Sculthorpe, Heather --- "Tasmanian Aboriginal Youth and the Criminal Justice System" [1990] AboriginalLawB 22; (1990) 1(44) Aboriginal Law Bulletin 11

• Tasmanian Aboriginal Youth And The Criminal Justice System

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Tasmanian Aboriginal Youth and the Criminal Justice System

by Heather Sculthorpe

Young Aborigines in Tasmania are treated by police as the very worst kind of offender even when they "come to notice" for the most trivial of offences. They are automatically locked up in police cells rather than being given police bail, they are remanded in the care of the Director of Community Services by justices of the peace on the basis of police allegations of wrong-doing, they are subjected to 8.00 p.m. - 6.00 a.m. curfews as a condition of court bail and they must endure the ministrations of police officers who claim to be saving their souls by charging them with scores of trivial offences.

This happens under a Child Welfare Act which has as its guiding principle that children are to be treated as misguided rather than as criminal. A welfare approach to legal rights such as this is a two-edged sword. Whilst it is true that Children's Courts are usually lenient with young people who can show that they have "mended their ways" there is an obvious presumption during the pre-court stages of the legal process that children are guilty of the offences alleged by police and must be kept off the streets "in the public interest".

One of the many ironies arising out of the Royal Commission into Aboriginal Deaths in Custody is that police detentions of young Aborigines have increased in Tasmania at the very time that attention has been focused on the need to minimize detention and custody. The political and administrative hierarchies have been so little influenced by the interim reports, guide-lines and principles of the Royal Commission that they have allowed to go unchecked some of the most oppressive practices to emerge in years.

After 30 years of operation of Tasmania's Child Welfare Act, individual police have recently been allowed to decide and enforce a new interpretation of a protective provision of the Act. This interpretation prohibits the granting of police bail to young people, unless arresting officers are prepared to drag a Justice of the Peace out of bed in the middle of the night - and not many are . The new directive means that young children are locked in cells in police watchhouses until 10.00 a.m. the following morning. Of course, police very seldom go to the trouble of calling out a Justice of the Peace if they intend to oppose bail. Bail is often opposed "in the public interest" constituted by the protection of the public from petty theft. The Aboriginal Legal Service is confident that this directive will be reversed by the Commissioner of Police, but the degree of neglect which has allowed this practice to emerge after so long clearly indicates that the revised procedures, Standing Orders, guiding principles ad nauseam are often nothing more than paper tigers.

The lack of appropriate sentencing options is another significant problem in Tasmania, as elsewhere. This is particularly evident in the case of young people dealt with in the Court of Petty Sessions rather than the Children's Court. Tasmania has had community service orders as a sentencing option for many years, but this non-custodial penalty is seldom considered appropriate for people whose homeless or itinerant 'lifestyle' makes administration of the scheme difficult. For repeat property offenders - as many of the Aboriginal Legal Service clients are - imprisonment is the inevitable outcome.

The Aboriginal Legal Service proposed a new approach to the previous State Liberal Government. It involved amendments to State legislation and expenditure of funds by the Commonwealth, neither of which was forthcoming. The proposal was to legislatively require that imprisonment be used only as a measure of last resort. It would ensure that the `last resort' would not be reached until after the imposition of a suspended sentence, tied to Commonwealth funded guarantees of housing and employment. Whilst recognising that this approach is not a panacea, especially for violent crimes, it is one of the few feasible proposals guarantied to reduce the rate of Aboriginal imprisonment.

Despite the genuine goodwill which exists in same quarters, it is clear that the main problems confronting Aboriginal youth in the criminal justice system lie in the pre-court stages. Aborigines are over-represented in prison, in corrective institutions and amongst those declared wards of the state. However, it is the frequency with which, and the triviality of the offences for which, young Aborigines enter the criminal justice system that makes these unacceptable outcomes inevitable. If police diverted young people from the criminal justice system (not least, by turning a blind eye from time to time as they often do with non-Aboriginal kids); ceased the practice of extracting admissions before giving the mandatory caution and commencing the formal record of interview; took seriously their obligation to contact the Aboriginal Legal Service before interviewing children; dropped the notion that young offenders will be deterred and the public protected by locking up young children with hardened criminals; and accepted that threats of dire consequences do not act as deterrents for young people, then far fewer Aborigines would be destined to spend their lives going in and out of institutions.