Part 3 Consequences of Removal Chapter 10 Children’s Experiences



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The issue of Indigenous children and young people in police custody was addressed by the Royal Commission into Aboriginal Deaths in Custody. A key recommendation was ‘that, except in exceptional circumstances, juveniles should not be detained in police lock-ups’ (Recommendation 242). The Convention on the Rights of the Child also requires that arrest and detention following arrest should be measures of last resort (article 37(b)). Alternatives should be utilised unless the circumstances are exceptional. An evaluation of State and Territory responses to Recommendation 242 found that it has not been adequately implemented (Cunneen and McDonald 1997 pages 182-184).

The Australian Institute of Criminology presented an analysis of the results of the August 1995 National Police Custody Survey which shows the extent to which police custody is utilised.

The significance of the survey’s findings to the Inquiry is that theyhelp to illustrate the continuingheavy involvement of Indigenous children (compared tonon-Indigenous children) in the criminal justice system, in particular theelevatedproportion of Aboriginal children beingheld inthecells by police (submission686 page 2).

The following table shows the number and percentage of Indigenous and non-Indigenous youth aged 10 to 17 held in police custody nationally during the August 1995 survey period.

National Police Custody Survey, August 1995

Indigenous youth Non- Total Indigeno us youth

AgeNo%No%No% 10--11001100 114573437100 122467123336100 1365594641111100 14105597341178100 151514419066341100 161553825062405100 172003047470674100

Total704401,049601,753100

Note:It is notpossible to distinguish Aboriginal from Torres Strait Islander young people in any juvenilejustice data.

Some 40% of all young people held in police custody during the survey period were Indigenous. Indigenous children and young people comprise only 2.6% of the national youth population. In fact, the rate of custody per 100,000 Indigenous young people is 1,333 compared to a rate of 52 for non-Indigenous youth. The over-representation factor is 26.

The majority of children taken into police custody under the age of 15 years were Indigenous. That children of such a young age should be separated from their families, communities and community organisations is highly disturbing, particularly when such separations are not a feature of police interaction with non-Indigenous children. The issue of the relatively young age of Indigenous young people detained in police custody was

raised by the ALSWA which told the Inquiry that one in five Indigenous young people detained in WA police cells was 14 years of age or younger. Of these 92% already had an arrest history (ALSWA submission 127 page 334).

The following table shows the distribution of police custody of young people by jurisdiction throughout Australia. Not all States and Territories resort to the use of police custody to the same extent. Nevertheless, the data demonstrate that over-representation of Indigenous young people in police custody is a significant problem and that there are differential patterns of policing Indigenous children and young people compared to non-Indigenous children and young people.

Young people in police custody in each State and Territory, August 1995

IndigenousNon- Total youthIndigenous youth

StateNo%No%No% NSW1083619264300100 Vic16720993225100 Qld1764224558421100 WA2286114639374100 SA1233919661319100 Tas39319134100 NT4569203165100 ACT533106715100

Aust704401,049601,753100

The majority of young people held in police custody in Western Australia and the Northern Territory were Indigenous young people. This issue is of particular concern in WA where the overall number in police custody is also high: 61% of young people held in police custody were Indigenous.

Other jurisdictions with large Indigenous populations also had relatively high proportions of Indigenous young people in police custody. These included Queensland with 42%, SA with 39% and NSW with 36%. WA also accounted for 32% of all Indigenous young people in Australia who were held in police custody, followed by Queensland which accounted for 25% of the total.

The Australian Institute of Criminology made a number of important points in relation to the use of police custody for Indigenous young people.

While there are many occasions wherepolice officers will need to detainchildrenwho have committed offencesor who are at risk of comingtoharm, holding them in the cells at police lockups can rarely if ever be justified. In many cases, doing so breaches the police’s ownstanding orders and perhaps legislation.Apartfrom the most exceptional circumstances(and thatsurely cannotbe61% of the time in WA!) it breached Recommendation 242 of the Royal Commission into AboriginalDeathsinCustody (submission 686 page 4).

In WA detention in police cells is often not related to criminal matters at all. In the Kimberley region over 50% of juveniles detained in police cells were there because of alcohol use (ALSWA submission 127 page 334 referring to Crime Research Centre research). Public drunkenness is not a criminal offence in WA, although police retain the power to detain intoxicated persons. In addition, the Inquiry was told that the Young Offenders Act 1994 (WA) permits too much discretion to police officers by failing to place a positive onus on them to find alternatives to police cells when a young person is intoxicated (ALSWA submission 127page347).1

The Convention on the Rights of the Child article 37(c) requires the separation of juveniles from adults when young people are deprived of their liberty (see also ICCPR article 10(2)(b)). Article 37(c) of CROC also requires that every child is to be treated in a manner which takes into account the needs of persons of his or her age. The Commonwealth Government submitted a reservation on the relevant sections of both treaties,2 arguing that geography makes total segregation difficult to achieve and that responsible authorities should have the discretion to ‘determine whether it is beneficial for a child or juvenile to be imprisoned with adults’ (quoted by Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 on page 205). The available empirical evidence strongly suggests that the ‘discretion’ disadvantages Indigenous young people.

Juvenile detention centres

The detention of Aboriginal youthisa formofchild removal. This cannot bedeniedor ignored. Incarceration and its ensuingdeprivation of libertyisa destructiveand dehumanisingexperience (ALSWA submission 127 page340).

Concern about the over-representation of Indigenous young people in detention centres developed from the early 1980s. Most of the research was State-based, reflecting the nature of separate juvenile justice jurisdictions across the nation. There was great difficulty in deriving comparable national data on Indigenous over-representation. Indeed, the Royal Commission into Aboriginal Deaths in Custody noted, ‘At no level of the criminal justice system is statistical information more inadequate than it is with respect to juvenile offenders’ (National Report 1991 Volume 2 page 254). Although acknowledging the difficulties of interpreting the available data, there was a perception that the over-representation of Indigenous young people was increasing (National Report 1991 Volume 2 page 263).

Some of the data provided to the Inquiry indicate the upward trend in the

incarceration of Indigenous young people during the late 1980s and early 1990s. The NSW Government noted that the proportion of Indigenous young people in detention centres had increased in the four years to 1994 (interim submission page 81). No explanation was given as to why this may have occurred.

All Australian States and Territories have submitted quarterly returns to the Australian Institute of Criminology on the number of juveniles held in detention centres since 1982. However, it is only since 1993 that national information has been included which identifies whether a young person is Indigenous or not, thus permitting comparisons to be made. Nationally some 36% of youth in juvenile correctional institutions on 30 June 1996 were Indigenous. The rate of incarceration was 540 per 100,000 Indigenous young people compared to a non-Indigenous rate of 25 per 100,000.

Young people in juvenile corrective institutions, 30 June 1996

Indigenous youthNon-Indigenous youthTotal

StateNoa %Rateb Noa %Rateb Noa % NSW102307462387036340100 Vic4613266941370100 Qld8461594533914137100 WA6157734454323106100 SA182257265784283100 Tas62330120773726100 NT9691104312913100 ACT114324686177100

Aust285365404976425782100

Sources: Australian Instituteof Criminology submission 686 andAtkinson and Dagger1996. aThesefiguresdo not includeyoung peopleover the ageof 17 years who areheld injuvenile correctional centres. Some jurisdictions (such as NSW)have significantnumbersof youngpeople in this category. Nationally, at 30 June 1996 an additional37 Indigenous youngpeople18years or olderwere held in juvenile institutions(Atkinson and Dagger 1996). bRate per100,000 of the relevant population. Rates quoted bythe Australian Institute of Criminology are correct to twodecimal places. The aboverates havebeen rounded for ease of reading.

This table shows the number of Indigenous and non-Indigenous young people held, the percentage of the total which each group comprised and the rate of incarceration for each group. The majority of young people in juvenile correctional institutions in NT (69%), Queensland (61%) and WA (57%) were Indigenous.

However, NSW had the highest numberof Indigenous young people incarcerated (102) as well as the highest rate (746 per 100,00). WA’s rate of 734 was only slightly lower than that in NSW. Queensland and SA also had extraordinarily high rates (594 and 572 respectively). Nationally some 87% of Indigenous young people in detention are held in only three States: NSW, WA and Queensland.

Jurisdictional differences also indicate important considerations in relation to policy development. For example, unless we assume that Indigenous youth in WA are six times more criminal than Indigenous youth in Victoria, we need to consider what it is about government policy and legislation that leads to greater levels of incarceration of young people in the former State. Similarly the variations in incarceration by jurisdiction also have a positive side to them. They indicate that patterns of imprisonment ‘are not the product of immutable factors. They can vary. They can change. They can be improved’ (Dodson 1995page 20).

Level of over-representation for Indigenous youth, 30 June 1996 AgeNSWVicQldWASATasNTACTAust 10-1720.59.841.131.613.78.23.819.021.3

This table shows the level of over-representation of Indigenous young people to non-Indigenous young people in correctional institutions by comparing the rates of incarceration in each jurisdiction. Thus in Queensland for example an Indigenous young person is 41.1 times more likely to be in juvenile correctional institutions than a non-Indigenous young person. Queensland has the highest level of over-representation, followed by WA and NSW. For Australia as a whole, Indigenous youth are 21.3 times more likely to be in a detention centre than non-Indigenous young people.

The sex of a young person is also a significant factor as the following table shows.

Comparing males and females in juvenile corrective institutions, 30 June 1996

MalesFemalesTotal No%No%No% Indigenous25890.5279.5285100 Non-Indigenous46593.6326.4497100 Total72392.5597.5782100

Young males comprise the majority of youth in detention centres, irrespective of whether they are Indigenous or not. Most separations which arise directly as a result of

criminalisation and incarceration affect young Indigenous males.

However, the table above also shows that Indigenous girls form a higher proportion of all girls in detention centres than Indigenous boys for all boys. Indigenous girls comprise 46% of all girls incarcerated while Indigenous boys comprise 36% of all boys. Both of these points have important implications for the development of policy responses. To reduce the extent to which Indigenous young people are separated from their families and communities by incarceration requires a consideration of gender. The greatest possible reduction in separations would be achieved by policies that reduce Indigenous male incarceration. However, policies also need to consider the specific factors that may lead to the incarceration of girls such as previous physical and sexual abuse, drug and alcohol problems, homelessness and so on. These factors clearly have a greater impact on Indigenous girls than non-Indigenous girls since they constitute nearly half of all girls incarcerated.

A further point raised by the Australian Institute of Criminology relates to the extent to which Indigenous young people are held in correctional institutions on remand.At 30 June 1996, some 40% of Indigenous youth in institutions were on remand. The remaining 60% were serving custodial sentences. The data relating specifically to Indigenous girls showed that 59% were detained on remand. An analysis of the data over the period 1993 to 1996 showed that ‘at a national level, the gap between sentenced and remanded Indigenous juveniles appears to be closing … Queensland appears to demonstrate the most consistent trend in this direction’ (Australian Institute of Criminology submission 686 pages 6-7). Policy reforms are needed to secure further reductions in the numbers of Indigenous young people detained on remand.

Australian Institute of Criminology data enable a consideration of changes in the rate and number of incarcerated young people based on quarterly reports for the three year period September 1993 to June 1996.

Changing populations in juvenile corrective institutions

September 1993 to 30 June 1996 IndigenousNon-Indigenous

NoRateNoRate

Sept 93 211408.047224.1

Dec 93 220425.451126.0

Mar 94 257486.852526.8

June 94 271513.347924.4

Sept 94 248469.746523.7

Dec 94 249471.646223.5

Mar 95 309585.350925.9

June 95 260492.552726.9

Sept 95 274519.049725.3

Dec 95 254481.149125.0

Mar 96 276522.847824.4

June 96 285539.849725.3 There were 26% more Indigenous young people in detention at the end of June 1996 than there were at the end of September 1993. The rate per 100,000 of the Indigenous youth population incarcerated increased by 24% from 408.0 to 539.8. During the same period, the number of non-Indigenous young people in detention centres increased by 5%, while the rate increased by a similar percentage (4.7%). There has been a fluctuating but overall increase in Indigenous rates of incarceration in NSW and WA. In Queensland there was a steady rate of increase until early1995 and then a levelling out of the rate (Atkinson 1996 page 6).

The Australian Institute of Criminology concluded,

There appearsto be little cause foroptimismin relation to the over-representationof Indigenous juveniles indetention.Of particular concern are the consistently highnumbersof Indigenous youth in detention inNSW,Queensland andWA; the likelihood thatveryyoung detainees will be Aboriginal, the steady increase in the rate ofdetentionof Indigenous juveniles in Australia; and, an apparent upward trend in theproportionof Indigenousremandees to sentencedIndigenous detainees. Thelevel ofover-representationof Indigenous juveniles indetention in Australia appears toberising (submission 686page 8).

A further factor to be considered is the location of detention centres. Most detention centres in Australia are hundreds, if not thousands, of kilometres away from many Aboriginal communities from which the detention population is drawn. The distance makes it extraordinarily difficult for parents and relatives to visit incarcerated young people and therefore exacerbates the effects of removal. This particularly affects Indigenous children and young people because they are more likely to come from a non-urban background (Luke and Cunneen 1995). The problem has received attention previously in the research literature (Wilkie 1991 page 156, Cunneen and White 1995 page 236) and in evidence to the Inquiry (NSW Government supplementary information,WA Government supplementary information).

Finally, Indigenous children tend to enter the juvenile justice system at an earlier age and stay in the system for longer (Queensland Government interim submission page 90, Criminal Justice Commission 1995 page 16 and Wundersitz 1996 page 204). Not only is the rate of removal of Indigenous young people from their families much higher than non-Indigenous young people, they are comparatively younger and more geographically isolated from their family and kin.

Juvenile justice legislation Legislation, policy and practice provide the framework within which removals occur. Indigenous young people, like other young people in Australia,are subject to the criminal law and a range of other laws. ‘Juvenile justice legislation’ refers primarily to the legislation which establishes a separate system for dealing with young people when they have been suspected of committing, charged with or convicted of a criminal offence.

In all Australian jurisdictions, except Tasmania, welfare matters have been separated from justice matters. In other words, children or young people who are deemed to be in need of care and protection are dealt with separately and in a different way from young people charged with a criminal offence. The separation has been accomplished in various jurisdictions either through separate legislation for criminal matters and welfare matters such as in NSW (the Children (Criminal Proceedings) Act 1987 and the Children (Care and Protection) Act 1987) or within the same legislation such as in Victoria where the Children and Young Person’s Act (1989) establishes separate divisions of the Children’s Court – the Family Division and Criminal Division – effectively separating welfare matters from criminal. Tasmania is the only Australian State to continue to operate under a system that mixes welfare and criminal matters (Child Welfare Act 1960). However, Tasmania is currently considering separating the jurisdictions by way of a Youth Justice Bill and Children and Their Families Bill (Cunneen and White1995 pages 189-193, Tasmanian Government submission page D-23).

The formal separation of welfare and juvenile justice is not always apparent in practice, however. Indeed, young people who have contact with the child welfare system are more likely to come into contact with the juvenile justice system.

Ourbelief is that there is actually a linkbetween the two [juvenile justice and childwelfare] in the sense that those who are taken from their families and placed in alternate care or out of home care,whether in institutionsor foster care, are much more likely to come before the attentionof the criminal justice system (SNAICC submission 309page 28).

This phenomenon is particularly apparent with Indigenous young people.3 The formal separation has had effects which have not necessarily been beneficial. Some commentators have argued that a ‘justice’ model emphasising the ‘rule of law’ and ‘due process’ has in fact lead to a failure to consider discretionary issues particularly as they are exercised by police. Factors such as the utilisation of police discretion on the street, over-policing, police-youth conflict and racism have been ignored (O’Connor 1994 page 210, Naffine et al 1990) although they are the very issues likely to lead to disproportionate criminalisation of Indigenous young people (Cunneen 1994). Juvenile justice legislation varies between jurisdictions and there are differences as to precisely what is covered by the legislation in each jurisdiction. Generally speaking, juvenile justice legislation covers,

• principles applicable to dealing with young people accused or found guilty of offending,

• definitions of a ‘young person’ or ‘child’,

• police powers to proceed against a young person through the use of arrest, attendance notices or the issue of summons, as well as stipulating a preference for the use of attendance notices or summons rather than arrest,

• diversionary schemes (such as cautioning, panels or family group conferences) and how they should be utilised.,

• special considerations for young people relating to release on bail or detention in

custody,


• the Children’s Court’s special jurisdiction over children, what criminal matters the Children’s Court can determine and which matters must be dealt with by a higher court,

• appealing against a Children’s Court decision,

• sentencing options,

• special requirements relating to restitution and compensation, and

• establishment of detention centres and their operations (Cunneenand White 1995 page 177).

Indigenous young people, like other young people, are also subject to a range of general criminal laws and laws relating to criminal procedure. An Indigenous young person is most likely to come before the Children’s Court for a violation of the law under the Crimes Act or Criminal Code. Young people are also subject to the law governing public order under the various Summary Offences Acts and Police Offences Acts in different States and Territories. Again a sizeable proportion of young people brought before the courts will be there for violations of public order governed by this type of legislation. Public order charges are particularly prevalent against Indigenous youth.

Indigenous young people may also be subject to any general sentencing laws. For instance, in NSW the Sentencing Act 1989 sets out requirements in relation to fixed terms, minimum terms and additional terms of imprisonment, as well as the relationship between parole periods and imprisonment. In some cases specific sentencing requirements covering such matters as mandatory sentences or additional terms will be included in the juvenile justice legislation. The WA Young Offenders Act 1994 and recent amendments to the NT Juvenile Justice Act 1995 are examples of juvenile justice legislation containing specific sentencing regimes.

This report does not analyse section by section the Commonwealth, State and Territory legislation affecting Indigenous young people. Rather, it indicates some of the general issues which were common areas of concern among witnesses to the Inquiry. Some of the specific criticisms of particular pieces of legislation will be dealt with in later sections.

The particular vulnerability of children entitles themto special protection during investigation. Special considerations relate to the cultural background of the young person, particularly Indigenous young people. The ALSWA specifically noted that the WA legislation fails to address these issues comprehensively (submission 127 page 346). However, it is a problem common to most Australian juvenile justice legislation.

Some jurisdictions have adopted a general principle on the need to consider the cultural background of a child in any decisions made under juvenile justice legislation (for example section 4(g) of the Queensland Juvenile Justice Act 1992). However, this is inadequate in ensuring that key principles such as the right of Indigenous self-

determination and the maintenance of Indigenous children with their families and communities are adhered to. There is no obligation to negotiate with Indigenous communities. When asked by the Inquiry how the court was provided with information which makes section 4(g) a meaningful obligation, the Queensland Government responded that ‘Aboriginal and Torres Strait Islander staff or community members provide information directly to the courts or indirectly through Departmental staff’ (final submission page 60). However, other evidence suggests that consultation in practice may be poor (Cunneen and McDonald1997pages 174-176).


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