Current Issues in Criminal Justice
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Current Issues in Criminal Justice |
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Chris Cunneen[1]
Abstract
While there have been some progressive changes in Australian juvenile justice in recent years including developments in youth justice conferencing, more consistent and widely available diversionary options, and a longer term decline in juvenile incarceration rates, these changes have not tended to affect the contact of Indigenous young people with the justice system. The paper analyses why more punitive approaches to law and order (such as a greater reliance on custodial remand) and a greater bifurcation between less serious offenders and repeat offenders is having a particularly negative impact on Indigenous youth. It concludes with a consideration of some of the more promising developments concerning Indigenous young people in youth justice.
As noted elsewhere, the last decade has seen heightened public concern and moral panics about ethnic minority youth; the imposition of mandatory sentences on juvenile offenders; the adoption of zero tolerance policing (especially in public spaces) and the significant extension of police powers; persistent over-representation of Indigenous young people within the juvenile justice system; and intensification of intervention in the lives of young offenders and non-offenders alike (Cunneen & White 2006:96). However, greater attention is also now focused on a human rights perspective to evaluate the operation of the juvenile justice system. Meanwhile, the increasing popularity of ‘restorative justice’, with an emphasis on repairing social harm, has served as an important counterweight to traditional retributive methods that emphasise punishment. In fact, youth incarceration rates in Australia have generally remained steady (and in some jurisdictions declined). Thus the impact of more punitive law and order policies has not been uniformly felt across the juvenile justice sector. The concern here is why the more positive developments in juvenile justice appear to be bypassing Indigenous young people.
The public visibility of young people has long rendered them prone to surveillance by state police and, increasingly, private police. The visibility of young people in public spaces can be perceived as unsettling and problematic. This is exacerbated when fears of young people are also racialised – that is when certain types of young people are seen as particularly threatening by virtue of their racial, religious or ethnic backgrounds. Underpinning this is the specific history of Indigenous-police relations in Australia and its long term impacts (Cunneen 2001).
The general trend around Australia has been for police services to be granted extensive new powers vis-a-vis young people. These range from casual use of ‘name-checks’ (asking young people their names and addresses), ‘move-on’ powers (the right to ask young people to move away from certain areas) and search powers for prohibited implements (such as knives or scissors), through to the enhanced ability to take fingerprints and bodily samples of alleged young offenders. For specific examples of these new legislative powers, see Cunneen and White (2006:99). In general new legislation expanding police powers respond to a number of well-trodden themes within law and order politics including youth gangs, drugs, sex offences and the use of public space.
Police have been provided with increased powers to remove children from public places under certain circumstances, and to hold parents ‘responsible’ for the actions of their children. An example of this type of legislation is the Children (Protection and Parental Responsibility) Act 1997 (NSW). In relation to ‘parental responsibility’, the Act provides the power to require parents or guardians to attend court in matters involving their children; it allows the court to obtain undertakings from the parent in relation to their children’s behaviour and creates an offence of ‘wilful default’ where parents are found to have contributed to their child’s offence.
The Children (Protection and Parental Responsibility) Act 1997 also increases police powers in public places. Police can remove unaccompanied young people under the age of 16 years from public places if they are considered to be ‘at risk’ (that is, in danger of harm or abuse, or about to commit an offence). The new police powers do not apply across the whole State, rather a local government authority must apply to become ‘operational’ under the legislation. This allows for differential application of the legislation, depending where people live.
The New South Wales Aboriginal Justice Advisory Council (AJAC) undertook research on the use of the ‘removal’ powers of the legislation in Ballina and Moree. In Ballina the removal power was infrequently used by police. However, in Moree, where Indigenous young people make-up somewhere between 30 and 40 per cent of the youth population, the legislation was used far more frequently. Some 95 per cent of young people removed from public places were Indigenous. AJAC concluded:
The Act has sanctioned widespread police over-surveillance and control of young people. Young people have been incorrectly told there are curfews in place and that areas of the town are ‘no go’ zones. The Act has significantly changed behaviour patterns of young people and limited their freedoms to move around town (AJAC 1999:1).
The ‘Northbridge Curfew’ in Perth is another example of this type of differential policing which impacts disproportionately on Indigenous youth. The Western Australian Law Reform Commission found that:
While ostensibly the Northbridge curfew applies to all children, statistics show that the majority of children dealt with pursuant to the curfew are Aboriginal. For example, 88 per cent of children dealt with by police in 2004 were Aboriginal (Law Reform Commission of Western Australia 2006:210).
The policy on a curfew in the Northbridge entertainment area in Perth came into force in 2003 and relied on police powers already available under s138B of the Western Australian Child Welfare Act 1947. The legislation authorises a police officer to apprehend an unsupervised child who is away from their usual place of residence, if the police officer believes the child to be in physical or moral danger, misbehaving or truanting from school. The Young People in Northbridge Policy prevents young people from being in the area unsupervised during particular hours: children under the age of 12 are prohibited after dark; children between 13 years and 15 years of age after 10pm. Children 15 to 18 years of age may be apprehended at any time if their anti-social, offending or health compromising behaviour places them or others at risk of harm (Law Reform Commission of Western Australia 2006:210). Almost nine in every 10 children removed under the curfew policy were Indigenous.
Differential policing of Indigenous young people can also be seen in the way search powers are used. For example, the Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW) provides police with the power to search for prohibited implements (such as knives and scissors). Search powers of juveniles are used more frequently in Aboriginal communities. In Bourke and Brewarrina nearly 90 per cent, and in Moree 95 per cent of searches were ‘unsuccessful’ in the sense that the young person was not carrying a prohibited implement at the time of the search (Chan & Cunneen 2000:39).
Similarly, the use of offensive language and offensive behaviour offences is generally highly targeted, and socially patterned. That is, some groups of people are charged more than others, and this is reflected in overall distributions of charges. Data show that Indigenous people account for 15 times as many offensive language offences as would be expected by their population in the community (Brown et al 2001). The effect of this differential policing of Indigenous youth in public places is to exacerbate resentment against police, to undermine notions of policing by consent and to deny a sense of legitimacy to criminal justice institutions.
Police have considerable discretion to issue warnings and cautions to young people. When police suspect a young person of committing an offence, they have the option to warn the young person about their behaviour and take no further action. The use of a warning, by its nature, is a discretion which is largely unregulated and unsupervised. For example, s14 of the Young Offenders Act 1997 (NSW) allows that a young person can be dealt with by way of a warning for minor summary offences which do not involve violence. There is no systematic research on the use of warnings for Indigenous young people. However, evidence which shows that Indigenous young people are over-represented before the courts for offences such as offensive language strongly suggests that warnings are not being used as extensively as envisaged (Bargen 2000:18).
Police have the power to issue a formal caution against a young person as an alternative to charging them with a criminal offence. The caution is a formal recorded warning to the young person about their criminal behaviour. If a caution is issued the young person is not prosecuted and the matter does not proceed to court. There are various conditions that affect whether a caution can be issued. For example, there is a requirement that a young person admit the offence. In some jurisdictions young people with prior convictions are ineligible for a caution. Certain offences may also be excluded from cautioning such as serious indictable offences. Some legislation also establishes criteria: s31 of the New South Wales Young Offenders Act (1997) refers to the seriousness of the offence, the level of violence involved, the degree of harm caused and the offending history of the child as being important considerations to be taken into account when police are deciding to issue a caution.
Various studies over the last decade or so have found that Aboriginal young people do not receive the benefit of a police caution to the same extent as non-Aboriginal youth. For example, Luke and Cunneen’s (1995) study in New South Wales found that some 5.7 per cent of Aboriginal young people were cautioned compared to 12.9 per cent of non-Aboriginal young people. Differential treatment was particularly evident in country areas where two thirds of Aboriginal interventions occur. Even when young people had no prior record of either court appearance or caution, it was still found that Aboriginal first offenders had a greater chance of being prosecuted by police and thus a lower chance of receiving a police caution than non-Aboriginal youth (Luke & Cunneen 1995:19-21). For example, Aboriginal girls with no prior record were less than half as likely as non-Aboriginal girls to receive a police caution (14 per cent compared to 30 per cent). This pattern of differential treatment was maintained when the offence type was held constant. For example, 15.5 per cent of Aboriginal female first offenders apprehended for minor theft were cautioned, compared to 36.8 per cent of non-Aboriginal females apprehended for the same offence (Luke & Cunneen 1995:78).
More recent research in New South Wales since the introduction of the Young Offenders Act 1997 shows that Indigenous young people are still less likely to receive a police caution than non-Indigenous youth (Chan et al 2002; Cunneen & Luke 2006). There is also evidence in other States that confirms that Indigenous young people are often only half as likely as a non-Indigenous youth to receive a diversionary option of a police caution (for further discussion of this research, see NISATSIC 1997:513-516; Cunneen & White 2007:155-156). There are two interconnected issues that arise. First, the failure to use cautions has the effect of entrenching Indigenous young people in the more punitive parts of the juvenile justice system. Secondly, it appears that cautioning can be an effective intervention given that the majority of young people cautioned at the beginning of their contact with juvenile justice agencies do not go on to have further contact the juvenile justice system (Dennison et al 2006:6).
The courts are beginning to recognise the longer term effect of a failure to use diversionary options at an early stage of criminal offending. In WO (A Child) v The State of Western Australia the Western Australian Court of Criminal Appeal took into account the lower rate of referral to diversionary juvenile justice options for Aboriginal children. It was held that a court must be careful to ensure that the cumulative effect of previous decisions are taken into account and that details of any past offending are closely examined when making decisions based in part upon the offender’s criminal record (Law Reform Commission of Western Australia 2006:172).
If police decide not to caution or use other diversionary processes like a youth justice conference, then the young person will be brought before the court to face criminal prosecution. This can be achieved either through arrest, custody and the determination of bail, or through the issue of a court attendance notice (also referred to as ‘summons’ or ‘notice to appear’). The use of a court attendance notice is a less punitive way of bringing a young person before the courts on a criminal charge. Unlike proceeding by way of arrest, the use of a court attendance notice does not involve being detained or having bail determined. Children’s Courts are more likely to impose custodial sentences on young people brought before them by way of arrest than on the basis of a court attendance notice, because the process itself influences the court’s view of the seriousness of the matter and the nature of the offender.
In many States, the evidence shows Aboriginal young people are more likely to be proceeded against by way of arrest and bail, and to be held in police custody, and less likely to be issued with a court attendance notice than non-Aboriginal youth.
• In South Australia in 2005, 69 per cent of Aboriginal youth were brought into the juvenile justice system by way of arrest, compared to 44 per cent of non-Aboriginal youth (Office of Crime Statistics and Research 2006:19).
• In Western Australia in 2004, a higher proportion of non-Aboriginal youth (31.5 per cent) were proceeded against by way of summons compared to Aboriginal young people (20.5 per cent). Conversely, a greater proportion of Aboriginal youth were arrested (Ferrante et al 2005:46).
• In New South Wales in 2004, 45.7 per cent of Aboriginal young people were proceeded against by way of arrest compared to 17.1 per cent of non-Aboriginal youth (see also Figure 1) (Cunneen & Luke 2006:63).
• In Queensland in 2004, 37 per cent of Indigenous young people were proceeded against by way of arrest compared to 19 per cent of non-Indigenous youth (Cunneen 2005:46).
The evidence is very clear: throughout Australia, Aboriginal young people do not have the same benefits of less intrusive criminal justice processes. The one positive point to note is that in some jurisdictions, like New South Wales and Queensland, there has been a general move over recent years to use attendance notices instead of arrest. However, the trend has not been universal. In South Australia, the practice of arresting juveniles instead of using other methods has been on the increase over the last decade rising from 27 per cent to 46 per cent of interventions (Office of Crime Statistics and Research 2006:18).
Because Aboriginal young people are more likely to be proceeded against by way of arrest, they are more likely to face a bail determination. Two issues are important: first, whether bail will be refused and the young person held in custody, and second, if bail is granted, which conditions, if any, will be attached. In the first instance, Indigenous young people are more likely than non-Indigenous young people to be refused bail by police. For further discussion see Cunneen and White (2007:157-158).
The second issue of importance concerning bail is the nature of the conditions that are imposed when bail is granted. Dating back to the late 1980s and early 1990s, the Royal Commission into Aboriginal Deaths in Custody was particularly concerned with ‘unreal conditions’ that are imposed and then regularly broken. The result is that young people are recycled through the courts. Onerous and oppressive bail conditions may include curfews and residential requirements amounting to banishment. Such conditions place enormous pressures on the young person and their family, and in the end may simply set up the young person for failure and further intervention.
There may also be specific requirements to meeting bail which disadvantage Indigenous young people. The Law Reform Commission of Western Australia (2006:163) noted that the Bail Act requires that a child under the age of 17 can only be released on bail if a responsible person signs an undertaking. This requirement may be difficult to meet with Aboriginal children arrested some distance from their homes and with family members unable to attend.
Changes to Bail Legislation
Over the last decade, there has been a growing tendency to limit the presumption in favour of bail for repeat offenders, and this impacts negatively on Indigenous young people. For example, in New South Wales the following legislation has been introduced.
• The Bail Amendment (Repeat Offenders) Act 2002 removed the presumption in favour of bail for a very wide range of people: anyone on a bond or order who re-offends, anyone who has previously failed to appear, or has previously, been convicted of an indictable offence.
• The Justice Legislation Amendment (Non-association and Place Restriction) Act 2001 allows a court to make a ‘non-association order’, prohibiting the offender from associating with specified person(s). The court may also make a ‘place restriction order’, prohibiting the offender from visiting a specified place or district.
• The Law Enforcement Legislation Amendment (Public Safety) Act 2005 came into effect in December 2005. The legislation removes the presumption in favour of bail for certain public order offences.
The Justice Legislation Amendment (Non-Association and Place Restriction) Act 2001 provides the power to prohibit or restrict a person from associating with other specified people (including communicating by any means), and to prohibit or restrict a person from frequenting or visiting a specified place or district. These orders can relate to bail conditions, parole conditions, conditions of leave, home detention and the sentencing for any offence punishable by a penalty of six months imprisonment or more. The order is in addition to any other penalty that might be imposed. The orders can be used with children and adults.
The Justice Legislation Amendment (Non-Association and Place Restriction) Act was introduced as an ‘anti-gang’ measure, but in reality does little or nothing to break-up criminal gangs. Instead, it is used mainly against young people who are alleged to have committed minor public order, property and drug offences. Ironically, most of the offences to which non-association and place restriction orders have been attached appeared not to have been committed in groups, let alone being gang-related.
It is also clear that there has been a much more punitive attitude towards refusing young people bail and detaining them in custody. Indigenous youth are more likely to have a prior offending history, to have had contact with police at an earlier age than non-Indigenous youth, and to be arrested for public order offences. In other words, they are more likely to fall into the category of those without a presumption in favour of bail, and are disadvantaged by legislation such as the Bail Amendment (Repeat Offenders) Act 2002.
These changes have had a significant impact on the detention of Indigenous young people. For example, in New South Wales between 2000 and mid-2005, the proportion of Indigenous young people on remand has risen from around 30 per cent to around 50 per cent of all remands in custody over the period (Cunneen & Luke 2006:127). In Queensland in 2003-04, 84 per cent of all admissions to detention that involved Indigenous young people were as a result of being remanded in custody. For the period 2000-01 to 2003-04, only 16 per cent of Indigenous young people remanded in custody were subsequently sentenced to detention (Cunneen 2005:79).
Thus the growing number of Indigenous young people held in custodial detention as a result of being denied or unable to meet bail is a major reason for detention. It is easily as significant an issue as the actual sentencing of Indigenous young people to detention after trial.
Youth justice conferencing has developed as a significant option for diversion of young people from the courts over the last decade. Conferences are intended to bring together young offenders and their support persons with the victim and their supporters to develop a sense of responsibility on the part of the offender for the offence. They are also intended to reach a mutually agreeable resolution (often referred to as an ‘outcome plan’) for the harm that has been caused by the offence and to reintegrate the offender back into the community. A successful conference is an alternative to a Children’s Court appearance. Referral to a conference can be made by police, and in some jurisdictions also by the Director of Public Prosecutions and the Children’s Court.
Various conferencing schemes exist in all Australian jurisdictions, although there are important differences between States and Territories around eligibility criteria, referral processes and other procedures. In many jurisdictions conferencing is established within specific legislation (for example, the relevant Young Offenders Acts in New South Wales, South Australia and Western Australia). Because conferencing has emerged as a major diversionary scheme for young people, it is important to consider whether the process has been successful in providing Indigenous young people with an effective diversionary alternative. The answer to this question is mixed:
• In some jurisdictions police referrals to conferences have been declining in recent years. For example, police referrals of young people generally fell by 21 per cent in Western Australia in 2004 (Ferrante et al 2005:vii). In New South Wales, the proportion of police interventions resulting in a referral to a conference fell for both Indigenous and non-Indigenous young people between 2000 and 2004 (Cunneen & Luke 2006:63). In South Australia, referrals have declined slightly since 2002 (Office of Crime Statistics and Research 2005:26).
• There have been questions about the level of consultation with Indigenous people and Indigenous organisations in the establishment and operation of conferencing programs.
• There is the problem of referral: who makes decisions about referring a young person to a conference? How important is a prior record in determining whether a young person is eligible for a conference? Which offences are included and excluded from the conferencing program?
• The general rule appears to be that the greater the police control of the referral process, the less likely Indigenous young people will benefit from the program, and the less likely will be the opportunity for Aboriginal communities to have a direct role in the decision-making processes around the conference.
• Issues may arise as to the cultural appropriateness of the conference format; the level of participation and satisfaction of Aboriginal people regarding the conference process; and the likelihood of successful completion of conference plans (see Cunneen & White 2007:158-160 for supporting references and further discussion).
Evidence is mixed on compliance with conferencing ‘orders’ or ‘outcome plans’. In Queensland, it suggests no difference in breach rates for Indigenous young offenders for failing to complete conferencing plans (Cunneen 2005:64). In South Australia Aboriginal youth were less likely to have a ‘successful’ conference than non-Aboriginal youth (18.4 per cent were unsuccessful compared to 10.8 per cent for non-Indigenous youth). The main reason was that Indigenous young offenders were less likely to attend the conference as required (Office of Crime Statistics and Research 2006:5).
There appears to be no less satisfaction with the conferencing process by either Indigenous offenders or victims (Cunneen 2005:64; Trimboli 2000). Perhaps most importantly, research demonstrates that conferencing is more successful in reducing re-offending than the courts for both Indigenous and non-Indigenous participants (Luke & Lind 2002), although the impact is likely to be greatest among those with lower risks of re-offending (Hayes & Daly 2004).
The graph summarises the basic problem in relation to diversion of Indigenous young people. At the most punitive end of decision-making, Indigenous young people are most likely to be dealt with by way of arrest and charge, while at the least punitive end of decision-making non-Indigenous young people are more likely to be dealt with by way of a warning. Referrals to conferencing are not used frequently by police for either group of young people.
Note: CAN = Court
Note: CAN = Attendance Notice; Infring = Infringement.
Source: Cunneen and Luke (2006:63).
In summary some 20.5 per cent of Indigenous offenders were given a warning by police, compared to 36.8 per cent of non-Indigenous offenders. Conversely, 45.1 per cent of Indigenous offenders were proceeded against by way of arrest, charge and bail, compared to 16.9 per cent of non-Indigenous offenders.
There have been some small changes in the provision for direct involvement of Indigenous people or Indigenous organisations in the administration and decision-making of juvenile justice. For example, in some jurisdictions there is the possibility that Aboriginal elders can be involved in the issuing of police cautions to young offenders. The Juvenile Justice Act 1992 (Qld) provides that cautions can be delivered by a respected person from the Aboriginal and Torres Strait Islander community. However, it is difficult to ascertain how frequently this occurs in practice – there is no evidence or research on the frequency or outcomes of this approach.
Some provisions also exist in legislation requiring that youth justice conferences be ‘culturally appropriate’. According to the New South Wales Young Offenders Act 1997, measures for dealing with children are to be culturally appropriate ‘wherever possible’ and the sanctions imposed are to ‘take into account the gender, race and sexuality’ of the child (s34(1)(a)(v) and s34(1)(c)(iv)). The administrator of conferences, when choosing a convenor to run the conference, needs to consider whether it is possible to match the young person with a convenor from the same cultural background. Section 30(2)(c)(v) of the Tasmanian Youth Justice Act 1997 provides that when conferences are held which involve Indigenous youth, an elder or other representative of the young person’s community must be invited.
The South Australian Young Offenders Act 1993 lists in s3(2) a number of statutory policies. Subsection (e) provides for the proper regard of a youth’s sense of racial, ethnic or cultural identity. However, there are no specific requirements in relation to either police cautions or conferencing for culturally appropriate Indigenous participation. The Western Australian Young Offenders Act 1994 requires that, when the person being dealt with is a ‘member of an ethnic or other minority group’, the conference team should include a person nominated by members of an ethnic or minority group, ‘where practicable’.
These requirements pose several problems. In the first instance there is no research or data available to know how frequently these provisions are adhered to. Secondly, what does ‘culturally appropriate’ mean? Who will decide what it is, when it is possible, and what processes will guarantee its implementation? Finally, there is no provision for Indigenous organisations and communities to make these decisions nor decisions about the best interests of their children – a point I will return to at the end of this article.
As noted elsewhere, one of the most far-reaching changes in theory and practice in relation to juvenile justice has been an increased emphasis on the prediction of risk. Various concepts of risk (‘risk factors’, ‘risk assessment’, ‘risk prediction’) permeate juvenile justice systems in Australia. Categorisations of ‘risk’ play an important role in determining process and outcomes. One’s passage into, through and out of the juvenile justice system is determined by the classification of risk – that is, by the assumed probability of future behavioural patterns (Cunneen & White 2006). The importance of risk for the current discussion is that generally speaking Indigenous young people do not fare well within regimes that determine movements and outcomes on the basis of risk.
Risk prediction is also part of a general trend that fails to consider the specific needs of young people (see McAlister this issue). Through much of the 20th century, young people were seen to require special protections in the criminal justice system. There was a special emphasis on rehabilitation for young people particularly through the use of diversion and non-custodial options. With the emphasis on recidivism as a predictor of risk there is often no distinction between adult and juvenile offenders, distinctions are made purely on the frequency of offending. As a result we increasingly treat young people the same as adults.
There are at least four different ways that the concept and measurement of ‘risk’ is used in juvenile justice:
• as a generic measure for activating legal intervention (for example, removal of presumption in favour of bail, ‘three-strikes’ mandatory imprisonment),
• in the context of risk and protective factors associated with offending behaviour,
• as an assessment tool for access to programmes for young people under supervision or serving a custodial sentence, and
• as a classification tool for young people in custody to determine their security ratings (Cunneen & White 2006).
The relationship between risk and bail is a good example of how Indigenous youth lose out in generic measures of risk based on previous offending. Falling into a high risk category for re-offending allows for the suspension of the right to bail and the presumption of innocence. Predicting the likelihood of re-offending determines access to what were once seen as fundamental rights and protections of the system. The offending histories of Indigenous young people place them outside these protections and redefine them as a group that society needs protection from and therefore justifies their pre-trial detention.
The analysis of risk and protective factors associated with juvenile offending behaviour is an attempt to explain pathways into the juvenile justice system by identifying factors associated with offending and non-offending behaviour. One of the problems of this approach in relation to understanding the relationship between Indigenous young people and juvenile justice is that the approach tends to focus on simple multi-factoral analysis which lists protective and risk factors found to be statistically associated with offending behaviour. There is a tendency to ignore the generative social processes that give rise to and exacerbate particular ‘risk factors’. This point is particularly important when considering Indigenous youth where the longer term effects of colonial policy, institutionalised discrimination and contemporary racism have led to social and economic outcomes of profound inequality.
Much of the ‘risk’ literature ignores the historical, political and economic context within which social life occurs, and is mainly concerned with individual and family failure. Thus we consistently see ‘risk factors’ such as absent father, large family, long term parental unemployment, etc. (Developmental Crime Prevention Consortium 1999:136). Too often we are left with the picture of children from a middle class nuclear family of the dominant culture who own their own home as quintessentially law abiding, and all those who do not fit this stereotype as potentially delinquent. Such images of normality and delinquency reconstruct the majority of Indigenous families and youth as delinquent or delinquent prone. A further difficulty with the ‘risk and protective factor’ model is the assumption that juvenile offending can be divorced from the operation and processes of criminalisation. For Indigenous young people this seems like an absurd assumption given the long term interventions of police and the state more generally into Indigenous family and community life (Cunneen 2001).
Risk assessment tools also reflect similar problems to those identified above. In Australia, a Canadian risk assessment tool has been imported and adapted as the Youth Level Service Case Management Inventory – Australian Adaptation (YSL/CMI-AA). In 2002 it became mandatory in New South Wales for all young people either on a control order or community-based supervision order to be assessed to determine their risk of recidivism and level of intervention (Priday 2005:4). The tool is presented as objective and scientific in its approach to classification. However, the assessments often require subjective values. For example, the YSL/CMI-AA asks, ‘could the young person make better use of their time?’ As Priday (2005:6) notes, the question implies that young people who are out-of-school, unemployed and not participating in formal recreational activities are not making ‘correct’ use of their time. A range of questions (for which points are allocated on a risk scale) require subjective assessments including family relationships, ‘normal’ parental supervision, lifestyle and living conditions.
There is a strong focus on individual factors to predict risk, and the prediction of future behaviour is heavily weighted by past behaviour. Factors such as age of first court order, prior offending history, failure to comply with court orders, and current offences (particularly those involving house burglary, assault or car theft) are all used to predict risk of future offending. A range of socio-economic factors are also connected to risk including education (such as ‘problematic’ schooling and truancy) and unemployment. Risk assessment represents the ascendancy of ‘individualised’ models of youth offending - the tools substitute individual histories for the historical dynamics of societies. They reinterpret certain characteristics as representing the failings of individuals rather than the outcomes of inequality, discrimination and the absence of opportunity.
When the impact of risk assessment on Indigenous youth is considered the full cultural and class prejudices, and the political and historical vacuum created by these tools become transparent. For Indigenous people who have lived under racist regimes, the greatest ‘risk’ may be the institutions of the state itself. In Australia the systematic and forced removal of Indigenous children from their families by the state has proved to be the greatest ‘risk’ to the well-being of Indigenous children, young people and their families throughout much of the 20th century (NISATSIC 1997).
A recent Australian study of recidivism using a risk analysis framework found the following:
Over time, the probability of those juveniles on supervised orders in 1994-95 who are subject to multiple risk factors (eg, male, Indigenous, care and protection order) progressing to the adult corrections system will closely approach 100 per cent (Lynch et al 2003).
This quote shows the individualising logic of risk assessment: a person’s gender and their cultural identity becomes reduced to a ‘risk factor’. The approach abandons any sense of a cultural, historical or political context to personal identity. In this case it reproduces Aboriginality as criminal, as a site of probability, as a site that requires intense governance and intervention.
Given the issues identified in the earlier sections of this article, it is perhaps not surprising that Indigenous young people continue to be over-represented in juvenile detention facilities. As a long term trend the level of over-representation has steadily worsened over the last decade or so, even at a time when juvenile incarceration rates seemed to be falling (Cunneen & White 2007:278).
As shown below, on 30 June 2005 there were 605 young people aged 10-17 in detention in Australia, of these 52.4 per cent (317) were Indigenous youth.
|
Indigenous Young People Aged 10-17 years
in Detention Centres in Australia as at 30 June 2005
|
|||||
|
State
|
Indigenous
No
|
Non-Indigenous
No
|
Indigenous
Rate(1)
|
Non-Indigenous
Rate(1)
|
Or(2)
|
|
NSW
|
112
|
105
|
364.6
|
15.1
|
24.1
|
|
VIC
|
20
|
43
|
303.8
|
8.1
|
37.4
|
|
QLD
|
54
|
44
|
188.1
|
10.4
|
18.1
|
|
WA
|
79
|
27
|
555.3
|
12.6
|
44.1
|
|
SA
|
26
|
33
|
470.6
|
21.1
|
22.3
|
|
TAS
|
8
|
27
|
205.9
|
52.7
|
3.9
|
|
NT
|
15
|
2
|
136.6
|
13.8
|
9.9
|
|
ACT
|
3
|
7
|
352.9
|
20.4
|
17.3
|
|
Australia
|
317
|
288
|
312.3
|
13.6
|
23.0
|
(1) Rate per 100,000 of the respective juvenile populations
(2) Over-representation measured by Indigenous rate per 100,000 by non-Indigenous rate.
Source: Adapted from Taylor (2006:17-23).
The majority of young people incarcerated in New South Wales, Northern Territory, Western Australia and Queensland are Indigenous. New South Wales has the greatest number of Indigenous young people in detention centres (112); the highest rate Indigenous youth incarceration is in Western Australia (555.3 per 100,000).
In every jurisdiction in Australia the rate of incarceration for Indigenous youth is much higher than the non-Indigenous rate. The level of over-representation is greatest in Western Australia where an Indigenous young person is 44 times more likely to be in a detention centre than a non-Indigenous youth. Nationally, Indigenous young people are 23 times more likely to be incarcerated than non-Indigenous youth.
A further troubling aspect of the incarceration of Indigenous young people is that they tend to be found in the areas of detention centres that are highest security and most akin to adult imprisonment. For example in New South Wales, the Kariong Juvenile Correctional Centre is operated by the adult Department of Corrective Services. It holds between 30 and 40 young people who have been moved there either because they are a ‘management problem’ for other juvenile justice detention centres or because of the seriousness of the offence for which they were sentenced. Evidence from departmental sources indicates that approximately half the inmates are Indigenous youth and nearly all of this group have been placed there because of management issues.
Over the last decade there have been new developments in establishing ‘Indigenous courts’ allowing greater Indigenous input into the sentencing process. Circle sentencing originated in Canada, based on Aboriginal dispute-resolution mechanisms. A key difference between sentencing circles and youth conferencing is that circles allow for input beyond the victim and offender to include community representatives more directly. They are also later in the criminal justice process – occurring at the point of sentencing. Sentencing circles have been operating in parts of Canada since the early 1990s. Circle sentencing courts have been operating in New South Wales over the last decade.
In addition, Aboriginal courts (Koori Courts, Murri Courts and Nunga Courts) have been established for both adult and juvenile offenders in Victoria, Queensland and South Australia over the last 10 years. The courts typically involve one or more Aboriginal elders sitting on the bench with a magistrate. The elders can provide advice to the magistrate on the offender to be sentenced and about cultural and community issues. Offenders might receive customary punishments or community service orders as an alternative to prison. Aboriginal Courts may sit on a specific day designated to sentence Aboriginal offenders who have pleaded guilty to an offence. The court setting may be different to the traditional sittings. The offender may have a relative present at the sitting, with the offender, his/her relative and the offender’s lawyer sitting at the bar table. The magistrate may ask questions of the offender, the victim (if present) and members of the family and community in assisting with sentencing options (see Harris 2004; Marchetti & Daly 2004; and Cunneen 2005).
As an example, the Brisbane Youth Murri Court sits once a month. Eligibility for the Youth Murri Court is that the offence is one within the jurisdiction of the children’s court, and that the young person requests the matter to be determined by the Murri Court. There are usually two (and sometimes three) elders who sit with the magistrate. The young person’s family also have the opportunity to speak to the magistrate and the elders. The Murri Court appears to have a positive impact on the young people who appear before it. Tony Pascoe, the magistrate at the Brisbane Children’s Court, has stated:
The [Youth] Murri Court sessions are intense, emotional occasions with a greater involvement of all parties. I can say that since the Youth Murri Court has been held that there has been a reduction in the number of serious offences committed by young Indigenous persons. There may be a number of reasons for this but I like to think that the Youth Murri Court, by involving the wider community in the concern for the futures of young Aboriginal and Torres Strait Islander people, has in some way contributed to this result (Pascoe 2005:7).
One of the conclusions that can be drawn from this article is that there is a greater bifurcation in criminal justice responses to those who are classified as repeat offenders and those who are not. In the Australian context such a bifurcation has specific discriminatory impacts on Aboriginal youth because they have a greater likelihood of a previous offending history, and a greater likelihood of failing to appear in court. The data suggests that over half non-Aboriginal young people appearing in court in Australia in any one year have no previous criminal record. By way of contrast 70 per cent of Aboriginal young people have at least one prior proven court appearance (Luke & Cunneen 1995:14-15). Any regime that treats repeat offenders more harshly will adversely impact on Aboriginal youth.
Now that the Australian Federal Parliament has apologised to Indigenous people for the wrongs incurred through the policies of forced removal of children, it is worth considering what the National Inquiry into the Forced Removal of Aboriginal and Torres Strait Islander Children (NISATSIC 1997) recommended in relation to juvenile justice issues. The recommendations called for sweeping changes to the way juvenile justice agencies interact with Indigenous communities.
The Inquiry found that existing systems had failed to solve the issues relating to contemporary juvenile justice and child welfare matters. This failure was reflected in the inability of States to reduce the number of Indigenous children placed in care, held in police cells and sentenced to detention centres. The Inquiry argued for a new framework which would respect the right to self-determination for Indigenous people and comply with other international obligations for the treatment of children and young people. It advocated a two tiered approach with recommendations for national framework legislation for negotiation and self-determination in areas (including juvenile justice and welfare) that affect the well-being of Indigenous children and young people, and recommendations for the development of minimum standards applicable to juvenile justice and child welfare interventions.
The Inquiry noted the widespread desire of Indigenous people in Australia to exercise far greater control over matters affecting young people as reflected in many written submissions and evidence presented at hearings. The Inquiry noted that self-determination could take many forms from self-government to regional authorities, regional agreements or community constitutions. Some communities or regions may seek the transfer of jurisdiction over juvenile justice matters to an Indigenous authority as essential to the exercise of self-determination. Other communities may wish to work with existing government departments in ways which provide greater control in decision-making for Indigenous organisations. Either way, the level of responsibility to be exercised by Indigenous communities must be negotiated with the communities themselves (NISATSIC 1997:575-576).
In the context of the issues raised previously in this article, it is worth considering Recommendation 44 of the Inquiry which requires the development of national legislation to establish national minimum standards for the treatment of all Indigenous children and young people, irrespective of whether those children are dealt with by government or Indigenous communities and organisations. The recommended national minimum standards provide the benchmark for future developments. They include standards and rules covering:
The development of national minimum standards recognised the need for immediate change in the level of control by Indigenous communities and organisations in the decisions that affect the future of their children and young people. The Inquiry provided a framework for progressive change which respects the rights of Aboriginal and Torres Strait Islander people. It represented a significant potential development for Indigenous self-determination in Australia.
In the main the potential offered by the recommendations of the Bringing Them Home report has not been fulfilled. Indeed the last decade has seen the further entrenchment of Indigenous young people in the juvenile justice system, particularly as a result of increased police powers and a growing tendency to reduce the presumption in favour of bail. More generally, respect for Indigenous self-determination has not been a key principle informing the development of policy and legislative reform in the criminal justice system. The exception to this has been the development of Aboriginal courts, and perhaps to a lesser extent the growth of youth justice conferencing.
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[1]NewSouth Global Chair in Criminology, Faculty of Law, University of New South Wales, Sydney, Australia. An earlier version of this paper was presented at the Conference on the Tenth Anniversary of the Bringing Them Home Report. Indigenous Law Centre, Crime and Justice Research Network, Faculty of Law, University of New South Wales and the Human Rights Equal Opportunity Commission, 28 September 2007, Customs House, Circular Quay, Sydney.
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