Part 3 Consequences of Removal Chapter 10 Children’s Experiences

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 (submission127 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 Commissionrecommendation 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 manyjurisdictions laws have created greater impediments to the granting of bail to Indigenous young people than when the Royal Commission first reported (Aboriginaland 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 arrangementsare 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 Aboriginaland 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 Governmentmade 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-compliancewith the requirements in theInternational Covenant on Civil and Political Rights and theConvention on the Rightsof the Child shouldbe limited to cases genuinely relating to thebest interests of the juvenilesor geographicnecessity (Aboriginal and Torres Strait Islander Social Justice Commissioner1996page207).

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.

Diversionary schemes 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 intoAboriginal Deaths in Custody], they arenotdesigned in close consultation with Indigenouscommunities or adapted to local circumstances. They are packaged in remote ‘policy’ units and drivenorposted into communities.

We see diversion delivered to us in a package because ‘they’ knowwhat is best for ‘us’.The paternalism of suchdiversionreflects the earlier policies of ‘care andprotection’ and ‘assimilation’ that permitted theremoval of Indigenous childrenfrom their families up until the 1970s (Dodson1996 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 (Dodson1996 page61, CanadianRoyal Commissionon Aboriginal Peoples 1996page219).

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 communitiesto 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-ordinatorhas insufficient resources toorganise Family Conferences. The most time consuming and culturally difficult task involves the identificationof family members whoare appropriate to participate in the conference and thensubsequently arranging for them to come together for a Conference. Very few victimsof offences are involved infamily conferences resulting in a central feature of thescheme being omitted from the process (Planning Advisory Services 1995 page27).

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,

… hasboth created newstructures andhas shifted the balance of forces … ifwe are to capture what is, in relation to Aboriginal peoples, its most innovative characteristic, it must be read as an empowering and de-colonising processwhichhas lead to therecoveryoflost authorities, social

relationships and ceremonieswhilereducing the extentofwelfare andpenological colonialism (Blagg forthcoming page5).

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 modelof 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] JuvenileJustice Team model is a half-baked and inadequateversionof theNew Zealand model that will not liveup to its potential (ALSWA submission 127 page348).

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 (ALSWAsubmission 127 page 348, Beresford andOmaji1996 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 Exhibit19Appendix4; see alsoCrimeResearch 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 1996page 33, Wundersitz1996 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 Australiaare 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 conferencingprocess 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 atmospherefor 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 currentlyadministered, 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,systemsand delivery of service haveevolved fromnon-Aboriginal frameworks, and are basedon a Westernsystem of thought, culture and values that is very different to Aboriginal traditions and culture.Aboriginalpeople are, therefore, inevitably alienated to some degree from the systems and structures that exist toprovide them with services (SA Government interim submission page42).

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 solutionsto 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 theseprogrammesmakes one thing clear. Solutions to ourproblems require a collaborative, intelligent, co-ordinated approachwhichhonours theprinciple of self-determination …

Empoweringour oldpeople and revitalisingdispute resolution through community programmes have thepotential to restore a greater degreeof social control anddivertour kidsfrom custody (Dodson 1996 page 59).