Western Australia has the highest rate of over-representation of Indigenous youth in detention in Australia. Amnesty International’s report, “There is always a brighter future: Keeping Indigenous kids in the community and out of detention in Western Australia” finds many ways that the Western Australian Government can reduce the numbers of young Aboriginal people incarcerated in the state.
The report is based on research carried out between mid-2013 and early 2015, and is informed by conversations and interviews with Aboriginal people, including representatives of Aboriginal organisations working with young people; court officers and lawyers of the Aboriginal Legal Service of Western Australia (The ALSWA) and other Aboriginal organisations throughout Western Australia.
The report shows that kids have healthy, happy childhoods when they live in loving and nurturing communities. It is kids’ connections with family and community that allows them to flourish, and sets them up for a good life.
But government policies are separating Aboriginal 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.
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Western Australia falling behind
Western Australia consistently detains Aboriginal young people at a vastly higher rate than any other state or territory; and the rate of over-representation is rising.
Nationally in 2013–2014, Indigenous young people in Australia were 26 times more likely to be in detention than non-Indigenous young people. In Western Australia, they were 53 times more likely to be in detention. Aboriginal young people make up just over 6 per cent of Western Australia’s 10 to 17-year-olds, but more than three quarters of those in detention. The situation is bleaker still among Western Australia’s youngest children – in 2014 almost nine out of 10 children in detention aged between 10 and 13 were Aboriginal.
Aboriginal children and young people make up about 40 per cent of the total Aboriginal population in Western Australia; around twice the proportion of non-Aboriginal people in the same age group. Unless the high rate of Aboriginal youth detention is urgently addressed, an increasing number of Aboriginal young people will move into the adult justice system.
What can Western Australia do better?
That one in every 77 Aboriginal boys is in detention at any one time is an appalling indictment on Western Australia. There is clearly a need for a collaborative approach and for building an effective partnership between government and Aboriginal communities.
Amnesty International’s report on Indigenous kids in detention in Western Australia details 23 recommendations for the Western Australian Government.
Currently Western Australia is inadequately investing in and referring young Aboriginal people to programs that address the underlying causes of offending behaviour before it becomes an entrenched criminal justice issue. It needs to increase state funding and support to the many successful Aboriginal-led initiatives that keep young people in communities and out of detention.
Western Australia also needs to work towards complying with international legal obligations, including the Convention on the Rights of the Child.
Here are some of the most pertinent issues that the Western Australian Government must address:
Scrap mandatory sentencing for kids
Western Australia is the only state or territory in Australia where mandatory minimum sentences of detention apply to young people. Mandatory minimum sentences prevent magistrates from considering all the relevant circumstances and are contrary to the international legal obligation that, for children, detention should be a last resort and for the shortest appropriate period of time. Despite mandatory sentences being contrary to international law, the Western Australian Government was expanding the mandatory minimum sentencing regime for home burglaries at the time of writing.
Age of criminal responsibility too low
In Western Australia, children are held criminally responsible from just 10 years of age. Internationally, it’s accepted that 12 is the lowest minimum age of criminal responsibility. Based on available data, Aboriginal young people are impacted most by this low age of criminal responsibility.
Inadequate bail options
A lack of adequately supported bail accommodation contributes to the high rates of Aboriginal young people held in police custody and in detention without sentence. Over half of all young people in detention are unsentenced and 70 per cent of them are Aboriginal.
Police curfews – disruptive and problematic
Amnesty International consistently heard of police shining a torch through the front window of young peoples’ homes up to four times a night, including in the early hours of the morning, and requiring young people to present at the front door on demand.
The way curfews are applied and monitored is disruptive of whole families and may escalate early contact with the justice system and deteriorate relationships between the community and police. While curfews may be appropriate in certain circumstances, the Western Australian Government needs to transparently investigate the current approach to curfews.
Not enough options available to courts
When a young person is charged, Western Australia is failing to provide Aboriginal young people with appropriate diversionary programs as an alternative to a court hearing. There is also a lack of adequate community-based sentencing options, particularly in regional and remote areas.
Failure to caution
Once Aboriginal young people come into contact with the police, they are more likely to be charged rather than cautioned when compared to non-Aboriginal young people.
Under the Convention on the Rights of the Child, arrest should be a last resort. Failure to caution is a missed opportunity for referral to services to address the causes of offending. Young people cautioned at the beginning of their contact with the justice system generally do not go on to have further contact.
Better data for better solutions
Western Australia is failing to collect, make available and make use of information that would help to identify how and why the existing approach to youth justice is failing Aboriginal young people.
The Western Australian Government told Amnesty International that problems with data are currently affecting its own capacity to plan for programs.
Update: WA responds to report
Less than 24 hours after the report was released, WA's Department of Corrective Services publicly responded, saying that "Commissioner James McMahon welcomed scrutiny from an Amnesty report which highlights the need for significant changes in the way service providers and the Department addressed the complex issues surrounding offending behaviour and Aboriginal people."
The same day, the Department published up-to-date data on youth incarceration rates on their website -- one of the key recommendations of our report. The Department commented that "having reliable, up-to-date statistical data on young people was integral to reducing reoffending."
This is a welcome step from the WA Government. Amnesty International will continue to campaign for all the report recommendations to be implemented.
For a full list of research, references and recommendations to the Western Australian Government, please download "There is always a brighter future" (WA full report) or see the national report on Indigenous youth, A brighter tomorrow (National full report).