Part 3 Consequences of Removal Chapter 10 Children’s Experiences

There are also considerable variations in the extent to which police procedures for dealing with young people are set out in law. In some jurisdictions the process by which police should give cautions or the criteria which should be used in deciding which children should be cautioned for particular types of behaviour are not articulated in the legislation. For instance, many of the important decisions made in relation to the treatment of juveniles in NSW occur without a legislative base. Police cautioning of juveniles is regulated by ‘Commissioner’s Instruction 75 – Child Offenders’. There is no legislative support for the process and it exists essentially as a use of police discretion endorsed by the Police Commissioner (NSW Government interim submissionpage 77).

Police exercise wide discretion as to how a young person will be dealt by the authorities. The adverse use of this discretion in regard to Indigenous young people is a critical issue in drawing Indigenous youth further into the juvenile justice system.

Another key issue with juvenile justice legislation, with direct implications for self-determination, is that Indigenous interests are largely ignored when legislation is being introduced or amended. The ALSWA stated in relation to WA,

Thelack of consultationand totalabsence of negotiation with the Aboriginalcommunityonthis Bill is contrary to recommendationsof the Royal Commission into Aboriginal Deaths in Custody … NootherAboriginal community organisationswere consulted in thisprocess (submission127 pages 344-5).

In NSW there was no consultation with Indigenous organisations when the Children (Parental Responsibility) Act 1994 was introduced. In the NT there was strong opposition by Indigenous organisations such as the North Australian Aboriginal Legal Aid Service (NAALAS) and the NT Aboriginal Justice Advisory Council (AJAC) to recent legislation introducing minimummandatory imprisonment for certain offences. A recent survey of the implementation of the recommendationsof the Royal Commission into Aboriginal Deaths in Custody noted that inadequate consultation and negotiation with Aboriginal organisations about legislative changes was a national problem (Cunneen andMcDonald 1997 pages 125-130, 170).

Finally, the lack of adequate funding for Indigenous community-based alternatives to the formal juvenile justice system is a national problem. The lack of alternatives undermines self-determination at the local level and results in greater numbers of Indigenous young people ending up in institutions, effectively removed from their families and communities.

In addition Indigenous people generally are not in control of the design and implementation of preventive programs for Aboriginal youth. The attention of the Inquiry was drawn to the findings of Wilkie that,

[Most] targetedprevention programs have as theirprimary, stated target youngAboriginal offenders … Some of the services fundedhave an almost 100% Aboriginal clientpopulation.Yet few are managedby Aborigines andnone are directly controlledby the local Aboriginal community. On the other hand most which cater for Aboriginal youngpeople donot employ Aboriginal staff (quotedby ALSWA submission 127on page194).

By and large, the main diversionary schemes in the various States and Territories have been introduced without proper negotiation with Indigenous communities and organisations and without a framework for control by Indigenous organisations where communities desire such control. Often this occurs at the same time as State and Territory governments publicly espouse a commitment to self-determination.

Juvenile justice policy and program responses Each State and Territory has developed a range of policy and program responses to address the issue of Indigenous over-representation in police custody and detention centre populations. The following sections briefly describe the various initiatives available in each State and Territory.

New South Wales The NSW Government advised the Inquiry that the State’s Police Service has been participating in a whole-of-government approach to the problem of Aboriginal young people in the juvenile justice system. Two areas of relevance to the Inquiry are the Police Service’s ‘Youth Policy and Action Plan’ and the ‘Aboriginal Policy Statement and an Aboriginal Strategic Plan’.

The Youth Policy and Action Plan aims to increase the use of alternatives to arrest, restrict the use of courts to a last resort and enhance fair treatment of young people. The Aboriginal Strategic Plan aims to reduce the number of Aboriginal people entering the criminal justice system and has a number of target policy areas. An advisory mechanism, the Aboriginal Police Council, was established in 1992. There are also 50 Aboriginal Community Liaison Officers in NSW, four regional Aboriginal co-ordinators and an Aboriginal client consultant. In addition there are 147 Aboriginal police officers (NSW Government interim submission page 78). An Aboriginal Employment Strategy was launched in December 1995 to raise Indigenous employment in the Police Service to 2% or greater.

The Department of Juvenile Justice has developed a number of programs for Indigenous young people including the Metropolitan Bail Hostel and the Nardoola Bail Hostel both of which provide accommodation and supervision for up to six Aboriginal

young people. The Nardoola program is also expected to provide additional accommodation for young people on conditional discharge and a day program for young people on Community Service Order placements. The Dubbo Aboriginal Bail Support Program assists Aboriginal young people who have committed minor offences but are likely to be refused bail becausethey lack suitable accommodation (NSW Government interimsubmission page 87).

The Aboriginal Mentor Program involves Aboriginal people acting as mentors for Indigenous young people who are on remand or under supervision. The mentors provide support, guidance and advocacy and assist in meeting areas of identified need such as training. In the Riverina area the Safe Haven program recruits, trains and supports Aboriginal carers to provide assistance for Indigenous young people when they are unable to remain in or return to their own homes. The South Sydney Youth Services – Court Support and Post Release Program targets both Aboriginal and non-English speaking background young people who have had previous contact with the juvenile justice system and are at risk of re-offending or about to be released from a detention centre. The program provides supervision of community-based orders, referrals for counselling and follow-up work.

The Ending Offending Program is a general program which provides an alternative for all young people facing incarceration. It is a compulsory program of one day a week for 12 weeks covering a range of lifestyle, drug and alcohol, employment and personal development issues.

The Department of Juvenile Justice has 53 identified Aboriginal staff positions. Of these, 19 are juvenile justice officers with responsibilities for supervision and the preparation of court reports. There are nine Aboriginal Program Development Officers responsible for Indigenous non-custodial programs and liaising with Aboriginal communities. In addition, there is a Coordinator of Aboriginal Programs.

South Australia The SA Government recognised the over-representation of Indigenous young people in the juvenile justice system and identified three programs specifically designed to impact on offending levels: the ‘cautionary diversion program’ designed to divert Indigenous young people at the point of contact with the police, the ‘Family Connections Program’ which uses intensive family intervention and the ‘Alternative to Detention Program’ (interim submission page 41). The cautionary diversion program involves a number of youth workers operating in particular areas to assist in maximising the use of cautions by police and reducing the number of arrests through a number of identified strategies. The program is to operate along the lines of the Youth Support Group in Adelaide which has apparently been disbanded (Wundersitz 1996 page 205).

The Inquiry was told of a number of programs and alternatives for young people, some specifically for Indigenous youth. Diversionary programs include the Youth at Risk Program. There are also sentencing alternatives such the ‘Operation Flinders’, a

wilderness trek with several weeks of follow-up support, and Frahn’s Farm, an Aboriginal run rehabilitation program (Planning Advisory Services 1995 appendix 1). Aboriginal ‘safe houses’ or bail hostels have been established in Adelaide and Port Augusta.

Victoria Indigenous juvenile justice policy is implemented in Victoria through a number of key strategies including a sentencing hierarchy which facilitates community-based diversion, a stronger court advice function, a Bail Advocacy Service and After Hours Bail Placement Service, the Koori JusticeWorkers Project and a recognition of the importance of primary prevention.

The Koori Justice Workers Project operates through local Aboriginal co-operatives and other Indigenous organisations. The positions are funded by the Victorian Department of Human Services but the nature of the specific tasks which are undertaken are developed at the community level. The project was initiated to address the problem of Indigenous young people failing to complete non-custodial orders. It now operates with a focus on crime prevention, advocacy and supervision. The project allows juveniles on orders or in diversionary programs to be supervised by members of the Aboriginal community. The Victorian Government advised the Inquiry that ‘the project developed as a self-management model and funding was provided to the local Aboriginal communities who assumed responsibility for the employment, supervision and support of a Koori Justice Project worker’ (interim submission page 68). A recent report by the Aboriginal and Torres Strait Islander Social JusticeCommissioner described how the project has been working successfully at Lake Tyers (Dodson 1996 pages52-53).

In Victoria the rate of over-representation of Aboriginal young people fell substantially between 1993 and 1994. In 1993 Indigenous young people were 37.3 times more likely to be in a juvenile corrections centre than non-Indigenous young people. By 1994 the rate/ratio had reduced to 11.9 (Mackay 1996a). A further reduction of 46% in the total numbers of Aboriginal young people on correctional orders was reported between March 1994 and March 1995 (Dodson 1996 page 52). The lower juvenile detention figures are said to reflect a broad shift in policy direction from incarceration to diversion, as well as the success of specific initiatives suchas the Koori Justice Workers Project. The Victorian Government noted that in the six areas where the projects are located ‘there has been a significant reduction in the number of Aboriginal young people placed on custodial and non-custodial juvenile justice orders’ (interim submission page 68). The Koori Justice Workers Project is an example of bestpractice in the area (Cunneen and McDonald 1997 pages 83-4). A Koori Advisory Committee has been established to advise on juvenile justice generally.

The reduced rate of Indigenous juvenile detention in Victoria is particularly pleasing in the context of a number of personal submissions to the Inquiry concerning incarceration in Turana detention centre during the 1980s. These included a 14 year old Aboriginal boy incarcerated for shoplifting and a profoundly deaf Aboriginal boy

incarcerated when his foster placement broke down and there was no alternative accommodation available (confidentialsubmissions 458and 662, Victoria).

Northern Territory The NT Government informed the Inquiry of a long-term decrease between 1989 and 1995 in the number of juveniles sentenced to detention in the NT and the number held on remand. This reduction was attributed to the development of community based correctional programs.

The employment of Aboriginal Community Corrections Officers (ACCO) in specific communities to supervise court orders and the use of ‘culturally appropriate’ community service orders have been credited with the reduction in custodial orders. The NT Juvenile Offender Placement Program (JOPP) has been designed to minimise the use of police cells for young people. Aboriginal caregivers can provide accommodation and support to young people who might otherwise be remanded in custody.

The NT Government advised of plans for further expansion of the ACCO program and the development of a trial program of ‘community supervision’ where Indigenous organisations are paid on a fee for service basis to supervise court orders(interim submission page 53). However, as noted below, the Inquiry is particularly concerned that legislative changes introducing mandatory imprisonment and punitive work orders are likely to undermine existing reductions in custodial levels.

Tasmania The Tasmanian Government advised the Inquiry of proposed new legislation, currently in draft form, which aims to respond more appropriately to juvenile offending. The Youth Justice Bill and the Children and Their Families Bill differentiate between young people who offend and those in need of care and protection (Tasmanian Government submission page D-23). The Youth Justice Bill will introduce police cautions and diversionary programs including family conferencing. Some offences will be prescribed for court and not open to the use of diversionary options. Cautioning may involve the use of Aboriginal elders.

The range of non-custodial options will be increased under the proposed legislation. Community Service Order options will be expanded to include education and training and they will also be available for children under 15. Other proposed non-custodial options include fines, probation, undertakings and reparation. It is also proposed to start negotiations with Aboriginal organisations in relation to supervision of the non-custodial orders (Tasmanian Government submission Appendix 21, Cunneen and McDonald 1997 page 177). The proposed legislation has been commented upon favourably by youth advocates (National Children’s and Youth Law Centre 1996 page 4). The limitations are noted below. The Tasmanian Government also wishes to establish an Aboriginal Youth Justice Strategy and has approached the Tasmanian Aboriginal Centre in relation to the proposal. It has suggested a number of principles and possible initiatives (Tasmanian Government

submission pages D-26 to D-28).

Western Australia The WA Government provided little information on any programs specifically designed for Indigenous young people. Facilities such as Gwynne Lea Cottage and Warramia Farm are available for young people on bail, supervised release or community based court orders. There is also a supervised release program which enables young people to serve the final half of a detention order under supervision in the community. The Killara Youth Support Service offers a program of counselling and support for ‘at risk’ young people and those who have just commenced offending. Camp Kurli Murri (also known as the Laverton Work Camp) is an ‘alternative sentencing option’ for the courts. All of these programs are available to all young people.

The WA Government noted that funds are made available to Aboriginal communities to develop community programs for young people to discharge court orders. The Kanpa facility near Warburton takes Indigenous young people while on bail or subject to a court order. An Aboriginal Family Support Program is being piloted in Geraldton and Perth to support elders to provide role models and support for young offenders (WA Government supplementary information).

Queensland The Queensland Government drew attention to a number of programs designed to reduce the level of Indigenous over-representation. The Youth and Community Combined Action (YACCA) strategy is a preventive program. Four Indigenous-specific projects are funded under this program in Aurukun, Palm Island, Murgon/Cherbourg and Brisbane (interimsubmission page 92).

A number of other projects have been established in areas with high rates of reported juvenile offences and high rates of detention orders for Indigenous young people. These include a ‘Crime Clean-up Team’ in Inala and a young offender project in Ipswich (Teen Care Indigenous Youth Service) which provides culturally-appropriate supervision and other programs. Aboriginal Outreach Projects have been established at Cairns and Murgon to assist in the supervision of orders. Some Indigenous people have been employed as Adolescent Resource Workers to work with ‘high risk’ or ‘high need’ Indigenous children (Queensland Government interim submission pages 94-95). Taken together, these programs are said to reflect the Government’s commitment to self-determination in the area of juvenile justice.

The Conditional Bail Program offers courts alternatives to remanding children in custody. The program focuses on children who would otherwise be unlikely to be granted bail or to comply with bail conditions. Programs can be individually designed. They may involve existing projects or engaging a community organisation on a fee for service basis. Slightly more than half of the children referred to the program have been Indigenous. The Queensland Government credits the program with a reduction in the number of

Aboriginal and Torres Strait Islander children remanded in custody (interim submission page 93). However, Indigenous young people are still massively over-represented among those detained in police watchhouses in Queensland (Queensland Government final submission page59).

One of the most promising changes in dealing with young offenders in Queensland originated with the Yalga Binbi Institute and the Queensland Corrective Services Commission (QCSC). The Yalga Binbi Institute reported on problems facing Indigenous communities in maintaining law and order at the local level. To address the issue the Institute recommended a community development approach whereby communities, clans and family groups identify what roles they could play in changing patterns of criminal behaviour. The development of Aboriginal law was strongly supported as part of developing community justice mechanisms. Issues of law and order were to be addressed in a way that ‘the community understands is right and in accordance with its own customs, laws and understandings about justice’ (Adams and Bimrose 1995 page37).

Community justice groups have developed in Kowanyama, Palm Island and Pormpuraaw. These groups are complex reflections of the communities they represent. For example, the Kowanyama Justice Council has eighteen members (nine men and nine women) representing the Kokoberra, Kokomnjena and Kunjen linguistic groups in the community. It has been argued that the success of Kowanyama Justice Council is reflected in dramatic decreases in arrests for offences and a drop in the number of children appearing before the local Children’s Court. Similar successes have been claimed for the Palm Island Elders Group (Adamsand Bimrose 1995 pages 40-43).

TheuseofAboriginal Law is central to theElders emphasis on making kids, teenagers and their families accountable for their actions. Elders ask kids involved in a dispute and their families to frontup to a meetingheld in a local community hall ‘before hisor herown people’. Eachparty is given a chance to explain theirversion of the incident. TheElders give their viewofhowthe childor thegroup of kids hasbehaved and then they ask the kids and families to respond.The group considers whether the child’s actions are as a direct result of wider issues such as overcrowding,neglector other conflicts at home and may recommendreferrals and increased support to the family. Sittingdown and talking with the child’sparents and counselling is a vital part of the Elder’s work (Dodson1996 page 56).

The community justice groups have been commented upon favourably in a recent report to ATSIC (Cunneen and McDonald 1997 pages 72-76). However, there is also real concern in Queensland that the funding for local justice initiatives is not being handled adequately by the Office of Aboriginal and Torres Strait Islander Affairs and that there are unnecessary restrictions.

Any initiatives developed will need to fall within theconfines of the existing State systems. In particular, it shouldbenoted that justicegroups have no statutory authority … Consequently, justice groupshave no directresponsibility under the Program forpunishing misbehaviour or criminal offenders.

Responses to law and orderproblems suggestedby justicegroups are essentially a means to bring forward Aboriginal and Torres Strait Islander communities’ viewsand advicewhich may be incorporated into State systems, where appropriate (Queensland Office of AboriginalandTorres StraitIslander Affairs 1996b page13).

The appropriate process is one of negotiation between Indigenous people and government authorities. This approach, however, leaves little room for negotiation and has been described as antithetical to the principle of self-determination. The Queensland Government argued that the Local Justice Initiatives Program ‘is an expansion of the concept originally piloted by the QCSC at Palm Island’ and ‘provides significant potential for communities to develop justice initiatives for young people’ (interim submission page 100). However, there are serious doubts raised by the imposed restrictions. The restrictions also apparently contradict the Government’s position on self-determination.

ACT The ACT Government provided minimal information to the Inquiry on programs specific to Indigenous young people. It noted that ‘where possible young Aboriginal people on Community Service Work Orders are placed within the local Aboriginal community’ and that as part of individual case plans Indigenous youth in detention can participate in ‘Aboriginal cultural, health and education programs’ (interim submissionpage 25).

Commonwealth The Commonwealth Government’s submission to the Inquiry did not address the issue of what the role of the Commonwealth might be in preventing contemporary separations through juvenile justice intervention. It did, however, refer to a number of programs which provide generalist or Indigenous-specific services to young people and their families covering areas such as employment, education, health and family services.

Causes of separation 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.

Policing Submissions to the Inquiry raised manyissues 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 themselvesstructured 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 isexperienced in every areaof society. However, the working conditionsof police and the awesomepower they wield can result in racism being reproduced ina particularly heightenedand intensifiedform. Aboriginaljuveniles areoften singled out for policeattention (ALSWAsubmission127page 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.