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Part 6 Contemporary Separations

Chapter 24 Juvenile Justice

Juvenile Justice

The juvenile justice system is mimicking the separation policies of the past (Western Aboriginal Legal Service (Broken Hill) submission 775).

The most distressing aspect about the level of juvenile justice intrusion in the lives of young Aboriginal and Torres Strait Islander people is the fact that entry into the system is usually the start of a long career of incarceration for many (SNAICC submission 309 page 28).

The removal of Indigenous children and young people can occur by way of juvenile justice intervention either through the use of police custody or through the incarceration of a young person in a juvenile detention centre. The length of separation can vary from a few hours or days to months or years. However, as submissions to the Inquiry noted, the effects of the separation can last a lifetime.

The disproportionate number (or over-representation) of Indigenous children and young people in the juvenile justice system and in particular in detention centres has been recognised for two decades. One of the earliest attempts to assess its level occurred in 1977 during a symposium organised by the then Commonwealth Department of Aboriginal Affairs on the care and treatment of Indigenous young people in detention centres (Sommerlad 1977). During the 1980s there were numerous reports which outlined the over-representation of Indigenous young people in various State or Territory jurisdictions (Cunneen and Robb 1987, Semple 1988, Gale et al 1990, Cunneen 1990). These studies indicated Aboriginal over-representation in police interventions, in court appearances and in juvenile detention centres.

Aboriginal child care agencies and Aboriginal legal services throughout Australia consistently drew attention during the 1980s to the problems associated with the high levels of criminalisation of Indigenous youth (D'Souza 1990). Some commentators argued that the over-representation of Indigenous young people in juvenile corrections represented a continuation of earlier removal policies by way of a process of criminalisation (Cunneen 1990 and 1994, O'Connor 1994). Aboriginal organisations supported this interpretation in submissions to the Inquiry (see ALSWA submission 127, Western Aboriginal Legal Service (Broken Hill) submission 775 and SNAICC submission 309). Also supporting this argument is research in most Australian jurisdictions indicating not only that Indigenous young people are over-represented in the juvenile justice system but that they are most over-represented at the most punitive end of the system, in detention centres (Gale et al 1990, Wilkie 1992, Crime Research Centre 1995, Luke and Cunneen 1995, Criminal Justice Commission 1995). This phenomenon is now recognised by many governments (for example, Queensland Government interim submission page 90).

During the 1980s and early 1990s many Indigenous communities grappled with developing alternative mechanisms for dealing with young people who offend. These alternative Indigenous mechanisms have tended to be localised, inadequately funded and without any legislative base. However, a key principle in these developments has been implementing self-determination at the grass roots level. In other words, communities have continually sought their own solutions to the problem of the over-representation of Indigenous young people in the juvenile justice system (Dodson 1995, Dodson 1996, Cunneen and White 1995 pages 152-3).

The principle of self-determination and the need for the development of Indigenous community responses to deal with Indigenous young people were fundamental to the main recommendation from the Royal Commission into Aboriginal Deaths in Custody designed to prevent the removal of Indigenous youth through juvenile justice or welfare intervention. Recommendation 62 called on governments to negotiate with Aboriginal communities and organisations to find solutions. ATSIC has reminded the Inquiry of the importance of this recommendation (submission 684 page 42).

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The processes of juvenile justice separations

Police custody

The police play a pivotal role in the separation of Indigenous children and young people from their families and communities. The Inquiry has already documented this role in the history of removal policies. However, police still have a major function in bringing about separations. Most obviously, Indigenous children and young people are separated from their families and communities by being placed in police custody and held in watchhouses, lock-ups or cells.

The Australian Institute of Criminology specifically drew the links between past removal policies and contemporary use of police custody.

For many Aboriginal people, police officers taking children into custody and locking them in the cells, particularly in circumstances where this would not happen to a non-Aboriginal child, is a continuation of the practices of the past that have led to the Inquiry being established (submission 686 page 4).

The issue of Indigenous children and young people in police custody was addressed by the Royal Commission into Aboriginal Deaths in Custody. A key recommendation was `that, except in exceptional circumstances, juveniles should not be detained in police lock-ups' (Recommendation 242). The Convention on the Rights of the Child also requires that arrest and detention following arrest should be measures of last resort (article 37(b)). Alternatives should be utilised unless the circumstances are exceptional. An evaluation of State and Territory responses to Recommendation 242 found that it has not been adequately implemented (Cunneen and McDonald 1997 pages 182-184).

The Australian Institute of Criminology presented an analysis of the results of the August 1995 National Police Custody Survey which shows the extent to which police custody is utilised.

The significance of the survey's findings to the Inquiry is that they help to illustrate the continuing heavy involvement of Indigenous children (compared to non-Indigenous children) in the criminal justice system, in particular the elevated proportion of Aboriginal children being held in the cells by police (submission 686 page 2).

The following table shows the number and percentage of Indigenous and non-Indigenous youth aged 10 to 17 held in police custody nationally during the August 1995 survey period.

National Police Custody Survey, August 1995
Indigenous youth Non-Indigenous youth Total

Age
No
%
No
%
No
%

10
-
-
1
100
1
100

11
4
57
3
43
7
100

12
24
67
12
33
36
100

13
65
59
46
41
111
100

14
105
59
73
41
178
100

15
151
44
190
66
341
100

16
155
38
250
62
405
100

17
200
30
474
70
674
100

Total
704
40
1,049
60
1,753
100

Note: It is not possible to distinguish Aboriginal from Torres Strait Islander young people in any juvenile justice data.

Some 40% of all young people held in police custody during the survey period were Indigenous. Indigenous children and young people comprise only 2.6% of the national youth population. In fact, the rate of custody per 100,000 Indigenous young people is 1,333 compared to a rate of 52 for non-Indigenous youth. The over-representation factor is 26.

The majority of children taken into police custody under the age of 15 years were Indigenous. That children of such a young age should be separated from their families, communities and community organisations is highly disturbing, particularly when such separations are not a feature of police interaction with non-Indigenous children. The issue of the relatively young age of Indigenous young people detained in police custody was raised by the ALSWA which told the Inquiry that one in five Indigenous young people detained in WA police cells was 14 years of age or younger. Of these 92% already had an arrest history (ALSWA submission 127 page 334).

The following table shows the distribution of police custody of young people by jurisdiction throughout Australia. Not all States and Territories resort to the use of police custody to the same extent. Nevertheless, the data demonstrate that over-representation of Indigenous young people in police custody is a significant problem and that there are differential patterns of policing Indigenous children and young people compared to non-Indigenous children and young people.

Young people in police custody in each State and Territory, August 1995


Indigenous youth Non-Indigenous youth Total
State
No
%
No
%
No
%
NSW
108
36
192
64
300
100
Vic
16
7
209
93
225
100
Qld
176
42
245
58
421
100
WA
228
61
146
39
374
100
SA
123
39
196
61
319
100
Tas
3
9
31
91
34
100
NT
45
69
20
31
65
100
ACT
5
33
10
67
15
100
Aust
704
40
1,049
60
1,753
100

The majority of young people held in police custody in Western Australia and the Northern Territory were Indigenous young people. This issue is of particular concern in WA where the overall number in police custody is also high: 61% of young people held in police custody were Indigenous.

Other jurisdictions with large Indigenous populations also had relatively high proportions of Indigenous young people in police custody. These included Queensland with 42%, SA with 39% and NSW with 36%. WA also accounted for 32% of all Indigenous young people in Australia who were held in police custody, followed by Queensland which accounted for 25% of the total.

The Australian Institute of Criminology made a number of important points in relation to the use of police custody for Indigenous young people.

While there are many occasions where police officers will need to detain children who have committed offences or who are at risk of coming to harm, holding them in the cells at police lockups can rarely if ever be justified. In many cases, doing so breaches the police's own standing orders and perhaps legislation. Apart from the most exceptional circumstances (and that surely cannot be 61% of the time in WA!) it breached Recommendation 242 of the Royal Commission into Aboriginal Deaths in Custody (submission 686 page 4).

In WA detention in police cells is often not related to criminal matters at all. In the Kimberley region over 50% of juveniles detained in police cells were there because of alcohol use (ALSWA submission 127 page 334 referring to Crime Research Centre research). Public drunkenness is not a criminal offence in WA, although police retain the power to detain intoxicated persons. In addition, the Inquiry was told that the Young Offenders Act 1994 (WA) permits too much discretion to police officers by failing to place a positive onus on them to find alternatives to police cells when a young person is intoxicated (ALSWA submission 127 page 347).1

The Convention on the Rights of the Child article 37(c) requires the separation of juveniles from adults when young people are deprived of their liberty (see also ICCPR article 10(2)(b)). Article 37(c) of CROC also requires that every child is to be treated in a manner which takes into account the needs of persons of his or her age. The Commonwealth Government submitted a reservation on the relevant sections of both treaties,2 arguing that geography makes total segregation difficult to achieve and that responsible authorities should have the discretion to `determine whether it is beneficial for a child or juvenile to be imprisoned with adults' (quoted by Aboriginal and Torres Strait Islander Social Justice Commissioner 1996 on page 205). The available empirical evidence strongly suggests that the `discretion' disadvantages Indigenous young people.

Juvenile detention centres

The detention of Aboriginal youth is a form of child removal. This cannot be denied or ignored. Incarceration and its ensuing deprivation of liberty is a destructive and dehumanising experience (ALSWA submission 127 page 340).

Concern about the over-representation of Indigenous young people in detention centres developed from the early 1980s. Most of the research was State-based, reflecting the nature of separate juvenile justice jurisdictions across the nation. There was great difficulty in deriving comparable national data on Indigenous over-representation. Indeed, the Royal Commission into Aboriginal Deaths in Custody noted, `At no level of the criminal justice system is statistical information more inadequate than it is with respect to juvenile offenders' (National Report 1991 Volume 2 page 254). Although acknowledging the difficulties of interpreting the available data, there was a perception that the over-representation of Indigenous young people was increasing (National Report 1991 Volume 2 page 263).

Some of the data provided to the Inquiry indicate the upward trend in the incarceration of Indigenous young people during the late 1980s and early 1990s. The NSW Government noted that the proportion of Indigenous young people in detention centres had increased in the four years to 1994 (interim submission page 81). No explanation was given as to why this may have occurred.

All Australian States and Territories have submitted quarterly returns to the Australian Institute of Criminology on the number of juveniles held in detention centres since 1982. However, it is only since 1993 that national information has been included which identifies whether a young person is Indigenous or not, thus permitting comparisons to be made.

Nationally some 36% of youth in juvenile correctional institutions on 30 June 1996 were Indigenous. The rate of incarceration was 540 per 100,000 Indigenous young people compared to a non-Indigenous rate of 25 per 100,000.

Young people in juvenile corrective institutions, 30 June 1996

  Indigenous youth Non-Indigenous youth Total
State
Noa
%
Rateb
Noa
%
Rateb
Noa
%
NSW
102
30
746
238
70
36
340
100
Vic
4
6
132
66
94
13
70
100
Qld
84
61
594
53
39
14
137
100
WA
61
57
734
45
43
23
106
100
SA
18
22
572
65
78
42
83
100
Tas
6
23
301
20
77
37
26
100
NT
9
69
110
4
31
29
13
100
ACT
1
14
324
6
86
17
7
100
Aust
285
36
540
497
64
25
782
100
Sources: Australian Institute of Criminology submission 686 and Atkinson and Dagger 1996.

  1. These figures do not include young people over the age of 17 years who are held in juvenile correctional centres. Some jurisdictions (such as NSW) have significant numbers of young people in this category. Nationally, at 30 June 1996 an additional 37 Indigenous young people 18 years or older were held in juvenile institutions (Atkinson and Dagger 1996).

  2. Rate per 100,000 of the relevant population. Rates quoted by the Australian Institute of Criminology are correct to two decimal places. The above rates have been rounded for ease of reading.

This table shows the number of Indigenous and non-Indigenous young people held, the percentage of the total which each group comprised and the rate of incarceration for each group. The majority of young people in juvenile correctional institutions in NT (69%), Queensland (61%) and WA (57%) were Indigenous.

However, NSW had the highest number of Indigenous young people incarcerated (102) as well as the highest rate (746 per 100,00). WA's rate of 734 was only slightly lower than that in NSW. Queensland and SA also had extraordinarily high rates (594 and 572 respectively). Nationally some 87% of Indigenous young people in detention are held in only three States: NSW, WA and Queensland.

Jurisdictional differences also indicate important considerations in relation to policy development. For example, unless we assume that Indigenous youth in WA are six times more criminal than Indigenous youth in Victoria, we need to consider what it is about government policy and legislation that leads to greater levels of incarceration of young people in the former State. Similarly the variations in incarceration by jurisdiction also have a positive side to them. They indicate that patterns of imprisonment `are not the product of immutable factors. They can vary. They can change. They can be improved' (Dodson 1995 page 20).

Level of over-representation for Indigenous youth, 30 June 1996

Age

NSW
Vic
Qld
WA
SA
Tas
NT
ACT
Aust
10-17
20.5
9.8
41.1
31.6
13.7
8.2
3.8
19.0
21.3

This table shows the level of over-representation of Indigenous young people to non-Indigenous young people in correctional institutions by comparing the rates of incarceration in each jurisdiction. Thus in Queensland for example an Indigenous young person is 41.1 times more likely to be in juvenile correctional institutions than a non-Indigenous young person. Queensland has the highest level of over-representation, followed by WA and NSW. For Australia as a whole, Indigenous youth are 21.3 times more likely to be in a detention centre than non-Indigenous young people.

The sex of a young person is also a significant factor as the following table shows.

Comparing males and females in juvenile corrective institutions, 30 June 1996


Males

 Females
 Total

No
%
No
%
No
%
Indigenous
258
90.5
27
9.5
285
100
Non-Indigenous
465
93.6
32
6.4
497
100
Total
723
92.5
59
7.5
782
100

Young males comprise the majority of youth in detention centres, irrespective of whether they are Indigenous or not. Most separations which arise directly as a result of criminalisation and incarceration affect young Indigenous males.

However, the table above also shows that Indigenous girls form a higher proportion of all girls in detention centres than Indigenous boys for all boys. Indigenous girls comprise 46% of all girls incarcerated while Indigenous boys comprise 36% of all boys.

Both of these points have important implications for the development of policy responses. To reduce the extent to which Indigenous young people are separated from their families and communities by incarceration requires a consideration of gender. The greatest possible reduction in separations would be achieved by policies that reduce Indigenous male incarceration. However, policies also need to consider the specific factors that may lead to the incarceration of girls such as previous physical and sexual abuse, drug and alcohol problems, homelessness and so on. These factors clearly have a greater impact on Indigenous girls than non-Indigenous girls since they constitute nearly half of all girls incarcerated.

A further point raised by the Australian Institute of Criminology relates to the extent to which Indigenous young people are held in correctional institutions on remand. At 30 June 1996, some 40% of Indigenous youth in institutions were on remand. The remaining 60% were serving custodial sentences. The data relating specifically to Indigenous girls showed that 59% were detained on remand. An analysis of the data over the period 1993 to 1996 showed that `at a national level, the gap between sentenced and remanded Indigenous juveniles appears to be closing ... Queensland appears to demonstrate the most consistent trend in this direction' (Australian Institute of Criminology submission 686 pages 6-7). Policy reforms are needed to secure further reductions in the numbers of Indigenous young people detained on remand.

Australian Institute of Criminology data enable a consideration of changes in the rate and number of incarcerated young people based on quarterly reports for the three year period September 1993 to June 1996.

Changing populations in juvenile corrective institutions

September 1993 to 30 June 1996


Indigenous

Non-Indigenous

No

Rate
No
Rate
Sept 93
211
408.0
472
24.1
Dec 93
220
425.4
511
26.0
Mar 94
257
486.8
525
26.8
June 94
271
513.3
479
24.4
Sept 94
248
469.7
465
23.7
Dec 94
249
471.6
462
23.5
Mar 95
309
585.3
509
25.9
June 95
260
492.5
527
26.9
Sept 95
274
519.0
497
25.3
Dec 95
254
481.1
491
25.0
Mar 96
276
522.8
478
24.4
June 96
285
539.8
497
25.3

There were 26% more Indigenous young people in detention at the end of June 1996 than there were at the end of September 1993. The rate per 100,000 of the Indigenous youth population incarcerated increased by 24% from 408.0 to 539.8. During the same period, the number of non-Indigenous young people in detention centres increased by 5%, while the rate increased by a similar percentage (4.7%). There has been a fluctuating but overall increase in Indigenous rates of incarceration in NSW and WA. In Queensland there was a steady rate of increase until early 1995 and then a levelling out of the rate (Atkinson 1996 page 6).

The Australian Institute of Criminology concluded,

There appears to be little cause for optimism in relation to the over-representation of Indigenous juveniles in detention. Of particular concern are the consistently high numbers of Indigenous youth in detention in NSW, Queensland and WA; the likelihood that very young detainees will be Aboriginal, the steady increase in the rate of detention of Indigenous juveniles in Australia; and, an apparent upward trend in the proportion of Indigenous remandees to sentenced Indigenous detainees. The level of over-representation of Indigenous juveniles in detention in Australia appears to be rising (submission 686 page 8).

A further factor to be considered is the location of detention centres. Most detention centres in Australia are hundreds, if not thousands, of kilometres away from many Aboriginal communities from which the detention population is drawn. The distance makes it extraordinarily difficult for parents and relatives to visit incarcerated young people and therefore exacerbates the effects of removal. This particularly affects Indigenous children and young people because they are more likely to come from a non-urban background (Luke and Cunneen 1995). The problem has received attention previously in the research literature (Wilkie 1991 page 156, Cunneen and White 1995 page 236) and in evidence to the Inquiry (NSW Government supplementary information, WA Government supplementary information).

Finally, Indigenous children tend to enter the juvenile justice system at an earlier age and stay in the system for longer (Queensland Government interim submission page 90, Criminal Justice Commission 1995 page 16 and Wundersitz 1996 page 204). Not only is the rate of removal of Indigenous young people from their families much higher than non-Indigenous young people, they are comparatively younger and more geographically isolated from their family and kin.

Juvenile justice legislation

Legislation, policy and practice provide the framework within which removals occur. Indigenous young people, like other young people in Australia, are subject to the criminal law and a range of other laws. `Juvenile justice legislation' refers primarily to the legislation which establishes a separate system for dealing with young people when they have been suspected of committing, charged with or convicted of a criminal offence. In all Australian jurisdictions, except Tasmania, welfare matters have been separated from justice matters. In other words, children or young people who are deemed to be in need of care and protection are dealt with separately and in a different way from young people charged with a criminal offence. The separation has been accomplished in various jurisdictions either through separate legislation for criminal matters and welfare matters such as in NSW (the Children (Criminal Proceedings) Act 1987 and the Children (Care and Protection) Act 1987) or within the same legislation such as in Victoria where the Children and Young Person's Act (1989) establishes separate divisions of the Children's Court - the Family Division and Criminal Division - effectively separating welfare matters from criminal. Tasmania is the only Australian State to continue to operate under a system that mixes welfare and criminal matters (Child Welfare Act 1960). However, Tasmania is currently considering separating the jurisdictions by way of a Youth Justice Bill and Children and Their Families Bill (Cunneen and White 1995 pages 189-193, Tasmanian Government submission page D-23).

The formal separation of welfare and juvenile justice is not always apparent in practice, however. Indeed, young people who have contact with the child welfare system are more likely to come into contact with the juvenile justice system.

Our belief is that there is actually a link between the two [juvenile justice and child welfare] in the sense that those who are taken from their families and placed in alternate care or out of home care, whether in institutions or foster care, are much more likely to come before the attention of the criminal justice system (SNAICC submission 309 page 28).

This phenomenon is particularly apparent with Indigenous young people.3 The formal separation has had effects which have not necessarily been beneficial. Some commentators have argued that a `justice' model emphasising the `rule of law' and `due process' has in fact lead to a failure to consider discretionary issues particularly as they are exercised by police. Factors such as the utilisation of police discretion on the street, over-policing, police-youth conflict and racism have been ignored (O'Connor 1994 page 210, Naffine et al 1990) although they are the very issues likely to lead to disproportionate criminalisation of Indigenous young people (Cunneen 1994).

Juvenile justice legislation varies between jurisdictions and there are differences as to precisely what is covered by the legislation in each jurisdiction. Generally speaking, juvenile justice legislation covers,

Indigenous young people, like other young people, are also subject to a range of general criminal laws and laws relating to criminal procedure. An Indigenous young person is most likely to come before the Children's Court for a violation of the law under the Crimes Act or Criminal Code. Young people are also subject to the law governing public order under the various Summary Offences Acts and Police Offences Acts in different States and Territories. Again a sizeable proportion of young people brought before the courts will be there for violations of public order governed by this type of legislation. Public order charges are particularly prevalent against Indigenous youth.

Indigenous young people may also be subject to any general sentencing laws. For instance, in NSW the Sentencing Act 1989 sets out requirements in relation to fixed terms, minimum terms and additional terms of imprisonment, as well as the relationship between parole periods and imprisonment. In some cases specific sentencing requirements covering such matters as mandatory sentences or additional terms will be included in the juvenile justice legislation. The WA Young Offenders Act 1994 and recent amendments to the NT Juvenile Justice Act 1995 are examples of juvenile justice legislation containing specific sentencing regimes.

This report does not analyse section by section the Commonwealth, State and Territory legislation affecting Indigenous young people. Rather, it indicates some of the general issues which were common areas of concern among witnesses to the Inquiry. Some of the specific criticisms of particular pieces of legislation will be dealt with in later sections.

The particular vulnerability of children entitles them to special protection during investigation. Special considerations relate to the cultural background of the young person, particularly Indigenous young people. The ALSWA specifically noted that the WA legislation fails to address these issues comprehensively (submission 127 page 346). However, it is a problem common to most Australian juvenile justice legislation.

Some jurisdictions have adopted a general principle on the need to consider the cultural background of a child in any decisions made under juvenile justice legislation (for example section 4(g) of the Queensland Juvenile Justice Act 1992). However, this is inadequate in ensuring that key principles such as the right of Indigenous self-determination and the maintenance of Indigenous children with their families and communities are adhered to. There is no obligation to negotiate with Indigenous communities. When asked by the Inquiry how the court was provided with information which makes section 4(g) a meaningful obligation, the Queensland Government responded that `Aboriginal and Torres Strait Islander staff or community members provide information directly to the courts or indirectly through Departmental staff' (final submission page 60). However, other evidence suggests that consultation in practice may be poor (Cunneen and McDonald 1997 pages 174-176).

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 submission page 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,

The lack of consultation and total absence of negotiation with the Aboriginal community on this Bill is contrary to recommendations of the Royal Commission into Aboriginal Deaths in Custody ... No other Aboriginal community organisations were consulted in this process (submission 127 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 minimum mandatory imprisonment for certain offences. A recent survey of the implementation of the recommendations of 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 and McDonald 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] targeted prevention programs have as their primary, stated target young Aboriginal offenders ... Some of the services funded have an almost 100% Aboriginal client population. Yet few are managed by Aborigines and none are directly controlled by the local Aboriginal community. On the other hand most which cater for Aboriginal young people do not employ Aboriginal staff (quoted by ALSWA submission 127 on page 194).

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 because they lack suitable accommodation (NSW Government interim submission 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 Justice Workers 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 Justice Commissioner described how the project has been working successfully at Lake Tyers (Dodson 1996 pages 52-53).

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 such as 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 best practice 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 (confidential submissions 458 and 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 (interim submission 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 page 59).

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 page 37).

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 (Adams and Bimrose 1995 pages 40-43).

The use of Aboriginal Law is central to the Elders emphasis on making kids, teenagers and their families accountable for their actions. Elders ask kids involved in a dispute and their families to front up to a meeting held in a local community hall `before his or her own people'. Each party is given a chance to explain their version of the incident. The Elders give their view of how the child or the group of kids has behaved 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, neglect or other conflicts at home and may recommend referrals and increased support to the family. Sitting down and talking with the child's parents and counselling is a vital part of the Elder's work (Dodson 1996 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 the confines of the existing State systems. In particular, it should be noted that justice groups have no statutory authority ... Consequently, justice groups have no direct responsibility under the Program for punishing misbehaviour or criminal offenders.

Responses to law and order problems suggested by justice groups are essentially a means to bring forward Aboriginal and Torres Strait Islander communities' views and advice which may be incorporated into State systems, where appropriate (Queensland Office of Aboriginal and Torres Strait Islander Affairs 1996b page 13).

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 submission page 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 many issues 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 themselves structured 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 is experienced in every area of society. However, the working conditions of police and the awesome power they wield can result in racism being reproduced in a particularly heightened and intensified form. Aboriginal juveniles are often singled out for police attention (ALSWA submission 127 page 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.

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 (Cunneen and 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 improvement and 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 Kowanyama Justice Council (Adams and Bimrose 1995 page 42). Cooperative approaches between police and Aboriginal communities in the development of night patrols can improve Aboriginal/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 include specific 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 page 5).

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 McDonald 1997 page 173).

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, many Indigenous 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 was generally 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 McDonald 1997 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 (Crime Research 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 1990 pages 56-58).

In Victoria police instructions indicate that 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 should only 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 submission page 121; see also Mackay 1996a pages 9-10).

The Inquiry was told that in NSW,

... there is concern about the differential use of police cautions particularly for Aboriginal juvenile offenders. Measures are being introduced by the Police Service to encourage greater use of police cautions in dealing with young people generally and in particular with Aboriginal young people (NSW Government submission page 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 Cunneen 1995 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 McDonald 1997 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 (Gale et al 1990, 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-making and 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 of legislation 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 (Recommendation 239). 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 some Australian 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 punishment in 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 and Cunneen 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) (Wundersitz 1996 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, the criminal justice system is not as likely to impose non-custodial sentences on repeat offenders. Whilst the current generation of Aboriginal juveniles are being processed by police as offenders at incredibly high rates, the full effects of this phenomenon will not take effect for another couple of years when many of these juveniles reach adulthood ... [The] statistics paint a grim picture of what is likely to be an explosion in the number of young Aboriginals entering the adult prison system in the next few years (Mackay 1996a pages 4 and 14).

As a result of legislative and policy changes in WA there has been a reduction in the number of charges and arrests for young people. However, the rate of decrease for Aboriginal young people has been significantly lower than for non-Aboriginal youth (ALSWA submission 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 important differences 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 page 275; see also International Commission 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 solicitor is 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 1994 pages 35-8).

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 (submission 127 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 Commission recommendation 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