Sharp, Jared --- "Addressing the vulnerability of Aboriginal young people in the justice system" [2014] PrecedentAULA 43; (2014) 124 Precedent 10

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ADDRESSING THE VULNERABILITY OF ABORIGINAL YOUNG PEOPLE IN THE JUSTICE SYSTEM

By Jared Sharp

The shameful over-representation of Aboriginal young people^[1] in the Northern Territory youth justice system is a cause for national concern.^[2]

Young people are detained at a far higher rate in the Northern Territory (NT) than in any other jurisdiction in Australia. While the national youth detention rate is 3.25 per 10,000 population, the NT has a rate of 18.66 per 10,000. The NT rate has increased from 12.17 in the past five years.^[3]

This table^[4] compares the Northern Territory with other selected jurisdictions:

	South Australia	Tasmania	Northern Territory
Population	1,662,200	512,400	236,900
Young people in detention - June 2009	58	32	33
Young people in detention - June 2013	58	17	49

Note that South Australia has a population more than five times the NT’s, yet has only minimally more young people in detention.

The number of young people in detention tells only part of the story. The real issue in the NT is the over-representation of Aboriginal young people. Although Aboriginal people comprise only 30 per cent of the NT population, a staggering 93 per cent of young people sentenced to detention in 2012–13 were Aboriginal.^[5]

The mainstream legal system is alien to many Aboriginal people in the NT. For remote Aboriginal people in particular, many legal concepts do not reflect the legal norms and values of the world in which they live. This is true even leaving aside the way in which the law is administered, and the power imbalances that continue to affect Aboriginal people in relation to the police and courts, which lead to some people equating ‘sentencing’ with ‘gaol’ and ‘plea’ with ‘guilty’.

The NT is the only Australian jurisdiction with no Aboriginal-specific justice programs, and within the youth justice system, there are simply no mechanisms to provide culturally safe, collaborative processes for Aboriginal young people.

This article explores several approaches that have cultural safety and collaboration as the foundations for addressing the vulnerability of Aboriginal young people in the youth justice system. These approaches are not new, but they have been neglected in Australia, especially in the NT.

THE NEED FOR COLLABORATIVE JUSTICE

Collaborative justice is a framework in which various people and services are brought together to address the underlying issues faced by a defendant.

Collaborative justice ‘recognises that many criminal justice problems are systemic and require a co-ordinated and collaborative response’.^[6] It is also mindful of the comprehensibility of the processes of the justice system. For example, are court proceedings understandable to participants? Do participants have an active voice in the decisions that affect them?

Collaborative justice seeks to ensure that decisions address the needs of participants and the wider community. It takes a problem-solving approach ‘to find constructive outcomes that are likely to assist the person to address the underlying causes of their offending’.^[7]

There is enormous potential for applying collaborative justice to the legal processes affecting Aboriginal people. For Aboriginal young people, family and community are vital. Collaborative justice can help them to re-establish their connection with their community and their identity, and help them to fulfil their potential.

There are opportunities for collaborative justice at all stages of the justice system.

Diversionary programs

At the earliest stage of the justice system, police consider whether to proceed with formal charges or put the young offender on a diversionary program.^[8] Diversion is under-utilised for Aboriginal young people. Australia-wide, police proceed with formal charges against Aboriginal young people five to ten times more often than they do against non-Aboriginal offenders aged 10–14 years, and three to five times more often against those aged 15–17 years.^[9]

It is true that in many remote communities no diversionary programs are available, but even where they are available, access to them for Aboriginal young people is far less than for non-Aboriginal people. Questions need to be asked about this, and about how to ensure that diversionary programs are culturally safe for Aboriginal young people.

It is well established that culturally appropriate treatment initiatives and rehabilitation boost the participation in, and completion of, diversionary programs, and that programs whose delivery involves Aboriginal elders or facilitators are more successful.^[10]

Court proceedings

There are also opportunities for the use of collaborative justice to de-mystify and humanise court proceedings. Complex legal language, concepts and complicated courtroom processes mean that court is often indecipherable to all but the legal participants and inaccessible for Aboriginal young people and their families.

Moreover, courts do not have the time and resources to bring together the important people and expert services for a young person in a co-ordinated way. It is sadly the case that an Aboriginal young person will sometimes be the only Aboriginal person in court. There is a general absence of family, elders and other members of that young person’s community who can ensure that the people directly involved with that young person have a say in decisions made about them. And once court proceedings are complete, a young person (often dislocated from family or other supports) is simply left to their own devices to comply with often rigorous court orders.

Mobilising collaboration with a young person’s family and community must become part of the justice process, if it is to meet the developmental and cultural needs of the young person.

INNOVATIVE APPROACHES TO ENHANCE COLLABORATIVE JUSTICE

There is a growing body of evidence to support a range of innovative approaches that enhance collaborative justice for young people.

Family Group Conferencing (FGC)

Family group conferencing was first introduced in New Zealand as the cornerstone of the Children, Young Persons and their Families Act 1989. Since then, it has been used in several Australian jurisdictions,^[11] but not in the same manner as in New Zealand, where it sits at the heart of the youth justice system.

If collaborative justice is our goal, FGC is the way to get there. It represents an upturning of centuries of legal tradition – it has been described as taking ‘power out the hands of the state and judiciary and [placing] it with the family and whānau (extended family group)’.^[12]

FGC changes the assumption that courts and judges are best placed to decide how to deal with youth offending. It recognises that those directly responsible in a particular young person’s life (the young person, their whānau, the victim and community) are best placed to put together a plan to address the underlying issues and support the young person and their family, with state intervention kept to a minimum.

FGCs in New Zealand are intended to be culturally flexible to ensure they meet the needs of Maori young people. The Children, Young Persons and Their Families Act 1989 (NZ) specifies that the ‘procedure to be followed’ at an FGC can take account of the wishes of the family or whānau as far as practicable and as consistent with the Act.^[13] This allows an FGC to be conducted using whatever procedure will be most effective for the young person.

Because family group conferencing has existed in New Zealand for 25 years, it provides an invaluable evidence base. _{Evaluations have shown that FGCs have a significant role in reducing youth reoffending.}^[14] _{One-third of young people who went through an FGC had not re-offended within two years. A further third had only re-offended in a minor way.} New Zealand crime data also shows that in the 10 years to 2010, there was a decrease in apprehensions and offending among young New Zealand people.^[15]

FGCs form ‘the basis of decision-making in the Youth Court’^[16] and are unquestionably the critical factor for the effectiveness of the New Zealand youth justice system. In the NT, as with most Australian jurisdictions, legislation provides for pre-sentence conferences to be held.^[17] However, they are not resourced and are seldom used.

Embedding FGCs in the justice process in Australia, and requiring that they are implemented for all youth justice matters, would go a long way towards assisting Aboriginal young people in their dealings with the criminal justice system.

Intensive case management

One of the major issues facing many Aboriginal young people in the justice system is that once court proceedings are complete, they lack family or other supports to assist them to comply with often rigorous court orders, and to put rehabilitation plans in place.

The importance of supporting young people post-court becomes clear when the link between reducing offending and reducing re-offending is understood. The current system results in 70 per cent of all young people who attend court being back in court facing fresh criminal charges within eight years.^[18] Don Weatherburn stated:

‘The most effective programs are those that tackle the problems that keep offenders involved in crime – problems such as drug use, poor anger management, poor social skills, inability to read and write, intellectual disability, psychiatric illness and lack of stable accommodation.’^[19]

If the trajectory of young people who have offended is to be changed, there needs to be significant investment in case management support for young people.

In 2010, the Northern Australian Aboriginal Justice Agency (NAAJA), where I work, commenced a project called ‘Throughcare’. The project builds on NAAJA’s reputation as an Aboriginal community-controlled organisation and the respect it has in the Top End Aboriginal community. Equally important, Throughcare is integrated within NAAJA’s other services, allowing referrals from our criminal lawyers and referrals to other parts of NAAJA.

NAAJA’s Throughcare caseworkers support young people while they are still in detention, and continue to work with them after their release. Developing a relationship of trust with the young person is paramount. Caseworkers learn about their clients’ aspirations and goals, and the barriers they are likely to face on release. They then support their clients to prepare a post-release plan, which can include issues such as the need to open a bank account, an unmet legal issue such as a Centrelink debt, housing issues, enrolling at school or with a training provider, or accessing drug and alcohol counselling. Caseworkers work not just with their client, but with their entire family. They also work closely with other agencies such as the Department of Corrections to avoid duplication of service delivery and to ensure that a co-ordinated approach can be formulated.

In its four and a half years of operation, NAAJA’s Throughcare project has already achieved some outstanding successes. Our statistics show that only 13 per cent of clients re-offended or breached conditions of orders and were returned to detention while part of our program. By contrast, the most recent data for adult offenders released from NT prisons is that 52.4 per cent return to prison within two years.^[20]

As well as being an effective way of reducing re-offending, Throughcare is fiscally sound. If NAAJA’s Throughcare project is able to keep just three young people out of detention for 12 months, it is paying for the annual cost of the project. It is well and truly doing this, and is saving tax payers a significant amount of money.

NAAJA’s Throughcare model is one that should be expanded across the NT and Australia. Aboriginal community-controlled organisations are best placed to deliver Thoroughcare services to Aboriginal young people. NAAJA’s five caseworkers assist clients in Darwin, Katherine and some remote communities, but with additional resources could support more young people in more remote locations.

In 2013, NAAJA launched a similar model to work with young people whose criminal charges are still pending. The focus of this initiative is early intervention; to provide case management to young people who are beginning to come into contact with the youth justice system. But with only one worker, many young people miss out. It is time for increased investment in intensive case management in order to better support Aboriginal young people and their families.

Aboriginal courts

Aboriginal courts exist in many parts of Australia and around the world. The Victorian Children’s Koori Court operates as a best practice model, and involves Aboriginal elders and a young person’s family in a less formal, culturally strengthening process.

Canada has courts such as the Cree Court, held on Cree land and presided over by a Cree-speaking judge, who conducts court in both Cree and English. New Zealand’s Rangatahi Court and Pasifika Youth Court seek to address the specific needs of young Maori and Pasifika New Zealanders in a culturally strengthening way.

There is a growing evidence base to support culturally strengthening justice processes. A Community Council has been operating in Toronto, Canada for more than 20 years. Young people who have pleaded guilty to charges are referred to a panel of three elders who meet with the young person and their family and develop a plan to address issues underpinning a young person’s offending with a cultural healing focus.^[21]

Evaluations of the Community Council program have shown that it reduces the likelihood of re-offending by 33.7 per cent. Additionally, clients have noted that the process helped them change their behaviour and life circumstances more than conventional court processes. The program is an important link between Aboriginal offenders and the community of Aboriginal services.^[22]

A 2012 evaluation of the Rangatahi Court in New Zealand showed that the Rangatahi Courts helped young Maori to connect with their cultural identity, engage with their local marae community and find positive role models, which in turn encouraged positive behaviour such as active engagement with the court process.^[23]

Australian and international models unequivocally show that such approaches are most successful when they are locally and community driven. Central to this, Aboriginal magistrates and judges are needed to drive these innovations. There are no Aboriginal judges or magistrates in the NT, even though Aboriginal people comprise 30 per cent of the population and the majority of court users. This is a situation that urgently needs to be remedied if we are to improve the cultural safety of justice processes.

The NT is now one of the only jurisdictions in Australia without an Aboriginal court. There was a time when the NT was at the forefront of the development of Aboriginal courts in Australia.^[24] It is time for renewed efforts to harness the rehabilitative and culturally empowering influence of elders and community leaders to develop an Aboriginal court model that can deliver justice for Aboriginal Territorians.

Jared Sharp is the Manager of NAAJA’s Law & Justice Projects section, which leads justice reform, assists Aboriginal people and communities to engage with the legal system, and supports Aboriginal people to reintegrate from custody back into the community. He is a criminal lawyer who has practised in the NT and WA in both the adult and youth jurisdictions, and is a nationally accredited mediator. PHONE [phone] WEBSITE www.naaja.org.au.

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^[1] The term ‘Aboriginal young people’ is used throughout this article to refer to Aboriginal people under the age of 18.

^[2] Although this article focuses on the youth justice system, the child protection situation in the NT has similarly appalling over-representation of Aboriginal young people. As at 30 June 2012, there were 570 Aboriginal young people in care. This represents 83% of the 695 children in care in the NT. See, for example: Dr H Bath, NT Children’s Commissioner, ‘Vulnerability Risk and Justice for Children and Young People in the Northern Territory’, paper at the 14^th bi-annual conference of the Criminal Lawyers Association of NT, June 27 2013.

^[3] Australian Institute of Health and Welfare, ‘Youth detention population in Australia 2013’, Cat. no. JUV 31, Canberra, <www.aihw.gov.au/publication-detail/?id=60129545395>.

^[4] Ibid, at 41, 44 and 50.

^[5] Of the 62 sentenced juvenile receptions in 2011-12, 97% (60) were Aboriginal. See: Northern Territory Correctional Services Annual Statistics 2012-13, <www.nt.gov.au/justice/policycoord/researchstats>.

^[6] Collaborative Justice website <www.collaborativejustice.org/what.htm>.

^[7] J Jordens and E Richardson, ‘Collaborative problem solving in a community court setting’ (2014) 23 JJA 253 at 254.

^[8] Diversionary programs are alternatives to the formal criminal justice process, especially for young offenders. They usually involve the offender undertaking a plan to address the causes of their offending or repair harm caused to a victim(s).

^[9] Australian Institute of Health and Welfare, ‘Young people aged 10–14 in the youth justice system 2011–12’, Juvenile justice series No. 12. Cat. no. JUV 19, Canberra, <www.aihw.gov.au/publication-detail/?id=60129543944>.

^[10]Australian Institute of Health and Welfare, ‘Diverting Indigenous offenders from the criminal justice system’, Resource sheet no. 24 produced for the Closing the Gap Clearinghouse, Canberra, December 2013.

^[11] For example, family group conferencing has been trialled in NSW, Victoria, Queensland and Tasmania.

^[12] P Boshier, Principal Family Court Judge, ‘Family group conferences and the judicial process: What judges take notice of, and some new thoughts,’ Te Hokinga Mai Conference, 28 November 2006, p2.

^[13] Children, Young Persons and Their Families Act 1989 (NZ) s21.

^[14] Youth Court of New Zealand, ‘The Youth Court and Youth Justice in New Zealand’, July 2012, at 4.

^[15] Ministry of Justice New Zealand, ‘Trends for Children and Youth in the New Zealand Justice System 2001-2010’, March 2012.

^[16] Youth Court of New Zealand, above n14 at 3.

^[17] Youth Justice Act 2005 (NT) s84.

^[18] D Weatherburn, ‘Slash repeat offending – the best way to cut crime’, Sydney Morning Herald, 21 October 2010: <www.smh.com.au/federal-politics/society-and-culture/slash-repeat-offending--the-best-way-to-cut-crime-20101020-16u5u.html#ixzz385JhGrLS>.

^[19] Ibid.

^[20] The Productivity Commission, ‘Report on Government Services’, Justice Preface (29 January 2013) C.21.

^[21] See Aboriginal Legal Service of Toronto website, <www.aboriginallegal.ca/#!community-council-program/c24vq>.

^[22] See, for example, Executive Summary of the 2000 evaluation of the Community Council program: <www.aboriginallegal.ca/#!evaluations/c1pdb>.

^[23] See Ministry of Justice New Zealand, ‘Rangatahi Court: Evaluation of the early outcomes of Te Kooti Rangatahi’, <www.justice.govt.nz/publications/global-publications/r/rangatahi-court-evaluation-of-the-early-outcomes-of-te-kooti-rangatahi/publication>.

^[24] See, for example, J Blokland, ‘The Northern Territory Experience’, Australian Institute of Judicial Administration Indigenous Courts Conference paper, Mildura, September 2007, <www.aija.org.au/Ind%20Courts%20Conf%2007/Papers/Blokland.pdf>.