Across Australia, Indigenous children of children in juvenile detention centres. Indigenous children are than non-Indigenous children to be in detention.
A royal commission set up to examine this system must interrogate the failures of an interventionist law-and-order approach for Indigenous children and their families, and identify pathways for taking Indigenous children out of jail and returning them to their families.
What is the state of play?
The proportion of Indigenous children in penal detention centres in the NT than in any other state or territory. The number of children in NT juvenile detention centres who has continued to climb in recent years. Today the number is 100%.
The territory’s youth detention rate is . It has the of children in juvenile detention per 100,000 10-to-19-year-olds in Australia. Of these, approximately 60% are the NT’s Department of Children and Families.
The NT juvenile detention centres are overwhelming filled with children who have not been proven guilty of a crime or sentenced. Rather, they are .
Although not as high, these with the over-representation of Indigenous children nationally – both in juvenile detention centres and under child protection orders.
Over the past decade, due to some key shifts in Indigenous policy and criminal laws, the number of Indigenous children in NT juvenile detention centres has . Any examination of the reasons for the over-representation of Indigenous children in prisons and out-of-home care needs to consider these shifts.
There has been a recent surge in law-and-order approaches in Aboriginal communities in the NT. In mid-2006, the federal government deployed Federal Police to NT communities and committed A$130 million . In 2007, it embarked on the .
The government introduced legislation giving extended powers to police in Aboriginal communities. It prohibited certain information on Indigenous background from being considered when determining bail and sentencing Indigenous people.
The Intervention of the , because the policies were racially discriminatory. Most of these measures have since been enshrined in the .
This act also provides special policing powers for designated “alcohol-protected areas”, which cover most NT Aboriginal communities. The legislation created a lawful context for discriminatory treatment in the policing and sentencing of Indigenous people.
Since the Intervention, there has been a steep rise in the criminalisation of Indigenous young people. This includes a in traffic and vehicle convictions for young people, such as driving unregistered vehicles or driving without a licence.
In Indigenous communities with the newly established police stations, Indigenous people have complained the police were when investigating a crime.
The federal and NT governments did not match their investment in police with an investment in Corrective Services to facilitate diversionary programs or home detention in Indigenous communities. This has meant Indigenous young people who are found guilty of an offence are either fined or go to prison. This contravenes the NT’s , which promotes the principle that penal custody should be a sentence of “last resort”.
Another key contributor to the increase of Indigenous children in juvenile detention is the NT government’s changes to its . Similar to other states and territories, there are several exceptions that undermine the right to bail for young people. These include where offenders have been charged with drug offences or are repeat serious offenders (where they have committed a repeat serious offence within ten years).
In relation to sentencing, young offenders who are sentenced in the Supreme Court and convicted of a violent offence are subjected to the NT government’s regime of mandatory sentencing. This was to ensure custodial sentences are imposed, including on children who appear before the territory’s Supreme Court.
How to reduce the numbers
There are several legal changes that could dramatically and instantly reduce the number of Indigenous children in custody.
The first is to increase the age of criminal responsibility to 15. This would be , where it has not led to greater offending.
Evidence shows prisons are more likely to contribute to recidivism. Young people who participated in a juvenile pre-court diversion scheme in the NT were less likely to reoffend.
Second, all young people should have a right to bail. By taking all young people out of remand, the numbers in juvenile detention centres would be reduced to a small fraction of what they are currently.
Outside the legal system, strengthening Indigenous communities to provide support and programs for vulnerable young people is critical for improving the prospects for Indigenous youth. This includes therapeutic and healing programs relating to trauma, mental health and disability issues – including foetal alcohol disorder spectrum, hearing loss, cognitive impairment and other forms of brain injury.
There needs to be greater Indigenous community control over child safety issues. This was a key recommendation of the , which instead triggered a law-and-order response (the Intervention) in 2007. State interventions in the lives of young people have proven unsuccessful, if not diabolical, in protecting Indigenous children.
The royal commission’s terms of reference run the risk of characterising the NT as a . However, the extent of the mistreatment of Indigenous young people in juvenile detention centres is much broader than the Don Dale detention facility.
The problem is also much deeper, and points to endemic issues with removing Indigenous children from their families and communities and placing them in coercive environments and with non-Indigenous families.
Across Australia, governments regard locking up vulnerable Indigenous children as a legitimate exercise of state power. This practice has the legalisation of physical restraints, spit-hoods and ongoing isolation of young people in prison cells.
Systemic incarceration and removal from family of Indigenous young people need to be redressed. What the NT experience with state interventions has revealed is that rather than protecting young people, it has placed them at greater risk of mistreatment and trauma.
