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Hall, Stephen --- "West Side Saga: Juvenile Justice in Western Australia" [1994] AboriginalLawB 30; (1994) 3(68) Aboriginal Law Bulletin 21


West Side Saga:

Juvenile Justice in Western Australia

by Stephen Hall

Introduction

‘Trailblazing’, ‘innovative’ and ‘precedent-setting’ are all terms used in funding submissions for youth projects and the like; more often than not they are used in a positive fashion, sometimes to enhance lacklustre proposals. Western Australia has been trailblazing and innovative with regards to juvenile justice and it certainly has been precedent setting; however we cannot claim it is all positive.

Western Australia is now over two years down the track from declaration of its infamous Crime (Serious and Repeat Offenders) Act 1992. While not wanting to go over old ground it is important to remember that that piece of legislation had a two year sunset clause. The coalition Government extended the sunset clause until June 8 to give itself time to draft new legislation. At the time of writing of this article the extended 1992 Act has lapsed, due to an oversight, and nothing has been put in its place.

The WA way

Carmen Lawrence (Premier in 1992) in the lead up to her recent move to Federal politics announced that the 1992 juvenile justice legislation had been a mistake.[1] This was a striking contrast to her adamant refusal to even make changes to the legislation after a parliamentary committee called on the Government to 'reconsider as the legislation was seen by it to be 'unworkable and unsustainable'.[2] In the by-election in Carmen Lawrence's State seat, the Premier, Richard Court, made law and order the key issue of the campaign in an attempt to divert attention away from local issues.

It should be noted that in March the Premier also backed calls for the death penalty to be reintroduced as a deterrent measure. Court also cites his envy for Singapore as the model law and order society. The Premier has invited former Singapore Prime Minister Lee Kwan Yew to WA to provide advice to the Government. This has even led to debate on the virtues of the Singapore method of beating with the ‘rattan’.

Earlier this year new legislative terms of bail came into force under which alleged offenders can no longer be released on their own recognisance, the rationale being that this would 'stop the revolving door syndrome'. There has, however, been a great deal of concern with its being mandatory[3] and a fear within the bureaucracy that it may not be able to accommodate all those refused bail, especially in the metropolitan area. This has led to suggestions that Longmore Remand will be used as an overflow facility for the new Rangeview facility at Murdoch. The antiquated and inadequate Longmore was due to close on the completion of Rangeview.

Giving young offenders the 'Boot'

The Attorney-General and Minister for Justice has announced military style 'Boot Camps', with a press release saying:

The creation of Military style camps would act as a punishment for criminal behaviour and also instil a sense of self discipline and control in young offenders...
The mix of strong discipline and hard work could just be what's needed to turn some of these offenders around and divert them from re-offending.[4]

While refusing to consult with local expertise, the Attorney General set off on a tour of similar camps in the US and Canada. With no detailed information available on these camps, the State Government has committed $1.8 million to them in this year's budget, with the Premier stating, “... a strict military-style facility would be used for young male offenders aged between 16 and 21”.[5] This ignores the principle of not incarcerating juvenile and adult offenders together.

At the same time, the Government ceased funding an Aboriginal alternative-to-custody program at Lake Jasper in the South West. This project, run by Aboriginal people for Aboriginal young people, looks at environmental restoration and cultural education in their camps. The Jasper project has been through some rough patches, however, with a Government talking about spending millions on 'Boot Camps', it is scandalous that the only alternative-to-custody program run by Aboriginal people has now been dumped.[6]

Police have initiated a de-facto curfew called 'Operation Sweep'; this was a deliberate campaign to clear the streets of inner city Perth and Fremantle of young people who were supposedly in moral danger. It was up to the experience and discretion of the individual officer to make a judgement as to what constituted moral danger and apply s138B of the Child Welfare Act 1947 (WA) which allows them to apprehend the child and 'forthwith take the child to its usual place of residence'.

Children seen out on the street after dark were picked up (some as early as eight o'clock) anc detained until their parents came to collect them. No questions were asked, and no charges required. Many children had parental permission to be out at night and many parents criticised the move; however, the businese community applauded the operation. Concern was also expressed that many children were told that they were in moral danger because they were hanging around with Aboriginal youth. Operation Sweep was suspended after a great deal of community criticism, and in particular when a prominent QC indicated that the police were acting unlawfully by not taking children forthwith to their usual place of residence but instead getting parents to pick them up. After a public meeting the Fremantle City Council asked the Police to discontinue the operation in Fremantle.[7] It has now been re-instigated in the Perth inner city area with a new name, 'Family Values', and with a police spokesperson making the outlandish claim that “[i]t is the Police's contribution to the year of the family”.[8]

The stated rationale and objectives for Operation Sweep have been in a rather fluid state,[9] so it is somewhat curious that the Police Minister can claim it is successful. The Ministerial Advisory Committee on Police Youth Relations has not been convened since the election of the coalition Government almost 18 months ago; nor has consideration of the Report from the Police/Youth Relations Taskforce[10] - a taskforce established by the previous Minister - been a high priority. Of more influence on the Government, it would seem, are the parting shots of a recently retired police superintendent, (the officer who, incidentally, authorised Operation Sweep) who claimed:

The youth industry in Australia is out of control and its impact upon the social fabric of this State and Australia has been profoundly evil.[11]

The extremely punitive law and order debate has overwhelmed any rational discussion on tackling underlying issues that contribute to juvenile crime. The prevailing view is that discipline, punishment and keeping young people off the streets will solve the problem. People at community meetings, particularly those in the bush, and some media commentators when speaking about juvenile crime are using it as a cloak to disguise racist attacks on Aboriginal people.[12]

The advocates of a tougher approach to juvenile offending have been motivated by a public perception of an increasing juvenile crime wave, which has been proved to be false. Despite beat-ups about 'crime waves' in the media (and suggestions of police-media collusion),[13] the Crime Research Centre has shown a downward trend in juvenile convictions for the period 1990-1992.[14]

Cautioning, introduced in August 1992 amid strong protests from the law and order lobby, appears to have had a drastic effect on court statistics. Cautions are given by the Police up to 3 or 4 times to young people who commit a range of minor offences. Ministry of Justice figures for 1992/93 show that 447C cautions were issued; these involved 707 Aboriginal youths (15.8%) compared to 3763 non-Aboriginal youths (84.2%).[15]

According to census figures, Aboriginal young people make up less than 4% of all WA youth and yet they comprised 20.4% of individuals brought before the court. Aboriginal offenders account for 56% of all young offenders sentenced to custody and frequently account for up to 70% of the daily muster in detention centres. The Aboriginal youth custody rate in WA was 33.5 per 1000 in 1992 compared with the national Aboriginal custody rate of 5.2 per 1000. Over-representation is reflected throughout the system in arrest rates, average length of stay in lock-ups and detentions in custody for drunkenness.[16]

Bureaucracy or ‘adhocracy’?

Approximately $1 million is spent on the Local Offender Program (LOP) which commenced in 1988. The program originally aimed to get government and community agencies to work together in developing services targeting offending youth in identified high juvenile crime districts or country towns. Many of these projects were preventative in approach and ethos, that being the basis of their success. Research showed that the country LOPs displayed a positive impact on offending rates in communities; this was much harder to measure in the metropolitan area. The program is again under review and it appears that juvenile justice bureaucrats are virtually taking over the running of local LOPS, thereby minimising active community participation and preventative work.

The trend is now toward more bureaucratic post-offending intervention, or diversion, with Juvenile justice Teams being an initiative that has bi-partisan support. Labor introduced two pilot programs in late 1992 and the Liberal Government supported their expansion. The teams comprise an officer of the juvenile Justice Division (the Co-ordinator), a Police Officer, an Officer from the Ministry of Education and an Aboriginal community representative. The teams receive a direct referral from the Police, who, instead of charging a juvenile for minor offences, will refer the offender to the team. Children's Courts may also refer minor matters to the teams, and would, if appropriate, dismiss the matter. The Courts and the Police are said to be very pleased with the pilots; nonetheless, concerns have arisen about the consistency of the outcomes [17]

Although largely peripheral to mainstream policing, Community Policing continues to be very active in WA, with Neighbourhood Watch being a central strategy. Mounted Police, Bicycle Police, Golf Buggy Police, Spy cameras, Constable Care, School-based Police, and more, all continue to operate in Perth. To coordinate these activities the Police Department has established an Office of Crime Prevention and a Community Policing arm of the Police force. This has all been very much the initiative of the now-retiring Commissioner of Police, Brian Bull, whose work has been constantly undermined by comments such as:

Police union general secretary Ric Stingemore said union doubts about Mr Bull's leadership and the Government's philosophy on law and order clearly signalled dissatisfaction with the present management.[18]

It remains to be seen whether his successor will maintain Community Policing initiatives as it seems there is already a concerted campaign within the WA Police Force to get the new Commissioner to dump it (on June 13, it was announced that Bob Falconer, a Victorian, was appointed to the position).

There has been a great deal of community concern about the rights of young people in Police custody, rights which do not exist in law at present.[19] A group of concerned people has been working actively on this issue and has recently circulated draft legislation to interested community groups;[20] it remains to be seen what response this initiative will receive from the 'powers that be'.

The Office of the Premier has established a Graffiti Taskforce to tackle graffiti. Graffiti clean-up gangs for convicted graffitists, legal graffiti murals, instant clean up services and graffiti watch are some of the activities of the Taskforce as well as maximum media coverage strategy for any graffiti-related event. Nevertheless, WA does not have a Minister responsible for Youth Affairs, nor does it have anybody, departmental or otherwise, working on a comprehensive or co-ordinated approach to youth policy issues. 'Adhocracy' would seem to be a fitting description of the WA Government's strategy.

Soon after the 1993 election the Attorney-General assured concerned citizens and relevant groups that the Government would consult widely prior to the drafting of new juvenile justice legislation. Apparently discussion papers were drafted and ready for circulation prior to the drafting stage, however, the Attorney-General intentionally excluded individuals and interested groups from receiving the papers, thereby shutting them, and a lot of expertise, out of the process. The Young Offenders Bill 1994 was introduced into Parliament on 12 May 1994. It is 125 pages long, and the Attorney-General requested comments by 26 May, a totally inadequate time-frame to allow for comprehensive responses to be prepared. Such actions suggest a deep mistrust and paranoia; they also make one question whether this Government is any better than its predecessor when it comes to being 'fair and open'.

The Young Offenders Bill 1994

Early papers have commented on this Bill from various perspectives[21] no doubt other more detailed critiques will follow. However, it appears the Bill is in breach of international conventions[22] and runs counter to recommendations of the Royal Commission into Aboriginal Deaths in Custody[23] despite the Government's own Task Force on Aboriginal Social Justice calling for "a continuing vigorous focus on implementation and monitoring of..." the recommendations.[24] A point of concern in relation to repeat offenders is the sentencing principle to be applied. While the court has discretion, it is required, when faced with a repeat offender, to give primary consideration to community protection ahead of other sentencing principles. This is a shift from the traditionally accepted position that imprisonment of a child should be used only as a matter of last resort and that the best interests of the child should be a primary consideration. The Crime (Serious and Repeat Offenders) Act 1992 (WA) talked about balancing rehabilitation on the one hand with protection of the community on the other. Now the emphasis has shifted completely to the latter.[25]

Conclusion

During the first half of 1994 we have seen a great deal of change in the WA juvenile justice arena. Time, and the wisdom of hindsight will eventually tell us whether all this activity has been in the best interests of young people and the wider community.


[1] West Australian, 9 March 1994, p7.

[2] Ibid, 9 July 1993, p5, and see Kelly, G., et al, First [and Second] Report[s] on the Crime (Serious and Repeat Offenders) Act 1992, Standing Committee on Legislation, May 1992.

[3]Youth Legal Service, Amendment to Bad Act, Background Paper,31August 1993.

[4] Government Media Release, 14 March 1994.

[5] West Australian, 10 June 1994, pl1.

[6] West Australian, 26 March 1994, p4.

[7]West Australian, 24 April 1994, p15.

[8] News Chronicle, 25 May 1994, p1.

[9] McDougall, J., Honourable Intentions- the Police and Young People in the inner city, unpublished paper presented at the Inner City Planning for Young People in 1994' FIG Forum, May 24,1994.

[10] Brennan, B., et at., Report of the Police/Youth Relations Task Force to The Minister for Police & The Commissioner of Police, December 1992.

[11] West Australian, 10 June 1994, p3.

[12] Mickler, S,. Gambling on the First Race: a comment on Racism and Talk-Back Radio, Louis St John Johnson Memorial Trust, May 1992.

[13] Sercombe, H., "Crime Waves: Crap or Crisis" YACWA News Bulletin, 1989, also published in Vol.10 No.2, pp11-15, Youth Studies Australia,1991.

[14] Harding, R., et al, Repeat Juvenile Offenders: The Failure Of Selective Incapacitation In Western Australia, Crime Research Centre, November 1993.

[15] Boyle, S., "The Wild Wild West", AIC Youth Crime Prevention Conference, 1994.

[16] Ibid

[17] See the Young Offenders Bill 1994, Western Australian Government, and Boyle, S., Young Offenders Bill 1994 Cmmnents frorn pie Aboriginal Legal Service of WA, June 1994.

[18] West Australian, June 14 1994, pl.

[19] Owen J. N., et al., Report on Police Questioning of Juveniles, State Government Advisory Committee On Young Offenders, November 1992.

[20] Fremantle Community Justice Group, Rights In Custody Legislation, 19 May 1994.

[21] See Tan, C., "An Overview of the Young Offenders Bill 1994", unpublished paper presented at Juvenile Justin Two Years Down The Track Where Are We Heading? Community Forum, May 30 1994; Wilkie, M., "Initial Comments on Young Offenders Bill 1994", unpublished paper, May 15, 1994; and Boyle, S., Young Offenders 881, op cit.

[22] Wilkie, M., up cit.

[23] Boyle, S., Young Offenders 901, op cit.

[24] Daube, M., et al., Task Force on Aboriginal Social Justice, Vols.1 & 2, Government of Western Australia, April 1994.

[25] Tan, C, op cit., fn21.


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