Moore, Len --- "Update: Young Aboriginal People in Detention in Western Australia" [1990] AboriginalLawB 49; (1990) 1(47) Aboriginal Law Bulletin 2

• Update: Young Aboriginal People In Detention In Western Australia
• References:
• Acknowledgement:

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Update:

Young Aboriginal People in Detention in Western Australia

by Len Moore

The majority of young persons held in police lock-ups in Western Australia for non-payment of fines are Aboriginal. These detentions contravene the Child Welfare Act WA (194784) which applies to persons under eighteen years of age. 5.35(i), of the Act provides that no child shall be imprisoned for non-payment of any sum arising from a conviction in a court of summary jurisdiction. Broadhurst, Mailer and Duffecy (1988) remark that police lock-ups are frequently used for the incarceration of short term prisoners in the remote Kimberley region. The great distance between remote communities and prison preclude the transfer of offenders to prison unless the length of sentence warrants the cost (around $1800). Most unpaid fines are for minor offences and are usually quite small, ranging from $100 - $250.

S.34 B (2) of the Child Welfare Act provides that a court shall not impose on a child an order to pay a fine unless it has enquired into the offender's means and ability to pay. An order may be imposed on an offender having sufficient means if he/she is above the school leaving age (15 years). This sentencing option together with other alternative sentencing options are less likely to be applied by the courts to Aboriginals, and least of all by magistrates sitting in country towns. Under 5.36 (i) of the Child Welfare Act, a magistrate need not impose a detention order in default of payment of a fine by a child. Courts in Western Australia have a range of sentencing options for less serious offences. The options for child offenders, apart from fines, include bonds, community work orders, probation, parole and supervised periodic detention. At any time in Western Australia there are three times as many convicted persons serving out one of the non-custodial options as those serving custodial sentences.

A child defaulter ordered into detention is required by the Act to be detained in a Departmental custodial centre or other approved facility for the corresponding term of imprisonment fixed for the sentence. In remote country towns of Western Australia, where there are large Aboriginal populations, there are no such places of detention. The only custodial place available is the short-term lock up attached to the police station. Many defaulters serve out the commensurate sentence in these lock-ups.

Such unlawful detentions have been reported by the Aboriginal Legal Service to the Minister of Community Services. The Minister's response was to propose amending the Child Welfare Act to allow detentions in lock-ups for periods of up to seven days. This measure reflects the Government's financial constraints and its apprehension of the non-Aboriginal opposition that would be aroused, by the establishment of detention centres in country towns.

In East Perth at the time of writing (November, 1990) there is concerted local resistance to allowing the Aboriginal Medical Service to set up a hostel to accommodate eight persons coming from country areas who need to live in the city while they receive health care. The force of opposition from East Perth residents has been enough to dissuade the responsible authority from issuing the planning permission that the Medical Service would need to proceed with the hostel. This is a fair reflection of the local opposition that residential detention centres could be expected to produce, even if the Department could afford to build them.

The Ministerial stance on the detention of child offenders is reflective of the governments lack of interest in providing supportive mechanisms for Aboriginal offenders. Its stance fails to reflect any of the accepted theories of criminal punishment: deterrence, restitution, rehabilitation or a just retribution. The Government is unlikely, in the present climate of tight budgets, to establish detention centres in remote areas as an alternative to incarceration in police lock-ups.

References:

Broadhurst, RG and Mailer, RA (1990) "The Recidivism of Prisoners Released for the First Time" in Australian and New Zealand Journal of Criminology 23, 88-104.

Broadhurst, RG, Mailer RA, and Duffecy J (1988) "Aboriginal and Non-Aboriginal Recidivism in Western Australia: A Failure Rate Analysis" in Journal of Research Crime and Delinquency 25, 83-108

Acknowledgement:

The assistance of Ross A Mailer (University of Western Australia) in researching this article is gratefully acknowledged.