Justice for Indigenous youth

Aboriginal and Torres Strait Islander peoples make up a disproportionately large amount of Australia’s prison population in a cycle that begins in childhood. (Image source: Pro Bono News)

By Sezen Bakan |@sezen.bakan, Jordan Byrne |@jordanshayebyrne, Madelyn Hanna |@stylpress & Geena Ho@geenaho

Interviews with former state manager of Reconciliation SA Mark Waters and director of Youth Justice Rohan Bennett were conducted in 2018.

Studies and statistics referenced in this article don’t differentiate between Aboriginal and Torres Strait Islander peoples, so the term ‘Indigenous’ is used when referencing these materials.

It has been over 12 years since then-Prime Minister Kevin Rudd apologised on behalf of the Australian government, past and present, and pledged to right the wrongs of the past and “close the gap” between Indigenous and non-Indigenous people.

Yet statistics show a large gap in experiences still exists, particularly in the justice system.

Juvenile detention

(Image source: ABC News/ Tim Swanston)

While overall sentenced youth imprisonment is on a downward trend, there remains a significant over-representation of Indigenous youth in the justice system.

In June 2019, Indigenous children made up only 6 per cent of the Australian population aged 10-17, but accounted for up to 57 per cent of the children in Australian juvenile detention centres.

Nationally, Indigenous youth are approximately 21 times more likely to be in detention than non-Indigenous youth, and are younger when they first enter the justice system.

Former state manager of Reconciliation SA, Mark Waters, said Australia needs to have a conversation about race, which he considers to be an issue that has not been fully dealt with yet.

“We’ve done conversations on the Stolen Generation, it’s taken 30 years and it’s still not fixed. We haven’t even scratched the surface of some other conversations,” Mr Waters said.

He also referenced government statistics showing that, on average, Indigenous youth spend two weeks longer in unsentenced detention than non-Indigenous youth.

Mr Waters pointed out that while non-Aboriginal youth can easily get bail, Aboriginal youth are often held on remand even when unsentenced.

“They are charged, and there’s been no final decision upon the charge, but they’re locked up. That just does not happen to non-Aboriginal kids.”

University of South Australia’s Pro Vice Chancellor of Aboriginal Leadership and Strategy Professor Irene Watson said that while Aboriginal people are generally “invisible” in society, their visibility within the justice system is heightened thanks to the lasting impact of colonialism.

Acting executive director of Youth Justice Rohan Bennett agreed that the level of over-representation is significant. However, he rejected the idea that Aboriginal and Torres Strait Islander youth may be more “targeted” by police.

“My view is that the police are seeking to be as consistent and fair in their response to crime as they can be,” Mr Bennett said.

“Police will tell you, and it’s certainly my observation, that they react to the incident not to the individual.”

However, Mr Waters suggested part of the blame does, in fact, lie with the police.

“When I hear of 13-year-old Aboriginal kids being hung by their ankles over a jetty down along the beach, I sort of go, ‘Not much has changed’,” he said.  

“That’s the sort of behaviours we’ve got to bring out of the police force, and work with the courts and make sure judgments aren’t being made on the basis of race.”

Treatment in juvenile detention

(Image source: ABC/Four Corners)

There have been numerous accusations of mistreatment of Aboriginal and Torres Strait Islander juvenile offenders in custody.

Possibly the most infamous example would be the footage shown of Don Dale Youth Detention Centre in the 2014 Four Corners episode, ‘Australia’s Shame’.

The footage sparked nationwide outrage and led to a royal commission which found “the systems failed to comply with basic binding human rights standards in the treatment of children and young people.”

It included images where teen Dylan Voller was forced into a spit hood and shackled to a mechanical restraint chair, and where five other juveniles were tear-gassed (four of whom are now entitled to damages, according to a recent High Court ruling).

More recently, in SA, a 2019 report from the state’s ombudsman found that the use of spit hoods at Adelaide Youth Training Centre—in which over half of detainees were of Indigenous descent—possibly breached international rules around the treatment of prisoners, and increased the chances of asphyxiation.

The ombudsman also referenced studies which found such practices used in a youth detention setting might “trigger or retraumatise” the children, and result in provoking “dangerous behaviours”.

As a result, SA has forbidden the use of spit hoods in youth detention facilities as of June 2020, the last of Australian jurisdictions to do so.

Prevention and justice reinvestment

(Image source: The Canberra Times/ Karleen Minney)

Reports have found that exposure to harsh prison environments might re-enforce anti-social attitudes that could lead to reoffending and re-incarceration post-release.

From 2000 to 2017, of the Indigenous young people who were sentenced to juvenile detention for the first time, 60 per cent received at least one more sentence before turning 18, compared with 44 per cent of non-Indigenous young people.

Bushmob CEO Will MacGregor said, “Systems to help are broken.”

“How can we Band-Aid someone in a short-term and expect them to change overnight?”

As Bushmob is a therapeutic service that treats clients—majority of whom are Aboriginal—for drug and alcohol issues, a lot of these clients have a “significant history” with police.

“We’re seen as a place of safety for a lot of young people,” Mr MacGregor said, “So they come to catch their breath, we do as much as we can to help them, then they leave and they’re back in the bullshit.”

As a legal practitioner with experience in Children’s Court, Professor Watson said she often observed “revolving door syndrome”, where once a child enters the juvenile justice system, they often remain within the system. She considered the imprisonment of children to be a “draconian measure” that should only be used as a last resort, regardless of race, and preferred a focus on prevention rather than rehabilitation.

Professor Watson said that part of prevention would involve focusing on health, education and social justice because “100 per cent of the children who end up detained in juvenile institutions all have serious psychological, behavioural problems and learning disorders”.

Another part of prevention would involve stopping the large-scale removal of Aboriginal children from their families and communities, an aspect that the 1991 Royal Commission into Aboriginal Deaths in Custody report said couldn’t be discounted as a contributing factor to their incarceration. Although this is often considered a characteristic of the Stolen Generation, Professor Watson said Australia is now experiencing much higher levels of removal of Aboriginal children from their families than ever before.

“What we’ve seen is that children who are coming from an experience of being removed from family and community also have a connection with being incarcerated.”

“So there’s a relationship between the removal from family and community and the high levels of incarceration of these children within the criminal justice system.”

Closer community relations and a better cultural understanding are key points being looked at for improvement by Youth Justice and Reconciliation SA when considering methods to prevent re-offending and lower the number of Aboriginal and Torres Strait Islander youth in detention centres.

“The most important thing is actually about helping a young person to feel connected to their community,” Mr Bennett said.

“If they feel that they’re connected to the community and the community’s invested in them, then over time that’ll start to change their investment in themselves and their investment in the community.”

Professor Watson said police need to focus on building better relationships with Aboriginal peoples to improve “frontier engagement”, particularly between police and Aboriginal youth.

“That would certainly have been of high benefit in the recent incident that we saw in New South Wales with the police officer, where the intervention was to throw a young person face flat in concrete pavement, where he was injured,” she said.  

“That could’ve been managed better, and it should’ve been managed better.

“There not only has to be, but there are better ways of treating children.

“We have a declining education and a declining health system that is ill-equipped to deal with the vast range of problems that all children have, in particular and especially Aboriginal children.

“We have children that have become alienated from the education system before they even begin, so there has to be better ways of taking care of what I feel is our most precious assets, our children, and imprisonment is not the way.”

The idea of ‘justice reinvestment’ is starting to gain traction in Australia, aiming to re-allocate taxpayer dollars from prisons and invest them back into communities where it’s needed most.

The Australian Human Rights Commission first sent in their submission of the Value of a Justice Reinvestment Approach to the Legal and Constitutional Affairs Committee in March 2013. The main intention of this program was to encourage the government of South Australia to find practical ways to help prevent youth offenders from reoffending.

The government hopes to create a safer community by implementing this evidence-based justice strategy in prevention and treatment programs targeted at Aboriginal and Torres Strait Islander communities due to their youth being at high risk of imprisonment and repeat-offending.

“I’ve talked about partnerships across government and I’ve talked about the importance of community. The key for me, is that those two things work side by side,” Mr Bennett said.

“We get better outcomes when we are hearing what the Aboriginal communities are saying to us and that’s informing how we put into place our interventions. That’s a priority for us in Youth Justice – to continue to have that dialogue with the Aboriginal community about how we can better work with them in this space.”

Mr Waters said, “It’s really giving control to the Aboriginal community to work with their families, to say this is how they’re going to make a difference.”

Professor Watson voiced support for the efforts being made in justice reinvestment, but said for now, most of the recommendations made in reports on Aboriginal deaths in custody and incarceration have been ignored by the government. She also said it was time Australia invested “huge resources in the programs that Aboriginal people have, are involved in, and that we know are working”.

“I’ve been talking and advocating in this space since the 1970s, and the situation is not only not changed, it is getting worse.”

“So what are we doing?… It’s the question for people in the State and the Commonwealth Governments that have a responsibility to improve this situation.

“What have you been doing?”

SAPOL and Australian Federal Police did not respond to requests for comment.

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