juvenile Justice Act 1995 are examples of juvenile justice legislation containing specific sentencing regimes.
This report does not analyse section by section the Commonwealth, State and Territory legislation affecting Indigenous young people. Rather, it indicates some of the general issues which were common areas of concern among witnesses to the Inquiry. Some of the specific criticisms of particular pieces of legislation will be dealt with in later sections.
The particular vulnerability of children entitles them to special protection during investigation. Special considerations relate to the cultural background of the young person, particularly Indigenous young people. The ALSWA specifically noted that the WA legislation fails to address these issues comprehensively (submission 127 page 346). However, it is a problem common to most Australian juvenile justice legislation.
Some jurisdictions have adopted a general principle on the need to consider the cultural background of a child in any decisions made under juvenile justice legislation (for example section 4(g) of the Queensland Juvenile Justice Act 1992). However, this is inadequate in ensuring that key principles such as the right of Indigenous self-determination and the maintenance of Indigenous children with their families and communities are adhered to. There is no obligation to negotiate with Indigenous communities. When asked by the Inquiry how the court was provided with information which makes section 4(g) a meaningful obligation, the Queensland Government responded that `Aboriginal and Torres Strait Islander staff or community members provide information directly to the courts or indirectly through Departmental staff' (final submission page 60). However, other evidence suggests that consultation in practice may be poor (Cunneen and McDonald 1997 pages 174-176).
There are also considerable variations in the extent to which police procedures for dealing with young people are set out in law. In some jurisdictions the process by which police should give cautions or the criteria which should be used in deciding which children should be cautioned for particular types of behaviour are not articulated in the legislation. For instance, many of the important decisions made in relation to the treatment of juveniles in NSW occur without a legislative base. Police cautioning of juveniles is regulated by `Commissioner's Instruction 75 - Child Offenders'. There is no legislative support for the process and it exists essentially as a use of police discretion endorsed by the Police Commissioner (NSW Government interim submission page 77).
Police exercise wide discretion as to how a young person will be dealt by the authorities. The adverse use of this discretion in regard to Indigenous young people is a critical issue in drawing Indigenous youth further into the juvenile justice system.
Another key issue with juvenile justice legislation, with direct implications for self-determination, is that Indigenous interests are largely ignored when legislation is being introduced or amended. The ALSWA stated in relation to WA,
The lack of consultation and total absence of negotiation with the Aboriginal community on this Bill is contrary to recommendations of the Royal Commission into Aboriginal Deaths in Custody ... No other Aboriginal community organisations were consulted in this process (submission 127 pages 344-5).
In NSW there was no consultation with Indigenous organisations when the Children (Parental Responsibility) Act 1994 was introduced. In the NT there was strong opposition by Indigenous organisations such as the North Australian Aboriginal Legal Aid Service (NAALAS) and the NT Aboriginal Justice Advisory Council (AJAC) to recent legislation introducing minimum mandatory imprisonment for certain offences. A recent survey of the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody noted that inadequate consultation and negotiation with Aboriginal organisations about legislative changes was a national problem (Cunneen and McDonald 1997 pages 125-130, 170).
Finally, the lack of adequate funding for Indigenous community-based alternatives to the formal juvenile justice system is a national problem. The lack of alternatives undermines self-determination at the local level and results in greater numbers of Indigenous young people ending up in institutions, effectively removed from their families and communities.
In addition Indigenous people generally are not in control of the design and implementation of preventive programs for Aboriginal youth. The attention of the Inquiry was drawn to the findings of Wilkie that,
[Most] targeted prevention programs have as their primary, stated target young Aboriginal offenders ... Some of the services funded have an almost 100% Aboriginal client population. Yet few are managed by Aborigines and none are directly controlled by the local Aboriginal community. On the other hand most which cater for Aboriginal young people do not employ Aboriginal staff (quoted by ALSWA submission 127 on page 194).
By and large, the main diversionary schemes in the various States and Territories have been introduced without proper negotiation with Indigenous communities and organisations and without a framework for control by Indigenous organisations where communities desire such control. Often this occurs at the same time as State and Territory governments publicly espouse a commitment to self-determination.