The issues affecting Indigenous young people in the juvenile justice system have been identified and demonstrated time and time again. It is not surprising that Indigenous organisations and commentators draw attention to the historical continuity in the removal of Indigenous children and young people when the key issues in relation to juvenile justice have already been identified for some time yet the problem of over-representation appears to be deepening.
The issues relating to policing and the courts have been well documented since Eggleston's pioneering work in 1976. Problems with Aboriginal/police relations across most of Australia were well documented in the early 1980s (ADB 1982, Roberts et al 1986) and in national inquiries and regional studies in the late 1980s and early 1990s (International Commission of Jurists 1990, National Report 1991, HREOC 1991). The failure to accord fair treatment to Indigenous young people in diversionary options such as police cautioning or less intrusive methods such as summons and court attendance notices has been demonstrated since the mid-1980s (Cunneen and Robb 1987, Broadhurst et al 1991, Wilkie 1991). The failure of other diversionary schemes such panels to meet the needs of Indigenous youth has been described since the end of the 1980s (Gale et al 1990, Broadhurst et al 1991, Wilkie 1991).
Failure to comply with police instructions regarding the presence of a parent or adult, failure to notify Aboriginal Legal Services and the inadequacy of police guidelines in regulating police behaviour have been commented upon periodically for a decade and a half (for example, Rees 1982, Cunneen 1990, Warner 1994).
All of these issues were addressed comprehensively in the findings and recommendations of the Royal Commission into Aboriginal Deaths in Custody. The Royal Commission went on to address the need for self-determination and negotiated solutions between governments and Indigenous people in its National Report in 1991.
New legislation has done little to confront the issues which affect Indigenous young people or to reduce the levels of police and detention centre custody. Some of the legislative changes such as the repeat offender sentencing regimes are unashamedly punitive in their intent. Others, such as the introduction of new diversionary schemes, have been perceived as more enlightened. Whole legal systems regulating juvenile justice have changed in some States like SA, WA and Queensland in the last few years. Yet a recent review and evaluation of the new South Australian system could be applied to most of Australia.
These figures clearly suggest that, in overall terms, the position of Aboriginal youths within the new juvenile justice system does not seem to be any better than under the old system. They are still being apprehended at disproportionate rates and once in the system, are still receiving the `harsher' options available (Wundersitz 1996 page 205).
Why have new regimes failed? The evidence before the Inquiry suggests several reasons. Many of the more progressive changes have been restricted in form, content and applicability. They have been designed and implemented as non-Indigenous systems with the expectation of finding solutions to the problems facing Indigenous people. Tokenism pervades some of the changes, particularly in relation to police cautioning and family conferencing schemes. Finally, the `underlying issues' which contribute so substantially to Indigenous offending levels have still not been addressed.
The juvenile justice system provides the linchpin for the criminalisation and removal of a new generation of Indigenous children and young people. The reasons for this intervention can be linked to a number of specific factors relating to policing and the administration of justice, as well as the interaction of the many underlying social and economic issues which are likely to spark intervention.
It needs to be borne in mind, however, that in relation to many Aboriginal youths who become enmeshed with the criminal justice system, we are talking about youths whose formative experiences have involved profound neglect, routine violence, emotional and physical deprivation (including some instances of virtual starvation) and sexual abuse (Crime Research Centre 1995 page 2).
This chapter has not dealt with the `underlying issues' per se although they are clearly important in understanding why Indigenous young people come into contact with juvenile justice agencies in the first instance. The underlying issues of socio-economic disadvantage and dispossession influence contact with both child welfare and juvenile justice agencies.
1 Police retain the power under section 18 of the Young Offenders Act 1994 (WA). A young person suspected of intoxication can be detained in a police lock-up if no responsible person can be located (Beresford and Omaji 1996 pages 115-6).
2 The Australian Government submitted reservations to article 37(c) of CROC and articles 10 (2) and (3) of the ICCPR (see Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 pages 205-7).
3 A recent NSW survey indicated that wards are 15 times more likely than other young people to be incarcerated in detention centres. Indigenous children and young people comprised 9% of all wards but 37% of wards who received a juvenile justice court assessment (Community Services Commission 1996 pages 8 and 24).
4 Various types of summons exist in different jurisdictions including court attendance notices and citations. Some jurisdictions also have infringement notices for some offences which are similar to a parking fine.
5 Formal processing includes arrest, summons and caution.
6 Indigenous young people comprised 58%, 63%, 69% and 54% of watchhouse juvenile detentions over the four year period (Queensland Government final submission page 59).
7 `The police recording system is unable to provide meaningful data with regards to bail application outcomes' (Victorian Government final submission page 122).
8 The NZ Children, Young Persons and Their Families Act 1989 provides for family group conferences (FGCs). The NZ model and Australian adaptations have been discussed by Alder and Wundersitz 1994 and Hudson et al 1996. For an Australian Indigenous perspective on NZ FGCs, see Dodson 1996 pages 42-45.
9 In NSW the only recognition of cultural difference is that the administrator of conferences, when choosing a convenor to run the conference, `would need to consider among other things, whether it is possible to match the young person with a Convenor from the same cultural background, distance considerations, and so on' (NSW Attorney-General's Department 1996 page xv).
10 The eleventh `guiding principle' of the proposed NSW `accountability conferences' is that `it should be culturally appropriate' (NSW Attorney-General's Department 1996 page 38).
11 Section 3(2) of the Young Offenders Act 1993 (SA) lists a number of statutory policies. Paragraph (e) requires proper regard for a youth's sense of racial, ethnic or cultural identity. However, there are no specific requirements in relation to either police cautions or family conferencing for culturally appropriate Indigenous participation - let alone decision making.
12 For example, section 30(2)(c)(v) Youth Justice Bill (Tas). The WA Young Offenders Act 1994 requires that when the offender is a `member of an ethnic or other minority group' the Juvenile Justice Team should include a person nominated by members of an ethnic or minority group where practicable.
13 A recent review of the SA juvenile justice system recommended that a separate Aboriginal conferencing team be established to increase Aboriginal attendance, provide information, determine appropriate support people, act as co-ordinators and seek feedback from the community `regarding the development of more culturally appropriate conferencing processes' (Wundersitz 1996 page 125). However there is no more general recognition of a decision-making role for Aboriginal communities or their organisations as a right of self-determination (Wundersitz 1996 page 208).
14 The only apparent exception is the ACT where 4% of juveniles in custody were Indigenous and 5% of juveniles on Community Service Orders were Indigenous. No numbers or details of other sentencing outcomes were supplied (ACT Government interim submission page 25). The Victorian Government noted that its `Department of Justice is unable to provide any data in relation to differential sentencing options for Aboriginal and non-Aboriginal offenders' (final submission page 122).
15 States and Territories typically exempt themselves from responsibility for the behaviour of young people under their care and protection (see Hil 1996 page 281).
16 For instance the Queensland Government listed the following programs: Aboriginal Life Skills, Offending Behaviour Program, Self-Discovery through Drama and Music, Elders Visits and Cultural Education (interim submission page 96). There is also a Community and Culture Integration Program with the aim of maintaining, developing and restoring the cultural, community and family links of Indigenous young people in detention (final submission page 45).