All States and Territories have programs and policies that are specific to Indigenous children and young people. Nonetheless the over-representation of Indigenous young people remains a critical issue. There are a number of specific factors relevant to this including policing issues, the problems associated with the nature and use of non-Indigenous diversionary schemes and a range of sentencing issues.
Submissions to the Inquiry raised many issues concerning police responses to Indigenous young people including Aboriginal/police relations, police powers, the utilisation of police discretion and the regulation of police behaviour.
The policing of Indigenous young people occurs within the broader context of Aboriginal/police relations. Those relations are themselves structured by both the history of British colonisation of Australia and the colonial relations forged with Indigenous peoples, as well as the nature of contemporary race relations and the extent of racism against Indigenous people within Australian society.
Racism is endemic in Western Australia and is experienced in every area of society. However, the working conditions of police and the awesome power they wield can result in racism being reproduced in a particularly heightened and intensified form. Aboriginal juveniles are often singled out for police attention (ALSWA submission 127 page 364).
Several submissions to the Inquiry stated that over-policing is a major problem in many Aboriginal communities (for example, Western Aboriginal Legal Service (Broken Hill) submission 755, ALSWA submission 127 pages 247-251). The ALSWA reiterated the need for protocols to regulate the interaction between police and Aboriginal communities. Protocols should address over-policing, policing needs in remote communities, interaction between police and community wardens (in WA), procedures for negotiation and involvement in decisions relating to policing priorities and methods.
Major recommendations of the Royal Commission into Aboriginal Deaths in Custody also addressed the issue of over-policing and the establishment of protocols (Recommendations 88, 214, 215 and 223).These recommendations have been poorly implemented (Cunneen and McDonald 1997 pages 94-97, 100-102).
Most Indigenous young people do not believe that Aboriginal/police relations are improving. A 1994 survey by the Australian Bureau of Statistics showed that some 40% of Indigenous young people thought Aboriginal/police relations were much the same as five years ago, 18% saw an improvement and 20% thought relations were worse (1996 page 24).
However, there are also localised success stories. The reduction in juvenile offending in Kowanyama in Queensland is due in part to the partnership between the local police sergeant and the Kowanyama Justice Council (Adams and Bimrose 1995 page 42). Cooperative approaches between police and Aboriginal communities in the development of night patrols can improve Aboriginal/police relations, reduce police custody levels and lower juvenile offending levels (Dodson 1996 pages 60-62).
Policing public order
A range of legislative powers enables police to intervene against Indigenous young people in public places. These can include specific provisions within public order legislation, local government ordinances and laws and, in some cases, the use of welfare provisions which provide police with certain powers over young people in public places. Although the specific laws are particular to certain jurisdictions or, in some cases, local areas, the issue is a national one because of the common experience of Indigenous young people.
Arrests for public order offences still constitute a significant reason for the involvement of Indigenous young people in the juvenile justice system. The Western Aboriginal Legal Service (Broken Hill) drew attention to the disproportionate use of public order offences against Indigenous people in western NSW (submission 755). In Victoria, the most common single category of crime for which Indigenous young people were apprehended was public order offences - nearly 20% of all charges against Indigenous young people in 1993-94 (Mackay 1996b page 14). There was also a 43% increase in this category for Indigenous young people between 1993-94 and 1994-95 (Mackay 1996a page 7). In other jurisdictions the figures are broadly comparable. In NSW around 16% of police cautions and courts appearances for Indigenous young people involved public order offences (Luke and Cunneen 1995 page 11). Evidence from WA indicates that the proportion of Aboriginal juveniles charged with good order offences has increased since 1990. `This result gives some support to the proposition that the police are using good order offences to clear Aboriginal youth from the streets' (Crime Research Centre 1995 page 5).
Section 138B of the Child Welfare Act 1947 (WA) is an example of a welfare provision used in public order policing. This section allows police to `clean the streets' by using legislation originally aimed at children in `moral danger'. There have been numerous complaints about the way this legislation has been used as a form of `moral policing' which disproportionately impacts on Aboriginal children and young people (ALSWA submission 127 page 342). It has also been noted that, instead of being taken `to their place of residence' as required under the legislation, children have `illegally been put in paddy wagons and taken to the police station for their parents to collect' (Dodson 1995 page 23).
Beresford and Omaji have noted that the juvenile justice legislation `has done little to discourage the tendency to lock up children suspected of having a social problem' in WA (1996 page 115). The same can be said of other jurisdictions. In Queensland the government has encouraged police to use existing `care and control' powers under the Children's Services Act. These sections of the legislation provide for intervention and the use of custody for young people who have not committed a criminal offence but are deemed to be `at risk' (Cunneen and McDonald 1997 page 173).
The Children (Parental Responsibility) Act 1994 (NSW) give police power to remove children and young people from public places. The Act empowers police to demand the name, age and address of a young person and remove young people under the age of 16 years from public places if they are unsupervised and the officer believes that there is a likelihood of a crime being committed or that the young person is at risk. The young person can be taken home or to a `place of refuge' for up to 24 hours. A young person commits an offence if he or she leaves the `place of refuge'. This power operates only in two areas within the State. It was reviewed in 1996 and its repeal has been recommended. The NSW Government is also proposing a Street Safety Bill to give police the power to break up groups of three or more young people congregated together where the officer has a reasonable suspicion that they are likely to intimidate or harass others.
Local government by-laws and local ordinances can create more punitive approaches to the policing of Indigenous young people. Cunneen and McDonald (1997 page 170) have discussed how the local laws that cover Southbank Parklands in Brisbane are being used to create an `Aboriginal free' zone. They note that Aboriginal youth are being harassed in Southbank and the Brisbane Mall areas by being required to show identification and provide their names. The effect has been to drive Indigenous young people away from the areas. In December 1995 the Southbank Corporation Act was amended to give police officers and security guards the power to stop people, ask for their name and address and request them to leave the area for 24 hours if they are regarded as causing a nuisance. There are also bans available for up to 10 days if the person disobeys a direction (Murray 1996).
There have been real inequities on the part of local governments in the standards of service provision and infrastructure between Aboriginal and non-Aboriginal communities (ALSWA submission 127 page 204). Failure to provide services for young people and families is likely to increase the risk of intervention by regulatory agencies of welfare and juvenile justice.
The police power to ask a young person for his or her name and address is also used inappropriately. The Inquiry was told that section 50 of the Police Act 1892 (WA) which provides police with this power in WA is abused and should be repealed (ALSWA submission 127 page 367). Certainly, many Indigenous young people believe that they are stopped and questioned by police without adequate reason (Howard 1996). In South Australia police harassment of Indigenous young people was raised in community meetings with the Inquiry (evidence 308 page 1). The inquiry on children and the legal process being conducted jointly by the Human Rights and Equal Opportunity Commission and the Australian Law Reform Commission has been told of hundreds of young people having their names and addresses taken by police on typical weekends in Queensland and WA. That inquiry will report further on this issue.
Police discretions
When a young person is suspected of committing an offence, a police officer has a range of options available on how to proceed. These include a warning and no further action, a formal caution, and charging the young person by either issuing a summons4 to appear in court on a certain date or by arresting the young person, conveying him or her to a police station, charging with an offence and determining bail.
The officer has a common law discretion to warn the young person and take no further action, except perhaps to record the details of the suspected offence and offender in his or her notebook. These informal warnings are sometimes referred to as `warnings', `informal cautions' or `cautions on the run' and are different from a formal police caution.
All Australian States and Territories have some form of official police cautioning system. In some States (SA, WA and Queensland) police cautioning is provided for in legislation. In other States such as NSW, cautioning is regulated by police guidelines. In Tasmania the use of police cautions has been piloted and will be provided for in the new legislation. The available evidence overwhelmingly confirms that Indigenous young people do not receive the benefits of cautioning to the same extent as non-Indigenous young people. Unfortunately, most police services do not provide routine data comparing Indigenous and non-Indigenous cautioning rates. This lack of information severely hinders policy evaluation.
Recent interviews with Aboriginal Legal Service solicitors in the NT indicated a relatively infrequent use of cautions by police for Aboriginal young people. Solicitors were of the view that the system was generally harsh for Indigenous young people who were treated and processed much the same as adults. Police cautions are only available for first offenders, a factor which defeats the purpose of diversion and is likely to discriminate significantly against Indigenous young people (Cunneen and McDonald 1997 page 181).
Aboriginal youth are less likely to be cautioned than non-Aboriginal youth in WA (ALSWA submission 127 page 334 referring to Crime Research Centre data). Aboriginal youth account for 12.3% of cautions (Crime Research Centre 1995 page 6). Of all Indigenous youth who are formally processed by the police around one-third receive a police caution and the remaining two-thirds are charged with an offence.
Conversely, two-thirds of non-Indigenous young people are cautioned and the remaining one-third are charged (Crime Research Centre 1995 page 18). The cautioning system in WA `as it is employed at present, further disadvantages [Aboriginal juveniles] and further increases the disproportionately negative treatment they receive under the juvenile justice system' (submission 127 page 369). Furthermore the Inquiry was told that police are attaching conditions to cautions although there is no provision to do so in the legislation (submission 127 page 369). Contrary to Recommendation 240 of the Royal Commission into Aboriginal Deaths in Custody, police cautions are issued in WA without the involvement of parents (submission 127 page 369).
Factors which Western Australian police are required to take into account when deciding whether to caution include offending history and seriousness of the offence. They also include `extra-judicial' factors such as family background, school attendance and employment. These are precisely the types of factors likely to cause discrimination against Indigenous youth (Gale et al 1990 pages 56-58).
In Victoria police instructions indicate that the preferred order of dealing with juveniles is `no further action', a caution under the police cautioning program, proceed by way of summons, arrest, charge and consider bail, and finally arrest, charge and remand in custody as a last resort. Arrest should only take place in `exceptional circumstances' and must be authorised by an officer of at least the rank of senior sergeant. However, the Victorian Government advised the Inquiry that in Victoria in 1995-96 Indigenous young people were significantly less likely to receive an official police caution than non-Indigenous young people (11.3% compared to 35.6%). Indigenous young people apprehended by police were twice as likely to be proceeded against by way of arrest (46.6%) compared to non-Indigenous youth (23.5%). As a result, while slightly more than one-third of non-Indigenous youth apprehended by police avoid appearing in court (and the likelihood of a conviction and criminal record), little more than one in ten Indigenous young people are similarly treated. Put another way, `the percentage of Aboriginal offenders dealt with through the police caution program is one-third the rate of non-Aboriginal offenders' (Victorian Government final submission page 121; see also Mackay 1996a pages 9-10).
The Inquiry was told that in NSW,
... there is concern about the differential use of police cautions particularly for Aboriginal juvenile offenders. Measures are being introduced by the Police Service to encourage greater use of police cautions in dealing with young people generally and in particular with Aboriginal young people (NSW Government submission page 77).
However, despite recognising the need for change, the NSW Government simply noted that `police use of discretion (arrest, bail, caution, etc) is currently undergoing detailed review' (submission page 77). In NSW an Aboriginal young person is less likely to receive a caution than a non-Aboriginal young person on a similar charge with a similar criminal history. In other words a non-Indigenous young person is treated more favourably than an Indigenous youth in similar circumstances (Luke and Cunneen 1995 page 29).
In Queensland the perception of Indigenous organisations such as the Aboriginal Justice Advisory Council and various Aboriginal Legal Services was that there was discriminatory intervention by police against Indigenous young people in the first instance and, arising out of that intervention, Indigenous young people were less likely to be cautioned and more likely to be charged than non-Indigenous youth. Police cautions are not issued to Indigenous young people in situations where public visibility and public order are seen as issues (Cunneen and McDonald 1997 page 181).
In South Australia, Aboriginal young people are half as likely to receive a police caution as non-Aboriginal youth: 17% of Indigenous youth matters end in a police caution compared to 36% of non-Indigenous matters (Wundersitz 1996 page xx). The situation is particularly noteworthy because SA has only recently introduced official police cautions as part of a new juvenile justice strategy. The failure of Aboriginal young people to receive the benefits of police diversion was a feature of the old South Australian juvenile justice system. The problem has been reproduced although the legislation and particular programs have changed (Gale et al 1990, Wundersitz 1996 page xx).
Currently there is a general trend to provide in legislation for Indigenous elders to issue cautions in place of police officers. This is proposed in section 12 of the new Tasmanian Youth Justice Bill and in NSW government proposals for new legislation (NSW Attorney-General's Department 1996 page x). Section 14 of the Queensland Juvenile Justice Act 1992 provides for cautioning by Aboriginal and Torres Strait Islander elders instead of police at the request of an authorised police officer.
The situation in Queensland shows the need not simply to change legislation but also to provide greater control over police decision-making and systems for continuing monitoring. According to the Queensland Government `the use of respected persons to administer cautions allows for cautions to be more meaningful to Aboriginal and Torres Strait Islander children' (interim submission page 90). However, the available data on the use of cautions is `extremely unreliable' and cannot distinguish between Indigenous and non-Indigenous young people (Queensland Government final submission page 43). Furthermore, `information is not available at this time' as to the extent of use of respected elders in the cautioning process instead of police, although `a survey could be conducted ... providing appropriate funding could be obtained' (Queensland Government final submission page 61). The Government does not know the extent of compliance with, or effectiveness of, its legislative initiatives in this area.
Two separate reports show that Queensland police are not using Indigenous elders to administer cautions (Aboriginal and Torres Strait Islander Overview Committee 1996 page 67, Cunneen and McDonald 1997 page 181). This is contrary to the intent of the legislation and breaches Recommendation 234 of the Royal Commission into Aboriginal Deaths in Custody which requires Indigenous community involvement. It is also contrary to the specific wishes of Indigenous people themselves who desire to have greater involvement (Cunneen and McDonald 1997 page 181). The Queensland example shows that without control over police discretion Indigenous people are unlikely to be given the opportunity to caution their young people, despite legislative provisions.
Arrest and charges
The Royal Commission into Aboriginal Deaths in Custody recommended the review of legislation and instructions to ensure that young people are not proceeded against by way of arrest unless such an action is necessary. The test should be more stringent than with respect to the arrest of adults (Recommendation 239). The recommendation is consistent with the Convention on the Rights of the Child which requires that arrest should be used only as a last resort. In some Australian jurisdictions there are legislative directions preferring the use of a summons or court attendance notice rather than arrest.
Indigenous young people are less likely to receive less intrusive interventions such as police cautions or referrals to diversionary options. They are more likely to be proceeded against by way of arrest rather than the use of a summons or court attendance notice. Arrest is a punishment in itself and may lead to higher levels of custody because Children's Courts are more likely to impose custodial sentences on young people brought before them by way of arrest than on the basis of a summons (Gale et al 1990). Thus proceeding by way of arrest doubles the possible avenues to custody, either by way of bail refusal or by way of custodial sentence.
Indigenous organisations see arrest as the police's preferred option for dealing with Indigenous young people in most jurisdictions (Cunneen and McDonald 1997 pages 178-9). Available data strongly support the view of Indigenous organisations. In both NSW and Queensland approximately two-thirds of matters before the Children's Court are brought by way of arrest and one-third by way of summons (Luke and Cunneen 1995, Criminal Justice Commission 1995).
Even in jurisdictions where summons are used more frequently Indigenous youth do not benefit from the use to the same extent as non-Indigenous youth. In the NT in 1994-95 Indigenous young people comprised 70% of young people proceeded against by way of arrest and 53% of young people proceeded against by way of summons (NT Government Exhibit 38). In SA Indigenous young people are far more likely to be brought into the system by way of arrest than non-Indigenous youth (41% of Indigenous youth enter the system by way of arrest compared to 25% of non-Indigenous youth) (Wundersitz 1996 page 204).
In Victoria non-Aboriginal young people are more often brought before the Children's Court by way of summons than arrest. However, for Aboriginal young people arrest is still the favoured police option (Victorian Government final submission page 121). Between 1993-94 and 1994-95 there was a 46.4% increase in Indigenous youth formally processed by the Victorian police, compared to a 4.6% increase for non-Indigenous young people in the same period (Mackay 1996a page 6).5 Improving police responses to Indigenous young people is fundamental to lessening the number of separations through the use of custody. In Victoria `the cycle of arrest of Aboriginal juveniles has not been broken' (Mackay 1996a page 4). Relatively effective initiatives such as the Koori Justice Project which has successfully diverted more Aboriginal juveniles from detention centres will be undermined if arrest rates are not reduced.
As adults, the criminal justice system is not as likely to impose non-custodial sentences on repeat offenders. Whilst the current generation of Aboriginal juveniles are being processed by police as offenders at incredibly high rates, the full effects of this phenomenon will not take effect for another couple of years when many of these juveniles reach adulthood ... [The] statistics paint a grim picture of what is likely to be an explosion in the number of young Aboriginals entering the adult prison system in the next few years (Mackay 1996a pages 4 and 14).
As a result of legislative and policy changes in WA there has been a reduction in the number of charges and arrests for young people. However, the rate of decrease for Aboriginal young people has been significantly lower than for non-Aboriginal youth (ALSWA submission 127 page 333).
Other evidence shows that many Indigenous young people are arrested during their adolescent years. According to the 1994 survey by the Australian Bureau of Statistics some 25% of Indigenous youth reported being arrested during the previous five years. Of this group, 60% stated that they had been arrested more than once. Some 14% of all Indigenous youth surveyed stated that they had been harassed (`hassled') by police (1996 page 22).
The ABS survey also showed important differences on the basis of both sex and geographical location. Indigenous male youth reported being arrested (38%) and being hassled by police (21%) at roughly three times the rate of females reporting arrest (12%) and being hassled (7%). Indigenous youth in capital cities also reported greater arrests and hassles with police than Indigenous young people in other urban and rural areas (1996 page 22). There were also differences between jurisdictions as to the proportion of Indigenous youth reporting being arrested or hassled by police. Indigenous youth in Victoria reported both the highest level of being hassled by police (36% of Indigenous young people) and being arrested (34% of Indigenous young people). WA and SA also had high proportions of Indigenous young people reporting arrests (both 33%) (1996 page 26).
Finally, police discretion also affects the number and nature of charges laid against a young person. `Over-policing' by way of unnecessary and trivial charges has long been an issue in Aboriginal/police relations. The Royal Commission into Aboriginal Deaths in Custody noted that `young Aboriginals are unnecessarily or deliberately made the subject of trivial or multiple charges, with the result that the appearance of a serious criminal record is built up at an early age' (National Report 1991 Volume 2 page 275; see also International Commission of Jurists 1990, Howard 1996).
Notification and interrogation
The special vulnerability of both young people and Indigenous people during police interrogation has been noted for many years. These vulnerabilities may be amplified when the person is both young and Indigenous. Guidelines for the conduct of NT police when interrogating Aboriginal people were originally spelt out by the NT Supreme Court as the Anunga Rules (1976). They have been adopted to varying degrees in police instructions and guidelines in other jurisdictions. All Australian jurisdictions require the presence of an adult when juvenile suspects are being interrogated. In some jurisdictions the requirement exists in legislation, in others it takes the form of police guidelines (Warner 1994 pages 32-3). Courts retain the discretion to admit evidence obtained in the absence of an adult. In most jurisdictions notification of a solicitor is provided for only in police guidelines and is only required when requested by the young person.
The Royal Commission into Aboriginal Deaths in Custody made a number of recommendations requiring police to advise Aboriginal Legal Services and parents when young people are taken to a police station for interrogation or after arrest (Recommendations 243, 244 and 245). No interrogation should take place without the presence of a parent, responsible person or officer from an organisation with responsibility for Aboriginal juveniles. Notification is seen as a protection against the abuse of custody and against pressure being applied to a young person to make false admissions (Cunneen and McDonald 1997 page 185). The purpose of these recommendations is to protect the rights of young people and to prevent miscarriages of justice and unlawful detentions by police. Their main failing is that they do not stipulate that compliance be assured through the use of legislation, despite well documented failures of compliance with police guidelines (Warner 1994 pages 35-8).
The Inquiry was told that some police are `extremely reluctant' to contact Aboriginal Legal Services prior to a person being questioned and charged (ALSWA submission page 244). Other issues raised by the ALSWA included refusal of access to a telephone when in custody, Aboriginal people being unclear as to what they were being charged with and an unhelpful approach by some police in providing police facts to the defendant's legal representative (submission 127 page 246). The ALSWA recommended the amendment of section 19 of the Young Offenders Act 1994 (WA) to include a number of rights in relation to telephone calls, legal representation and the presence of an independent third person (submission 127 pages 347-8). The ALSWA advised the inquiry that the Police Orders applicable to the questioning of juveniles were not adhered to in practice (submission 127 page 367). Significant numbers of young people are interviewed without being accompanied by an independent adult (Cunneen 1990, Warner 1994 pages 35-6, Howard 1996).
In other jurisdictions there are similar deficiencies. In Darwin NAALAS maintained that it was not always notified when an Aboriginal child was in police custody. The NT Police response to the Royal Commission recommendation was one of only `qualified support' because of difficulties that may be encountered with notification. There is nothing in the NT juvenile justice legislation to govern police interrogation and there is no right to contact a solicitor. In northern Queensland there are still cases where young people are locked up overnight in police watchhouses without Aboriginal agencies being notified until next day. Parents were not advised regularly. It appeared to Yuddika Aboriginal Child Care Agency and Njiku Jowan Aboriginal Legal Service that there is no set procedure or protocol for notification of Indigenous agencies (Cunneen and McDonald 1997 page 186).
Police custody and bail
Most States and Territories have programs designed to minimise the use of police custody for Indigenous young people. These programs usually involve some form of advocacy and placement service to guarantee access to bail. However, the detention of Indigenous children and young people in police watchhouses as a result of being refused bail by police or being remanded in custody by an order of the court remains a significant problem throughout Australia. The national data on the use of police custody (which included detentions for drunkenness, as well as bail refusal) are presented above. Detention in police custody, except in exceptional circumstances, is contrary to recommendations of the Royal Commission into Aboriginal Deaths in Custody and the Convention on the Rights of the Child. In many jurisdictions laws have created greater impediments to the granting of bail to Indigenous young people than when the Royal Commission first reported (Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 page 199).
In South Australia the Inquiry was informed that the two bail houses operated by the ACCA were insufficient and required more secure funding. The SA ACCA recommended that police be required to use Indigenous bail houses as an alternative to secure care at all times (submission 347 pages 35-6).
The Victorian Aboriginal Legal Service told the Inquiry of occasions when juveniles are held in police cells, including an instance of a young person being held for one week in a Mildura police station. In Tasmania juveniles are held in police cells in Hobart because there is no alternative within reasonable distance. In central Australia, Aboriginal organisations such as the Central Australian Aboriginal Legal Aid Service and Tangentyere Council have reported cases where young people are held inappropriately in police custody because they are unable to raise bail even for relatively minor offences.
In Cairns Indigenous young people are kept in the watchhouse because of a lack of alternative facilities. At times, no arrangements are made for the presence of a parent or visitor during the period in custody (Cunneen and McDonald 1997 page 183). Tharpuntoo Aboriginal Legal Service stated `one of the problems is that there is not available to Aboriginal juveniles on Cape York the same options [to avoid the use of police custody] as are available elsewhere. For example there is no supervised bail program on Cape York Peninsula for young people' (quoted by Cunneen and McDonald 1997 page 173). Most Aboriginal young people who are arrested in the Cape region are bailed back to their community. Those who are refused bail are taken to Cairns then Townsville. This results in a separation of hundreds of kilometres from family and community.
Data supplied to the Inquiry by the Queensland Government indicate that in every year since 1992 over one-half and sometimes more than two-thirds of young people detained overnight in police watchhouses were Indigenous young people.6 The major reason was that police refused bail. Indigenous young people, particularly those transported from remote communities, could wait between three and five days in the police watchhouse to be transported to a detention centre (Cunneen and McDonald 1997 page 183-4). This is contrary to a protocol between the Department of Families, Youth and Community Care and the Police Service relating to custody of young people in watchhouses. A young person should only be held in a watchhouse overnight if the young person will appear in court the next day and it is impractical to transport the young person to a nominated place immediately. A young person may be held longer than overnight only if there are exceptional circumstances preventing transportation or bringing the young person before the court (Department of Family Services and Aboriginal and Islander Affairs 1993 section 10-2).
There is no reason to believe that the situation in Queensland is unusual - except that it actually has available data on the number of Indigenous young people in police watchhouses. Most jurisdictions are unable to supply regular data on police bail refusals for Indigenous young people.7 Information from the 1995 Police Custody Survey shows the extent nationally of Indigenous young people in police cells.
As noted previously, the Australian Government made reservations to articles of UN treaties relating to separation of juveniles from adults in police and prison custody. According to the National Aboriginal and Islander Legal Service Secretariat, this reflects the lack of commitment to fully implementing the recommendations of the Royal Commission into Aboriginal Deaths in Custody (Cunneen and McDonald 1997 page 182). It has been argued that,
... non-compliance with the requirements in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child should be limited to cases genuinely relating to the best interests of the juveniles or geographic necessity (Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 page 207).
The available evidence shows the widespread and disproportionate use of police custody for Indigenous juveniles. The lack of alternative facilities may well explain this in part. However, the lack of facilities is itself indicative of governmental failure to address the issues of adequate resourcing, particularly where there are already limited but innovative alternative bail programs which involve Indigenous communities.
In general terms, diversionary schemes are mechanisms and programs to divert young people away from the formal processes of the Children's Court. The most simple form of diversion is the use of warnings and cautions by police such as those referred to above. Diversionary schemes may involve some type of community involvement in the design and administration of the scheme, although this is by no means a necessary feature. Indeed there has been a general lack of Indigenous consultation, negotiation and control over those schemes.
`Diversionary' programmes are frequently rigid in their structure. Contrary to Recommendation 62 [of the Royal Commission into Aboriginal Deaths in Custody], they are not designed in close consultation with Indigenous communities or adapted to local circumstances. They are packaged in remote `policy' units and driven or posted into communities. We see diversion delivered to us in a package because `they' know what is best for `us'. The paternalism of such diversion reflects the earlier policies of `care and protection' and `assimilation' that permitted the removal of Indigenous children from their families up until the 1970s (Dodson 1996 page 31).
The problem has been referred to as a `one size fits all' solution to Indigenous issues. These simple models of dispute resolution fail to understand the complex reality of Indigenous communities and ignore fundamentally the principle of self-determination (Dodson 1996 page 61, Canadian Royal Commission on Aboriginal Peoples 1996 page 219).
In recent years `family group conferencing' has become an increasingly favoured option for diversion. The conference brings together the young offender and support persons, the victim and supporters and police and youth workers with the aim that the young offender will develop a sense of responsibility for the offence. The objective is to reach a mutually agreeable resolution for the harm that has been caused by the offence and to reintegrate the offender into the community. Various forms of `conferencing' have been established in most jurisdictions. By and large, they adapt and modify parts of the New Zealand system of family group conferences.
The New Zealand system derives from extensive consultation with Maori communities and is reflective of Maori traditions.8 The Australian adaptations have been referred to as `hybrids' with `the real spirit of the diversionary process completely lost in all but a few cases' (Dodson 1996 page 42). Other grounds of criticism include,
* Conferencing suffers from the `one size fits all' approach to Aboriginal
justice - a model is imposed on Aboriginal communities to which they are
expected to adhere.
* The new systems lack basic commitments to negotiation with Indigenous
communities and show no understanding of the principle of self-determination.
* Conferencing models do not respect important cultural differences.
* In SA, WA and the pilot projects in the NT, Tasmania, NSW, ACT and Queensland,
police control some or all of the following: the key decision-making of who
accesses conferences, how the conferences are operated and a final veto over
the agreement that might be reached.
* The application of the conferencing model can lead to further blaming and
stigmatisation of Indigenous young people and their families for offending
behaviour.
The adaptation of family group conferencing has been significantly compromised in many parts of Australia. The trial conferencing project in Alice Springs occurred without Aboriginal community consultation. Aboriginal organisations considered that Aboriginal young people were unlikely to benefit from the program. Repeat offenders were not being considered for conferencing, which effectively excluded most Aboriginal young people (Cunneen and McDonald 1997 page 171). In South Australia the Pitjantjatjara Council noted little change as a result of new juvenile justice legislation which introduced conferencing. There was no knowledge of any conferencing panels in the Pitjantjatjara lands. Independent evaluation of barriers to the use of alternatives in SA noted in relation to the Anangu Pitjantjatjara Lands that,
The local Youth Justice Co-ordinator has insufficient resources to organise Family Conferences. The most time consuming and culturally difficult task involves the identification of family members who are appropriate to participate in the conference and then subsequently arranging for them to come together for a Conference. Very few victims of offences are involved in family conferences resulting in a central feature of the scheme being omitted from the process (Planning Advisory Services 1995 page 27).
There has been inadequate consultation with Indigenous communities during the development of the model and, where consultation has occurred, there has been insufficient regard for Indigenous views (Dodson 1996 page 33).
It has been argued that panels and family conferencing can be successful with adequate cultural sensitivity and Aboriginal community involvement `but schemes which increase alienation and which are imposed by police on families of the offender and the victim will not succeed' (Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 page 199). ATSIC supports greater evaluation of the potential benefits of the scheme to Indigenous young people (submission 684 page 42). The lack of commitment to Indigenous involvement and fundamental change marks an enormous divergence between the New Zealand model of conferencing and what has occurred in Australia. In New Zealand the change,
... has both created new structures and has shifted the balance of forces ... if we are to capture what is, in relation to Aboriginal peoples, its most innovative characteristic, it must be read as an empowering and de-colonising process which has lead to the recovery of lost authorities, social relationships and ceremonies while reducing the extent of welfare and penological colonialism (Blagg forthcoming page 5).
In WA Aboriginal organisations have argued that lack of empowerment for Aboriginal families or communities inhibits the effectiveness of diversionary options which are offered. `[The] current systemic discrimination against Aboriginal youth in the operation of the diversionary processes will be perpetuated by the new legislation' (Ayres 1994 page 20). Observations of conferencing in SA have suggested that `the most striking aspect of the model developed for Indigenous people are the problems encountered with cultural difference' which include inadequate understanding of Indigenous social structure, language barriers, different communication patterns and different spatial and temporal patterns which derive from cultural obligations (Dodson 1996 pages 46-47). It is perhaps not surprising that Indigenous young people were less likely to experience a `successful' conference than non-Indigenous youth (Wundersitz 1996 page 204).
The adaptation of the model from New Zealand rested on the spurious assumption that there were homologous social structures among various Indigenous cultures - in other words that Indigenous people all over the world are the same (Blagg forthcoming). There is nothing in the current or proposed Australian conferencing schemes which might allow for the model to be adapted and developed by Indigenous communities.9 Providing as a `guiding principle' of conferencing that they should be `culturally appropriate' is tokenistic if there is no framework provided for significant Indigenous contribution to or control over the form and substance of conferences.10
The South Australian Government noted that the Department of Family and Community Services `is committed to a model of conferencing with Aboriginal people that will facilitate the sharing of responsibility for planning, decision making, care and action' (interim submission page 44). However, there is no statutory obligation to consider cultural issues,11 the model itself is assumed to be appropriate and the problem to be resolved is essentially one of overcoming `logistic' problems such as distance and developing the `processes' which will ensure the involvement of Aboriginal families.
The problem of police control over conferencing is widespread. Blagg and Wilkie (1995) suggested that Aboriginal organisations were sceptical that police could be viewed as independent arbiters in the process and that power and control over diversionary options were being extended without any screening or regulatory processes (Blagg forthcoming pages 18-19). In WA the Juvenile Justice Teams were intended to mirror the New Zealand Family Group Conferences. However, the composition of a Team may include only representatives of the police and the Ministry of Justice, a responsible adult and the young person. Referral to a Team can be made by the police or the Children's Court. As a result,
[The] Juvenile Justice Team model is a half-baked and inadequate version of the New Zealand model that will not live up to its potential (ALSWA submission 127 page 348).
These Teams are inadequate because they have restricted membership, the conferences lack specific time frames, they are restricted to minor non-scheduled offences by first offenders, there are no legal safeguards for the young person and the police have control over who is referred to the teams (ALSWA submission 127 page 348, Beresford and Omaji 1996 pages 103-5).
Indigenous young people are not being referred as frequently to Juvenile Justice Teams for conferences as non-Indigenous youth. `Only a small percentage of Aboriginal young people are being referred to the Teams and ... this percentage is gradually decreasing' (WA Government submission Exhibit 19 Appendix 4; see also Crime Research Centre 1995 page 6).
In NSW the Attorney-General's Department has recommended that the pilot Community Youth Conferencing scheme be abandoned partly because of attitudinal problems on the part of police and lack of referrals of Indigenous youth to the conferences. A new system is proposed called `accountability conferences'. It is proposed that referrals could be made by the court and the Director of Public Prosecutions as well as by the police. It is also proposed that there should be a presumption in favour of conferencing for a greater number of offences (NSW Attorney-General's Department 1996 pages xii-xiv).
In Tasmania the draft Youth Justice Bill proposes that referrals be made by the court.
In SA Indigenous young people are less likely to be referred by police to the conferences and more likely to be referred to court. Indigenous young people comprise 12% of referrals to conferences but 19% of referrals to court. In addition Indigenous young people (36%) are almost twice as likely as non-Indigenous youth (19%) to be referred straight to court without the benefit of either a conference or a police caution (Dodson 1996 page 33, Wundersitz 1996 page 204).
In Queensland recent amendments to the Juvenile Justice Act 1992 establish `community conferences' as an option. Only police officers are authorised to make referrals to a community conference as an alternative to court, although the court can refer a matter to a conference after a hearing where guilt has been determined.
The problems associated with the police role in the conferencing process show how different the systems developed in Australia are from the original New Zealand model. There were significant reforms to policing practices in New Zealand at the same time as the introduction of family group conferences. These reforms included stricter controls on police powers in relation to young people. The Australian variations have simply seen conferencing as expanding the options available to police. Blagg argues that `the significant dimension of the process from a Maori perspective was the degree to which it did precisely the opposite and restricted police discretion' (forthcoming page 7).
The use of police in the conferencing process has particular significance for Indigenous communities given the history of removals and prior police intervention. The role of police, combined with cultural differences and language difficulties, may cause Indigenous young people and their families to appear `un-cooperative' (Dodson 1996 pages 46-47). The police presence increases the reluctance of Indigenous people to attend meetings and contributes to a non-communicative atmosphere for those Aboriginal youth who do attend (WA Aboriginal Justice Advisory Council submission 343, Exhibit 1 page 44; see also Crime Research Centre 1995 page 28). The process may degenerate into further stigmatising of Indigenous young people and their families.
The problem is accentuated if conferencing supplants other social justice and crime prevention strategies. White (1991) noted that blaming parents for juvenile offending has developed a particular currency which serves to displace other structural explanations of juvenile crime such as poverty, unemployment and racism.
The `criminalisation of inadequate parenting' has particular significance for Indigenous families. Welfare intervention during the assimilationist period was partially justified by pathologising Indigenous family structures and parenting styles. Indigenous children were removed because Indigenous families could not provide a `proper' home environment on welfare grounds. The same type of `blaming' Indigenous families could result in future interventions and removals.
The available theoretical, observational and empirical evidence strongly suggests that family group conferencing as currently administered, far from being a panacea for offending by Indigenous young people, is likely to lead to harsher outcomes. It is a model that, by and large, has been imposed on Indigenous communities without consideration of Indigenous cultural values and without consideration of how communities might wish to develop their own Indigenous approaches to the issue. Even in new proposals for conferencing such as those in NSW and Tasmania where the police role in referral is somewhat circumscribed, there is no provision for Indigenous organisations and communities to make decisions about whether their children would be best served by attending a conference. The best provision among the new proposals requires only that an elder or other community representative be invited to a conference involving an Indigenous young person.12
In submissions to the Inquiry some governments identified this problem. None offered an appropriate solution.
The organisation, systems and delivery of service have evolved from non-Aboriginal frameworks, and are based on a Western system of thought, culture and values that is very different to Aboriginal traditions and culture. Aboriginal people are, therefore, inevitably alienated to some degree from the systems and structures that exist to provide them with services (SA Government interim submission page 42).
The solution proposed by the SA Government is essentially one of greater Aboriginal involvement in service delivery - in making the existing framework of laws and policies culturally appropriate. `The development of culturally appropriate models of service delivery, and fostering the self-determination of Aboriginal people, is an ongoing challenge' (interim submission page 42). Yet the solutions proposed aim in essence to make the existing non-Indigenous system `work' for Aboriginal people.13
Similarly, when questioned about the lack of Indigenous involvement in family group conferencing, the WA Government identified factors such as remoteness, the difficulty of locating the whereabouts of families because of mobility, failure or refusal to attend and `a wary attitude towards a justice system that is alien to most traditional values and has never really worked for them' (supplementary information page 11).
There are successful Indigenous diversionary schemes, such as the Koori Justice Workers in Victoria and the community justice groups in a number of Queensland communities. The essential feature of these schemes is that they have developed from community involvement in finding solutions to specific problems. The communities have received funding from government departments but the control, content and form of intervention is determined by the community.
Successful schemes have an inherent respect for developing solutions founded on the right of self-determination.
The success of these programmes makes one thing clear. Solutions to our problems require a collaborative, intelligent, co-ordinated approach which honours the principle of self-determination ... Empowering our old people and revitalising dispute resolution through community programmes have the potential to restore a greater degree of social control and divert our kids from custody (Dodson 1996 page 59).
Developing community justice solutions within a context of self-determination is essentially a practical task. Governments are not required to relinquish their responsibilities but they are required to relinquish control over decision-making for Indigenous communities. Successful Indigenous community justice responses require efficient, practical and continuing support from governments to facilitate communities in the difficult process of finding acceptable solutions. At the same time structural issues must be addressed by governments. These are the underlying social and economic issues which cause crime and demand a co-ordinated Commonwealth, State and Territory response.
Article 37(b) of the Convention on the Rights of the Child states that `no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time'. Other international instruments require that imprisonment is a sanction of last resort for juveniles: Rule 1 of the UN Rules for the Protection of Juveniles Deprived of Their Liberty and Rules 17.1(b) and 19.1 of the UN Standard Minimum Rules for the Administration of Juvenile Justice.
Indigenous young people generally receive harsher sentences in the Children's Court than non-Aboriginal young people, particularly at the point of being sentenced to detention (Gale et al 1990, Crime Research Centre 1995, Luke and Cunneen 1995, Criminal Justice Commission 1995). Where data are available, government submissions to the Inquiry support this picture.14
Tasmanian Indigenous youth comprise 3.3% of the relevant youth population, 13% of young people on community-based supervised orders and 19.5% of young people detained (Tasmanian Government submission page D-21).
In Queensland in 1994-95 Indigenous young people comprised 31% of all finalised Children's Court appearances, although only 3.6% of the youth population. At the lower end of the sentencing scale Indigenous youth were less over-represented. For example, they comprised 21% of those reprimanded and 16% of those fined. In contrast, at the harsher end of the sentencing scale, the level of over-representation was greater with 56% of detention orders being made against Indigenous youth (interim submission page 94). Two other recent reports in Queensland confirm these points (Criminal Justice Commission 1995, Queensland Aboriginal Justice Advisory Council 1995).
The sentencing decision is a complex one taking a wide range of factors into account. A number of points are particularly relevant to the process of sentencing Indigenous young people.
* Indigenous young people brought before the courts are more likely to come
from rural backgrounds and are more likely to appear before non-specialist
Children's Courts. Geographic isolation also raises issues of inadequate
legal representation, fewer non-custodial sentencing options and harsher
sentencing attitudes by non-specialist magistrates.
* Indigenous young people are more likely to have been previously
institutionalised, less likely to have received a diversionary alternative
to court and are more likely to have a greater number of prior convictions
than non-Indigenous young people. Each of these factors increases the likelihood
of a custodial order.
* The existence of a prior record strongly influences the sentencing decision.
Indigenous young people tend to have a longer criminal history and are therefore
at greater risk of incurring custodial penalties. Because intervention occurs
at a younger age with Indigenous children, they accumulate a criminal record
much earlier than non-Indigenous children.
* Discrimination at earlier stages of the system results in Indigenous young
people being less likely to receive diversionary options and being more likely
to receive the most punitive of discretionary options. These factors compound
as the young person moves through the system. Apparently equitable treatment
at the point of sentencing may simply mask earlier systemic biases.
* The current sentencing trend is to treat `repeat offenders' more harshly,
either by way of mandatory sentences or greater reliance on sentencing principles
of retribution, general and specific deterrence and community protection.
This will have its greatest negative effect on Indigenous young people. They
are precisely the group who, for reasons discussed above, are more likely
to have longer criminal histories.
Repeat offenders
Recent changes to sentencing laws in the NT, WA and Queensland are likely to increase the levels of incarceration of Indigenous young people. Western Australia and Queensland are already the States with the highest rates of over-representation of Indigenous young people in custody.
A recent amendment to the NT Juvenile Justice Act imposes a mandatory 28 day period of detention for 15 and 16 year olds found guilty of a second `nominated' property offence such as criminal damage, stealing, unlawful entry of a building and unlawful use of a motor vehicle. The amendment also creates `punitive work orders' as an additional sentencing option over and above Community Service Orders. According to the Attorney General at the time the amendment was tabled in Parliament, `The punitive work order will be hard work; it will be public. Those serving a punitive work order will be obvious to the rest of the community. They will be identifiable as PWOs either by wearing a special uniform or some other label' (NT Attorney-General ministerial statement, `Criminal Justice System and Victims of Crime', 20 August 1996).
In WA the Criminal Code was amended to provide for mandatory 12 month custodial terms for adults or young people convicted of their third break and enter offence. In WA the Inquiry was told that the Sentencing Act 1995 (WA) fails to recognise Aboriginal customary law and does not recognise the principle of imprisonment as a sanction of last resort. The principle in fact was deleted from the Criminal Code in 1995. The ALSWA expressed concern that the sentencing principles in the Young Offenders Act 1994 are inadequate. Section 125 directs the court to give primary consideration to the protection of the community when sentencing young offenders who are part of the `target group'. The court is to put this consideration ahead of all others, including section 46 which states that `accepted notions of justice' must be incorporated into sentencing decisions. Members of the `target group' are multiple offenders who have served two separate custodial sentences and have committed a further serious offence. This group is likely to have a significant over-representation of Indigenous young people, given their over-representation in juvenile detentions centres (submission 127 pages 371-372).
The legislation also allows for a remand in custody `for observation' for a period of 21 days to allow for psychological tests, assessment and recommendations concerning future treatment. The ALSWA drew attention to abuse of the power by magistrates which came to light in the so-called `Ice Cream Boy' case. That case involved a young Aboriginal boy who had been remanded for observation for 30 days (contrary to the legislation) after appearing on a charge of stealing an icecream. The matter came before Judge Yeats of the Children's Court of WA who found that it was the third occasion that the young person had been remanded under section 49, each time for 30 days, within a period of 12 months. Judge Yeats described this as an `inappropriate use' of section 49 to `remand a young person in custody for one month on a charge of stealing an ice cream valued at $1.90'. The judge found that section 49 was being used to `remove the child from the community' (submission 127 pages 355-356).
The Young Offenders Act 1994 (WA) also empowers the Director of Public Prosecutions to seek a Special Order of the court to increase the custodial sentence of a young person by 18 months where the young person has a record of re-offending and has committed a serious offence. The prior offending histories of Indigenous young people and their greater likelihood of receiving a custodial sentence mean that they are more likely to be affected by these provisions. `Aboriginal youth and country youth are discriminated against by this section as one of the qualifying pre-conditions for the special order is an exhibited pattern of repeated detention for any offence and these groups of offenders are more likely to receive detention sentences for minor offences' (ALSWA submission 127 page 351). The ALSWA called for the Special Order provisions to be repealed.
The Aboriginal and Torres Strait Islander Social Justice Commissioner has found these sections of the WA legislation to breach,
* article 3 of CROC because the interests of the child are made secondary to the protection of the community when sentencing,
* article 9(1) of the International Covenant on Civil and Political Rights and article 37(b) of CROC which provide protection against arbitrary arrest and detention because detention is arbitrary if it is imposed by a process contrary to `accepted notions of justice',
* the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) because rehabilitation is no longer seen as an important or dominant consideration, and
* article 37(b) of CROC and recommendation 92 of the Royal Commission into Aboriginal Deaths in Custody which require that imprisonment be imposed as a last resort and only for the minimum necessary period are breached (Dodson 1995 pages 38-39).
Submissions to the Inquiry called for a review of juvenile justice laws in WA as `a matter of urgency' (Kimberley Land Council submission 345 page 74, ALSWA submission 127 and Broome and Derby Working Groups submission 518).
A recent South Australia proposal to introduce general deterrence as an additional sentencing principle in the Young Offenders Act 1993 did not proceed. The proposal was to make general deterrence a discretionary consideration in the Youth Court and a mandatory consideration for juvenile offenders having more serious matters determined in the higher courts.
The Queensland Government has recently introduced legislation to increase the maximum penalty for juveniles from 14 years imprisonment to life imprisonment for certain offences and to transfer more cases from the Children's Court to the jurisdiction of the District Court, which is also likely to increase sentences. Other amendments have introduced `community protection' as an additional principle in the legislation. A Queensland Aboriginal Justice Advisory Council report on juvenile justice noted that `despite increased sentencing options and the introduction of Aboriginal elder cautioning, research ... indicates that the Juvenile Justice Act, to date, has failed to prevent nor reduce the rate of Aboriginal or Torres Strait Islander representation in the juvenile justice system' (1995 page 69).
Punishing parents
Holding parents responsible for offences committed by children and young people has been proposed or introduced as a response to juvenile crime in many Australian jurisdictions in recent years. It rests on the assumption that `bad' parenting is a causal factor in juvenile offending. In many jurisdictions courts can also order that parents pay restitution for offences committed by their children.
The impact of this type of legislation on Indigenous families was raised specifically in evidence to the Inquiry. Whatever the merits or otherwise of holding non-Indigenous parents responsible, there are particular concerns in relation to Indigenous people. In part these arise from the application of the non-Indigenous juvenile justice system to Indigenous people and the history of defining Indigenous parents as `bad parents' and using this as a pretext for intervention and removal of children.
Section 58 of the Young Offenders Act 1994 (WA) allows the court to punish parents for the actions of their children. The ALSWA argued that this section `is open to abuse by magistrates and Justices of Peace who may be racist or ignorant of Aboriginal family and parenting roles and consequently may seek to impose fines on Aboriginal responsible adults ... It is very much an irrational clause to appease the political view that being tough on parents solves juvenile crime' (submission 127 page 349). The ALSWA viewed the provision as hypocritical and discriminatory because the State is exempt from being a `responsible adult' where the children and young people who have committed an offence are in the State's care.15
Legislation in other States has been criticised for vague definitions of what might constitute `wilful neglect' on the part of parents or `substantial contribution' to the offence committed by the young person (for example, section 197 of the Queensland Juvenile Justice Act 1994). Similar provisions can be found in the NSW Children (Parental Responsibility) Act 1994 and the Tasmanian Statute Law Revision (Penalties) Act 1994 and Child Welfare Act 1960 (Hil 1996 page 281). Both the NSW and Queensland legislation allow the parents to be charged with criminal offences should they breach the court order.
Other recent amendments to the Queensland legislation provide courts with a coercive power to compel parents to attend the court when their children are charged with a criminal offence. A maximum penalty of $3,750 can be imposed on a parent failing to comply with such an order.
Non-custodial sentencing options
The Convention on the Rights of the Child requires that `a variety of dispositions ... shall be available to ensure that children are dealt within a manner appropriate to their well-being and proportionate both to their circumstances and the offence' (article 40(4)). Several recommendations of the Royal Commission into Aboriginal Deaths in Custody were designed to increase the availability and use of non-custodial sentencing options as well as Indigenous involvement in and control over the nature of community-based orders (Recommendations 111-114, 236). Recommendation 236 in particular proposed that `governments should recognise that local community based and devised strategies have the greatest prospect of success and this recognition should be reflected in funding'.
There are a number of interconnected issues relating to non-custodial sentencing options including the appropriateness of their design for Indigenous young people, their availability both in legislation and in practice, their relative use by magistrates compared to custodial sentences and the supervision of the orders by the relevant department. Non-custodial orders are directly relevant to the issue of contemporary removals. Without adequate alternatives there is an increased likelihood that custodial sentences will be imposed. However, inappropriate or poorly supervised non-custodial options may increase the failure of Indigenous young people to successfully complete the orders and so may result in detention.
In WA Youth Community Based Orders are the principal supervised non-custodial option for young people. The Inquiry was told that Aboriginal people are not involved in the development of these `community-based' options. A secondary concern was the ability of the department to supervise the orders adequately (ALSWA submission 127 page 350). This leads to another set of problems and potential further criminalisation. Indigenous people have the highest level of non-completion in every community-based order category (submission 127 page 267).
The failure to use non-custodial sentencing options as often as possible was also raised. Part of this failure relates directly to sentencing disparities between specialist Children's Courts, primarily in the large cities, and rural courts constituted by non-specialist magistrates or, in WA, lay Justices of the Peace. Because the majority of Indigenous young people appear in non-specialist country courts, any sentencing disparity disproportionately affects Indigenous children (Luke 1988). Recent data supplied by the Senior Children's Court Magistrate in NSW indicated that non-specialist country courts impose longer minimum terms and shorter additional terms than specialist magistrates and that in some country circuits young people are about two and a half times more likely to receive a custodial sentence than in specialist Children's Courts (Scarlett 1996 page 5). This pattern effectively means that Indigenous young people are more likely to receive a custodial order than a non-custodial order and that the order is more likely to have a longer mandatory imprisonment period (the minimum term) and a shorter potential period of supervision after release to the community (the additional term).
In WA lay Justices of the Peace try and sentence for many criminal offences in rural areas. They impose higher fines than magistrates for comparable offences, capacity to pay was considered in only a minority of cases and half of the defendants fined by the Justices of the Peace defaulted on their fine (ALSWA submission 127 page 254). Again these differences directly affect Indigenous youth because they are more likely to be sentenced in areas where Justices of the Peace preside over courts. The ALSWA strongly argued that the power of Justices of the Peace in WA to determine charges and impose penalties,
[Significantly] contributes to on-going Aboriginal juvenile over-representation in detention centres ... While these powers remain in place, Aboriginal juveniles in the rural and remote areas will continue to be subjected to an unregulated second class system of justice (submission 127 page 373).
The Inquiry was informed of `a great need to find alternative placements and programs for Aboriginal juveniles' (ALSWA submission 127 page 374). In WA alternatives could involve placement within Aboriginal communities and work on Aboriginal owned stations. In NSW the Inquiry was informed that `the Government should put resources into programs that will divert Aboriginal children from the criminal justice system and at the same time empower communities to take control of social problems in their own communities' (Western Aboriginal Legal Service (Broken Hill) submission 755). The Tasmanian Aboriginal Centre (TAC) stated that `resources need to be directed to the Aboriginal community to establish alternatives to imprisonment and detention of young Aborigines' (supplementary submission 325 page 4). Lack of resources has prevented the TAC from continuing with a program of placing Aboriginal children at Rocky Cape as an alternative to detention (supplementary submission 325 page 4).
Indigenous organisations in Queensland have complained of the failure to use community service orders frequently enough and to resource Aboriginal devised and controlled community-based programs adequately (Cunneen and McDonald 1997 page 177). Generally, the major issue to emerge in relation to Indigenous community-based strategies is the failure to provide adequate resourcing. `It is clear that no matter what non-custodial options are available in juvenile justice legislation, a central issue will be the extent to which they can be utilised in practice' (Cunneen and McDonald 1997 page 178).
Conclusions
State and Territory governments cannot be accused of doing nothing in relation to specific programs for Indigenous young people. On the contrary, all jurisdictions can point to various initiatives. The issue is whether governments are doing enough in light of the massive levels of over-representation and, more importantly, whether what is being done reflects the types of solutions which Indigenous people see as important.
The Inquiry was told of two Indigenous-run programs that had come into conflict with State governments. In Queensland Piabun provides an innovative approach to developing self-esteem and deterring offending among young people. It was established by a group of Brisbane community elders to supervise Indigenous young people on court orders (Piabun submission 398). Initially the program had the support of the Department of Family Services and Aboriginal and Islander Affairs and the program claimed considerable success in preventing re-offending. State government funding for the program was stopped in December 1995 and not recommenced until the later part of 1996 (Mark Johnson submission 751 page 7). It was suggested that the decision to stop funding was related to resistance by the elders to greater departmental control over the project (submission 398).
A widely recognised Aboriginal-run program in WA is the Lake Jasper Project. The project assists Indigenous young people and their families. Originally it was funded by the Australian Youth Foundation and later by the State Government. However State support has been withdrawn. The Inquiry was told that the project was established `amidst massive opposition from all sections of the community'. `We structured the program and gave it what we considered to be strong Aboriginal values ... to assist the kids with some of the social problems, some of the cultural problems and spiritual problems that they were having' (Mike Hill evidence 416). The WA Government told the Inquiry that the Division of Juvenile Justice does not refer young people to the Lake Jasper project although, if they were referred by the courts or other agencies, Juvenile Justice officers would provide supervision of orders (Exhibit 19).
I believe the government has a political problem with the project and it's about self-determination. I don't think the government likes or wants to have Aboriginal people in autonomous areas of self-determination. It's far too dangerous (Mike Hill evidence 416).
Consistent with the right of self-determination, the Royal Commission into Aboriginal Deaths in Custody recognised that Indigenous organisations should play a key role in the sentencing process of Indigenous young people. Recommendation 235 states,
That policies of government and the practices of agencies which have involvement with Aboriginal juveniles in the welfare and criminal justice systems should recognise and be committed to ensuring, through legislative enactment, that the primary sources of advice about the interests and welfare of Aboriginal juveniles should be the families and community groups of the juveniles and specialist Aboriginal organisations, including Aboriginal Child Care Agencies (emphasis added).
Nowhere is this recommendation adequately implemented. Recent research on the extent to which Indigenous organisations have a role in the sentencing process shows only limited and discretionary involvement. Nationally there has been some improvement but nowhere is the change as extensive as the Royal Commission recommendation demanded (Cunneen and McDonald 1997 page 175). The Tasmanian Government's reading of Recommendation 235 is illustrative.
The proposed Youth Justice Bill enables families and other interested parties to be involved in decisions on the sanctioning of young people through the cautioning and family conferencing process (submission page D-25, emphasis added).
The limitations of this approach in relation to both cautioning and conferencing have been noted above. Linda Briskman, an academic and researcher for the Secretariat of National Aboriginal and Islander Child Care, told the Inquiry,
... self-determination seems to be equated with little more than consultation ... When you look at government self-determination policies, control is still maintained very strongly. Governments have actually been unwilling to transfer power to Aboriginal communities ... that's the crux of the problem (submission 134 pages 6 and 9).
The Inquiry was repeatedly told that Indigenous people want greater control over what is happening to their children and young people. For example, the Broken Hill office of the Western Aboriginal Legal Service informed the Inquiry of measures which local Aboriginal community leaders have argued would be appropriate non-custodial options in western NSW. These include the use of elders' panels to determine appropriate responses and the use of available land resources such as Mootwingee National Park and Wienteriga Station where young people could diverted from detention centres and supervised by an Aboriginal unit. These responses are about taking `some control over juvenile justice', redressing destructive policies, empowering elders and `bringing children into closer contact with their culture' (submission 755). In Tasmania the TAC would like to use Rocky Cape, St Helens and Badger Island, all of which have significant cultural meaning for Aboriginal children, as sites for alternative programs for Indigenous young people (supplementary submission 325 page 4).
Isolation is a key problem for Indigenous young people incarcerated in juvenile institutions. United Nations Rules provide that children should have the right to regular and frequent visits (at least twice each week) and the right to communicate by writing or telephone (at least twice each week). A recent survey of NSW juvenile detainees found that 90% received less than the minimum standard in relation to visits and 76% less than the minimum standard in relation to telephone communications (NSW Ombudsman 1996 page 70).
In Western Australian the Inquiry was told,
Juvenile justice legislation ... is extremely harsh. For Kimberley parents it means that their children end up in detention centres in Perth where they fear children learn to become criminals and suffer isolation and separation from their families and the racism that is endemic to these institutions (Broome and Derby Working Groups submission 518). Isolation is acute for young people from the country, most of whom are Aborigines. It is extremely difficult for their relatives to visit them. Recognising this, prescribed visiting hour restrictions are waived ... However, this concession, in fact, hardly addresses the issue of ability of family members to get to Perth to visit their children in the first place. Traditionally-oriented young people are especially vulnerable in these institutions with their totally alien environments and regimes. Isolation can be crippling. These inmates are almost never visited by their families and they are less likely than others to know any other inmate. They may also experience language difficulties (Wilkie 1991 pages 156-7).
Recent interviews with 33 Indigenous young people in detention centres in NSW found that 17 had reported receiving no visits from their families (Howard 1996 page 19). The problems were made evident in evidence to the Inquiry.
My own grandson's been taken down to Wagga to the Riverina Juvenile Justice Centre. We was only able to visit him once [from Broken Hill] because of the distance - the miles, and the money. We just haven't got the money ... to go down there. And they are locked away from us. We got no access to them ... Because we're very isolated it doesn't give us the chance to get down and see our kids.
Confidential submission 762, New South Wales.
Most detention centres in NSW are concentrated around the Sydney metropolitan area. The NSW Government advised the Inquiry that financial assistance can be provided to families to visit children in detention centres and that the decision to construct two new centres in Grafton and Dubbo will allow Indigenous young people to remain closer to their communities. However, a recent report by the NSW Ombudsman found that the Department of Juvenile Justice had seriously underspent funds set aside to help families visit their children. In addition there were restrictive rules on visiting and telephone contact and the withdrawal of contact as a punishment, as well as allegations of staff mistreatment of young people (NSW Ombudsman 1996 page xiv). More generally it was found that,
Many shortcomings impact negatively on the dignity and rights of detainees ... In some centres, even very basic issues such as food and clothing were found to be substandard. Privacy and respect for individual and cultural differences were also commonly ignored (NSW Ombudsman 1996 page iv).
Building smaller regionally based detention centres specifically to mitigate the isolation of Indigenous children is a vexed issue. New detention centres may divert resources from community based options and lead to a further growth in the numbers of Indigenous young people in detention. The Aboriginal and Torres Strait Islander Social Justice Commissioner has argued against this option, preferring instead to see `a proliferation of Indigenous community-based programs for Aboriginal young offenders' (quoted by NSW Ombudsman 1996 on page 73). However, the NSW Ombudsman recommends the development of smaller detention centres in non-metropolitan areas (1996 page 74).
Similar problems are apparent in juvenile detention centres in Queensland. The report of the Queensland Aboriginal and Torres Strait Islander Overview Committee draws attention to allegations of staff mistreatment of young people, misuse of handcuffs, abuse of `time-out rooms' and `lock-down' procedures, children being placed in danger of sexual abuse, the employment of inappropriate staff and unacceptable emotional and physical disciplinary procedures in some Queensland detention centres. In addition, there have been lack of cultural awareness, lack of culturally appropriate programs and resistance to family and organisational contacts for Indigenous residents (1996 page 59). Similar issues were brought to the attention of the Inquiry by a former Official Visitor who noted among other things,
The atmosphere of violence is so great in the detention centres that I felt intimidated being there ... staff have no idea of how to relate to Aboriginal and Torres Strait Islander children. They are often yelled at, physical restraint is applied in a very horrible and threatening manner ... Often boys will have no family visits for long periods of time ... boys are forced to sit around all day in the centres with few programs to attend and nothing meaningful to do ... they have very few rights and suffer because of racism (submission 427 pages 1-2).
The TAC criticised the standards of care at the Ashley Youth Detention Centre in Tasmania (submission 325 page 122). The Government advised that all complaints have been investigated and a review of the Centre has been completed (Tasmanian Government submission page D-29). Most detention centres now have some type of specific art, educational or cultural program for Indigenous detainees. Some detention centres have Aboriginal Support Groups who visit detainees.16 However, the extent to which these programs can compensate for removal from family, community and country must be questioned.
The provision of Indigenous specific cultural education and support programs within the centre can in no way compensate her for the loss of culture which is the result of her removal to a juvenile justice detention centre. The unique impact that removal has on Indigenous young offenders when considered in the context of Indigenous culture and the long history of removal policies which have specifically affected Indigenous people and their social structures and culture cannot possibly be dealt with by the superficial provision of `cultural' programs within a centre (Aboriginal and Torres Strait Islander Social Justice Commissioner quoted by NSW Ombudsman 1996 on page 75).
Cultural programs are important but they need to be evaluated in terms of their quality and in terms of staff commitment to ensuring their success. They should not be seen as compensating for the effects of removal.
A related issue is the employment of Indigenous youth workers in detention centres. Indigenous young people find it easier to relate to Indigenous workers. A survey of NSW detention centres found that the proportion of Aboriginal workers in detention centres varied between 1% and 6% of each detention centre workforce while the proportion of Indigenous inmates varied between 12% and 50% (NSW Ombudsman 1996 page 77). The Ombudsman recommended a review of employment strategies for Indigenous workers as well as greater cross-cultural training for staff.
The Inquiry was told in Western Australia, South Australia and Tasmania that there is a need to establish Aboriginal-run facilities as alternatives to detention centres (Broome and Derby Working Groups submission 518, confidential submission 289 WA, Tasmanian Aboriginal Centre supplementary submission 325 page 4). The TAC envisaged that such an alternative facility would deal with both young offenders and children in cases of breakdown in family support (submission 325 page 4).
The death in custody of an Indigenous young person constitutes the final and absolute removal of that young person from his or her family and community.
Fifteen Indigenous young people died in custody in the eight years between May 1989, when the Royal Commission into Aboriginal Deaths in Custody ceased investigations, and May 1996 (Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 page 199). Five of these deaths were in institutional settings and ten were a result of police interventions (nine in police pursuits and one 16 year old youth shot dead after threatening police with a replica pistol).
A review of those deaths by the Aboriginal and Torres Strait Islander Social Justice Commissioner found extensive breaches of Royal Commission recommendations in relation to Indigenous young people, many relating to the circumstances leading up to the use of custody. Perhaps most disturbing was the finding that, as the Indigenous juvenile population increases proportionate to the non-Indigenous youth population, the likelihood of increasing numbers of Indigenous young people dying in custody will also increase unless significant reforms are introduced (1996 page 199).