Madrid - Expert Seminar on Indigenous Peoples - Specific issues relating to the administration of justice – Indigenous women; public order laws; mandatory sentencing schemes; and best practice for diversion of Indigenous juveniles.

Issue 2: Specific issues relating to the administration of justice – Indigenous women; public order laws; mandatory sentencing schemes; and best practice for diversion of Indigenous juveniles.

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

Introduction

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 schemes; and
• 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. [1]

Indigenous women 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.

A statistical 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).

Other statistical 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 female prisoners.
• 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 Western Australia.
• 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 Territory.

National statistical 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.

Types 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.

Nationally, Indigenous 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 also important.

Indigenous women 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 offences.

Characteristics 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.

Indigenous women 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 children;
• Four times more likely to be a victim of assault;
• Seven times more likely to be a victim of grievous bodily harm.

Accompanying these 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 investigation.

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.

Experiences of Indigenous women in corrections

• Disruption 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.
• Pregnancy: 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.
• Provision 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.
• Visits 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.
• Disruption 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.
• Dislocation 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.
• Housing: Chronic 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.

Addressing 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.

Criminal conduct 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.

Indigenous people 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'.

Indigenous people 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.

Indigenous women 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:

• Housing issues: Housing 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 have children.
• Dealing 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.
• Children and Families: 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 community services.
• Kinship 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.
• Financial 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.
• Access 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

Research demonstrates 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 [2] . 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. [3]

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 place. [4]

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 [5] . 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 .[6]

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. [7]

Indigenous offenders 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 [8]. 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 [9]. 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 been Aboriginal.

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.

Exclusionary laws 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 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 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. [10]

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 include:

• 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.
• Socio-economic 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)
• Rehabilitation 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 14.5, ICCPR)
• 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)

Mandatory sentencing 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 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 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 Indigenous rights.

Best practice principles for juvenile diversion and Indigenous youth

1. Viable 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.

2. Availability 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 measure.

3. Criteria 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.

4. Training 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 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.

6. Procedural safeguards 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.

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 punishment.

8. Complaints 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.

9. Monitoring 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.

10. Self-determination 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. [11] 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: www.humanrights.gov.au/human_rights/briefs/brief_5.html

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 available;
• 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 given;
• 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.

1. 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.