Submission to the United Nations
Committee on the Rights of the Child for their Day of General Discussion
on the Rights of Indigenous Children
by the Aboriginal and Torres
Strait Islander Social Justice Commissioner, Human Rights and Equal Opportunity
Commission of Australia
Issue 3: Law and public
order, including juvenile justice
This submission is
made by the Aboriginal and Torres Strait Islander Social Justice Commissioner
on behalf of the Human Rights and Equal Opportunity Commission (HREOC)
of Australia. In recent years the Commissioner has undertaken many activities
relating to the rights of Indigenous children. This submission provides
an overview of law and justice issues relating to Indigenous children,
with a focus on juvenile justice, diversionary programs, public order
laws, mandatory sentencing schemes as well as Indigenous community justice
mechanisms and partnership agreements in Australia.
Two separate submissions
have been made which provide an overview of key issues faced by Indigenous
children relating to the recognition of their culture and identity, as
expressed by Indigenous youth; and an overview of the inequality and discrimination
faced by Aboriginal and Torres Strait Islander children in Australia.
Law and public order issues
In Australia, the
contact of Indigenous youth with criminal justice processes has long been
recognised as one of the most critical issues facing Indigenous Australians
today. One of the most important recommendations of the Royal Commission
into Aboriginal Deaths in Custody, which reported in 1991, called on governments
and Aboriginal organisations to:
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 organizations 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 or communities, whether by being declared to be in
need of care, detained, imprisoned or otherwise.(1)
The extent of the
crisis that faces young Indigenous people is demonstrated by the following
- Indigenous juveniles
are grossly over-represented in juvenile corrections. The rate of over-representation
has increased over the past decade. In 2000, Indigenous juveniles were
in juvenile corrections at a rate 15.5 times the non-Indigenous rate,
compared to 13 times in 1993(2) .
- The most recent
data, for 2001, indicates that Indigenous juveniles in detention comprise
43% of the total juvenile detention population despite making up less
than 4% of Australia's child population(3)
The Social Justice
Commissioner has highlighted issues of concern at each stage of the juvenile
justice system for Indigenous youth, including:
- the exercise of
police discretion and over-representation in public order offence categories;
- the targeting
of Indigenous juveniles through the imposition of mandatory sentences
for particular offence categories; and
- lower rates of
referral and disposition through alternatives to incarceration (such
as through juvenile diversionary schemes).
There have also been
some emerging successes in developing Indigenous community justice mechanisms
and negotiating partnerships between Indigenous peoples and governments
to address Indigenous contact with criminal justice processes.
a) Public Order offences and
that Indigenous people are disproportionately impacted on by 'public order'
laws such as provisions allowing police to 'move on' people where they
believe that they are obstructing others, causing fear in others or may
be in danger; and offences such as offensive language and offensive conduct.
For example, 1998
data for New South Wales indicates that Aboriginal people were grossly
over-represented for criminal proceedings for offensive language and offensive
conduct, making up over 20% of all prosecutions despite being 1.8% of
the NSW population. 14.3% of all Aboriginal people appearing in Local
Court in NSW appeared on at least one charge of offensive conduct or language(4)
. This means that they are 15 times more likely to be prosecuted for these
charges than non-Indigenous people(5) . In
one out of every four cases in which an Indigenous person was charged
with offensive language or conduct, they were also charged with offences
against the police - either resist arrest or assault police(6)
The NSW Bureau of
Crime Statistics and Research has also shown that the main categories
of offences on which Indigenous people are convicted in New South Wales
are good order offences (including offensive conduct), as well as offences
against justice (such as breach of court order and resist arrest) and
violent offences. In the case of good order and justice offences, there
is a higher discretion in police as to whether to lay charges in the first
Similarly, a review
of the operation of the Children (Protection and Parental Responsibility)
Act 1997 (NSW) in two regional centres demonstrated a clearly disproportionate
impact on Indigenous people being removed from the street(8)
. Part 3 of the Act provides that in designated towns police have the
power to remove unaccompanied young people under the age of 16 from a
public place where they determine that the person is 'at risk'. In this
context, 'at risk' means that they are in danger of physical harm or abuse,
or it is considered that they may be about to commit an offence.
In the first six
months of operation of the Act in Moree, 95 young people were picked up
by the police. In 91 of these occasions, the young person was Aboriginal.
The review of the Act's operation found that:
has impacted almost solely on Aboriginal young people to the extent that
it may be grounds for a complaint of indirect racial discrimination to
domestic and international bodies. Police are taking young people home
during the day as well as in the evening, sometimes while these young
people are involved in cultural activities. The Act has sanctioned widespread
over-surveillance and control of young people. Young people have been
incorrectly told there are curfews in place and areas of town are 'no-go
zones'. The Act has significantly changed behaviour patterns of young
people and limited their freedom to move around town(9)
These figures are
to an extent the result of a continuation of the history of poor relations
between Indigenous people and the police, which are confrontational and
which may be linked to the visibility of Aboriginal people in public spaces.
This situation is
not unique to New South Wales. Recent analysis of police records in Victoria
from 1993 to 1997 showed that public drunkenness and summary offences
such as indecent language, resisting arrest and offensive behaviour remain
a significant factor in Indigenous over-representation in custody, accounting
for almost one quarter of all processings of Indigenous people during
the period(10) .
in Victoria were also more likely to be dealt with through more formal
processes such as arrest, rather than through cautioning, across all offence
categories(11) . In relation to summary
offences, for example, Indigenous juveniles were arrested 36.1% of the
time, compared to just 15.4% for non-Indigenous juveniles; with Indigenous
juveniles cautioned just 4.6% of the time compared to 35.6% for non-Indigenous
juveniles(12) . This is despite wide acceptance
of the principle that police should give preference to forms of processing
other than arrest and the existence of Victorian government instructions
to police that alleged offenders should be processed according to the
seriousness of the offence, with arrest only to be used in extreme circumstances
and as a last resort.
b) Mandatory sentencing laws
One state and one
territory of Australia introduced laws commonly referred to as 'mandatory
sentencing' laws during the 1990s. In Western Australia, the laws relating
to juveniles (defined as offenders aged 10 - 17 years inclusive, not 18
as required under CROC), require a 12 month sentence in a juvenile facility
for the third or subsequent strike of home burglary. The laws apply to
children as young as ten years of age. Juveniles sentenced under the laws
are not eligible for parole until they have served at least six months
- or 50 per cent - of their sentence. This is in contrast to adults sentenced
to imprisonment under similar laws, who are eligible for parole after
serving one third of their sentence. These laws continue to operate in
In the Northern Territory,
the laws (which have since been repealed) required that adult offenders
(defined as aged 17 and above) found guilty of certain property offences
must be sentenced to a mandatory term of imprisonment of 14 days for a
first offence; 90 days for a second offence; and 1 year for a third offence.
For juveniles who had been convicted of at least one prescribe property
offence, the court was required to sentence them to a minimum sentence
of 28 days.
These laws have impacted
disproportionately on Indigenous people in both the NT and WA.
- In WA, Aboriginal
juveniles account for 81 per cent of all identified 'three strikes'
juvenile cases. This compares to comprising a total of 33% of all offenders
before the Children's Court.
- In the NT in 2000/2001,
approximately 79 per cent of prisoners sentenced for all property offences
were Indigenous. Only 28.5 per cent of the NT population are Indigenous.
The Australian Government
has argued that these laws are not discriminatory because they apply equally
to Indigenous and non-Indigenous offenders. However, racial discrimination
includes 'in purpose or effect'. Governments are required to take different
impacts on particular racial groups into account. Factors relating to
the laws that can lead to disproportionate impacts on Indigenous people
- Selection of
offences subject to mandatory detention: e.g. Targeting offences
overwhelmingly committed by Indigenous people, especially young people,
while specifically excluding offences generally committed by non-Indigenous
people (the NT laws included some forms of property offences while excluding
others such as shop-lifting and fraud which are more commonly committed
by non-Indigenous youth and tourists).
- Exercise of
police discretion: Studies have shown Indigenous people are overrepresented
at all stages of the pre-court process. The coexistence of mandatory
sentencing laws and juvenile diversion programs runs the risk of 'bifurcating'
juvenile justice, with first time offenders being diverted and repeat
offenders, who are largely Indigenous, being perceived by the courts
as 'hard core' juvenile offenders.
disadvantage: Socio-economic factors, such as educational disadvantage
and a lack of employment opportunities, play a large role in determining
rates of offending. Recognising the social context of young Indigenous
offenders is extremely important for crime prevention policy. If detention
has become a routine means for marginalised and disadvantaged young
Indigenous people to access a different experience, it is questionable
whether this functions as a deterrent at all.
The WA Government
reviewed the operation of the mandatory sentencing provisions in 2001.
In relation to juveniles, the review of the Western Australian law admitted
that 'while it is likely that for the most part juveniles sentenced to
detention would have gone into detention anyway, a few would not and
for others shorter terms may have been considered more appropriate'.
The review also found in relation to juveniles that the mandatory detention
provisions have a degree of arbitrariness and unfairness due to the calculation
of strikes and the exercise of discretion to divert some juveniles but
not others. The WA government has refused to repeal the laws.
The following concerns
relate to the imposition of mandatory minimum terms of detention for juveniles.
They apply equally to the NT and WA laws:
- interests of
the child as a primary consideration (article 3.1, Convention on the
Rights of the Child (CROC))
- Children require
special measures of protection (article 24, International Covenant on
Civil and Political Rights (ICCPR))
- Detention of children
as a measure of last resort (article 37(b), CROC)
- A variety of dispositions
must be available for child offenders (article 40.4, CROC)
and reintegration of a child offender should be the essential aim. A
child offender should be treated in a manner which takes into account
his or her age (article 40.1, CROC)
The following concerns
relate to the imposition of mandatory minimum terms of detention for juveniles
and adults. They apply equally to the NT and WA laws:
- Sentence must
be reviewable by a higher tribunal (article 40.2 (b), CROC; article
- Detention must
not be arbitrary (article 37(b), CROC; article 9.1, ICCPR)
- Laws and policies
must be non-discriminatory and ensure equality before the law (article
2, article 26, ICCPR; article 2.1(a), (c) and 5(a) International Convention
on the Elimination of All Forms of Racial Discrimination (CERD))
- Physical and mental
condition must be taken fully into account (Principle 5, Declaration
on the Rights of Disabled Persons; Principle 6, Declaration on the Rights
of Mentally Retarded Persons)
- Ensuring consistency
of international obligations across all levels of government (article
50, ICCPR; article 2, CERD)
c) Juvenile diversionary schemes
Diversion is the
term applied to measures to 'divert' offenders from the formal criminal
justice system. Options for diversion include verbal and written warnings,
formal cautions, victim-offender or family conferencing, or referral to
formal or informal community-based programs.
All Australian states
and territories offer some form of diversionary programs for juveniles,
and some offer diversion for adults. The Social Justice Report 2001
assessed juvenile diversion schemes in NT and WA against human rights
principles contained in CROC, ICCPR and other international instruments.
The Social Justice
Commissioner developed the following checklist of human rights standards
relating to diversion of juveniles, with a particular emphasis on recognising
Indigenous cultural needs.
Best practice principles
for juvenile diversion and Indigenous youth (13)
1. Viable alternatives to
the provision of a wide-range of viable community-based alternatives
to detention. Diversion programs should be adequately resourced to ensure
they are capable of implementation, particularly in rural and remote
areas. Diversion should be adapted to meet local needs and public participation
in the development of all options should be encouraged. There should
be adequate consultation with Indigenous communities and organisations
in the planning and implementation stages.
should be available at all stages of the criminal justice process including
the point of decision-making by the police, the prosecution or other
agencies and tribunals. Diversion should not be restricted to minor
offences but rather should be an option wherever appropriate. The decision-maker
should be able to take into account the circumstances of the offence.
The fact that a juvenile has previously participated in a pre-court
diversionary program should not preclude future diversion. A breach
of conditions should not automatically lead to a custodial measure.
Agencies with the
discretionary power to divert young people must exercise that power
on the basis of established criteria. The introduction, definition and
application of non-custodial measures should be prescribed by law.
All law enforcement
officials involved in the administration of juvenile diversion should
be specifically instructed and trained to meet the needs of young people.
Justice personnel should reflect the diversity of juveniles who come
into contact with the system.
5. Consent and participation
the informed consent of the child or his or her parents. Young people
should be given sufficient information about the option. They should
be able to express their views during the referral process and the diversion
process. Care should be taken to minimise the potential for coercion
and intimidation of the young person at all levels of the process.
6. Procedural safeguards
must respect procedural safeguards for young people as established in
CROC and the ICCPR. These include direct and prompt information about
the offences alleged, presumption of innocence, right to silence, access
to legal representation, access to an interpreter, respect for privacy
of the young person and their family and the right to have a parent
or guardian present. A child should not acquire a criminal record as
a result of participating in the scheme.
7.Human rights safeguards
CROC also requires
that the best interests of the child be a guiding factor; the child's
rehabilitation and social reintegration be promoted, with attention
to their particular vulnerability and stage of maturation; the diversionary
option applies to all children without discrimination of any kind, including
on the basis of race, sex, ethnic origin and so on; the diversionary
option is culturally appropriate for Indigenous children and children
of ethnic, religious and cultural minority groups; and the diversionary
option is consistent with prohibitions against cruel, inhuman or degrading
8. Complaints and review
The child should
be able to make a complaint or request a review about the referral decision,
his or her treatment during the diversionary program and the outcome
of his or her participation in the diversionary option. The complaint
and review process should be administered by an independent authority.
Any discretion exercised in the diversion process should be subject
to accountability measures.
scheme should provide for independent monitoring of the scheme, including
the collection and analysis of statistical data. There should be a regular
evaluation conducted of the effectiveness of the scheme. In reviewing
options for diversion, there should be a role for consultation with
Indigenous communities and organisations.
The right to self-determination
is also central for Indigenous peoples in the context of criminal justice
issues. Article 1 of the ICCPR and Article 1 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) assert
that all peoples have the right to self-determination. RCIADIC prescribed
self-determination as being necessary for Indigenous people to overcome
their previous and continuing, institutionalised disadvantage and domination.(14)
The Bringing them home report recommended that self-determination
in relation to juvenile justice issues be implemented through national
framework and standards legislation.
The full explanation of
these principles is online at:
The Social Justice
Commissioner's evaluation of the newly introduced Northern Territory diversionary
scheme commended the scheme overall, while expressing some concerns about
its practical operation. Concerns that arose about the NT scheme were:
- the limited range
of community based diversionary options, due in part to the poor level
of infrastructure and service networks in many remote communities;
- the lack of a
systematic approach to encouraging Indigenous participation in designing
and delivering diversionary processes;
- lack of transparency
of the scheme, with many matters left to police discretion. Early statistics,
however, indicated that the NT scheme was being accessed at equitable
rates for Indigenous juveniles;
- absence of procedural
safeguards such as access to legal advice before a juvenile agrees to
a diversionary option. There is, however, an extensive interpreter service
- lack of independent
monitoring processes and complaints mechanisms; and
- piecemeal and
uncoordinated involvement of Indigenous communities, with police retaining
primary control over the processes.
The review of the
WA scheme found that it was the worst scheme in Australia and had significant
problems for Indigenous juveniles in particular. Concerns expressed about
the WA scheme were:
- diversion was
not available as an alternative to detention in rural areas, with cautioning
and referral processes more prevalent in the capital city;
- an absence of
community based programs for Indigenous people in country areas;
- rates of diversion
were high at the Court level, rather than by the police (ie, juveniles
were not diverted at the earliest possible stage);
- Indigenous juveniles
have not benefited sufficiently from diversionary processes, and tend
to be dealt with more harshly by police;
- police training
is inadequate to deal with decision-making relating to diversion;
- there are no safeguards
such as the provision of legal advice and an interpreter if necessary,
which has the potential to undermine the informed nature of the consent
- the outcomes of
diversion processes are able to be used as evidence in cases where the
offender later appears in court. This contradicts the purpose of diversion
and has the effect of 'up-tariffing' young people when decisions are
made regarding punishment (i.e., it results in higher level dispositions
for an offence);
- The WA diversionary
options were not culturally appropriate and were discriminatory in their
impact. The most significant issue is that of net widening - the failure
of Indigenous youth to benefit from diversion through the exercise of
police or court discretion combined with increased contact with police;
- there is currently
no mechanism for young people to appeal against decisions made in relation
to cautions or diversionary decisions and outcomes;
- monitoring mechanisms
are poor, with a significant failure to report ethnicity or Aboriginality
in the record system of the Children's Court; and
- lack of involvement
of Indigenous communities in designing and delivering programs, and
in contributing to a re-orientation of the system towards rehabilitation.
These reviews demonstrate
the value of analysing programs for diverting Indigenous juveniles away
from detention within a human rights framework, and in particular by reference
to the principles contained in the Convention on the Rights of the Child.
d) Indigenous community justice
The current criminal
justice system has a deleterious effect on Indigenous communities through
over-representation of Indigenous people in custody, in large part due
to historically derived disadvantage and ongoing systemic discrimination.
Processes of separation through the criminal justice, juvenile justice
and care and protection systems, combined with dysfunctional behaviour
such as violence and abuse in communities are indicative of the inequality
and extreme marginalisation of Indigenous people in Australian society.
This is combined with the lack of attention the justice system gives to
the high rate of Indigenous victimisation, particularly through violence
and abuse in communities.
Reform to criminal
justice processes, including through community justice initiatives, must
be responsive to these factors. Improved community justice mechanisms
have the potential to make a significant contribution to addressing the
inequality and disadvantage experienced by Indigenous people and to do
so in a way that is culturally appropriate and more effective that current
There are numerous
new initiatives in Australia developing community based justice mechanisms
for dealing with juvenile and adult offending by Indigenous people. Some
Community Justice Groups
The Community Justice
Group project was started in Kowanyama, Hopevale and Palm Island in 1993
as a pilot project of the Queensland Corrective Services Commission. The
Community Justice Group model aims to provide Aboriginal people with a
mechanism for dealing with problems of justice and social control which
is consistent with Aboriginal Law and cultural practices as well as utilising
aspects of the Anglo-Australian legal system. The justice groups have
no statutory authority. The source of authority for the group is based
on the collective and personal authority of group members deriving from
the place of individuals within kinship systems and the personal respect
they are accorded by others. Ultimately the group's authority lies in
Aboriginal Law and cultural practices.
The Community Justice
Groups use traditional structures and cultural principles to develop and
apply their own system of justice and social control. They seek to restore
social order by curbing anti-social behaviour and by creating a more positive
and supportive environment. Group actions that they handle within the
existing legal framework include family-related dispute settlement, crime
prevention and community development projects, co-ordination with government
and community agencies and providing information and advice to the judiciary,
Community Corrections Boards and other government decision making bodies.
outcomes for the model include: decline in crime rate and level of violence;
an effective community corrections program at Palm Island that has kept
people from appearing before court and from possible incarceration; dramatic
decrease in juvenile crime at Kowanyama; changes in social patterns; more
effective government service delivery, leading to savings in time and
money for government and community agencies, courts, law enforcement agencies
and correctional centres.
outcomes for the model include: harsh punishments; potential drain on
the community's resources; acting without statutory authority; and a lack
of indemnity for justice group members.
The Community Justice
Panel (CJP) now works with clan groups on Cape York. The CJP model is
an evolutionary process, with options at each stage to be trialled before
the justice groups go on to the next stage.
The CJP model is
supplemented by monthly programs run by the Department of Corrections
and the Department of Family and Community Services in substance abuse
and anger management. There are also women's shelters in all communities.
Greater support is needed however for people on the alcohol management
program in terms of counseling and support. Without better infrastructure,
such programs will fail over the long-term.
The Kurduju Committee Law
and Justice Strategy
The Aboriginal Law
and Justice Strategy of the Northern Territory seeks to provide a whole-of-community
and whole-of-government approach to addressing community justice issues
within a law and justice planning process. It was originally implemented
at Ali-Curung in 1996 and in Lajamanu in 1999. Both these communities
now have their own law and justice plans and are engaged in peer modeling
with Yuendumu community.
In each community
a law and justice committee has been established. These committees have
a wide range of responsibilities and comprise key community representatives
from the Tribal Council, Community Elders, Safe House Committee, women's
group, traditional owners, outstation representatives and other community
the Ali-Curung, Lajamanu and Yuendumu communities also sit on the Kurduju
Committee, which provides an opportunity for information-sharing and peer
modeling, and also to address a perceived deficit in policy and program
knowledge, and expertise in regard to remote communities.
The aim of the law
and justice plans was 'to facilitate the empowerment of the local community
to assume a greater role in law and justice, and to address law and justice
concerns through local dispute resolution where practical.' There was
a perceived need for low-level intervention by Aboriginal communities
in early crime prevention and more productive participation in the justice
At Ali-Curung, Lajamanu
and Yuendumu, individuals and community organisations had largely lost
their capacity to resolve their own law and justice issues through the
introduction and consequential reliance on external dispute resolution.
Subsequently, the Law and Justice Strategy sought to incorporate Aboriginal
dispute resolution principles into community law and justice processes.
This was not a straightforward revival of customary law but an innovative
adaptation of traditional decision making in a contemporary situation
through the merging of mainstream community based dispute resolution with
mainstream law and justice. The process is negotiated and agreed to between
community organisations and government agencies.
The Ali-Curung and
Lajamanu law and justice committees are involved in diversionary programs,
pre-court conferencing, victim offender conferencing, community service
orders, and the operation of night patrols and safe houses. Ali-Curung,
Lajamanu and Yuendumu have adopted an approach to family violence that
involves local dispute resolution and healing methodology.
As in the case of
the community justice panels in Queensland, the experience of the Law
and Justice Strategy to date indicates that any initiatives seeking to
formalise an interface between aspects of customary law and the western
legal system should be organic, evolutionary and holistic. In order to
be effective, any community justice initiatives will also involve a considerable
investment in community consultation, participation and education: the
emphasis should be on devolving power to the communities. A one-size-fits-all
approach or the top-down application of a preconceived model is unlikely
to yield long-term results and could even be counterproductive in resolving
law and justice issues.
South Australia: Ngunga
Ngunga court was commenced in Port Adelaide in June 1999. In collaboration
with the Aboriginal community, South Australian Magistrate Christopher
Vass developed the idea of the court which incorporates the Aboriginal
traditional customary law approach to the sentencing of Aboriginal offenders
within the framework of existing legislation. Aboriginal Elders sit with
the magistrate to advice on sentencing options which may include community
sanctions and punishment. The Elder and magistrate sit at eye level to
the offender and not elevated by the bench. Members of the offender's
family, as well as the victim and the victim's family, and other interested
community members have the chance to speak during the sentencing hearing.
An Aboriginal Justice Officer is present to guide the offender through
the court process.
Officers also go into Aboriginal communities to speak on the criminal
justice system. The Ngunga court is available to any Aboriginal offender
who pleads guilty to an offence, and has not committed a violence or sexual
offence. Prior to the commencement of the Ngunga court in South Australia
the court attendance rate for Aboriginal offenders was well below 50 per
cent. The Ngunga court has an attendance rate ay over 80 per cent. There
are now four Ngunga courts operating in South Australia. A Murri court
now operates in Brisbane (capital of Queensland) on the same model as
the Ngunga court.
New South Wales: Circle
has been trialled in Dubbo, Walgett and Brewarrina in New South Wales.
A further trial was commenced in Nowra, New South Wales in February 2002.
The circle consists of the magistrate, offender, victim, family members
and Aboriginal elders. The participants sit in a circle, it is not usually
held in a formal court setting. The circle attempts to achieve consensus
on the sentence and the circle reconvenes, a few months later, to review
the progress of the offender or status of the sentence. A support group
for the offender is established at the sentencing circle, who report to
the Community Justice Group, on the progress of the offender. The Community
Justice Group, in turn, reports the progress to the magistrate. To date,
the trial has achieved great success with only 1 person committing further
In March 2003 Victoria
established a Koori Court. The court, a two-year pilot project, will operate
from the Broadmeadows Magistrates Court and the Shepparton Magistrates
Court. Like other similar courts operating in Australia, it also aims
to provide an informal approach to the sentencing procedure. It provides
for greater participation by the Aboriginal community. It aims to reduce
perceptions of cultural alienation and tailors sentencing orders to the
cultural needs of Koori offenders.
who plead guilty to an offence (with the exception of sexual or family
violence offences) can elect to have the matter heard in the Koori Court.
Included in the sentencing procedure are offender's legal representative,
the offender and any family members or other people, including the victim,
associated with the offence. The court provides a forum where Indigenous
elders as well as an Aboriginal Justice worker have input in the sentencing
process by advising the magistrate on matters of cultural significance.
The magistrate will confer with a community elder and discuss the most
appropriate sentence or conditions to be placed on the sentence. The Magistrate
and the community elder may also confer with the Aboriginal Justice Worker
in deliberation of the sentence.
e) Partnership agreements
with Indigenous peoples
A focus of Indigenous
representative organisations and Australian governments in recent years
has been the entering into partnership agreements for service delivery
to Indigenous peoples. Agreements or communiques have been entered into
by most States and Territories setting out the principles that underpin
the relationship between Indigenous people and the relevant government,
and specific Justice Agreements have been developed in a number of States.
- An Aboriginal
Justice Agreement has been signed by the NSW Attorney-General which
seeks to reduce Aboriginal people's involvement in the criminal justice
system and improve community safety for Aboriginal people. An Aboriginal
Justice Plan, setting out key priority areas and commitments is being
finalised following consultation and negotiation with Indigenous peoples.
- The Northern Territory
Government recently signed a communique committing the Government to
work in partnership with peak Indigenous organisations and communities
through the development of an Aboriginal justice plan to reduce overrepresentation
in the criminal justice system. The justice action plan is to address
the following objectives: Preventing crime; Improving community safety;
Improving access to justice related services, including services for
victims of crime; Improving access to bail; Improving access to diversionary
programs; Increasing community based sentencing options and non-custodial
sentencing options; and Increasing the rate of participation of Indigenous
people in the justice system.
- The Queensland
government has established the Ten Year Partnership. It commits the
Government to work with Aboriginal and Torres Strait Islander peoples
to improve standards of living over the next ten years. Under the partnership,
there are eight key areas to be addressed, namely: Justice; Family violence;
Reconciliation; Human services; Service delivery; Economic development;
Community governance; and Land heritage and natural resources.
- The Victorian
government has signed an Aboriginal Justice Agreement, developed through
negotiation with Indigenous people. The Agreement is supported by an
Aboriginal Justice Forum, where senior members of the Koori communities
sit with the most senior Victorian Government agency representatives
in monitoring, evaluating and steering the implementation of the Justice
This overview of
issues provides examples of difficulties faced by Australia in compliance
with the Convention in relation to Indigenous juveniles, as well as best
practice solutions for approaching the systemic issues faced by Indigenous
juveniles with the full participation and involvement of Indigenous communities.
Further information on each of the issues discussed is available from
the Commissioner's website.
Royal Commission into Aboriginal Deaths in Custody, National Report,
Volume 2, AGPS, Canberra, 1991, Recommendation 62, p252.
Australian Institute of Criminology, Persons in juvenile corrective
institutions 1981-2000, AIC Canberra 2001, Table 3 and Figure 2. This
over-representation rate reached as high as 17 times the non-Indigenous
rate in 1997: Australian Institute of Criminology, Australian crime
- facts and figures 2000, op.cit, Figure 59.
Australian Institute of health and Welfare and Australian Bureau of Statistics,
The health and welfare of Australia's Aboriginal and Torres Strait
Islander Peoples 2003, Commonwealth of Australia, Canberra 2003, p109.
Aboriginal Justice Advisory Council NSW, Policing public order, offensive
language and behaviour, the impact on Aboriginal people, AJAC, Sydney
Aboriginal Justice Advisory Council NSW, Policing public order, offensive
language and behaviour, the impact on Aboriginal people, AJAC, Sydney
Baker, J, The scope for reducing indigenous imprisonment rates,
NSW Bureau of Crime Statistics and Research - Crime and Justice Bulletin
Number 55, Sydney 2001, p3.
Aboriginal Justice Advisory Council NSW, A fraction more power - review
of the impact of the Children (Protection and Parental Responsibility)
Act on Aboriginal people in Moree and Ballina, AJAC NSW 2000.
Gardiner, G, Indigenous people and the criminal justice system in Victoria:
Alleged offenders, rates of arrest and over-representation in the 1990s,
op.cit., pp 92-93.
For further details see: Human Rights and Equal Opportunity Commission,
Human Rights Brief No.5, Best practice principles for the diversion
of juvenile offenders, HREOC, Sydney, 2001.
RCIADIC, op.cit, Vol 1, para 1.7.6.
These issues are discussed more fully in: Aboriginal and Torres Strait
Islander Social Justice Commissioner, Submission to the Northern Territory
Law Reform Committee inquiry into Aboriginal Customary Law in the Northern
Territory, 14 May 2003, www.hreoc.gov.au/social_justice/customary_law/nt_lawreform.html.
updated 11 September 2003.