Indigenous Deaths in Custody: Chapter 9 Juveniles

Part C - Profiles Analysis

Chapter 5. Introduction
Chapter 6. Police Practices
Chapter 7. Imprisonment and Courts
Chapter 8. Custodial Conditions
Chapter 9. Juveniles
Chapter 10. Post-Death Investigations
Appendix: Government Implementation


I'll tell you what. You sentence young people away, they do their time and then after a while they're released back to the community. They roll in like a fattened up bull from the paddock, from three meals a day in a jailhouse. Back to the community, have a bit of grog and now they'll be standing in the street, yelling out. 'I'm a gaol bird, I know what gaol is.' He thinks he's a hero. That's shocking.

1996 Interview with Elder Mr Bruce Yunkaporta,
Chief Justice, Aurukun Justice of the Peace Court,
Aurukun, Queensland.


Chapter 9 Juveniles

Summary

9.1 There were fifteen juvenile deaths in custody between May 1989 and May 1996. As the Indigenous juvenile population grows proportionately larger than the non-Indigenous juvenile population, deaths of young Indigenous people can only be expected to increase if significant measures are not taken. The cases of six other adult Indigenous people who died in custody demonstrated very early and frequent contact with the criminal justice system

9.2 The number of Indigenous kids who are brought before Children's Courts (rather than dealt with in diversionary schemes) remains disproportionately high in comparison with non-Indigenous kids. The rate at which they then are imprisoned in comparison with non-Indigenous kids is even more pronounced.

9.3 Procedures for the transfer of juveniles to adult prisons need to be examined urgently.

9.4 Police car chase deaths are increasing overall, and in most jurisdictions police services need much more stringent policies setting out when pursuit is desirable in the public interest.

9.5 Community policing principles need to be implemented to better deal with young Indigenous people occupying public areas and with Indigenous juvenile delinquency.

9.6 Juvenile justice panels and family conferencing schemes with adequate cultural sensitivity and Aboriginal community involvement can be effective solutions to juvenile crime problems, but schemes which increase alienation and which are imposed by police on the families of the offender and the victim will not succeed.

9.7 Indigenous juveniles in many jurisdictions now face laws which place more impediments in the way of seeking bail than they faced at the time the Royal Commission reported.

Introduction

Fifteen Aboriginal juveniles died in between May 1989 and May 1996. Five of these deaths were in institutional settings: four juveniles died in adult prisons and one died after escaping from a juvenile detention centre. 1This was a similar proportion to the Royal Commission. 2

Ten Aboriginal juveniles died during police pursuits. Nine died following police car chases and one Aboriginal youth was shot after threatening police with a replica pistol.3 This does not include a sixteen year old in circumstances which involved some element of police car pursuit.4

Chapter 3 showed that the average age of death in custody was younger for Indigenous prisoners than for non-Indigenous prisoners. As the Indigenous juvenile population grows proportionately larger than the non-Indigenous juvenile population, deaths of young Aboriginal and Torres Strait Islander people can only be expected to increase if significant measures are not taken to reduce the disproportionately high level of contact young Aboriginal people presently have with the criminal justice system. 5 The cases of six other adult Indigenous people who died in custody demonstrated very early and frequent contact with the criminal justice system. 6

The Royal Commission was not prescriptive in addressing issues relating to juvenile offenders. A conscious decision was made not to attempt to provide a blue-print for a 'perfect' system, but rather to recommend a co-operative, negotiated, community based approach to addressing problems (recommendation 62). The deaths examined in this Report therefore tend to indicate general problems rather than reveal specific breaches. The limited nature of coronial investigations also limits the ability of this study to assess progress on implementation, although some comment can be made. Recommendations which concern the interaction of the welfare system and criminal justice system (234-38) were never examined. 7 Recommendations 242-44 concern police practices after arrest, but only one case concerned a juvenile who died shortly after arrest.

Table 9 shows the frequency of breaches of recommendations concerning juveniles, although the small number probably reflects the limits of this study rather than a high level of compliance. The failure to negotiate solutions with Aboriginal groups and the inappropriate exercise of the discretion to arrest (R240) were the most frequently breached recommendations. Most breaches were detected in Queensland.

Table 9 Breaches of Recommendations -Juveniles

Recommendation

Authority

Period

State/Territory

Total

 

Cor

SJC

I

II

NSW

Qld

WA

SA

Tas

NT

 

62 Strategies

-

6

5

1

1

-

5

-

-

-

6

167 Custodial

1

1

1

1

1

-

-

1

-

-

2

235 Welfare

1

-

1

-

-

1

-

-

-

-

1

239 Arrest last resort

-

1

-

1

-

1

-

-

-

-

1

240 Cautions

1

1

-

2

-

2

-

-

-

-

2

242 Bail

-

1

1

-

-

-

-

1

-

-

1

245 Laws

-

1

-

1

-

1

-

-

-

-

1

Total

3

11

8

6

2

5

5

2

0

0

 
Grand Total   14

14

14

14

Recommendation 62 - Governments and Aboriginal Organisations Together Devise Juvenile Justice Strategies
That governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise.

Only New South Wales and the Northern Territory claimed to have implemented this recommendation in full. The other jurisdictions acknowledged that the process had not been completed.

The Royal Commission identified young Aboriginal people as facing a crisis unless government agencies, non-government organisations and others in the community acted to address the problems facing Indigenous youth. The relative youthfulness of those who had died in custody, particularly by taking their own lives, and the age at which most first came into contact with the welfare or criminal justice systems prompted this concern.

Unfortunately, the findings in this Report tend to replicate the findings of the Royal Commission. If anything, they show that young Aboriginal people are more vulnerable today.

Deaths resulting from police car chases, when police with advanced driving skills engage in high speed pursuits with inexperienced drivers is one area that needs urgent attention, especially in Western Australia. 8 Two deaths occurred since the period covered by this report when a 13 year old and a 14 year old died after a police pursuit in Western Australia on 20 August 1996. For more on police car chases, see text following recommendation 60 in chapter 6 (and following recommendation 95 in chapter 7).

Things are not improving. They are getting worse. Of final court appearances by juveniles in Queensland, 33.7 per cent were Aboriginal in 1993/94.9 The proportion of Aboriginal children in juvenile detention centres in Queensland has risen from 39.4 per cent in 1992, to 46.8 per cent in 1993, and again to 51.6 per cent in 1996. 10 The number of Aboriginal kids who are brought before the Children's Court is disproportionately high in comparison with the number of non-Aboriginal kids. Incredibly, the rate at which they are imprisoned in comparison with non-Aboriginal kids is even worse. 11 In New South Wales the Children's Court only hears matters in metropolitan areas. In the country they are dealt with in Magistrates' Courts. The indications are that Local Court Magistrates in rural areas are more likely to incarcerate young Aboriginal people than specialist Children's Court magistrates. The statistical evidence has not prevented a member of the Queensland judiciary claiming that Aboriginal juveniles are treated comparatively leniently by the courts. 12

Police-Aboriginal relations in Queensland have also been strained by a number of well-publicised incidents. The death of an 18 year old in police custody in Brisbane (see profile 53QLD) provoked an outcry. It provides an insight into intrusive procedures adopted for the purposes of policing 'public spaces' and the Aboriginal people who are highly visible in that domain.

The 'Pinkenba incident' was another example of police taking inappropriate action rather than negotiating solutions with the community. A group of Aboriginal youths aged twelve and upwards were taken from the city to the industrial outskirts of Brisbane, and left there in the middle of the night with no means of getting home. Six officers faced charges of deprivation of liberty. They were acquitted. An internal investigation recommended that the police officers involved be dismissed or demoted. The Commissioner of Police refused to do this. Instead, the officers were given 12 month good behaviour orders because they had 'suffered severe financial and personal hardship.' 13

Studies published since the Royal Commission released its findings identify problems in the dynamics of policing Indigenous youth. 14 They document the persistence of discriminatory attitudes in the police force, resulting in informal policies and practices based on stereotypes about young black people as a priori suspects and deserving closer surveillance.' 15 Over-policing is one of the factors which ensures that the incarceration rates of young Indigenous peoples in most States will steadily increase. This in turn will lead to an increasing number of young Aboriginal people dying in custody and a rising adult Aboriginal prison population.

Recommendation 167 - Custodial Health and Safety in Juvenile Detention
That the practices and procedures operating in juvenile detention centres be reviewed in light of the principles underlying the recommendations relating to prison and police custody in this report (125-168), with a view to ensuring that no lesser standards of care are applied in such centres.

Queensland is the only State which does not claim to have fully implemented this recommendation. It is significant, however, that six deaths in custody raise issues concerning juvenile detention centres, although the juveniles in those cases died in an adult prison or after escaping from the juvenile centre in question.

The juvenile who died on Papunya road in the Northern Territory (12NT) had escaped with another detainee from Giles House. They had been remanded for breaking and entering offences. The deceased subsequently died in a car accident on Papunya Road. Unfortunately the Coroner in that case only examined the circumstances of the accident, and not the treatment of the deceased in custody and whether there was a causal connection between that treatment and the escape.

The necessity to examine conditions in juvenile detention is illustrated by events at the John Oxley Juvenile Detention Centre in Queensland, where an average of two detainees absconded each week in the second half of 1994. Disturbing allegations of staff mistreatment of children at the centre then surfaced, including the misuse of handcuffs, abuse of 'time-out rooms' and 'lock-down procedures,' children being placed in danger of sexual abuse, easy availability of illegal drugs, management of prescribed drugs by non-qualified persons, unacceptable emotional and physical disciplinary procedures including the denial of food, and the employment of inappropriate staff. 16 After the allegations were addressed, the rate of absconding dropped four-fold.

The recommendation was breached in at least two deaths. In the case of a 17 year old juvenile who died at Maitland Gaol (6NSW), the deceased was also placed in a maximum security prison. The prison is now due for closure. The deceased had been transferred less than twenty-fours earlier from Endeavour House, a juvenile detention centre. The Coroner was critical of the standard of care at the juvenile detention centre which was reportedly to be closed.

The Coroner was also critical of the decision of staff to allow the deceased's application to be transferred to an adult prison without counselling or consultation with the deceased's family. The Coroner made the following recommendations:

  1. The Minister of Family and Community Services and the Corrective Services Commission implement Recommendations 228, 230 and 231 of the Kids Injustice Report of the New South Wales Law Foundation's Youth Justice Project:

228 Corrective Services should not accept transferees from institutions unless certain requirements are met;
230 Every attempt should be made to accommodate juveniles together, and Aboriginal juveniles together, in prisons; and
231 Experienced youth workers should conduct programs for juveniles and other young prisoners in juvenile institutions and adult prisons.

  1. The transfer of a juvenile to a prison should only be considered after (i) the juvenile has received proper counselling and (ii) the family or next of kin have been sufficiently informed of such application and have been given the opportunity to appear or be represented at the hearing.

  2. Any marked deterioration in a juvenile's physical or mental health or behaviour be notified to the family or the next of kin who should be invited to participate in supportive care and case planning.

The man who died at Yatala Prison (68SA) was in a maximum security cell in an adult prison. He had been convicted in the Children's Court for offences committed as a juvenile. He was still eligible to be incarcerated in a juvenile institution. He had apparently requested a transfer to be near relatives.

Three other juveniles died in adult prisons. In the death of two 17 year olds at David Longlands Prison on 22 December 1991 (34QLD) and the 8 December 1995 (88QLD) the deceased had both asked to be transferred from juvenile institutions. As with the case above, both deceased were mentally unstable, had not adjusted to prison life, and committed suicide. These cases raise questions as to the standard of care in the juvenile detention centres, the reasons for requests for transfer and the procedures for consideration of requests for transfer. It is unclear why the 17 year old who hanged himself in Townsville Prison (22QLD) was incarcerated at an adult prison.

The gaoling of juveniles in adult prisons is prohibited by a number of international treaties. Article 10 of the International Convention on Civil and Political Rights states that:

  1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

    1. accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;

    2. Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.

  2. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

Australia unfortunately has a reservation on Article 10 (2) and (3). The Commonwealth Government has stated that:

Due to Australia's demographic and geographical features it is difficult to achieve the total segregation of accused and convicted prisoners and children or juvenile prisoners from adult prisoners. Furthermore the Australian Government remains convinced that it is appropriate to allow the responsible authorities discretion to determine whether it is beneficial for a child or juvenile to be imprisoned with adults (emphasis added). 17

Judging from the criticism by the Coroner in the case above (6NSW), the responsible authorities are not making this decision in a considered manner or exercising their discretion on the basis of 'whether it is beneficial for a child.' Australia also has a reservation on Article 37(c) of the Declaration of the Rights of the Child, which would require Australia to ensure that:

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

Again if the reservation is defended on the basis that logistical difficulties sometimes make separation of adults and juveniles impractical, then the reservation should be restricted to this circumstance. Where alternative juvenile centres are available, juveniles should not be incarcerated in adult prisons. The use of individual, maximum security cells is an utterly inappropriate method of segregating juveniles from adult prisoners.

Various other instruments contain similar requirements. Paragraph 8 of the Standard Minimum Rules for the Treatment of Prisoners requires that the different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Section 26.3 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) requires that juveniles in institutions shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.

Article 2(2) of the International Convention on the Elimination of All Forms of Racial Discrimination requires Australia to take measures to redress imbalances. Aboriginal juveniles are over represented in detention centres in all states, and are 52 times as likely as non-Aboriginal juveniles to be incarcerated in Western Australia. Given this over-representation in the criminal justice system, this provision is especially pertinent to young Aboriginal people in Australia.

 

SJC Recommendations 38.

38. All State Departments responsible for juvenile detainees adopt and implement Recommendations 228, 230 and 231 of the Kids Injustice Report by the New South Wales Law Foundation's Youth Justice Project:

228 Corrective Services should not accept transferees from institutions unless strict requirements are met;

230 Every attempt should be made to accommodate juveniles together, and Aboriginal juveniles together, in prisons; and

231 Experienced youth workers should conduct programs for juveniles and other young prisoners in juvenile institutions and adult prisons

39. The transfer of a juvenile to a prison should only be considered after

a. the juvenile has received proper counselling; and

b. the family or next of kin have been sufficiently informed of such application and have been given the opportunity to appear or be represented at the hearing.

40. Any marked deterioration in a juvenile's physical or mental health or behaviour be notified to the family or the next of kin who should be invited to participate in supportive care and case planning.

41. That non-compliance with the requirements in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child should be limited to cases genuinely relating to the best interests of the juvenile or geographic necessity.

 

Recommendation 235 - Reliance by Government Agencies on the Advice of Aboriginal People and Organisations
That policy of government and the practices of agencies which have involvement with Aboriginal juveniles in the welfare and criminal justice systems should recognise and be committed to ensuring, through legislative enactment, that the primary sources of advice about the interests and welfare of Aboriginal juveniles should be the families and community groups of the juveniles and specialist Aboriginal organisations, including Aboriginal Child Care Agencies
.

All States except Tasmania indicated that they had fully implemented this recommendation. There was little information about this issue in the Coronial reports, apart from a coronial recommendation that Aboriginal organisations be involved in organising family contact in the case of the death by hanging of the 17 year old who was suffering from the AIDS virus in Lotus Glen Prison (22QLD).

Discussions with Aboriginal organisations suggest that this recommendation is not being followed, contrary to government claims.

Reasons for Aboriginal Community Involvement

Institutionalising Aboriginal people has severed for many 'the cultural store of knowledge about being a parent.' For generations of Aboriginal children, traditional patterns of child rearing, which included obligations and responsibility toward all children by all members of a community, were replaced by the vagaries of institutional settings. The path back from the disruption caused will be a long one. Solutions will be found only by closely involving Aboriginal people.

In the case of the three young people who died after a police chase in Western Australia (15WA, 16WA, 17WA) the Coroner noted that the three young people had committed many previous offences, and opportunities had been provided for their rehabilitation. He criticised Aboriginal organisations for not appearing at the inquest with suggestions for solutions to the problem of juvenile delinquency. He considered that 'the parents and guardians had failed to exercise effective control over the three young people who died [although] there is evidence that some at least tried.' Officers of the Department for Community Services were also criticised for 'failing to divert the young people into a constructive way of life.'

The issue of family blame was one which talkback radio commentators in Western Australia seized upon with enthusiasm. While the frustrations of the coroner about the lack of Aboriginal involvement at the inquest are to some extent understandable, the talkback radio abuse of the families dealing with the death of their children in these and other cases (for example profiles A3WA and A4WA) created an environment which deterred the families from involvement in a public inquiry. It created a combative environment from which useful suggestions addressing juvenile delinquency were unlikely to arise. The issue of parental neglect can justifiably be raised in the appropriate way. On the other hand, stories of Western Australian Aboriginal children moving interstate and flourishing, because they no longer face daily police contact, indicate that there are other pressures which contribute to juvenile delinquency. The particularly high level of Aboriginal over-representation in Western Australian detention centres points to systemic problems particular to the juvenile justice practices within that state.

The Coroner ultimately recommended:

[E]arly detection and bringing alleged offenders before the Courts' to dissuade [others] from committing crime in the first place; and

[Y]oung persons who have failed to comply with orders of the Children's Court� be brought back before the Court promptly if they fail to comply with such orders.

Prompt dealings by the Courts may lead to some 'persons being dissuaded from committing offences in the first place'. However, evidence from the Royal Commission's investigations suggest that early contact with the Courts has little effect on the behaviour of Aboriginal young people, except to establish patterns of institutionalisation or imprisonment which are difficult to break. Diversionary programmes have greater prospects of long term success.

Community involvement is essential in identifying problems and developing solutions. Street patrols which take people affected by alcohol or other substances to shelters or their homes, remove under age drinkers from licenced premises and patrol well known trouble spots have been a success in Western Australia in their initial stages. 18 For example, the Mullewa patrol was responsible for reducing the level of juvenile arrests from 6 per month to 1 per month in its first year of operation. While Aboriginal youth make up only 4 per cent of the youth population in Western Australia, 61.5 per cent of juveniles detained in lock-ups on 30 June 1993 were Aboriginal. Court outcomes for Aboriginal defendants are poor. 19

Legislative and Governmental Approaches

Recommendation 235 stipulates legislative enactments to ensure Aboriginal organisations are the primary source of advice about the welfare of Aboriginal juveniles. The Aboriginal Legal Service of Western Australia revealed that there was no public submission process in the preparation of the Young Offenders Act 1995 (WA). The Bill was referred to the Legal Service by the Legislative Council Standing Committee on legislation, but this Committee's review was cut short by the government and there was no opportunity for proper input. 20 Successful New Zealand family youth conferencing legislation for offenders involved extensive negotiation with the Maori people.

In Queensland, the juvenile justice system was reformed by the Juvenile Justice Act 1992 (Qld), which entrenched as a general principle the need to consult Aboriginal and Torres Strait Islander communities and their families about incidents of offending by their children. Unfortunately, the legislation has not seen a decrease in juvenile detention rates. The situation is likely to worsen with the initiative to restore to Queensland police the power to issue care and control orders on children who are not offending, but are deemed to be at risk, 21

Since the Department of Juvenile Justice was created as a separate portfolio in New South Wales, the Aboriginal Child Care Agencies under the Department of Community Services have apparently become less involved in making submissions to courts about young Aboriginal offenders. This situation should be remedied.

Appropriate Community Organisations

There is a need in all jurisdictions for a regularly updated looseleaf juvenile justice sentencing service for magistrates. The service would give the necessary details of Aboriginal bodies involved in the rehabilitation of young people or juveniles and individuals willing (and considered fit and proper) to take part as a mentors, elders or guardians. They may include sympathetic school teachers or others able to assist in rehabilitation. Bodies exist to rehabilitate Aboriginal offenders, but solicitors and magistrates often do not know about them. For example, the programs available in New South Wales apparently include an Aboriginal Mentor Program; 22 the Ending Offending Program at Kempsey; an Interdepartmental and community support program planned for Purfleet community near Taree; the Safe Haven Program where selected Aboriginal carers provide alternative supportive placements for Aboriginal juvenile offenders (piloted in the Riverina and to be expanded to Dubbo, Nowra and Queanbeyan); the Nardoola program providing an accommodation for juvenile offenders from the Moree area; Childrens Court Assistance at Lidcombe Court, run by the Macquarie Legal Service and involving the Karingal Aboriginal Youth Service;23 and the Western Sydney Bail Hostel.

SJC Recommendation

42. State Government Departments responsible for juvenile justice fund a regularly updated looseleaf juvenile justice sentencing service for magistrates. The service would give the necessary details of Aboriginal bodies involved in the rehabilitation of young people or juveniles and individuals willing (and considered fit and proper) to take part as a mentors, elders or guardians.

 

Recommendation 238 - Funding and Appropriate Staffing for Youth Strategies
That once programs and strategies for youth have been devised and agreed, after negotiations between governments and appropriate Aboriginal organizations and communities, governments should provide resources for the employment and training of appropriate persons to ensure that the programs and strategies are successfully implemented at a local level. In making appointment of trainers preference should be given to Aboriginal people with a proven record of being able to relate to, and influence, young people even though such candidates may not have academic qualifications.

Only New South Wales, Victoria and Queensland claimed to have implemented this recommendation in full. The remaining jurisdictions claimed only to have 'supported' or 'partially implemented' the recommendation.

Where this recommendation has been heeded, inroads have been made into juvenile justice problems. In Queensland Aboriginal Community Justice Groups on Palm Island, Pormpuraaw and Kowanyama are apparently succeeding in reducing offending rates. 24 The Pormpuraaw Community Justice Group is comprised of unpaid elders who meet every Monday to deal with local justice issues, from truancy to serious offences. The community has a detention centre at Baa's Yard Outstation, which has a good record of rehabilitation. Very few residents have absconded despite the hard conditions. It is for young offenders rather than juveniles, and is funded to accommodate ten residents by the Queensland Corrective Services Commission.

Unfortunately, there are too many incidents of the withdrawal of funding in states while juveniles continue to die in Adult prisons. In Queensland there have been three such deaths - one at Townsville prison (22QLD), and two at the Sir David Longlands Prison (34QLD, 88QLD). It is therefore disturbing to hear of funding being removed from alternative programs. The Piabun Aboriginal Corporation operates a farm in the Sunshine Coast Hinterland for Aboriginal Juvenile Offenders who are about to be released. Unfortunately, funding to this successful program was stopped in 1996 after elders refused to allow the Community Services Department control of the program. 25

In Western Australia, the State Government in 1994 stopped funding for the Aboriginal Corporation Lake Jasper Project, one of the few non-government programmes established by Aboriginal people to provide an alternative to custody for young juvenile offenders. 26

Recommendation 239 - Cautioning Rather Than Arrest
That governments should review relevant legislation and police standing orders so as to ensure that police officers do not exercise their powers of areas in relation to Aboriginal juveniles rather than proceed by way of formal or informal caution or service of an attendance notice or summons unless there are reasonable grounds for believing that such action is necessary. The test whether arrest is necessary should, in general, be more stringent than that imposed in relation to adults. The general rule should be that if the offence alleged to have been committed is not grave and if the indications are that the juvenile is unlikely to repeat the offence or commit other offences at that time then arrest should not be effected.

All jurisdictions except Tasmania claimed to have fully implemented this recommendation. However, the available evidence does not appear to support these claims.

The incident which led to the arrest of the 18 year old who died in police custody in Brisbane (53QLD) was sparked by police surveillance in an area traditionally used by Aboriginal people. 27 A group of youths swore at police, saying they should leave them alone. The swearing and abuse in a public street was held to constitute offensive behaviour under section 7 (e) of the Vagrants, Gaming and Other Offences Act 1931 (Qld). The Aboriginal Legal Service argued that the offensive behaviour was merely a response to inappropriate scrutiny of a group of young people in an area traditionally used by Aboriginal people. The case was certainly one in which a caution could have been used. The history of local police-Aboriginal relations was not addressed in the investigation into the death, even though police were sufficiently familiar with the youths to know that they were heading back to a certain hostel.

In Queensland Aboriginal juveniles make up 45 per cent of the juvenile remand population, and 60 per cent of juveniles detained in watch houses for longer than one day. 28These figures strongly suggest that the recommendation is not being followed.

In Western Australia, there is overwhelming evidence that police discretions are exercised to the disadvantage of Aboriginal youth: 15 per cent of Aboriginal youth are cautioned or referred to juvenile justice teams, whereas Aboriginal juveniles account for 40 per cent of all juvenile arrests and 47 per cent of all juveniles detained in police lockups. 29 Aboriginal youth comprise 65 per cent of juveniles in detention. 30 Aboriginal youth comprise 4% of the Western Australian youth population. Despite the indicators, the State Government claims that this recommendation has been implemented. 31

Again, the move to give police in Queensland the power to detain a child who is not committing any offence and seek a care and control order before a magistrate is an extremely disturbing recent development.

Recommendation 240 - Police Discretion
a. Police administrators give police officers greater encouragement to proceed by way of caution rather than by arrest, summons or attendance notice;

b. Wherever possible the police caution be given in the presence of a parent, adult relative or person having care and responsibility for the juvenile; and

c. If a police caution is given other than in the presence of any such person having care and responsibility for the juvenile, such person be notified in writing of the fact and details of the cautions.

Tasmania is the only jurisdiction which did not claim to have implemented this recommendation in full. The circumstances of several of the cases throws significant doubt on these claims.

The recommendation is pertinent to the case of the 18 year old who died in police custody after being arrested for disorderly conduct (53QLD). The decision to mount an operation to arrest a group of youths was made very early, when the offending behaviour was limited to expressing in robust terms their disapproval of police scrutiny.

The case of the juvenile who died from AIDS in Townsville prison begs the question of why police engaged with the deceased in any manner other than with the care needed when any person is displaying signs of mental illness (22QLD). He was obviously disturbed. The court of appeal judgment records the fact that he had smeared excrement on himself and was masturbating on a veranda when police approached him. He was convicted of wilful exposure, two charges of assaulting police. He was also convicted of wilful damage to property (attempting to escape from police custody) and break and enter (stole $123 worth of goods while on bail). The circumstances of the offence included smearing some of the excrement already on his body in the face of a police officer. It happened on the spur of the moment. While the police officer suffered considerable anxiety, no injury was caused. The judgment is unclear, but is seems that only police officers witnessed the exposure. The deceased made an early plea of guilty, had no previous convictions and expressed remorse, but was sentenced to nearly three years in prison. He was only expected to live for two years.

Many of the Aboriginal adults who died in custody had long histories of incarceration as juveniles. In the case of a 20 year old man who died in Rockhampton prison (14QLD), the deceased had convictions for over sixty offences. Although there was one conviction for assault occasioning bodily harm, a few convictions for unlawfully using motor vehicles and breaking and entering, typically the convictions were for minor street offences, The first conviction was recorded when he was 12 years old. In the case of the 20 year old man who died in the Arthur Gorrie Remand Centre (45QLD) the deceased also had convictions relating for over sixty offences.

The 19 year old who died in the police lockup in Ceduna had been convicted for minor offences as a juvenile, and the man who died in Yatala prison in 1994 (60SA) had first appeared in the Childrens Court aged fifteen. In another case the Coroner commented that the deceased had a history of incarceration for minor offences, appearing in the Children's Court aged nine and serving his first sentence of imprisonment when he was fourteen (23WA).

The reality is that the arrest procedure is used in the vast majority of cases. The Western Australian government reported in 1994 that 'Much of police resources and time are spent on the summons process. From a strict policing point of view, the process is not effective or efficient.' 32 The undertaking to improve procedures so that the summons could be used more frequently has not been reflected in lower watch house detention rates.

The proportions of total juvenile watch house detainees who are Aboriginal in Western Australia (61.5 per cent) and Queensland (60 per cent) indicates that cautioning schemes are not benefitting Aboriginal juveniles. The South Australian Government's implementation report indicates that police refer 61 per cent of Aboriginal Juveniles to Court, 15 per cent to family conferences, and that 17 per cent are formally cautioned. By comparison, 42 per cent of non-Aboriginal juveniles are referred to court, 17 per cent are referred to family conferences and 35 per cent are cautioned. 33

Recommendation 241 - Aboriginal Involvement in Childrens Panels
The potential benefits which may flow from the provision of [Childrens' Aid or Screening] panels are not fully realised in the case of Aboriginal juveniles
. For the South Australia and Western Australia panels, the following matters should be made clear by legislation, standing orders or administrative directions so as to provide:

a. That the fact of arrest is not be taken into account in determining whether a child is referred to a Children's Court as opposed to an alternative body such as a Children's Aid Panel;

b. That the decision to proceed by way of summons or attendance notice rather than by cautioning a juvenile should not be influenced by the existence of such panels;

c. That there should be adequate representation of Aboriginal people on the list of panel members;

d. That the panels should be so constituted that there be adequate representation of Aboriginal members of the panel on any occasion in which an Aboriginal juvenile's case is being considered;

e. That in no case should there be consideration of the case of an Aboriginal juvenile unless one member, at least, of the panel is an Aboriginal person;

f. That an Aboriginal juvenile should not be denied consideration by a Children's Aid Panel by virtue of the juvenile's inability, on financial grounds, to make restitution for property lost, stolen or damaged.

This recommendation is not reflected in juvenile justice legislation in any state or territory. In Western Australia, for example, while 33 per cent of non-Aboriginal youth were dealt with by panels before they were abolished in 1995, only 14 per cent of Aboriginal youth were so dealt with. 34 Only 15 per cent of youth receiving cautions or referrals to Juvenile Justice Teams under the new legislation are Aboriginal. 35

Various profiles reveal the patterns of arrest for minor offences which lead to entanglement in the prison system. The 19 year old who died in Long Bay Gaol (19NSW) was first sentenced to six months' imprisonment on 5 January 1990 when he was 18 years old for using offensive language; resisting arrest; assaulting a police officer; maliciously destroying property; malicious damage; and simple larceny. A recent study found that between 1990 and 1992 the only people imprisoned in New South Wales for malicious damage to property were Aboriginal. 36 Six months' imprisonment rather than an appropriate alternative seems difficult to justify in light of the nature of the offences, the deceased's age, his psychiatric problems (he had received head injuries in a car accident) and the absence of any criminal record. The subsequent sentence of two years' imprisonment for burglary also seems unreasonable.

Recommendation 242 - Bail, Juveniles Not to be Placed in Police Lockups

That, except in exceptional circumstances, juveniles should not be detained in police lockups. In order to avoid such an outcome in places where alternative juvenile detention facilities do not exist, the following administrative and, where necessary, legislative steps should be taken:

a. Police officers in charge of lockups should be instructed that consideration of bail in such cases be expedited as a matter of urgency;

b. If the juvenile is not released as a result of a grant of bail by a police officer or Justice of the Peace then the question of bail should be immediately referred (telephone referral being permitted) to a magistrate, clerk of Court or such other person as shall be given appropriate jurisdiction so that bail can be reconsidered;

c. Government should approve informal juvenile holding homes, particularly the homes of aboriginal people, in which juveniles can lawfully be placed by police officers if bail is in fact not allowed; and

d. If in the event a juvenile is detained overnight in a police lock-up every effort should be made to arrange for a parent or visitor to attend and remain with the juvenile whether pursuant to the terms of a formal cell visitor scheme or otherwise.

Such steps should be in addition to notice that the officer in charge of the station should give to parents, the Aboriginal Legal Service or its representative.

South Australia, Tasmania and the Northern Territory professed to have implemented this recommendation in full, while the other jurisdictions only claimed to have done so to a partial extent. There are indications that significant action remains necessary in relation to this issue.

Unfortunately the coroners did not examine whether the juveniles who died in adult prisons had been detained in police lockups after their arrests. However, a recent report by a House of Representatives committee noted alarming and extensive breaches of this recommendation. 37 The breaches included:

New restrictions on the granting of personal bail to juveniles in Western Australia 38 which within a few months had led to 131 juveniles eligible for bail not being released due to the unavailability of a responsible parent.39 Of these, 110 had to wait up to 48 hours to be bailed.

The failure to amend the Bail Act 1980 (Qld), where juveniles remained in the watch houses for days or weeks because the Department of Community Services could not find places for them or because the Aboriginal Legal Service had not been notified; 40

An incident in New South Wales in which a 17 year old Aboriginal youth charged with urinating on a policeman's lawn in a country town was carted to court across many kilometres of winding country road in handcuffs in the back of a wagon holding on to the internal wire mesh so that he did not fall and injure himself. Bail was granted, but a surety of $1,000 cash was imposed. 41

Recommendation 245
That legislation, regulations and/or police standing orders, as may be appropriate, be amended so as to require compliance with the above recommendations.

Only South Australia and the Northern Territory professed to have fully implemented this recommendation.

The case of the deceased youth who was arrested with an even younger friend for disorderly conduct in a Brisbane park (see profile 53QLD) discloses a failure to implement juvenile recommendations through legislation or police standing orders 42. The officers' conduct in mounting the arrest operation was found to be justified because the supervisor would have agreed to an arrest operation had he been contacted. The officers' actions would clearly have breached police standing orders requiring compliance with the Royal Commission recommendations.

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ENDNOTES

1. Deaths in prison: 6NSW, 22QLD, 34QLD and 88QLD. Escape from JDC: 12NT.

2. During the Royal Commission period there were six juvenile deaths in institutional settings. This accounted for 6.1 per cent of deaths in institutional settings. In the post-Royal Commission period the five deaths accounted for 6.3 per cent of deaths in institutional settings.

3. Police car chases: 40NSW, 81NSW, 94QLD, 15WA, 16WA, 17WA, 24WA, 35WA and 86WA. Police shooting: 49TAS.

4. A5WA.

5. See Aboriginal and Torres Strait Islander Social Justice Commissioner, Third Report, 1995, at pp.14-17.

6. 60SA, 14QLD, 53QLD, 68SA, 45QLD and 19NSW.

7. See forthcoming Fourth Report of the Aboriginal and Torres Strait Islander Social Justice Commissioner on these recommendations.

8. Immediately before going to print this Office was informed of an accident in Melbourne during 1995 in which Aboriginal kids died. Press reports documented debate about police pursuits.

9. Criminal Justice Commission, Children, Crime and Justice in Queensland, Research Paper Series, Volume 2 No 2, September 1995, p.15.

10. Queensland Government, The First Report of the Aboriginal and Torres Strait Islander Overview Committee: An Agenda for Action, 1996 pp.58-61 ('First Report of the Queensland Aboriginal and Torres Strait Islander Overview Committee').

11. Harding et al, Aboriginal Contact with the Criminal Justice System: The Impact of the Royal Commission into Aboriginal Deaths in Custody, Hawkins Press, Sydney, 1995 p.63.

12. F. Metcalf, 'Law is Soft on Young Blacks - Judge', Courier-Mail, 17 Jan 1996 p.1.

13. Australian Newspaper, 12 April 1996 at p.2 quoting the Queensland Deputy Police Commissioner.

14. See Blagg H & Wilkie M, Young People and Police Powers, Australian Youth Foundation, Sydney, 1995; Report of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs Canberra 1994; Crime Research Centre, Repeat Juvenile Offenders: The Failure of Selective Incapacitation in Western Australia, Richard Harding (ed), Research Report No 10, 2nd Edition, March 1995; Beresford and Omaji, Rites Of Passage, Federation Press, Sydney,1996.

15. Blagg & Wilkie, op cit, note 1(i) at p. 144.

16. First Report of the Queensland Aboriginal and Torres Strait Islander Overview Committee, op cit, pp.58-61.

17. National Action Plan Australia, AGPS, Canberra, p.8.

18. Aboriginal Justice Council, Activities Report Western Australia, (prepared for the Conference of Aboriginal Justice Advisory Committee, 1995) p.23.

19. Harding et al, Aboriginal Contact with the Criminal Justice System: The Impact of the Royal Commission into Aboriginal Deaths in Custody, Hawkins Press, Sydney, 1995 p.63.

20. Aboriginal Legal Service of Western Australia, Striving for Justice, 1996, p.44-45 ('Striving for Justice').

21. T. Koch, 'Somebody's Child', The Courier-Mail, 3 May 1996, p.13.

22. Childrens Court of New South Wales, Information Bulletin, May 1996 p.3.

23. Macquarie Legal Centre, Childrens Court Assistance News, February 1996.

24. First Report of the Queensland Aboriginal and Torres Strait Islander Overview Committee, op cit, p.62.

25. M. Priest, 'Furore on Funding Cuts to Aboriginal Young Offender Group', The Courier-Mail, 5 January, 1996.

26. R. Ayres, 'Way Out West: Implementation of RCIADIC Recommendations in Western Australia, Aboriginal Law Bulletin, Vol 3 No 68, June 1994, p.20.

27. For a history of Musgrave Park see RCIADIC, Regional Report of Inquiry into Queensland, AGPS 1991, pp.259-263.

28. T. Driese, Queensland Aboriginal Justice Advisory Committee Report on Juvenile Justice, 1996.

29. Striving for Justice, op cit, p.192, based on statistics provided by the Ministry of Justice 1994; see also Crime Research Centre, University of Western Australia, Aboriginal Youth and the Juvenile Justice System of WA, prepared for the Aboriginal Affairs Department, vol 3,1995.

30. Striving for Justice, op cit, p195.

31. Government of Western Australia, Royal Commission into Aboriginal Deaths in Custody: Government of Western Australia 1995 Implementation Report, p285 (Government of Western Australian 1995 Implementation Report').

32. Government of Western Australia, Royal Commission into Aboriginal Deaths in Custody: Government of Western Australia 1994 Implementation Report, p.314.

33. Department of State Aboriginal Affairs, Royal Commission into Aboriginal Deaths in Custody 1994/95 Implementation Report South Australian Government (for the period 1 January 1994 to 30 June 1994) July 1996, p.15.

34. Striving for Justice, op cit, pp.142-144.

35. Striving for Justice, op cit, p.195, based on figures provided by the Ministry of Justice.

36. Simon Eyland, Truth in Sentencing: A Koori Perspective (Unpublished paper) at p.49.

37. Justice Under Scrutiny, op cit, p.314-324.

38. Ibid, p318;

39. Western Australian Legislative Assembly, Hansard, 13 September 1994, p4138.

40. Ibid, p316-7.

41. Ibid, p 320.

42. Notably recommendations 239 and 240.

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A Report prepared by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner

for the

Aboriginal and Torres Strait Islander Commission