Part 3 Consequences of Removal Chapter 10 Children’s Experiences

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 (Cunneenand 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 improvementand 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 KowanyamaJustice Council (Adams and Bimrose 1995 page 42). Cooperative approaches between police and Aboriginal communities in the development of night patrols can improveAboriginal/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 includespecific 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 page5).

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 McDonald1997 page173).

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, manyIndigenous 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 wasgenerally 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 McDonald1997 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 (CrimeResearch 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 1990pages56-58).

In Victoria police instructions indicatethat 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 shouldonly 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 submissionpage121; see alsoMackay 1996a pages9-10).

The Inquiry was told that in NSW,

… there is concern about thedifferential use of police cautions particularly forAboriginal juvenile offenders. Measuresarebeing introducedby the Police Service to encourage greater use of police cautions in dealingwith young peoplegenerallyand in particularwithAboriginal young people (NSW Governmentsubmissionpage 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 Cunneen1995 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 McDonald1997 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 (Galeetal1990, 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-makingand 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 oflegislation 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 (Recommendation239). 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 someAustralian 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 punishmentin 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 andCunneen 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) (Wundersitz1996 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, thecriminal justice system is not as likely to imposenon-custodial sentenceson repeat offenders. Whilstthecurrent generation of Aboriginal juvenilesare being processed by policeas offenders at incredibly highrates, thefull effects of this phenomenonwill not take effect for another couple of years whenmany of thesejuveniles reach adulthood … [The] statistics paint a grim pictureof what is likelyto be an explosion in the number of young Aboriginals entering the adultprison system in thenext few years(Mackay 1996a pages4 and14).

As a result of legislative and policy changes in WA therehas been a reduction in thenumber of chargesand arrestsfor young people.However, therate ofdecrease for Aboriginal youngpeoplehas been significantly lowerthan for non-Aboriginalyouth(ALSWAsubmission 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 importantdifferences 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 page275; see also InternationalCommission 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 solicitoris 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 1994pages 35-8).