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STANDING COMMITTEE ON ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
04/05/2010
Involvement of Indigenous juveniles and young adults in the criminal justice system

CHAIR —We will continue, this time with a cast of only one. Magistrate Stephanie Tonkin is going to talk to the committee about a specific issue, the involvement of young Aboriginal people in the justice system in consequence of their offences against the traffic legislation. I believe that you are able to speak about a number of jurisdictions. I am not sure whether magistrates in Queensland are referred to as ‘Your Honour’ or ‘Your Worship’.

Ms Tonkin —These days we are ‘Your Honour’, but I am happy to be called Ms Tonkin. That is perfectly satisfactory.

CHAIR —Do you have anything to say about the capacity in which you appear before the committee? Then perhaps you would like to make an introductory statement for us.

Ms Tonkin —I am a magistrate of the Queensland Magistrates Court—that is, a state magistrate. I have been a magistrate for 10½ years, and for the last nearly 7½ of those years I have been stationed in Townsville. This morning I appear before the inquiry not as a representative of the Queensland Magistrates Court nor in any way as a spokesperson for the Magistrates Court of Queensland. I do know, however, that some of the views that I will express are shared by a number of colleagues throughout the country.

In my capacity as a magistrate in Townsville, I have presided in the Palm Island Magistrates Court and in Charters Towers, Ayr, Richmond, Hughenden and Ingham. Indeed, since about March this year my court has taken over responsibility for servicing the gulf communities that were previously serviced out of Mount Isa—that is, Mornington Island, Normanton, Doomadgee and Burketown. However, this is at this stage in its infancy. We have travelled there on three occasions so far. That is a monthly circuit of a week, and I have yet to have my turn. Coincidentally, I saw Mr Anderson the other day on Mornington Island when he and I were both there for the opening of the probation and parole office.

In my capacity as a magistrate visiting these communities and presiding in Townsville, I have become very concerned about issues for Aboriginal people with the driver licensing laws. I have seen from reading the transcripts of this inquiry so far and from reading some of the submissions that the inquiry has already taken evidence in a number of locations around Australia. A theme that regularly occurs and is raised particularly by some judicial officers, including the Chief Justice of Western Australia, with some passion, right through to magistrates and others, is the contribution to Aboriginal disadvantage and therefore interface with the criminal justice system arising from the driving of motor vehicles. Commonly this is a result of non-compliance with the licensing laws coupled with the absence of any transport options apart from private vehicles in remote and regional areas.

Unlicensed driving is a common feature of Aboriginal drivers. It is easy to infer that the causes of this include lack of awareness of the legislative requirements, but more often it is low or no literacy, lack of access to driver training and to funds to obtain licences, and indeed access to registered and roadworthy vehicles. In Queensland it is worth noting that the Queensland transport agency in Aboriginal communities is often the police station. Particularly in a place like Palm Island, where there are difficult relationships between police and citizens, the fact that the driver testing station and license renewal station is indeed the police station is I think potentially not a happy combination at times. When saying this, I do not for a moment say it by way of criticism of the Queensland Police Service on the island.

In the meantime, most states have introduced a mandatory requirement that novice drivers, which in Queensland means under 25-year-olds, accumulate a minimum number of log booked driving hours—in Queensland it is 100 and in New South Wales it is 125, for example—accompanied by a driver who has held, in the case of Queensland, an open licence for at least 12 months. This is required to be satisfied before these young drivers can gain their provisional licence and drive independently. This of course raises the bar even higher for these people. This initiative has been in place in Queensland since 1 July 2007. Whilst it is a well-intended safety measure to reduce the road toll amongst this risky age group, it has undoubtedly increased the number of people who cannot access driver licences.

Another national initiative that is likely to add to the issues that inequity of access to licensing is creating—and it is one that I do not deal with in my submission because it is of fairly recent origin—is the introduction of child restraint legislation. I have not examined this in detail but I understand it mandates that all children under seven and under a certain weight must be restrained in approved child restraints in motor vehicles. It is in its introductory phase now, but I understand it is to be strictly enforced from 1 July. A quick look on the internet shows me that these restraints cost over $100 per seating position and up to around $300, and require installation of an anchor point in the relevant vehicle. It is noteworthy that these anchor points are not able to be installed for these seats in troop carriers, which as I understand it remain a vehicle in common use in remote Aboriginal communities.

I have not yet researched this intensively but I understand that a licensed driver who is non-compliant with child restraints will accumulate infringement points on their licence. I cannot help anticipating that, due to the difficulties of complying in remote communities in particular, licensed drivers will take risks transporting children, including transporting them to school and medical care, and will lose their licences as a result—those who have them. The rate of injury amongst Indigenous people as a result of road accidents is well documented as being higher than that in the general population. So, whilst this is a well-intended safety measure, the flow-on effects of are not difficult to imagine.

A lecturer in the law faculty of Monash University, Dr Bronwyn Naylor, has written a paper on the subject of unintended consequences, including the criminalisation of marginalised and disadvantaged youth, for publication in the Alternative Law Journal. It will be published in the June issue and that may be of some interest to the committee. I have collaborated with her to some extent informally in relation to that and she is looking at the issue of driver licensing and the consequences of the mandatory accompanied hours for disadvantaged and marginalised youth.

My written submission documents some of the initiatives that I have been able to uncover across the country; although, I am glad to be able to say that I think it is no longer comprehensive. I make in my submission also some proposals to start to address the issues in relation to equity of access to driver licensing.

CHAIR —I know this is significantly covered in your written submission, but can you talk to us a little about approaches that you think ought to be taken to deal with the matter, especially in remote areas. I know that the Law Reform Commission of Western Australian has made a quite detailed proposal which has some support in Western Australia, not least from the Chief Justice, but we are aware, both through the proceedings of the committee and otherwise, that this is really a most serious issue and we have a great interest in making recommendations about the particular issue of motor vehicle offending. So we are very interested in how you think public policy might be calibrated to better respond to the problems you have described.

Ms Tonkin —I have a number of suggestions. They are merely ideas and they are gleaned from a couple of years of thought about the subject plus some reading. The Law Reform Commission of Western Australian recommendation that you refer to is for the development of a limited licence or a licence that might be obtained by drivers in remote areas—for ease of access to the initial licence. As I understand it, a number of judicial officers have expressed grave concern about the consequences of disqualification—which of course is mandatory in Queensland and, I am sure, in many other states—for repeated acts of unlicensed driving. A possible solution is to provide for such drivers—particularly where alcohol is not a component. I am not for a moment advocating any sort of licence that would give any encouragement to accommodation of unlicensed and drink driving. But there is this possibility of a limited remote area licence. I do not know if there is such a thing anywhere. There certainly is not in Australia. But I can imagine it being a very useful licence to hold in the communities of the cape, the gulf, Palm Island and many other parts of Queensland.

One thing I should say is that in Queensland there exists—and this is mentioned in my paper—an opportunity within the licensing regulation for a person, who does not have access to a supervisor but who has a learner driver’s licence and wishes to gain their licence or who lives somewhere where there is not a significant road network, to gain their licence. For example, there is an island, possibly one of the ones mentioned this morning in the earlier session, where there is only 200 metres of road. How a learner driver can ever hope to gain 100 hours of logbook accompanied driving experience on an island with only 200 metres of road one can only begin to guess. However, what I have found is that it is not widely known that this opportunity to apply for an exemption exists. As I understand it, it would mean that the person who gains the exemption would have to hold their learner’s for two years instead of a minimum of one.

I understand that it is not widely known that this exemption exists. Indeed I have spoken with the registrar at the Magistrates Court in Mount Isa when I was there recently. That court has serviced the Gulf communities for many years and the registrar is a very experienced justice and attorney-general staff member with real hands-on experience in the community and she had never heard of the exemption. I think it is administered by the local police but I am not aware of how often they are even applied for, the forms certainly were not available at the Mount Isa Magistrates Court when I was there. I have heard anecdotally that Queensland Transport staff are not encouraged to disseminate this information. In fairness to the Queensland legislation, I must note that that opportunity exists.

In a Rotary Club I have spoken to in Townsville there is enormous enthusiasm for this subject, particularly to give assistance to an Indigenous community, and we of course are very close to Palm Island which is only a 20-minute plane flight away. One of the members is a pilot and has suggested that his club band together and get some expert advice from an engineer about the possibility of obtaining a driving simulator to place in a community. This would offer the opportunity to people in remote communities where other opportunities for general road driving do not exist to gain experience. However, the legislation requires that the experience be on a road. That of course does not include, for example, a rural or remote property where people drive for long distances across their properties to reach the front gate. In any case a simulator would not give those who would use it any credit towards the 100 hours. In my discussions with them we have thought that unless there were a change to the legislation a simulator would not be a practical option. A simulator would avoid the need to own one’s own vehicle or have access to a vehicle. It could be a community facility situated at the PCYC. It does not require, as I understand it, fuel at least not to the extent of a motor vehicle on a road.

CHAIR —If government agencies are capable of visiting remote communities and providing all sorts of services for all sorts of purposes, presumably, they could actually provide training for kids in driving. Why can’t they do that?

Ms Tonkin —Another idea I have come up with is the offering by the government of an incentive to public servants who use government vehicles in the communities—in fact they would be the majority of vehicles in some communities—to adopt, so to speak, a learner driver in the community and drive with them. I know that there would be some issues with that, no doubt, but it does seem to me that the presence of the vehicles, the presence of the licensed drivers, the familiarity of the workers in those communities, who are using those vehicles, with local conditions does provide at least an option that needs to be considered and investigated. I think that insurance issues do not necessarily need to be enormous. There could be some mentoring training given to the relevant public servants. Yes, Chair, I do think that is one of the possible solutions to be honest.

CHAIR —In New South Wales we found that there was a problem because a number of Koori kids in the far west did not have a birth certificate. They needed to have a birth certificate to get a licence. They were ashamed to admit they did not have a birth certificate, so they never applied for a licence and they were, with some frequency, fined for driving without one.

Ms Tonkin —You can add literacy issues and the difficulty often in keeping documentation safely and securely. There is a subject in years 10 to 12 that was initially called ‘drive for life’, which was developed by the Catholic Education Office in Townsville by a wonderful woman called Thelma Gertz. Her family, an Indigenous family, is very prominent in Townsville in positive initiatives like this. This subject has had to change its name because it turns out that in South-East Queensland somewhere there was another initiative that got the name first. I do not know what they have rebadged the subject as, but it is a Queensland school studies registered subject. It starts in year 10, goes for three years and is designed to do a number of things with the overall goal of becoming legal. It deals with road safety and it requires students to undertake various projects to get to know community agencies such as the RACQ, the Queensland Fire and Rescue Service, the Queensland Police Service. You learn about the traps and pitfalls of buying a car. It covers a whole range of issues. You end up with your birth certificate at the end. You have a portfolio which contains your birth certificate. You have a tax file number. It is a very embracing subject that has been created for Indigenous communities.

In fact, it was trialled at the Abergowrie College just outside Ingham, which is largely a boarding school for young men, many of whom come from Palm Island. That subject was being taught and trialled there before the 100 hours came in. The idea of it, too, is that the year 12s, with no hurry and with a good, sound knowledge of road safety built up over years 10 and 11, in year 12 would obtain their learner driver’s licence and so would at least return to their communities with their learner driver’s licence.

This takes me, in a way, to another real possibility. I believe there is a lot of scope—and this is of course for more advantaged students who are in secondary education in boarding school. There is a brilliant opportunity for us as a community to work with the students to assist them to get their learner’s licence while they are at school in year 12 and then to drive with them and assist them—because they are usually in cities where there are driving schools—to get driving lessons. Ten lessons in Queensland: 10 hours equates to 30 hours credit towards the 100 hours, which is quite a good incentive.

Last year I decided it was time I put my money where my mouth was instead of telling other people they should do these sorts of things. Informally, with the Indigenous studies support teacher at a school in Townsville, the Cathedral School, and with the written consent of the parent, I drove with a girl from Bamaga. She gained her provisional licence by the end of the year. Admittedly her family were able to drive with her a lot in the school holidays. I do not know if you know that Bamaga is right at the tip of Cape York. This year, I am very proud to say that she is studying law at JCU in Cairns. It was a great honour to be part of her gaining her licence, and I think we developed a mentoring relationship where she really came out of her skin, I suppose you could say. She lost her shyness and we developed a lovely relationship.

I think that this is something that also needs to be recognised as a really valuable thing that comes out of that mentoring relationship. A lot of people throw up their arms in horror at the idea of driving with someone else’s child. ‘I couldn’t even teach my own,’ they say. When we think about it, yes, our own children are difficult to teach to drive at times, but believe me: other people’s children do not argue with you. They do as they are told and they slow down when you say, ‘Slow down.’

CHAIR —This may be a lesson for the wider community.

Ms Tonkin —Yes. In any case, I can say that that was marvellous, we had no accidents, she was a delight to work with and so on. I highly recommend the experience. But, again, this was an informal arrangement I made with the school. I think parents and citizens associations, or P&Cs, who of course are hugely overworked and have enormous demands put on them—just as with community justice groups, may I add—might be a place where we could look at assisting them to create mentoring programs.

There is another mentoring program in Townsville which works with homeless and disadvantaged youth. There is an organisation called Queensland Youth Services, and the manager of that happens to be a personal friend of mine. At a friend’s baby’s christening about a year and a half ago, we got to talking about this driving issue, because he was so aware of it from the young people that he worked with as well as having children of his own around the learner driver age. A couple of months later, he rang me and said, ‘Guess what, Stephanie: I’ve just started a program.’ Within his organisation, which is largely funded by the Queensland Department of Communities, with a little bit of Commonwealth money, he scrounged together from some other programs enough to create a mentoring program called Keys to a Future. My husband and I have been mentors with that program for the last seven or eight months. That is also a great program. It is expensive, however. Indeed, this organisation will have to shut down this program, which is the only one of its kind I know of in Queensland, at the end of this financial year because it is financially unviable for them because they have no separate funding for it.

CHAIR —We are a little worried about the time. We must set up a DVD, but I think Mr Turnour has a question.

Mr TURNOUR —Yes, thank you. I want to endorse everything that you have said. I think that philanthropic ideas are fantastic. Obviously one of the things the committee can do is look to see how we can support more of those activities, but clearly from what you have said there are some systemic problems. Representing people from Aurukun to Saibai Island, the laws as they currently stand are impractical, I believe, and we need to look to change them or have them altered to fit with those communities. A restricted licence may be one thing.

The other point I want to make is that the reality is that, unless the system has changed in the last couple of years at the federal Department of Education, Employment and Workplace Relations, you can get funding to do a horticultural course, a chainsaw course or any sort of course to get a job but you cannot get funding to get a driver’s licence to get a job. I think that is a real problem in the system that we should probably get some evidence on from them as well. It was more of a statement in support of your thing.

CHAIR —Thank you very much for taking the trouble. As I said, we have already determined that one particular recommendation, or set of recommendations, that we should make will be around this very question of the need to overcome inappropriate licensing arrangements, particularly in remote communities. Thank you for your insights.

Ms Tonkin —Thank you for the opportunity.

[11.28 am]