Kids have healthy, happy childhoods when they live in loving and nurturing communities.
It’s kids’ connections with family and community that allows them to flourish, and sets them up for life. But government policies are separating Indigenous kids from their communities. By locking up kids as young as 10, we are repeating our past mistakes and threatening our future as a fair, just and harmonious community.
Amnesty International Australia’s researchers have been gathering the full story on Australia's high rate of Indigenous youth incarceration. We've now released the report, “A brighter tomorrow: keeping Indigenous kids in the community and out of detention in Australia,” which details how the Australian Government can reduce the numbers of young Indigenous people incarcerated across the country.
Amnesty's researchers have identified many brilliant Indigenous-led solutions to keep Indigenous kids in communities for a brighter tomorrow. But first the Australian Government needs to meet its international legal obligations, and provide ongoing federal funding to these successful Indigenous-led initiatives.
In 2013–2014, Indigenous young people were 26 times more likely to be in detention than non-Indigenous young people. Aboriginal and Torres Strait Islander young people make up just over 5 per cent of the Australian population of 10 to 17-year-olds, but more than half (59 per cent) of those in detention.
The Aboriginal and Torres Strait Islander population has more people in younger age brackets than the non-Indigenous population. In light of this, the National Congress of Australia’s First Peoples noted in 2013 that “unless the rate of increase in youth detention can be reduced, rates of incarceration across the Aboriginal and Torres Strait Islander population are likely to continue to increase into the future.”
The rates of Indigenous and non-Indigenous youth detention vary from one jurisdiction to another. Western Australia, Queensland and the Northern Territory have, respectively, the highest rate of over-representation of Indigenous youth in detention; the fastest growing rate of Indigenous youth detention; and the highest proportion of youth in detention who are Indigenous. However, change is needed throughout Australia, and most recommendations apply to all Australian states and territories.
The Australian Government’s International human rights obligations
In Australia, each state and territory government is responsible for its own laws, policies and practices for dealing with young people accused of committing, or convicted of, offences.
However it is the Australian Government, as a signatory to international human rights conventions, that bears ultimate responsibility for fulfilling the rights of Indigenous young people in all states and territories.
In Australia there are state and territory-based laws that breach international human rights obligations. The Australian Government should invalidate these laws, or work with the states and territories to have them repealed.
Amnesty's report has identified a number of human rights violations and improvements needed to address the high rate of Indigenous youth in detention, including but not limited to the below:
Violations of the UN Convention on the Rights of the Child
Australia’s juvenile justice system “requires substantial reforms for it to conform to international standards.
The Convention on the Rights of the Child (CRC), which Australia has signed and ratified, is the primary source for internationally-agreed children’s rights. Under international law, children (those under 18) have all fair trial and procedural rights that apply to adults as well as additional juvenile justice protections.
The Committee on the Rights of the Child, which monitors State Parties ’implementation of CRC, noted in 2012 that Australia’s juvenile justice system “requires substantial reforms for it to conform to international standards.”
Age of criminal responsibility
Across Australia children are held criminally responsible from just 10 years of age despite the Committee on the Rights of the Child having concluded that 12 is the lowest internationally acceptable minimum age of criminal responsibility.
Detaining children with adults
At the time of ratifying CRC, Australia made a reservation to Article 37(c) which requires children to be separated from adults in prison, unless it is in the child’s best interests not to do so. This reservation has been justified to detain children with adult prisoners where separation is not “considered to be feasible having regard to the geography and demography of Australia.” The Committee on the Rights of the Child has repeatedly recommended that the reservation be withdrawn.
Detention conditions, Northern Territory
Youth detention conditions in the Northern Territory do not appear to comply with the international human rights standards.
At the Alice Springs Youth Detention Centre young people are only separated from adult prisoners by a fence. Young people are taken to the visiting block at the adult prison to speak with visitors and are handcuffed on their way to and from the visiting block.
All of the young people in detention in Darwin were transferred to a dilapidated former adult facility at Berrimah in December 2014. The previous government had planned to demolish this facility because it was old, in a poor state of repair and had an “inappropriate and outdated design.”
Mandatory sentencing, Western Australia
The Western Australian Criminal Code Act 1913 (WA) requires magistrates to impose mandatory minimum sentences on young offenders in a number of circumstances. This directly contravenes the Convention on the Rights of the Child (CRC), which states that detention for those under 18 must only be as a measure of last resort, and that all sentences, first and foremost, take into account the best interests of the child. The Committee on the Rights of the Child have recommended the laws be repealed.18 Instead the Western Australian Government is in the process of extending mandatory sentencing.
Multiple breaches of CRC, Queensland
Queensland treats 17-year-olds as adults in its criminal justice system. CRC states that those under 18 must be treated as children in the eyes of the law. In 2012 the Committee on the Rights of the Child again recommended that Australia remove 17-year-olds from the adult justice system in Queensland.
Ignoring this recommendation, in 2014, the Queensland Government amended its Youth Justice Act 1992 (Qld) to require all 17-year-olds with six months or more left of their sentence to be transferred to adult jails.
In 2014 the Queensland Government introduced a further law which says that the court must disregard the principle that detention be a last resort, in direct conflict with CRC.
Need for more bail accommodation
Between June 2013 and June 2014 Indigenous young people were 23 times more likely than their non-Indigenous counterparts to be in unsentenced detention.
International human rights standards require that detention for persons awaiting trial must be the exception rather than the rule.22 However Indigenous young people are often held in detention on remand simply due to a lack of suitable accommodation and support to comply with bail conditions.
Ending Indigenous incarceration together
Reducing incarceration rates is going to take commitment, action and coordination from all Australian governments.
The Australian Government can create a brighter tomorrow for Indigenous kids through:
Supporting communities to support kids
Kids need their communities if they are to grow up strong and healthy. They need empowered, self-determining communities, and Indigenous community-led programs that support them so they don't get into trouble, and if they do, that help them address the reasons why.
The UN Committee for the Elimination of Racial Discrimination has recommended that Australia “dedicate sufficient resources to address the social and economic factors underpinning indigenous contact with the criminal justice system”.
Justice reinvestment re-directs money spent on prisons to community-based initiatives which address the underlying causes of crime. Bourke, New South Wales is the first place in Australia to trial a community-led justice reinvestment approach to keep kids out of detention. Initiated and led by the Aboriginal community, the initiative is now tackling the social issues that get kids into trouble in the first place. They’re keeping kids in communities, where they belong.
Indigenous leaders and community organisations have consistently highlighted that more needs to be done to address the underlying factors that contribute to Indigenous youth in detention through locally-designed early intervention, prevention and diversion programs.
Indigenous legal services
The current funding uncertainty, shortfalls and government cuts to specialised Indigenous legal services mean that many Indigenous young people do not always get the legal assistance they need.
The Aboriginal and Torres Strait Islander Legal Services (ATSILS) and Family Violence Prevention Legal Services (FVPLS) provide specialised, culturally tailored services for Indigenous people, including young people. Numerous inquiries have concluded that both of these Indigenous legal services are significantly underfunded.
In 2008, The Council of Australian Governments (COAG) agreed to six ‘Closing the Gap’ targets relating to Indigenous life expectancy, infant mortality, early childhood development, education and employment.
Closing the Gap targets have improved data collection, coordination, and tracking of efforts to address Indigenous disadvantage across all states and territories.
However despite much discussion, COAG has yet to adopt a justice target within the Closing the Gap strategy.
The National Congress of Australia’s First Peoples has consistently called for justice targets to be included in the Closing the Gap strategy.
The Aboriginal and Torres Strait Islander Social Justice Commissioner’s 2014 report also includes a recommendation that the Australian Government revise its current position on targets as part of Closing the Gap, to include justice targets to reduce Indigenous youth incarceration rates and create safer communities through reduced rates of experienced violence.
Better data for better solutions
There are many inconsistencies and gaps between states and territories in collecting data on contact with the youth justice system. The inadequacy of this information is one of the barriers preventing policy makers from more effectively responding to the over-representation of Indigenous young people in detention.
For a full list of research, references and recommendations to the Australian Government, please download A brighter tomorrow (Full report).