Part 3 Consequences of Removal Chapter 10 Children’s Experiences

Standard 7: Adoption a last resort

Recommendation 52:That the national standards legislation provide that an order for adoption of an Indigenous child is not to be made unless adoption is in the best interests of the child and that adoption of an Indigenous child be an open adoption unless the court or other decision maker is satisfied that an open adoption would not be in the best interests of the child. The terms of an open adoptionorder should remain reviewable at any time at the instance of any party.

Juvenile justice

Theoverallpicture in relation to Aboriginaljuvenile justiceissuesremains, for the most part bleak in many areas of the State … The reformsthat have been made to the system have yet to make sustained inroads intorates of arrest and incarcerationforAboriginal children and young people(ALSWA submission 127 page333).

Minimum standards for Indigenous juvenile justice must be founded on a number of key principles and themes, many of which have been discussed above. These include,

• legislative recognition of the need to eliminate the removal of Indigenous children and young people from their families and communities and a legislative preference for diversion of Indigenous children and young people to Indigenous bodies,

• the need for Indigenous communities and organisations to have a key role in deciding the future of individual Indigenous children and young people who become the subject of juvenile justice intervention, and

• the need for Indigenous communities and organisations to have a key role in policy development and program implementation, where they desire this.

A substantial body of literature has documented the too frequent use of arrest by police when dealing with Indigenous young people (Blagg and Wilkie 1995, Luke and Cunneen 1995). Indigenous young people are more likely to be proceeded against by way of arrest than informal mechanisms such as warnings and cautions or less intrusive mechanisms such as summonses and court attendance notices. Rules 1 and 2 aim to minimise the use of arrest and to increase the use of warnings and attendance notices (see Blagg andWilkie 1995page193).

There is widespread dissatisfaction with infrequent notification to Indigenous organisations when Indigenous young people are detained and questioned by police. Failure to notify Indigenous organisations such as legal services increases the likelihood of bail being refused and of children’s rights being infringed. Rule 3 requires immediate notification, Rule 4 requires that the organisation be consulted in police decision-making about whether and if so how to proceed against the young person and Rule 5 prohibits interviewing the young person unless his or her representative is present.

Rules 5-8 inclusive controlling the interrogation of Indigenous young people by police are consistent with those proposed by Blagg and Wilkie based on the Convention on the Rights of the Child (1995 pages 304-5) and with Recommendations 243 and 244 of the Royal Commission into Aboriginal Deaths in Custody. Blagg and Wilkie argued that these standards are required by CROC and should be applicable to all children and young people.

Indigenous young people are massively over-represented among young people detained in police cells. Bail refusal, inability to satisfy bail conditions, unnecessary transportation of young people from remote communities and the failure to support and utilise Indigenous alternatives to police custody are major reasons for Indigenous young people’s detention in police cells. Rules 9-12 inclusive aim to reduce the disproportionate numbers of Indigenous young people refused bail, given unrealistic bail conditions and detained in police cells. In the case of bail refusal Indigenous alternatives are to be used in preference to detention in police cells.

Juvenile justice throughout Australia is moving towards two systems based on race. It is developing into two systems for two categories of offenders: those who are minor offenders and those who are serious and/or repeat offenders. Minor offenders are channeled into the various diversionary programs such as police cautioning and conferencing schemes. Serious and repeat offenders, on the other hand, become ineligible for diversionary programs and are dealt with more punitively through sentencing regimes that are more akin to adult models and in some jurisdictions include mandatory minimum terms. The segregation of treatment for ‘minor’ and ‘serious’ juvenile offenders is occurring predominantly along racial lines.

Indigenous young people are less likely to receive non-custodial sentences and more likely to be sentenced to detention. Diversion of the young person into programs

designed for Indigenous children must be the preferred sentencing option in all but the most serious cases demanding a custodial penalty. There are successful Indigenous controlled diversionary programs in various jurisdictions. However, they are limited in number, under-resourced and under-utilised by the courts. Indigenous young people who are diverted are, therefore, unlikely to benefit from programs designed and delivered by their communities. As a result they are more likely to fail to complete their sentences and to receive a custodial penalty in response to breaching their non-custodial order. The Inquiry was referredto research by the University of WA’s Crime Research Centre which noted that the effects of Aboriginal young people not receiving diversionary treatments or of ‘failing’ them are compounding.

The courts may perceiveAboriginal youth tohave ‘failed torespond’ todiversionary options such as cautioning andfamilygroup conferences and consequently ‘up-tariff’ them, that is, give them a more severedisposition thanjustified by the currentoffence alone(ALSWA submission 127 page 370).

Indigenous children and young people do not receive the same benefits of diversionary options as non-Indigenous young people. Moreover, existing diversionary options are not of Indigenous making. The diversionary options in most instances are alternatives created by the non-Indigenous juvenile justice system for non-Indigenous young people. To the extent that they extend to Indigenous young people they are imposed on them and their communities. The inevitable consequence of this process is entrenched over-representation of Indigenous young people in detention centres.

Rules 13 and 14 aim to limit the sentencing options of courts to diversion into an Indigenous non-custodial program except in the most serious cases. Rule 15 requires the court to give its reasons in writing whenever a custodial sentence is imposed on an Indigenous young person.

The existing criminal justice system, anchored in a philosophy ofpunishment and an architecture of imprisonment, can blind us to alternative means to achievepeace and order within a framework of justice (Canadian Royal Commissionon Aboriginal Peoples1996a page 214).

Standard 8: Juvenile justice

Recommendation 53a:That the national standards legislation incorporate the following rules to be followed in every matter involving an Indigenous child or young person. Recommendation53b:That the national standards legislation provide that evidence obtained in breach of anyof the following rules is to be inadmissible against the child or young person except at the instance of the child or young person himself or herself.

Rule 1. Warnings

Arrest and charge are actions of last resort. Subject to Rule 2, a police officer is to issue a warning, without charge, to a child or young person reasonably suspected of having committed an offencewithout requiring the child or young person to

admit the offence and without imposing any penalty or obligation on the child or young person as a condition of issuing the warning.

Rule 2. Summons, attendance notice

A child or young person may be charged with an offence when the alleged offence is an indictable offence. The charging officer must secure the suspect’s attendance at the court hearing in relation to the charge by issuing a summons or attendance notice unless the officer has a reasonable belief that the suspectis about to commit a further indictable offence or, due to the suspect’s previous conduct, that the suspectmay not comply with a summons or attendance notice.

Rule 3. Notification

When a child or young person has been arrested or detained the responsible officermustnotifytheappropriateaccreditedIndigenousorganisation immediately of the fact of the arrest and make arrangements for the attendance of a representative of that organisation.

Rule 4. Consultation

The responsible officer, in accordance with Standard 4, must consult thoroughly and in good faith with the appropriate accredited Indigenous organisation as to the appropriate means of dealing with everychild or young person who has been arrested or detained.

Rule 5. Interrogation

No suspect or witness is to be interviewed in relation to an alleged offence unless, a.a parent or person responsible for the suspect or witness is present, unless the suspect or witness refuses to be interviewed in the presence of such a person or such a person is not reasonably available, b.a legal adviser chosenby the suspect or witness or, where he or she is not capable of choosing a legal adviser, a representative of the appropriate accreditedIndigenous organisation is present, and c.an interpreter is present in every case in which the suspect or witness does not speak English as a first language. Rule 6. Caution

No suspect or witness is to be interviewed in relation to an alleged offence unless, a.the caution has been explained in private to the suspect or witness by his or her legal adviser or representative, b.the interviewing officer has satisfied himself or herself that the suspect or witness understands the caution, and c.the suspect or witness freely consents to be interviewed.

Rule 7. Withdrawal of consent

The interview is to be immediatelydiscontinued when the suspect or witness has withdrawn his or her consent.

Rule 8. Recording

Every interviewmust be recorded on audio tape or audiovisual tape. The tape must include the pre-interview discussions between the suspect or witness and the interviewing officer in which the officer must satisfy himselfor herself that the suspect or witness understands the caution and freely consents to be interviewed.

Rule 9. Bail

Unconditional bail is a right. The right to bail without conditions can only be varied where conditions are reasonably believed due to the suspect’s past conduct to be necessary to ensure the suspect will attend court as notified. The right to bail can only be withdrawn where it is reasonably believed, due to the nature of the alleged offence or because of threats having been made by the suspect, that remand in custody is necessary in the interests of the community as a whole.

Rule 10. Bail review

The suspect has a right to have the imposition of bail conditions or the refusal of bail reviewed by a senior police officer. In every case in which the senior officer refuses to release the suspect on bail, the officer must immediately notify a magistrate,bail justice or other authorised independent person who is to conduct a bail hearing forthwith. The suspect is to be represented at that hearing by a legal adviser of his or her choice or, whereincapable of choosing, by a representative of the appropriate accredited Indigenous organisation.

Rule 11. Bail hostels

When bail has been refused the suspect is to be remanded in the custody of an Indigenous bail hostel, group home or private home administered by the appropriate accredited Indigenous organisationunless this option is not available in the locality.

Rule 12. Detention in police cells

No suspect is to be confined in police cells except in extraordinary and unforeseen circumstances which prevent the utilisation of alternatives. Every suspect confined in police cells overnight is to be accompaniedby an Indigenous person in a relationship of responsibility to the suspect.

Rule 13. Non-custodial sentences

Custodial sentences are an option of last resort. Every child or young person convicted of an offence who, in accordance with Rule 14 cannot be dismissed without sentence, is to be sentenced to a non-custodial program administered by the appropriate accredited Indigenous organisation or by an Indigenous communitywilling to accept the child. The child’s consent to be dealt with in this way is required. The selection of the appropriate program is to be madeon the advice of the appropriate accredited Indigenous organisation and, where possible, the child’s family.

Rule 14. Sentencing factors

The sentencer must take into account,

a.the best interests of the child or young person, b.the wishes of the child or young person’s family and community, c.the advice of the appropriate accredited Indigenous organisation, d.the principle that Indigenous children are not to be removed from their families and communities except in extraordinary circumstances, and e. Standard 3.

Rule 15. Custodial sentences

Where the sentencer, having taken into accountall of the factors stipulated in Rule 14, determines that a custodial sentence is necessary, the sentencemust be for the shortest appropriate period of time and the sentencermust provide its reasons in writing to the State or Territory Attorney Generaland the appropriate accredited Indigenous organisation. No child or youngperson is to be given an indeterminate custodial sentence or a mandatory sentence.

Commonwealth, State and Territory governments must ensure effective policy evaluation and monitoring of implementation. Particular attention should be paid to, 1.the extent to which Indigenous children and young people are dealt with formally by police or courts in preference to referral to an Indigenous organisation for participation in a diversionary program, 2.the extent to which Indigenous children and young people are dealt with by way of arrest in preference to summons or attendance notice, 3.the extent to which Indigenous children and young people are held in police cells and the reasons for their detention, 4.the extent and nature of bail refusal and bail conditions which cannot be met, 5.the extent and nature of sentences to detention for Indigenous children and young people, and 6.comparative recidivism rates between Indigenous children and young people sentenced to Indigenous community-based options compared to those sentenced to detention.

The results of these evaluations must be made public.

Family law Although now more in tune with the Convention on the Rights of the Child, the Family Law Act 1975 (Cth) does not incorporate the child’s right under article 30.

In those States in which ethnic, religious or linguistic minorities orpersons of indigenous origin exist, a childbelonging to such a minority orwho isindigenous shall not bedenied the right, in community with other members of his or hergroup, to enjoyhisor herown culture, to profess andpractisehisorher own religion,or to use hisor herown language.

The Family Court in B and R stated ‘we strongly agree with the importance to be attached to these rights’. These rights should be included among the principles underlying that Part of the Act dealing with children’s welfare. Section 60B(2)

currently sets out four principles which are described as underlying the objects of the Part unless contrary to the child’s best interests. The objects of the Part are ‘to ensure children receive adequate and proper parenting to help them achieve their full potential’ and ‘to ensure that parents fulfil their duties’ (subsection 1). The four principles are,

(a)childrenhave theright toknow and be cared forbyboth their parents, regardless of whether theirparents are married, separated,have never married orhavenever lived together; and

(b)children havearight of contact,ona regular basis, with boththeir parents and with otherpeople significant to their care, welfare anddevelopment; and

(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents shouldagree about the future parenting of their children.

The ‘cultural rights’ of Indigenous children should be recognised similarly in this subsection. While our recommendation refers solely to Indigenous children, it does so only because we are restrained by our terms of reference. Proper recognition of article 30 would include all children from ethnic, religious or linguistic minorities.

The Act should explicitly recognise that every Indigenous child has a need to maintain a connection with his or her Indigenous culture and heritage. Section 68F, the best interests checklist, currently invites the judge to consider whether an Indigenous child needs to maintain contact with his or her culture. In our view, the Act should direct the judge to take account of that need. Inclusion of these principles will not pre-determine a dispute in favour of the Indigenous parent since the best interests of the child remains the sole consideration.

Family law Recommendation 54:That the Family Law Act 1975 (Cth) be amended by, 1.including in section 60B(2) a new paragraph (ba) ‘children of Indigenous origins have a right, in community with the other members of their group, to enjoy their own culture,profess and practice their own religion, and use their own language’, and 2.replacing in section 68F(2)(f) the phrase ‘any need’ with the phrase ‘the need of every Aboriginal and Torres Strait Islander child’.

Endnotes

1The Canadian Royal Commission on Aboriginal Peoples alsonoted that there is another group of tribal courts known as ‘traditional courts’ operating among Pueblo Indians in southwest USA. They operate under inherent tribal jurisdiction and apply customary law supplemented by tribal enactments (1996a page 183). 2For example the proposed Kimberley Regional Agreement or the Torres Strait Regional Authority. 3For example the developments recommendedby the Queensland Legislation Review Committee and the proposed Alternative Governing Structures Program.