In 2013–2014, Indigenous young people were 26 times more likely to be in detention than non-Indigenous young people. Aboriginal and Torres Strait Islander young people make up just over 5 per cent of the Australian population of 10 to 17-year-olds, but more than half (59 per cent) of those in detention.
The Aboriginal and Torres Strait Islander population has more people in younger age brackets than the non-Indigenous population. In light of this, the National Congress of Australia’s First Peoples noted in 2013 that “unless the rate of increase in youth detention can be reduced, rates of incarceration across the Aboriginal and Torres Strait Islander population are likely to continue to increase into the future."
The rates of Indigenous and non-Indigenous youth detention vary from one jurisdiction to another. Western Australia, Queensland and the Northern Territory have, respectively, the highest rate of over-representation of Indigenous youth in detention; the fastestgrowing rate of Indigenous youth detention; and the highest proportion of youth in detention who are Indigenous. However as the graph below shows, change is needed throughout Australia. Most of the recommendations in this National Overview apply to all Australian states and territories.
In Australia, each state and territory government is responsible for its own laws, policies and practices for dealing with young people accused of committing, or convicted of, offences. However it is the Australian Government, as a signatory to international human rights conventions, that bears ultimate responsibility for fulfilling the rights of Indigenous young people in all states and territories.
In Australia there are state and territory-based laws that breach international human rights obligations. The Australian Government should invalidate these laws, or work with the states and territories to have them repealed.
Violations of the UN Convention on the Rights of the Child
The Convention on the Rights of the Child (CRC), which Australia has signed and ratified, is the primary source for internationally-agreed children’s rights. Under international law, children (those under 18) have all fair trial and procedural rights that apply to adults as well as additional juvenile justice protections.
The Committee on the Rights of the Child, which monitors State Parties’ implementation of CRC, noted in 2012 that Australia’s juvenile justice system “requires substantial reforms for it to conform to international standards.”
AGE OF CRIMINAL RESPONSIBILITY
Across Australia children are held criminally responsible from just 10 years of age despite the Committee on the Rights of the Child having concluded that 12 is the lowest internationally acceptable minimum age of criminal responsibility.
DETAINING CHILDREN WITH ADULTS
At the time of ratifying CRC, Australia made a reservation to Article 37(c) which requires children to be separated from adults in prison, unless it is in the child’s best interests not to do so. This reservation has been justified to detain children with adult prisoners where separation is not “considered to be feasible having regard to the geography and demography of Australia.” The Committee on the Rights of the Child has repeatedly recommended that the reservation be withdrawn.
DETENTION CONDITIONS, NORTHERN TERRITORY
The Convention on the Rights of the Child states that every child deprived of their liberty must be treated with humanity, taking into account their age-specific needs. Youth detention conditions in the Northern Territory do not appear to comply with these international human rights standards.
At the Alice Springs Youth Detention Centre young people are only separated from the adult prisoners by a fence. Young people are taken to the visiting block at the adult prison to speak with visitors and are handcuffed on their way to and from the visiting block.
All of the young people in detention in Darwin were transferred to a dilapidated former adult facility at Berrimah in December 2014. The previous government had planned to demolish this facility because it was old, in a poor state of repair and had an “inappropriate and outdated design.” Legal representatives have stated that the facilities are inappropriate for young people.
NO NATIONAL MECHANISM TO INVESTIGATE VIOLATIONS IN DETENTION
The Committee on the Rights of the Child has commented that Australia needs “an effective mechanism for investigating and addressing cases of abuse at [Australia’s] youth detention centres.” The Optional Protocol to the Convention Against Torture provides an avenue for doing so and should be ratified by Australia. Australia should also sign and ratify the Third Optional Protocol to the Convention on the Rights of the Child, which establishes an individual complaints mechanism for children.
MANDATORY SENTENCING, WESTERN AUSTRALIA
The Western Australian Criminal Code Act 1913 (WA) requires magistrates to impose mandatory minimum sentences on young offenders in a number of circumstances. This directly contravenes CRC, which states that detention for those under 18 must only be as a measure of last resort, and that all sentences, first and foremost, take into account the best interests of the child. The Committee on the Rights of the Child have recommended the laws be repealed. Instead the Western Australian Government is in the process of extending mandatory sentencing.
MULTIPLES BREACH OF CRC, QUEENSLAND
Queensland treats 17-year-olds as adults in its criminal justice system. This is in contravention to CRC, which states that those under 18 must be treated as children in the eyes of the law. In 2012 the Committee on the Rights of the Child again recommended that Australia remove 17-year-olds from the adult justice system in Queensland. Ignoring this recommendation, in 2014, the Queensland Government amended its Youth Justice Act 1992 (Qld) to require all 17-year-olds with six months or more left of their sentence to be transferred to adult jails.
This is contrary to Article 37(c) of CRC. In 2014 the Queensland Government introduced a further law which says that the court must disregard the principle that detention be a last resort, in direct conflict with CRC.
NEED FOR MORE BAIL ACCOMMODATION
Between June 2013 and June 2014 Indigenous young people were 23 times more likely than their non-Indigenous counterparts to be in unsentenced detention. International human rights standards require that detention for persons awaiting trial must be the exception rather than the rule. However Indigenous young people are often held in detention on remand simply due to a lack of suitable accommodation and support to comply with bail conditions.
Ending Indigenous incarceration together
The Australian Government currently plays a role in promoting policy reforms which need coordinated action by all Australian governments. The Council of Australian Governments (COAG) is the peak intergovernmental forum in Australia, and is the primary mechanism through which the Australian Government can work with states and territories to reduce Indigenous youth incarceration.
In 2008, COAG agreed to six ‘Closing the Gap’ targets relating to Indigenous life expectancy, infant mortality, early childhood development, education and employment. Closing the Gap targets have improved data collection, coordination, and tracking of efforts to address Indigenous disadvantage across all states and territories.
However despite much discussion, COAG has yet to adopt a justice target within the Closing the Gap strategy.
The National Congress of Australia’s First Peoples has consistently called for justice targets to be included in the Closing the Gap strategy. The Aboriginal and Torres Strait Islander Social Justice Commissioner’s 2014 report also includes a recommendation that the Australian Government revise its current position on targets as part of Closing the Gap, to include justice targets to reduce Indigenous youth incarceration rates and create safer communities through reduced rates of experienced violence.
BETTER DATA FOR BETTER SOLUTIONS
The Council of Australian Governments (COAG) also provides an avenue for federal, state and territory governments to improve the coordinated collection and use of data to reform the youth justice system.
There are many inconsistencies and gaps between states and territories in collecting data on contact with the youth justice system. The inadequacy of this information is one of the barriers preventing policy makers from more effectively responding to the over-representation of Indigenous young people in detention.
The UN Committee for the Elimination of Racial Discrimination has recommended that Australia “dedicate sufficient resources to address the social and economic factors underpinning indigenous contact with the criminal justice system” and encouraged Australia to adopt “a justice reinvestment strategy.”
Justice reinvestment re-directs money spent on prisons to community-based initiatives which address the underlying causes of crime, thereby cutting crime and saving money.
Indigenous leaders and community organisations have consistently highlighted that more needs to be done to address the underlying factors that contribute to Indigenous youth in detention through locally-designed early intervention, prevention and diversion programs.
Indigenous legal services
The current funding uncertainty, shortfalls and government cuts to specialised Indigenous legal services mean that many Indigenous young people do not always get the legal assistance they need.
The Aboriginal and Torres Strait Islander Legal Services (ATSILS) and Family Violence Prevention Legal Services (FVPLS) provide specialised, culturally tailored services for Indigenous people, including young people. Numerous inquiries have concluded that both of these Indigenous legal services are significantly underfunded.
In March 2015 the Australian Government reversed cuts to the state and territorybased ATSILS, which were to take effect from June 2015.
While the FVPLS heard in March 2015 that their funding will be maintained, 60 per cent of the FVPLS centres have only been funded for one year.
BETTER SOLUTIONS FOR FASD
Fetal alcohol spectrum disorders (FASD) describes a range of impacts caused by exposure to alcohol in the womb. The consequences vary along a spectrum of disabilities including: physical, cognitive, intellectual, learning, behavioural, social and executive functioning disabilities, and problems with communication, motor skills, attention and memory. In many cases the damage is not physically apparent “but can manifest itself in lifelong learning difficulties and cognitive impairment.”
FASD presents a range of challenges which make contact with the criminal justice system more likely.
There is currently no official diagnostic tool which makes diagnosis difficult. Diagnosis is essential in ensuring fair trials for people affected with FASD. The current process for making diagnosis is also time consuming, which can lead to young people being held in detention on remand awaiting a diagnosis.
FASD is not formally recognised as a disability, so people affected by FASD and their carers find it difficult to access adequate funding and support. Community-designed and led programs also lack the resources to provide early support to young people affected with FASD, which is essential in ensuring their behaviour is dealt with early in life and not as a criminal justice issue.
In July 2014, the Australian Government announced $9.2 million dollars to fund the National FASD Action Plan. Amnesty International welcomes this step, but notes that the plan does not undertake to recognise FASD as a disability nor include budget to assist the families of young people at risk of contact with the justice system.