Part 3 Consequences of Removal Chapter 10 Children’s Experiences

Detention centres Isolation is a key problem for Indigenous young people incarcerated in juvenile institutions. United Nations Rules provide that children should have the right to regular and frequent visits (at least twice each week) and the right to communicate by writing or telephone (at least twice each week). A recent survey of NSW juvenile detainees found that 90% received less than the minimum standard in relation to visits and 76% less than the minimum standard in relation to telephone communications (NSW Ombudsman 1996 page 70).

In Western Australian the Inquiry was told,

Juvenilejustice legislation … is extremely harsh. For Kimberley parents it means that their children end up in detentioncentres in Perthwhere they fear children learn to becomecriminals and suffer isolation and separationfrom their families and theracism that is endemic to these institutions (BroomeandDerby WorkingGroups submission 518).

Isolation is acute for young peoplefrom the country, most of whom areAborigines. It is extremely difficult for theirrelatives to visit them. Recognising this,prescribedvisiting hour restrictions are waived … However, this concession, in fact, hardly addresses the issueof ability of familymembers to get to Perth tovisit their children in the firstplace. Traditionally-oriented young people are especially vulnerable in these institutions with their totally alien environments and regimes. Isolation can be crippling. These inmates are almost nevervisited by theirfamilies and they are less likely than others toknow anyother inmate. They may also experience language difficulties (Wilkie 1991pages 156-7).

Recent interviews with 33 Indigenousyoung people in detention centres in NSW found that 17 had reported receiving no visits from their families (Howard 1996 page 19). The problems were made evident in evidence to the Inquiry.

Myowngrandson’s been takendown to Wagga tothe Riverina JuvenileJusticeCentre.We was only ableto visit him once [from BrokenHill] because of the distance – the miles, and

the money. We just haven’t gotthemoney … to go down there.And they are locked away from us. We got no access to them … Becausewe’re very isolated it doesn’t give us the chanceto get down and see our kids.

Confidential submission 762,New South Wales.

Most detention centres in NSW are concentrated around the Sydney metropolitan area. The NSW Government advised the Inquiry that financial assistance can be provided to families to visit children in detention centres and that the decision to construct two new centres in Grafton and Dubbo will allow Indigenous young people to remain closer to their communities. However, a recent report by the NSW Ombudsman found that the Department of Juvenile Justice had seriously underspent funds set aside to help families visit their children. In addition there were restrictive rules on visiting and telephone contact and the withdrawal of contact as a punishment, as well as allegations of staff mistreatment of young people (NSW Ombudsman1996 page xiv). More generally it was found that,

Many shortcomings impact negativelyon thedignity and rights of detainees … In some centres, even verybasic issues such as food and clothingwere found to be substandard. Privacy and respectfor individual and culturaldifferences were also commonly ignored(NSWOmbudsman 1996 page iv).

Building smaller regionally based detention centres specifically to mitigate the isolation of Indigenous children is a vexed issue. New detention centres may divert resources from community based options and lead to a further growth in the numbers of Indigenous young people in detention. The Aboriginal and Torres Strait Islander Social Justice Commissioner has argued against this option, preferring instead to see ‘a proliferation of Indigenous community-based programs for Aboriginal young offenders’ (quoted by NSW Ombudsman 1996 on page 73). However, the NSW Ombudsman recommends the development of smaller detention centres in non-metropolitan areas (1996 page 74).

Similar problems are apparent in juvenile detention centresin Queensland. The report of the Queensland Aboriginal and Torres Strait Islander Overview Committee draws attention to allegations of staff mistreatment of young people, misuse of handcuffs, abuse of ‘time-out rooms’ and ‘lock-down’ procedures, children being placed in danger of sexual abuse, the employment of inappropriate staff and unacceptable emotional and physical disciplinary procedures in someQueensland detention centres. In addition, there have been lack of cultural awareness, lack of culturally appropriate programs and resistance to family and organisational contacts for Indigenous residents (1996 page 59). Similar issues were brought to the attention of the Inquiry by a former Official Visitor who noted among other things,

The atmosphere of violence is so great in thedetention centres that I felt intimidated being there … staff have no idea of how to relate to Aboriginal and Torres Strait Islander children. They are often yelled at, physical restraint is applied in a very horrible and threatening manner … Often

boyswill haveno family visits for long periodsof time … boys are forcedto sit around all day in the centreswithfew programs to attend and nothing meaningful to do … they haveveryfew rightsand suffer because of racism (submission427 pages1-2).

The TAC criticised the standards of care at the Ashley Youth Detention Centre in Tasmania (submission 325 page 122). The Government advised that all complaints have been investigated and a review of the Centre has been completed (Tasmanian Government submission page D-29). Most detention centres now have some type of specific art, educational or cultural program for Indigenous detainees. Some detention centres have Aboriginal Support Groups who visit detainees.16 However, the extent to which these programs can compensate for removal from family, community and country must be questioned.

Theprovisionof Indigenousspecific cultural education and support programs within the centre can in no waycompensate her for the loss of culture which is theresult of herremovalto a juvenile justice detentioncentre. Theuniqueimpact that removal has on Indigenous young offenderswhen considered in the contextofIndigenous culture and the long historyof removal policieswhichhave specifically affected Indigenouspeopleand their social structures and culture cannotpossibly be dealt with by the superficial provisionof ‘cultural’ programs withina centre (Aboriginal and TorresStraitIslander Social Justice Commissionerquoted by NSWOmbudsman 1996 on page 75).

Cultural programs are important but they need to be evaluated in terms of their quality and in terms of staff commitment to ensuring their success. They should not be seen as compensating for the effects of removal.

A related issue is the employment of Indigenous youth workers in detention centres. Indigenous young people find it easier to relate to Indigenous workers. A survey of NSW detention centres found that the proportion of Aboriginal workers in detention centres varied between 1% and 6% of each detention centre workforce while the proportion of Indigenous inmates varied between 12% and 50% (NSW Ombudsman 1996 page 77). The Ombudsman recommended a review of employment strategies for Indigenous workers as well as greater cross-cultural training for staff.

The Inquiry was told in Western Australia, South Australia and Tasmania that there is a need to establish Aboriginal-run facilities as alternatives to detention centres (Broome and Derby Working Groups submission 518, confidential submission 289 WA, Tasmanian Aboriginal Centre supplementary submission 325 page 4). The TAC envisaged that such an alternative facility would deal with both young offenders and children in cases of breakdown in family support (submission325 page 4).

Juvenile deaths in custody The death in custody of an Indigenous young person constitutes the final and absolute removal of that young person from his or her family and community.

FifteenIndigenous young people died in custody in the eight years between May 1989, when the Royal Commission into Aboriginal Deaths in Custody ceased

investigations, and May 1996 (Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 page 199). Five of these deaths were in institutional settings and ten were a result of police interventions (nine in police pursuits and one 16 year old youth shot dead after threatening police with a replica pistol).

A review of those deaths by the Aboriginal and Torres Strait Islander Social Justice Commissioner found extensive breaches of Royal Commission recommendations in relation to Indigenous young people, many relating to the circumstances leading up to the use of custody. Perhaps most disturbing was the finding that, as the Indigenous juvenile population increases proportionate to the non-Indigenous youth population, the likelihood of increasing numbers of Indigenous young people dying in custody will also increase unless significant reforms are introduced (1996 page 199).

Conclusions The issues affecting Indigenous young people in the juvenile justice system have been identified and demonstrated time and timeagain. It is not surprising that Indigenous organisations and commentators draw attention to the historical continuity in the removal of Indigenous children and young people when the key issues in relation to juvenile justice have already been identified for some time yet the problemof over-representation appears to be deepening.

The issues relating to policing and the courts have been well documented since Eggleston’s pioneering work in 1976. Problemswith Aboriginal/police relations across most of Australia were well documented in the early 1980s (ADB 1982, Roberts et al 1986) and in national inquiries and regional studies in the late 1980s and early 1990s (International Commission of Jurists 1990, National Report 1991, HREOC 1991). The failure to accord fair treatment to Indigenous young people in diversionary options such as police cautioning or less intrusive methods such as summons and court attendance notices has been demonstrated since the mid-1980s (Cunneen and Robb 1987, Broadhurst et al 1991, Wilkie 1991). The failure of other diversionary schemes such panels to meet the needs of Indigenous youth has been described since the end of the 1980s (Gale et al 1990, Broadhurst et al 1991, Wilkie 1991).

Failure to comply with police instructions regarding the presence of a parent or adult, failure to notify Aboriginal Legal Services and the inadequacy of police guidelines in regulating police behaviour have been commented upon periodically for a decade and a half (for example, Rees1982, Cunneen1990, Warner 1994).

All of these issues were addressed comprehensively in the findings and recommendations of the Royal Commissioninto Aboriginal Deaths in Custody. The Royal Commission went on to address the need for self-determination and negotiated solutions between governmentsand Indigenous people in its National Report in 1991.

New legislation has done little to confront the issues which affect Indigenous young

people or to reduce the levels of police and detention centre custody. Some of the legislative changes such as the repeat offender sentencing regimes are unashamedly punitive in their intent. Others, such as the introduction of new diversionary schemes, have been perceived as more enlightened. Whole legal systems regulating juvenile justice have changed in some States like SA, WA and Queensland in the last few years. Yet a recent review and evaluation of the new South Australian system could be applied to most of Australia.

Thesefigures clearly suggest that, in overall terms, the position of Aboriginal youthswithin the new juvenilejustice system doesnot seem tobe any better than under the old system. They are still being apprehended at disproportionate rates and once in the system, are still receiving the ‘harsher’ optionsavailable (Wundersitz 1996page 205).

Why have new regimes failed? The evidence before the Inquiry suggests several reasons. Many of the more progressive changes have been restricted in form, content and applicability. They have been designed and implemented as non-Indigenous systems with the expectation of finding solutions to the problems facing Indigenous people. Tokenism pervades some of the changes, particularly in relation to police cautioning and family conferencing schemes. Finally, the ‘underlying issues’ which contribute so substantially to Indigenous offending levels have still not been addressed.

The juvenile justice system provides the linchpin for the criminalisation and removal of a new generation of Indigenous children and young people. The reasons for this intervention can be linked to a number of specific factors relating to policing and the administration of justice, as well as the interaction of the manyunderlying social and economic issues which are likely to spark intervention.

It needs tobeborne in mind,however, that in relation to many Aboriginalyouths whobecome enmeshedwith the criminal justice system,we are talking about youthswhoseformative experiences have involvedprofoundneglect, routineviolence, emotional and physical deprivation (including some instances ofvirtual starvation) and sexualabuse (CrimeResearch Centre 1995 page 2).

This chapter has not dealt with the ‘underlying issues’ per se although they are clearly important in understanding why Indigenous young people come into contact with juvenile justice agencies in the first instance. The underlying issues of socio-economic disadvantage and dispossession influence contact with both child welfare and juvenile justice agencies.

Endnotes

1

Policeretainthepower under section 18 ofthe Young OffendersAct 1994 (WA).A youngperson suspected of intoxicationcan be detainedin a police lock-up if no responsible person can be located (Beresford and Omaji 1996pages115-6).

2TheAustralian Government submitted reservations to article 37(c) of CROC and articles 10 (2) and (3)of the ICCPR (see Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 pages 205-7). 3A recent NSWsurvey indicated that wards are 15 timesmore likely than other young people to be incarcerated in detention centres.Indigenous children and youngpeople comprised 9% of all wards but37%of wards who received a juvenilejustice court assessment (Community ServicesCommission 1996 pages 8 and24). 4Various typesof summons exist in differentjurisdictions including court attendancenotices and citations. Some jurisdictionsalsohave infringement notices forsome offenceswhich are similar to a parking fine. 5Formal processing includes arrest, summons and caution. 6Indigenousyoung peoplecomprised58%, 63%, 69%and 54% of watchhouse juveniledetentionsover the four yearperiod (Queensland Government final submission page59). 7 ‘The police recording system is unable toprovide meaningfuldatawithregards tobail application outcomes’ (Victorian Government final submission page122). 8TheNZ Children,Young Persons and TheirFamilies Act 1989 provides for family group conferences (FGCs). The NZ model andAustralian adaptationshavebeendiscussed by Alder andWundersitz 1994 and Hudson et al 1996.For an AustralianIndigenousperspectiveonNZ FGCs, see Dodson 1996 pages 42-45. 9In NSW theonly recognitionof cultural difference is that the administrator of conferences, when choosing a convenor to run the conference, ‘would need toconsider amongother things,whether it is possible to match the youngpersonwith a Convenorfrom the same cultural background, distance considerations,andso on’ (NSW Attorney-General’s Department1996 page xv). 10The eleventh ‘guidingprinciple’ of the proposed NSW ‘accountability conferences’ is that ‘it should be culturally appropriate’ (NSWAttorney-General’s Department 1996page38). 11Section 3(2) of the Young OffendersAct 1993 (SA) lists a number of statutory policies.Paragraph (e) requires proper regardfor a youth’s senseof racial, ethnicor cultural identity. However,there are no specificrequirements in relation to eitherpolice cautions or family conferencingfor culturally appropriate Indigenousparticipation – let alonedecision making. 12For example, section30(2)(c)(v) Youth Justice Bill (Tas). TheWA Young OffendersAct 1994 requires that when the offender is a ‘memberof an ethnicorother minority group’ the Juvenile Justice Team should includea personnominatedby members of an ethnic or minority group where practicable. 13Arecent review of the SA juvenile justice system recommended that a separateAboriginal conferencing team be establishedto increase Aboriginal attendance, provide information, determine appropriate support people, act as co-ordinators and seekfeedbackfrom the community ‘regarding the development of more culturally appropriateconferencingprocesses’ (Wundersitz 1996page 125). However there is no moregeneralrecognition of a decision-making roleforAboriginalcommunities or theirorganisations as a right of self-determination (Wundersitz1996page208). 14Theonly apparent exception is theACTwhere4%of juveniles in custodywere Indigenous and5%of juveniles on Community Service Orders were Indigenous.No numbersor details ofother sentencing outcomes were supplied (ACT Government interim submission page25).TheVictorianGovernment noted that its ‘Department ofJustice is unable to provide any data in relation to differential sentencing options for Aboriginal and non-Aboriginaloffenders’ (final submission page122). 15States and Territories typically exempt themselvesfrom responsibility forthe behaviourof young peopleunder their care andprotection (seeHil 1996page281). 16For instance the QueenslandGovernment listed the followingprograms: Aboriginal Life Skills, Offending Behaviour Program, Self-Discovery throughDrama and Music, EldersVisitsand Cultural

Education (interim submission page96). There is also a Community and Culture Integration Program with the aim of maintaining,developing and restoring the cultural, community and family links of Indigenous youngpeople indetention(final submission page45).

25UnderlyingIssues State and Territory legislation, programs and policies in the areas of child welfare, adoption and juvenile justice are intended to provide a non-discriminatory framework for the administration of services. In many cases, programs are designed with the objective of reducing the extent of contemporaryremovals of Indigenous children and young people. In spite of this, the over-representation of Indigenous children among children living separately from their families and communities, temporarily or permanently, remains high. It must be acknowledged that there are broad social, economic and cultural causes for continuing removals.

Many submissions to the Inquiry drew attention to the need for a broad approach to understanding the reasons behind contemporary removals of Indigenous children and young people (for example, ALSWA submission 127, SNAICC submission 309, NSW Aboriginal Education Consultative Group (AECG) submission 362). ‘A broad and detailed approach is necessary because some current laws, policies and practices which initially may not appear relevant to the terms of reference of the National Inquiry, on close examination, are very relevant (submission 127 page 11). These include ‘health, housing, education, employment, the legacy of historical abuse, denigration and loss of identity, substance abuse and despair’ (submission 127 page 337).

Law, policy and practice are affected by poor socio-economic conditions which make Indigenous children and young people more vulnerable to removal. For example, stress factors arising from socio-economic position and demography arise in welfare department interventions in all families. These factors are particularly prevalent in Indigenous families. In Queensland 12% of the population receives government benefits, 51% of protective services’ clients receive benefits and 62% of Aboriginal and Torres Strait Islander protective services’ clients are in receipt of benefits. In a study of stress factors experienced by client families in Queensland a higher percentage of Indigenous clients faced stress factors in every category. The categorieswith the greatest disparity between Indigenous and non-Indigenous clients’ experiences of stress factors are substance abuse (68% compared with 37%), cultural dislocation (38% compared with 15%), accommodation problems (40% compared with 33%) and geographical isolation (30% compared with 20%). These stress factorsalso affect contact with juvenile justice systems (Queensland Government finalsubmission page35).

It is facile anddishonest topretend that many of our kidsdon’tget into trouble … Given the circumstances they are born into,the stack of disadvantages against them, they are notdoing too badly.Any group of youngpeoplegrowingup in our world, withour socio-economic profile, would act up and get intostrife. Lay the veneerofhistory,prejudice and cultural disjunctureover their startingpoint and the problem deepens(Dodson1995page 26).

The frustration felt by Indigenous young people can be expressed in behaviours that are destructive to the individual and the community. To understand that behaviour it is necessary to consider the nature of the socio-economic conditions in which Indigenous people live. Some factors arise from cultural difference. Others are the results of

dispossession and marginalisation – poverty, ill-health, poor education, high unemployment and homelessness.

Demography The demographic profile of Indigenous peoples in Australia has an important influence on the absolute numbers of Indigenous children and young people likely to come into contact with juvenile justice and welfare agencies. As a result, it affects the number of Indigenous children and young people separated from their families and communities.

The 1991 Census showed double the proportion of young people in the Indigenous population compared to young people in the non-Indigenous population. Approximately 15% of the Indigenous population is under five years of age, compared to 7% in the general population. Young people aged 10 to 15 years comprise 14% of the Indigenous population in Australia. For all Australians the proportion is 9%. Approximately 22% of the total Australian population is under 15 years comparedto 40% of the Indigenous population (Dodson 1995 page 15). By 2000 this age group of Indigenous young people will grow by 26%. The same age group in the general population will grow by 1%.

The Australian Institute of Criminology has estimated, based on current imprisonment levels and demography, that by 2001 there will have been a 15% increase in the number of Indigenous young people in detention (ALSWAsubmission pages 339-340; seealso Dodson 1995 page15).

Indigenous children have a far higher rate of removal from their families as a result of neglect compared with abuse than the general population. Neglect is the most prevalent reason for substitute care in the under two age group and more generally among young children. In 1993 12% of Indigenous children involved in substantiated abuse and neglect were under the age of one compared with 7% for all children (Angus and Zabar 1995 page 17). The relationship between poverty and neglect and the projected demographic change together are likelyto cause similar increases in welfare interventions to those expected in juvenile justice.

Family and cultural relations Indigenous societies in Australia have very different cultural concepts of childhood and youth. Generally they do not impose the same separation or exclusion of children from the adult world as non-Indigenous society does. Responsibility for children and young people is shared through the kinship system and the wider community (Watson 1989, Sansom and Baines1988).

Cultural difference, particularly different family structures, can lead to adverse decisions by juvenile justice, welfare and other agencies, particularly where cultural difference is not understood or does not inform policy development and implementation. At its worst, cultural difference can be treated as a type of abnormality or pathology