Issue 2: Specific issues relating
to the administration of justice – Indigenous women; public order
laws; mandatory sentencing schemes; and best practice for diversion of
Aboriginal and Torres Strait
Islander Social Justice Commissioner, Human Rights and Equal Opportunity
Commission of Australia
Submission to the Expert seminar
on Indigenous Peoples and the administration of justice, Madrid, Spain,
12-14 November 2003
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. It addresses the following issues:
- Specific issues
faced by Indigenous women in the administration of justice;
- Public order
laws and the exercise of police discretion;
- Mandatory sentencing
- Best practice
for the diversion of Indigenous juveniles from custody.
This submission complements
two other submissions made by the Social Justice Commissioner.
i) Indigenous women and the
administration of justice
In 2002, the Social
Justice Commissioner’s office commenced research into the nature
of contact of Indigenous women with the criminal justice system. This
submission summarises the main findings of that research. 
are over-represented in corrections at a rate higher than any other group
in Australia. While Indigenous men face unacceptably high rates of incarceration,
the rate for Indigenous women (compared to non-Indigenous women) is significantly
higher and is rising at a faster rate. The rising rate of over-representation
of Indigenous women occurs in the context of intolerably high levels of
family violence, over-policing for selected offences, ill-health, unemployment
and poverty. Studies of Indigenous women in prison reveal experiences
of life in a society fraught with danger from violence. The consequences
to the community of the removal of Indigenous women are significant and
potentially expose children to risk of neglect, abuse, hunger and homelessness.
Indigenous women also serve comparatively shorter sentences, suggesting
a general failure to employ the principle of imprisonment as a last resort.
Once imprisoned, recidivism statistics also indicate that Indigenous women
are at greater risk of returning to gaol.
overview of Indigenous women in corrections
The number of Indigenous
women incarcerated has increased from 104 in 1991 to 370 Indigenous women
in 2001. This represents an increase of 255.8% over the decade. For the
June 2002 quarter, Indigenous women were over-represented at 19.6 times
the non-Indigenous rate (this compares to Indigenous men at 15.2 times).
reports also tell us the following about Indigenous women in corrections:
- In New South
Wales, Indigenous women represented 30 percent of the total female population
in custody in October 2002 despite constituting only 2 percent of the
female population of the state.
- In Queensland,
the growth of Indigenous female offenders in Queensland secure and open
custody over the five year period from 1994 -1999 was 204 per cent,
compared with an increase of 173 per cent for all female offenders in
Queensland over the same period. In February 2001, Indigenous women
represented 28.2 per cent of the total female population in Queensland
open and secure centres.
- In Victoria, of
the 4886 prisoners received into Victorian prisons in the 2000-01 period,
only 539 were women. Nevertheless, while female representation is low
overall, Indigenous women are over-represented, constituting 8% of all
- In Western Australia,
reception data shows that for the period 1 July 2001 to 30 June 2002,
Aboriginal women represented 51.7 per cent of all women received into
prison despite constituting 3.2 per cent of the female population of
- In the Northern
Territory, Indigenous women constituted 57 percent of the total female
prison population and 26 per cent of the female population of the Northern
data indicates that nearly 3 in every 4 (76 percent) of all Indigenous
prisoners had been previously imprisoned. In New South Wales, ‘almost
85% of Aboriginal women in prison have previously been in custody compared
with 71% of non-Aboriginal women.’ Recidivism rates for Indigenous
compared to non-Indigenous women are higher in all jurisdictions. For
example, preliminary findings of a Victorian study on the prison population
found a rate of re-offending of 71 percent among Indigenous women compared
to a rate of 61 percent average in 2000 among the female population.
of crime committed by Indigenous women
Statistics on crimes
committed by Indigenous women indicate that there is a considerable degree
of variation in criminal behaviour across jurisdictions and within regions.
There is also a steady and significant increase in most categories of
offences. Thus, there were 100% more Indigenous women in prison for homicide
related offences in 2001 than 1994, 127% more for assault and related
offences, 440% more for robbery, and so on. The increases were reasonably
comparable across many offence categories, although of particular significance
has been the increase in imprisonment for robbery offences, which outstripped
all other changes.
women comprise nearly 80% of all cases where women are detained in police
custody for public drunkenness. Similarly, by comparison to non-Indigenous
women, Indigenous women are more likely to be incarcerated for violence.
There has been a past general trend of low numbers of Indigenous people
imprisoned for drug offences. However, survey data from New South Wales
and Victoria indicate wide use of drugs including narcotics. A further
significant factor in the incarceration of Indigenous women is fine defaulting.
A further concern
about Indigenous women’s contact with criminal justice processes
relates to the potential over-policing of Indigenous women. For example,
in New South Wales, the Select Committee into the Increase in Prison Population
found in 2001 that the most significant contributing factor to increases
in the rates of incarceration of Indigenous women was the increase in
the remand population. There was no evidence to suggest that an in increase
in actual crime accounted for the prison increase, although increases
in police activity and changes in judicial attitudes to sentencing were
tend to receive shorter sentences than non-Indigenous women. General rates
of over-representation tend to indicate that Indigenous women are not
being provided with non-custodial sentencing options. Shorter sentences
also appear to be linked to high rates of incarceration for public order
of Indigenous women who are imprisoned
In general Indigenous
women in gaol are slightly younger than non-Indigenous women. There are
no national figures for Indigenous women prisoners with children, but
a majority of incarcerated women are mothers.
also often enter custody with poor physical or mental health. Research
in Victoria has revealed that many women self harm soon after release
from prison. This includes drug overdose & other types of self harm.
In NSW in comparison to a non-Indigenous woman, an Aboriginal woman is:
- Four times more
likely to be murdered;
- More than twice
as likely to be the victim of sexual assault, or sexual assault against
- Four times more
likely to be a victim of assault;
- Seven times more
likely to be a victim of grievous bodily harm.
factors is a strong argument that Aboriginal women receive poor responses
from police to complaints about violence and other disturbances. One reason
suggested for under-policing in relation to alleged assaults is a perception
that family violence is part of Aboriginal culture or a ‘tribal
norm.’ Another connected reason is the view that Aboriginal women
are undeserving of police protection. Recognition of the causes of violence
is crucial to developing solutions.
While there are limits
on the statistics that are available on Indigenous women in corrections,
there is sufficient data to indicate serious problems underlying Indigenous
women’s contact with corrections. The reasons derive in part from
a combination of the ongoing impact of colonisation on the culture, laws
and traditions of Indigenous communities, poverty and other forms of socio-economic
disadvantage. This manifests in many ways including alcohol and drug use,
homelessness and violence. Research has identified a strong correlation
between imprisonment of Indigenous women and the experience of sexual
assault and separation from family. The impact of alcohol related crime,
and increasingly in some jurisdictions, drug related crime requires further
Poverty and disadvantage
are widely recognised indicators for offending behaviour.
There is a correlation
between the highest rates of imprisonment of Indigenous people in the
most disadvantaged areas of New South Wales, although further research
is needed to confirm the links.
of Indigenous women in corrections
to family life: One of the greatest impacts of imprisonment
on Indigenous women is the disruption to the family life of children
through taking mothers into custody. This impacts on the women, the
children and the community who remain to take care of the children.
Pregnant women need prenatal support, support during labour and access
to family and their baby after birth. Indigenous women in detention
often present with compromised health. When these women give birth their
children may require hospitalisation in intensive care units until they
are stabilised. It is very important that the mothers of those babies
are able to access their children to breastfeed where possible, bond
and care for the baby.
of health care: Where
women are treated in hospitals outside the correctional facility, it
is important to prove a standard of care which meets requirements for
privacy. Protocols between the correctional institution and hospital
for dealing with inmates could prevent this experience for women. A
secure area where women could be received and treated within the hospital
may alleviate some of the problems.
with Family and Friends: Families are often not aware of the
exact location of prisoners, or of conditions attached to visits. The
need for liaison officers to reach communities with information about
their incarcerated family members was stressed.
to cultural responsibilities and dislocation from community: A
recent survey of Aboriginal women incarcerated in Sydney gaols found
that 73% felt they would have the support of their family and community
on release, but 28% either felt that would not have this support or
were not sure. An individual woman’s sense of shame can be a powerful
block to accessing vital support. In some instances women may also be
facing payback and may not tell authorities about it, and may become
itinerant as a result.
from Services: Indigenous
women experience dislocation from services as a result of incarceration.
This may be experienced as loss of housing and loss of medical or dental
programs among others. Indigenous women in remote communities suffer
particular dislocation from services.
homelessness and the loss of accommodation due to incarceration creates
one of the most urgent needs of Indigenous women post-release. Consultations
with Indigenous women in Darwin indicated that a major issue faced by
women incarcerated is the knowledge that they may lose their homes if
rental payments are not maintained.
the needs of Indigenous women in corrections
Election driven law
and order campaigns primed to drive up incarceration, a lack of government
action to implement the recommendations of the Royal Commission into Aboriginal
Deaths in Custody and lack of judicial activism to implement the recommendations
of the Royal Commission on non custodial sentences are some obvious and
ongoing causes of over representation.
by Indigenous women must be viewed as a symptom and offenders as the casualties
of colonisation. Links must be drawn and holistic models developed and
supported which address the connections between culture, drug use, alcohol
use, separation from family, violence, poverty, spiritual needs, housing,
health, boredom, race discrimination and gender discrimination.
are constructing, reconstructing and participating in programs and models
for dealing with criminal justice issues. These include community policing,
night patrols, Community Justice Panels and Groups, circle sentencing,
and participation in courts such as the Nunga court (SA), Murri court
(Qld) and Koori court (Vic).
Programs have now
been developed and evaluated, particularly around family violence for
women, men and children, and Indigenous participation in drug court trials.
These indicate that it ‘is very important to give responsibility
back to the community, through the case management, future planning and
post release programs and services. The community must also be properly
supported in these initiatives’.
have looked to new models and in so doing, look to the past for answers.
One example is the development of restorative justice models to deal with
violent behaviour within communities. Restorative justice models engage
community, victim and offender. The victim’s rights to safety and
security are paramount, and the participation of Indigenous Elders is
essential. This approach has been considered by the Indigenous Services
Unit of New South Wales Corrective Services with the view of developing
a similar initiative for Aboriginal women in New South Wales.
are disadvantaged by the lack of services designed for them. This is an
example of intersectional discrimination. It is a consequence of a rights
and policy structure which identifies groups of needs and rights holders
such as women and Indigenous people, but fails to provide for the needs
of people who dwell at the intersection of these groups.
There should also
be recognition that community extends into gaols. Elders recognised this
long ago and have been visiting the large numbers of incarcerated Indigenous
people for many years. The many successful programs (such as CDEP) now
running in communities could be adapted for Indigenous women in gaol.
For many women, gaol is a time of reflection and a time where culturally
appropriate programs would be extremely beneficial.
By contrast, there
is an increasing understanding of the vulnerability of Indigenous women
to the impact of a lack of post-release resources. Evidence indicates
that women are at serious risk of self-harm and harm from others in the
period immediately after incarceration. It is important that rehabilitation
be undertaken in prison and continued on release. Rehabilitation is important
of itself, but it is also crucial in preventing recidivism.
Issues that pre-
and post-release programs need to address include:
has been identified as the most important basic need of women leaving
gaols. Some women may be able to access public housing, but this needs
to be in place before their release date. Others may not be eligible
due to previous problems with the department. These women need support
with at least temporary accommodation until they are established and
can attempt to access to private housing market. Transition accommodation
is perhaps the most important service for women, especially if they
with Violence: Effective pre and post release programs should
include community based, Indigenous specific programs to help women
deal with the effects of violence and to help women develop alternative
strategies for coping with violence in the future. People require protection
from violent behaviour and alternative structures for prevention and
punishment of violent behaviour which provide more than imprisonment
with all its risks and consequences. Pre- and Post-release programs
should include assistance for past injuries suffered by women, and strategies
for dealing with these issues in the future. Where drug and alcohol
use, associated with incidents of violence has become problematic programs
should address these needs.
Women need support to maintain contact with their children while they
are incarcerated. Where that is not possible, they need to be provided
with information as to the well being of their children. Women need
support when they resume contact with their children. They need practical
advice on how to deal with family court procedures and departments of
Obligations: Aboriginal women in custody are ever-conscious
of the impact their absence has on the day to day lives of their families
and children. This creates stress on them during the period of their
custodial sentence, and creates additional stresses on them when they
return home. Programs which are sensitive to the kinship obligations
of Indigenous women and supportive of these roles are important. Indigenous
women have identified help with family and community relationships as
an issue they want help with. Some women may face another form of dispossession
because of the impact of violent relationships on their lives. They
may not be able to return to their home community, as a result of their
own or other people’s violence. In either scenario, women need
support to re-enter potentially volatile situations. Pre- and post-release
programs need to be sensitive to kinship obligations, and to support
Indigenous women to work with their customary obligations and to positively
re-integrate into the community in which they will live.
Issues, Employment, Education and Training: There is an absence
of consistent data in relation to educational background of prisoners
available. On the issue of employment and education programs within
the prison Margaret Cameron of the Australian Institute of Criminology
notes that ‘no formal consideration has been given to the needs
of ATSI women.’ A recent survey of NSW women noted that 84% of
the women said they would like to work on release.
to health services: The
high incidence of health problems among Aboriginal women is an indicator
that pre and post release programs should target the health needs of
Aboriginal women. The high incidence of deaths in custody attributable
to natural causes indicates an urgent need for better health care while
in custody, and better health care on release. There is also a specific
need to address drug abuse among Indigenous women.
ii) Public order laws and
the exercise of police discretion
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
 . This means that they are 15 times more likely to be prosecuted
for these charges than non-Indigenous people. 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. 
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 juveniles being removed from the street 
. 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:
the Act 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 .
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. 
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 . 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
. 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.
During the past eighteen
months there has also been a worrying trend of State and local governments
resurrecting old policies of segregating and excluding Aboriginal people
from public places. These laws and policies in theory apply to everyone,
but in practice target Aboriginal people.
In Adelaide, the
state Government, at the request of the City Council, extended a dry (or
alcohol free zone) area trial for a second 12-month period despite the
fact that, in the first 12 months, the support services required by the
state Government itself had not been provided. The purpose of establishing
the dry area was to prevent people drinking outdoors in city squares,
predominantly Aboriginal people.
I advised Adelaide’s
Mayor that a substantially disproportionate impact on Indigenous people
would only be tolerated under the federal Racial Discrimination Act 1975
if the dry area declaration was reasonable. In deciding what is reasonable,
community amenity and safety are relevant factors as is the aim of reducing
substance abuse by Indigenous people. At the same time, it is also relevant
to ask whether Indigenous people’s enjoyment of their culture and
traditions is affected; whether the effect of moving them away from the
central city area is that they have substantially less access to welfare
and support services, and; whether their reduced “visibility”
also makes them more vulnerable to assaults and less accessible to protective
services such as the police.
In Perth, the state
Government introduced a night-time curfew for children and young people
in the restaurant and nightclub district of Northbridge. Unaccompanied
children aged 12 and younger must be out of Northbridge by dark, while
13–15 year olds must be off the streets by 10pm. At least 80 percent
of young people removed from Northbridge by police under the curfew have
In Darwin, the City
Council by-law prohibiting outdoor camping and sleeping is said principally
to affect Aboriginal people – those who sleep outdoors for cultural
reasons and those who do so because they are homeless.
In Townsville, the
City Council has hired a private security firm to enforce a by-law prohibiting
the possession or consumption of alcohol in the city’s parks by
putting together a photographic dossier of park-users and confiscating
any alcohol found. Once again, most of those affected are Aboriginal people,
many of them homeless or without accommodation in the city. Further, the
City Council has applied to have all public streets and parks declared
as move-on areas under the Police Powers and Responsibilities Act 2000
(Qld). If approved, police would be empowered to order a person to move
on and stay away for up to 24 hours if, for example, he or she is “causing
anxiety” to another person by being in a public place.
such as these are a return to the old segregation days. They are based
on paternalistic notions about the relationship between government and
Indigenous people and attempt to impose assimilation as a pre-condition
to their acceptance as full members of society. They come close to violating
the citizenship rights of Aboriginal people. They also ignore the history
of Aboriginal exclusion and disadvantage. They impact on the poorest,
most isolated and most disadvantaged. Aboriginal people are grossly over-represented
among those afflicted by ill-health (including alcohol addiction), poor
living conditions and homelessness. It is frankly disingenuous to claim
that such laws target behaviour pure and simple, without any racial component.
It is essential to
evaluate these exclusionary trends in light of recent history as well.
The key recommendations of the Royal Commission into Aboriginal Deaths
in Custody aimed to reduce Indigenous people’s contact with police
and their rates of incarceration. Giving police more powers to approach,
remove and detain Aboriginal people runs directly counter to those recommendations.
iii) Mandatory sentencing
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 WA.
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 sentences were required to be imposed regardless of
the circumstances of the offender or the offence.
These laws 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
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).
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:
- Best 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)
schemes offer a particularly disturbing illustration of how laws can exacerbate
contact of Indigenous peoples with criminal justice processes, and promote
harsher, and discriminatory, sentencing outcomes.
iii) Juvenile diversionary
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
in order to determine their impact on Indigenous juveniles.
The Social Justice
Commissioner developed the following checklist of human rights standards
relating to diversion of juveniles, with a particular emphasis on recognising
Best practice principles for
juvenile diversion and Indigenous youth
alternatives to detention.
Diversion requires 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.
Diversionary options 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
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
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.
Diversion requires 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.
Diversionary options 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.
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 punishment.
and review mechanisms
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.
The diversionary 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.  The Bringing them
home report recommended that self-determination in relation to juvenile
justice issues be implemented through national framework and standards
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.
This research is published in Aboriginal and Torres Strait Islander Social
Justice Commissioner, Social Justice Report 2002, HREOC Sydney
2002, Chapter 5, www.humanrights.gov.au/social_justice/sjreport_02/index.html.
2. Aboriginal Justice Advisory Council NSW, Policing
public order, offensive language and behaviour, the impact on Aboriginal
people, AJAC, Sydney 1999, p3, www.lawlink.nsw.gov.au/ajac.nsf/pages/reports.
3. ibid, p4.
4. 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, www.lawlink.nsw.gov.au/bocsar1.nsf/pages/cjb55text.
5. 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, www.lawlink.nsw.gov.au/ajac.nsf/pages/reports.
6. ibid, p19.
7. Gardiner, G, Indigenous people and the criminal
justice system in Victoria: Alleged offenders, rates of arrest and over-representation
in the 1990s, Centre for Australian Indigenous Studies, Monash University,
Melbourne 2001,pp 92-93.
8. ibid, pp78-79.
9. ibid, p50.
10. For an overview of mandatory sentencing schemes introduced
in Australia and their impact on Indigenous peoples see: Aboriginal and
Torres Strait Islander Social Justice Commissioner, Social Justice Report
2001, HREOC Sydney 2001, Chapter 4., www.humanrights.gov.au/social_justice/sjreport_01/index.html.
11. Royal Commission into Aboriginal Deaths in Custody,
National Report – Volume 1, op.cit, para 1.7.6.
Last updated 7 November 2003.