Bailey-Harris, Rebecca; Gale, Fay; Wundersitz, Joy --- "Aboriginal Youth and Juvenile Justice in South Australia" [1990] AboriginalLawB 23; (1990) 1(44) Aboriginal Law Bulletin 12

• Aboriginal Youth And Juvenile Justice In South Australia
• Introduction
• The Reasons
• Conclusion
• Acknowledgements

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Aboriginal Youth and Juvenile Justice in South Australia

by Joy Wundersitz, Rebecca Bailey-Harris and Fay Gale

Introduction

The Muirhead Royal Commission has drawn public attention to a fact which has been well known to Aboriginal people for many decades - namely, the massive over-representation of this minority group at every stage of the criminal justice system. Although the Commission has focused mainly on adults, there is now a growing body of evidence that for many Aborigines involvement with `the law' begins at a relatively early age, so that by the time they reach adulthood, they have already become well known to the police and the courts and have acquired a long criminal record. In recognition of this fact, members of the Aboriginal community in Adelaide asked us to find out "why their kids were always in trouble with the police" and to identify what strategies could be adopted to change this situation. This request led to a long-term study of the juvenile justice system in South Australia which raised some very disturbing questions about the delivery of justice to young Aborigines.

In undertaking this research we relied on officially recorded crime statistics, which do not necessarily reveal real patterns of offending behaviour but do show with some degree of accuracy how the official system of justice operates - in other words, who is brought into the system and how they are charged and processed at its various levels by the agents of criminal justice. Our analysis of this data revealed that, as elsewhere in Australia, Aboriginal youths are massively disadvantaged at every point in the South Australian system where discretionary decisions are made. This finding is particularly disturbing in view of this State's high reputation for enlightened policy in the juvenile justice field. In fact, it seems that despite decades of government enquiry and legislative change, the position of young Aborigines before `the law' has in many ways deteriorated rather than improved. To illustrate with some figures: in 1972/73, Aboriginal youths accounted for 7.4% of all youth apprehensions in South Australia. By 1985/86 this had increased to 9.3%. Yet throughout this period they accounted for no more than 1.2% of the State's youth population. Quite clearly then, on a per capita basis, young Aborigines are significantly more likely than other youths to be brought into the formal juvenile justice system for processing.

Once in the system, they are also more likely than other youths to receive the harsher outcomes of those available. They are, for example, more likely to be arrested rather than summonsed by police. In 1972/73 almost one half (48.5%) Of all young Aborigines apprehended by police were arrested rather than reported, compared with only 29.5% of non-Aborigines. By 1985/86, although the figures for both groups had fallen, differences were still pronounced, with 30% of Aboriginal youths being arrested compared with only 13% of non-Aboriginal youths.

At the next stage of adjudication in the South Australian system, a Screening Panel must decide whether to refer a youth to the Children's Court or divert him/her to a Children's Aid Panel. Here, Aboriginal youths again experience disadvantage. In 1985/86 for example, 59.4% of Aboriginal youths apprehended by police were referred to Court Compared with only 38.2% of young non-Aborigines. Conversely in that year, only 40.6% of Aboriginal youths were given the `softer' option of an Aid Panel appearance compared with 61.8% of non-Aborigines. Such discrepancies were also evident in previous years.

The fact that such disproportionately low numbers of young Aborigines are given the option of a children's Aid Panel hearing is particularly disturbing. These Panels, which have operated in South Australia since 1972, epitomise this state's strong commitment to providing a less formal, less stigmatising and more constructive alternative to court appearances for young people. The aim of such Panels is to provide warning and counselling for juvenile offenders so that future criminal behaviour can be reduced. Yet Aboriginal youths are not being given the opportunity to benefit from this diversionary system.

At the next and final decision-making stage - namely, sentencing by the Children's Court - Aboriginal youths are significantly more likely than other young people to be sentenced to detention in the State's youth training centre. This is despite the fact that almost three quarters of Aboriginal appearances in the Children's Court had legal representation compared with less than one half of non-Aboriginal appearances.

Because Aboriginal youths receive harsher outcomes at each level of the system, the extent of their disadvantage actually increases as they move deeper into the system. Thus their rate of representation at the point of entry into the system was 6.5 times higher than expected, given their population size; at the Court referral stage, this had increased to 11.6 times, and finally at the point of detention, they were over-represented by some 23.4 times. Thus the disproportionate number of Aboriginal youth held in the State's youth training centre is a product of an accumulating differential impact at each level of judicial processing.

The reasons

Why then are young Aborigines so disadvantaged in their contact with the juvenile justice system? Does racial discrimination play a part in the decisions taken by agents of the law or can other factors account for the apparently harsher outcomes meted out to this group of youths? In trying to answer these questions, we focused firstly on the police decision to arrest rather than report such large numbers of Aborigines, and secondly on the Screening Panel's decisions to refer so many Aboriginal youths to court rather than to Aid Panels.

In terms of the police decision to arrest rather than summons a youth, the first and, some may argue, somewhat surprising finding, was that Aboriginality per se did not prove to be a factor which independently influenced that decision. In other words, there was no statistical evidence of racial discrimination against Aborigines at this point. There was, however, clear evidence of what could be referred to a class bias. Statistical analysis revealed, for example, that, irrespective of the nature of the offence itself or the individual's prior record, unemployed youths were more likely to be arrested than were employed persons or students. Similarly, youths living in a single-parent household, in a fostering situation or with relatives were far more likely to be arrested than were those living at home with both parents, even when the same offending behaviour was involved. Residential criteria were also important. Youths who lived in areas of lower socio-economic status were significantly more likely to be arrested than were those youths who could give a middle or upper class address, and again, this applied irrespective of the nature and seriousness of the offending behaviour.

Police General Orders indicate that police should not arrest young people unless they believe that such a response is necessary to ensure the appearance of that youth before the court. It seems then, that police are acting on the assumption that young persons who have left school but who have no job and who do not have both parents to act as supports will be 'bad risks' for the report procedure; i.e. they will not obey a summons or appear in court under their own volition. The same assumption seems to apply in relation to where the youth lives, with youths from the so-called `high status' suburbs being perceived as `good risks' for the report procedure (i,e. likely to obey a summons or notice) while those from the lower status suburbs are labelled as 'bad risks ' and therefore warrant an immediate arrest.

These findings obviously have serious implications for Aboriginal youths. For historical, political and economic reasons, most young Aborigines fall into those categories which are apparently perceived by police as `bad risks ' for the report procedure. The overwhelming majority of Aboriginal youths find it almost impossible to get a job once they leave school. Most come from single-parent families and often two, three or even four of these family units occupy the one house. Another characteristic of the Aboriginal community is its high residential mobility and this applies particularly to young people who frequently move from one relative to another within their particular kin network. Thus, the greater prevalence of these so-called `problem' family backgrounds results, It seems, in a greater tendency for police to arrest rather than report young Aborigines.

This particular group of youths is therefore being penalised in the justice arena for factors which bear no direct relationship to the offending behaviour itself. The intrusion into the decision making process of factors which are extraneous to that behaviour and which require value judgements to be made about people on the basis of social, cultural and economic criteria is highly questionable. It results in certain groups of people who are already socially and economically disadvantaged being further disadvantaged simply because they do not conform with the middle-class norms of mainstream society.

Although this finding in relation to the arrest decision is important in itself, it assumed even greater significance when we came to examine the next discretionary point in the juvenile justice system: namely, the referral decisions of Screening Panels. Here, we found that Screening Panels, quite contrary to the terms of the legislation, primarily based their referral decision on whether or not the youth had been arrested in the first place. Arrested youths were generally sent to court where they invariably acquired a criminal record which carries over into their adult lives. By contrast, those youths who had been reported by police were more likely to be diverted to a Children's Aid Panel where they received a simple warning and counselling. And again, although racial discrimination was not found to be an important factor here, the decision-making process inevitably disadvantaged Aborigines more than other youths simply because they are disproportionately arrested in the first place.

This compounding effect of decisions taken at one level of the system on a youth's treatment at the next and subsequent levels cannot be underestimated and poses serious questions for those concerned with the operation of juvenile justice. It also illustrates the enormous influence which police have in the juvenile justice system. Not only do they decide who will be selected for formal processing but their decision regarding the method of apprehension exerts a crucial influence on subsequent outcomes.

Conclusion

Research is always open to the criticism of being out of date. The data which formed the raw material for our study concentrated on the years 1979 to 1986. Since we completed our study, changes in the juvenile justice system in this State have already come about. The Children's Protection and Young Offenders Act 1979(S.A.), which deals with both offenders and children in need of care, has been amended so that those operating the system must consider "the child's ethnic or racial background". More recent amendments aim to increase Aboriginal participation on Panels and generally to refine and improve the system of community service in lieu of detention. These reforms are to be welcomed, although time will tell what their practical impact will be. All too often well- intentioned legislative reforms fail to deliver better justice in practice.

Nor can signs of a resurgence in "law and order" sentiments amongst the community be ignored. Recently, we have seen local government officials in a country town call for the imposition of a curfew on juveniles, and the alleged threat of juvenile violence in the Adelaide inner city areas has received intense media publicity. It is to be hoped that the future course of juvenile justice reform will not be flavoured in any way by sentiments which have the potential to increase discriminatory treatment rather than to eliminate it.

Acknowledgements

This research was funded by the Australian Research Grants Scheme and would not have been possible without the support and cooperation of the South Australian Department for Community Welfare.