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Bargen, Jenny; Kelly, Loretta; Oxley, Elvina --- "Youth Justice Conferencing: the Debate Continues" [1999] IndigLawB 35; (1999) 4(20) Indigenous Law Bulletin 18


Youth Justice Conferencing: the Debate Continues

Jenny Bargen replies to Loretta Kelly and Elvina Oxley's article in February ILB[1]:

As Director of Youth Justice Conferencing, I welcome public discussion on the implementation and operation of youth justice conferencing, and suggestions for improvement. However, I am concerned that the article, 'A dingo in sheep’s clothing? The rhetoric of youth justice conferencing' by Loretta Kelly and Elvina Oxley[2] contained such serious errors of fact and presumption that I have to assume that the peer review process at the ILB failed.

Since its inception in late 1997, the Youth Justice Conferencing Directorate has set a high standard in Indigenous participation and leadership. We are community focussed, with a small central operation and a majority of de-centralised community based staff. We are implementing a legislative scheme[3] which is open and designed to empower the community. Indigenous people are active in the scheme at key points of responsibility. One in four conference administrators is Indigenous. Thirty of the 350 conference convenors recruited and trained in 1998 are Indigenous people. Our procedures assume that a conference involving an Indigenous child will be convened by an Indigenous conference convenor, with only rare exceptions of the kind suggested by Kelly and Oxley.[4] The Directorate’s achievements are of an exceptionally high standard that will be built on in the coming months.

Kelly and Oxley err in their article:

1. In assuming the Young Offenders Act 1997 is a closed ‘one size fits all’ Act that excludes community participation: The authors fail to analyse the development of the ‘one size fits all’ criterion stated by Mick Dodson in his Fourth Report as HREOC Social Justice Commissioner,[5] and, in fact, apply it erroneously. They fail to include the positive views of the (then draft) NSW scheme expressed by Dodson in his Fourth Report. They do not point out that Dodson’s criticisms (first made in his Third Report in 1995) and those of Harry Blagg (cited by the authors) were directed at a very different piece of legislation in Western Australia and were written well before the final form of the NSW legislation was even presented to Parliament. Our experience is that the NSW legislation is an open piece of legislation which empowers the community. It has been described as ‘well thought-through, widely consulted, and sophisticated’.[6]

2. In stating that recruitment of Indigenous people has been unsuccessful: We have succeeded in recruiting four (out of sixteen) Indigenous people as conference administrators, and thirty (out of 350) Indigenous people as conference convenors.

3. In stating that a ‘common scenario’ is that of an Indigenous young offender in a conference convened by a non-Indigenous conference convenor: With thirty Indigenous convenors, in most cases it is possible to engage an Indigenous convenor. As the authors point out, the Act requires conferences to be ‘culturally appropriate, wherever possible’.[7] As the authors also point out, there are cases in which Indigenous people do not wish to have another Indigenous person convening the conference. The provisions of the Act are sufficiently flexible to permit conference administrators to respect such a request.

4. In characterising consultation with Indigenous communities: Consultation did take place before the Act was passed, and continued into the implementation stages. The authors are clearly unaware of the extent and nature of much of this consultation, particularly that conducted with Indigenous people. Consultation is not a ‘one-off’ process, but continues to occur under the open framework of the Act that permits wide areas of action for community groups and members. We could match the unnamed critics in the article with Indigenous people who take a very positive view of the continuing consultative processes.

I do not resile from anything that I wrote on conferencing in my years working on the staff of the UNSW Faculty of Law. Our team is fiercely committed to working in partnership with communities in implementing and operating youth justice conferences. This is why conference administrators have worked and will continue to work hard to ensure Indigenous participation in all aspects of the scheme. The author’s errors and inaccuracies can serve only to dis-empower the community and to inhibit constructive debate about doing better in this vital area. As many administrators noted in their responses to the article, the first youth justice conference was held less than twelve months ago in June 1998. Continuing constructive criticism, realistic suggestions for improvement of the infant scheme, and continuing open consultation and partnerships with local communities may better serve to enhance its effectiveness.

Jenny Bargen, Director, Youth Justice Conferencing, together with youth justice conference administrators, NSW Department of Juvenile Justice.

Loretta Kelly and Elvina Oxley respond:

We are glad to see that our article has generated public debate. However, we were perplexed by the response from the Director and conference administrators that '[t]he author’s errors and inaccuracies can serve only to dis-empower the community and to inhibit constructive debate about doing better in this vital area.'

We wonder how the views of two qualified Indigenous women with strong community connections, published in an open academic forum, could logically disempower our communities? On the contrary, we are empowering our communities by participating in an honest and constructive debate. Reforms to Indigenous rights have, and will continue to, come about through critical discourse. In our view, we have indeed been offering 'constructive criticism [and] realistic suggestions for improvement'.

Following is our response to the Director’s four points. You will note that we stand by our original article:

1. We borrowed the ‘one size fits all’ phrase to make our argument about the superficiality of the NSW scheme. Regardless of whether or not the Act purports to be open and adaptable to individual community needs, in practice, it is not being adapted because there are no resources to do so.

2 & 3. The fact that four out of sixteen conference administrators are Indigenous is impressive at first glance. However, their role is mostly administrative and managerial, as we stated in our article,[8] and it is the convenors who are the ones working at ground level with the victims, the offenders and their families.

We stand by our original statement that the recruitment of Indigenous conference convenors was generally unsuccessful. Thirty Indigenous convenors out of 350 is still only 9%, which is insufficient in comparison to our numbers in the criminal justice system. The figure of thirty Indigenous convenors for the State is grossly misleading because these convenors are disproportionately distributed across the state (there are some regions with NO Indigenous convenors). Furthermore, the number of active Indigenous convenors is far less than the reported number due to the following factors:
some did not go on to conduct conferences following training (for various reasons);
many are no longer available due to other commitments; and
some have fallen out of favour with management.

It remains difficult to engage an Indigenous convenor. Indigenous young people are mostly being conferenced by non-Indigenous convenors, which is not culturally appropriate. We challenge the Directorate to collect and publish data to prove otherwise.

4. It is insufficient for the Directorate to state that 'consultation did take place.' What was the nature and extent of the consultation? What methodology was used, and is being used, to obtain a representation of Indigenous communities’ response to the scheme? As another Indigenous woman writes 'in my experience, the notion of ‘community consultation’ – a term liberally scattered through government policies – is simply rhetoric.'[9] As two women who are intimately involved with criminal justice at the local Indigenous community level, we have seen absolutely no evidence of 'continuing open consultation and partnerships with local communities.'

The Director’s response rightly points out that conferencing is an 'infant scheme.' Anyone who has a child knows how much time, energy, and money it takes to rear the child in a way that enables him or her to grow into a happy and functional adult. Where are the additional resources to ensure that conferencing matures into a process that makes a positive contribution to Indigenous realities?

Loretta Kelly is an Indigenous woman and is a former youth justice conference administrator in the Kempsey region. A UNSW law graduate, she is currently undertaking a Master of Laws in the area of developing a methodology for culturally- appropriate consultation processes with Indigenous communities.

Elvina Oxley is an Indigenous woman and is a youth justice conference convenor in the Kempsey region. She has an Associate Diploma in Park Management and works as a cultural heritage consultant with Aboriginal communities in NSW.


[1] A Dingo in Sheep’s Clothing? The Rhetoric of Youth Justice Conferencing and the Indigenous Reality - [1999] ILB 12; 4(18)pg4

[2] (February 1999) 4 (18) ILB pp 4-8.

[3] Part 5 of the Young Offenders Act 1997 (NSW)

[4] Above n 1 p 8 n 12.

[5] Fourth Report, 1996, (Aboriginal and Torres Strait

Islander Social Justice Commissioner, Canberra, 1996) p 34.

[6] Richard Funston, Principal Solicitor, Children’s Legal Service, Legal Aid Commission of NSW, 'Juvenile Justice and the New Young Offenders Act', LAAMS Seminar, 'Criminal Law: Emergency Remedies', Sydney, 22 October 1998.

[7] Section 34(1)(a)(v).

[8] Above n 5 p 5.

[9] Sherwood J, 'Community – what is it?' (March 1999) 4(19) ILB, p 6.


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