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D'Souza, Nigel --- "Aboriginal Children and the Juvenile Justice System" [1990] AboriginalLawB 19; (1990) 1(44) Aboriginal Law Bulletin 4


Aboriginal Children and the Juvenile Justice System

by Nigel D’Souza

A high proportion of Aborigines who have died in custody led troubled childhoods with considerable interference from child welfare departments and the juvenile justice system. Many institutionalised children are subsequently imprisoned as adults.[1]

Aboriginal children continue to be over-represented in corrective and welfare institutions. This is home out by the available statistics as illustrated below. Statistical data pertaining to Aboriginal children and the law is inadequate, indeed some states do not identify Aboriginality in their records. Despite such deficiencies the available data is indicative of the current situation.

Western Australia

The level of over-representation of Aboriginal youths increases with the seriousness of the charges preffered. The Western Australian Department of Community Services statistics for 1987/88 show that Aboriginal children make up 12% of all children at the panel level; 29% of all children in court; 47% of those appearing before the court more than 5 times; 64% of those appearing before court more than 15 times and 76% of those placed in custody.[2]

Whilst the numbers of all children admitted to institutions has decreased, the ratio of Aboriginal to non-Aboriginal children has increased. A department survey conducted on 4/5/1989 found that all 64 of the Aboriginal children in custody were either unemployed or not attending school before admission into the institution.[3]

Queensland

The Brisbane Aboriginal Child Care Agency (AICA) found that in 1988/89:

Almost 25% of all children under orders -a form of wardship- were Aboriginal (1079 out of 4346 ).

11% of young Aboriginal and Islanders in Community Corrections were sentenced to community orders (567 out of 4973).

Aboriginal and Torres Strait Islanders constituted 15% of the children placed under custodial corrections and they are seven times more likely to be admitted to custody than non-Aboriginal children.[4]

Northern Territory

The Northern Territory Department of law records show that almost 45% of the cases heard in the Juvenile Courts since 1983 were Aboriginal (3,741 out of 8,424). These figures may be an underestimate because 2, 226 cases were not classified for ethnicity.[5]

New South Wales

The Human Rights and Equal Opportunities Inquiry into Homeless Children found that although Aborigines make up less than 1% of the population, they constitute at least 15% of all children in the care of the State.[6] In addition Commissioner Wootten from the Royal Commission into Aboriginal deaths in custody found that "Aboriginal children make up at least 25% of the NSW institutional population, although their proportion in the States 10-17 year old population is only about 1.8%".[7] Cunneen and Robb found in their study of north-west NSW that, "The charge rates for Aboriginal youths are 6 times greater in Dubbo, 47 times greater in Wellington, 57 times greater in Brewarrina, 36 times greater in Bourke and 90 times greater in Walgett than for non Aboriginal youths."[8] Carrington in her research shows that Aboriginal girls are massively over-represented in the NSW juvenile justice system.[9]

South Australia

Gale, Wundersitz and Baly-Harris conducted research into Aboriginal youth in the SA criminal justice system between July 1979 and June 1983. They comment, "Given that Aborigines made up only 1.2% of all South Australians aged between 10 and 17 years the rate of Aboriginal detention was 26.5 times greater than expected".[10] Wundersitz et al found that Aborigines were disadvantaged at each stage in the criminal justice process and that this disadvantage was compounded the higher up in the juvenile justice process the child went. See p12 for a discussion of this research.

Victoria

The Department of Community Service in Victoria found that in 1986/87 Aboriginal children constituted 0.6% of Victorian children yet they made up 3.8% of the states child wards.

Tasmania

Whilst statistics are not available, Aboriginal children are over-represented amongst those in state care as well as those incarcerated. See Heather Sculthorpe's discussion of police/Aboriginal youth relations on p11

The following factors have significantly impacted upon the over-representation of Aboriginal youths in the juvenile justice system:

The Aboriginal Child Poverty Report describes poverty in the following way,

when we speak of poverty of Aboriginal children we first refer to the poverty that is broader than material poverty, although it includes material poverty. It is the deprivation that is the consequence of a loss of cultural continuity and identity as a result of dislocation from their spiritual and economic base - the land.

...Many [Aboriginal children] suffer absolute poverty, comparable with the poverty seen in some third world countries; poverty defined by the absence of food, water, shelter, essential to the maintenance of a healthy life ...[11]

Poverty and concomitant social problems create severe strains upon the ability of the family to cope. Many do not succeed. Aboriginal child care agencies attempt to reverse this breakdown by keeping families together, using the existing extended family networks. Over the last ten years AICCA caseloads have kept rising.

We face a major social crisis. Traditional authority structures and figures are being undermined. This weakens Aboriginal forms of social learning, which in the context of colonialism, are very important for maintaining a sense of community and nationhood. Many Aboriginal children are being educated in the streets of inner cities or in the dubious values that are engendered in corrective institutions.

One cannot dismiss the effects of the violence which impacts on Aboriginal children's lives. The National Committee on Violence, in it's recent report stated, "It is possible to state with conviction that the level of violence existing in some Aboriginal communities is of a scale that dwarfs that in any sector of white society."[12] Whilst their report discusses the nature of police/ Aboriginal relations and acknowledges the racism in police forces around Australia, it failed to address the subject of police violence against Aboriginal people. The HREOC report into the February 1990 police raid in Redfern documents the persistent and often violent police incursions in this communiy.[13] Racism in Australian Society The statistics cited earlier are-reflective of systemic disadvantage faced by Aborigines at each stage in the criminal justice process. In many instances Aboriginal children have inadequate legal representation. A 1986 Federal Attorney General's Department report stated that: "There appear to be inadequate resources for the proper servicing of Aboriginal people...bearing in mind the extraordinarily high number of Aboriginal children in foster-care, secure institutions, and prisons.[14] This situation does not appear to have been ameliorated. See Steve Sharrat's article p15

Resistance to Oppression

Given the racism and continual denigration of Aboriginal people their customs and values, the negative stereotypes and the daily stress of living in a land now colonised by Europeans, resistance has become part of Aboriginal culture. What has been described as delinquency could also be regarded as acts of individual defiance. The scale and nature of Aboriginal children's conflict with "authority" is reflective of a historical defiance.

Whilst the problems are too complex to offer simple solutions, this should not deflect from the necessity to take action. Certainly the disadvantage, the poverty and the oppression must be acknowledged as major contributing factors. There must also be greater support for community controlled initiatives and the recognition of Aboriginal rights, laws and customs. Organisations like Aboriginal child care agencies and legal services must be provided with more resources to cope with the number of cases they are confronted with . Preventative programs hat aim to keep Aboriginal children out :)f the welfare and juvenile justice systems must necessarily be a high priority.

There will be no "quick fixes" . Time will be needed once appropriate programmes acceptable to Aboriginal people are found and attempted.


[1] See Reports of the Royal Commission into into Aboriginal Deaths in particular: Wootten, J.H., Report of the Inquiry into the Death of Malcolm Smith, Royal Commission into Aboriginal Deaths in Custody, Sydney, 1989. Wootten, J.H., Report of the Inquiry into the Death of Mark Revell, Royal Commission into Aboriginal Deaths in Custody, canberra, 1989. Muirhead, J.H., Report of the Inquiry into the Death of Paul Farmer, Royal Commission into Aboriginal Deaths in Custody, Canberra, 1989.

[2] Western Australian Department of Community Services, Juvenile Justice Unit, 1990.

[3] Ibid.

[4] Brisbane Aboriginal and Islander Child Care Agency, 1990.

[5] Department of Law, Northern Territory, 1990.

[6] Homeless Inquiry, Human Rights and Equal Opportunity Commission, 1989.

[7] Wootten, J.H., Report of the Inquiry into the Death of Malcolm Smith, Royal Commission into Aboriginal Deaths in Custody, Sydney, 1989 p79.

[8] Cunneen, C. & Robb, T., Criminal Justice in North West NSW, Bureau of Crime Statistics and Research, Sydney, 1987. p43.

[9] Carrington, K., Aboriginal Girls and Juvenile Justice: What Justice? White Justice, Journal for Social Justice Studies, vol 3, 1990.

[10] Gale and Wundersistz, Chp. 7, Aboriginal Youth and the Criminal Justice System in South Australia, Ivory Scales, Black Australia and the Law, ed. K Hazelhurst, NSWU Press, 1987.

[11] Choo, C., Aboriginal Child Poverty Report, Brotherhood of St Laurence, 1990.

[12] National Committee on Violence, Violence: Directions for Australia, Australian Institute of Criminology, 1990.

[13] Cunneen, C., Aboriginal Police Relations in Redfern: With Special Reference to the ‘Police Raid’ of 8 February 1990, Human Rights and Equal Opportunity Commission, May 1990.

[14] J. Walker, Chp. 6, Ivory Scales, Black Australia and the Law Ed K. Hazelhurst, NSWU Press, 1987.


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