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STANDING COMMITTEE ON ABORIGINAL AND TORRES STRAIT ISLANDER AFFAIRS
20/05/2010
Involvement of Indigenous juveniles and young adults in the criminal justice system

CHAIR —Welcome to the hearing today. We have an odd situation today whereby this is a formal subcommittee to take evidence, but it turns out that my colleague who was to be part of this subcommittee has been held up in another part of the world. So I am just here by myself today. As a consequence, our hearing is informal, but when I go back to Canberra we will submit the transcript of today’s hearing to a committee which will, in turn, pass a motion to formalise our deliberations today. Although we will proceed informally we will end up being part of the record. Can I ask one of you to make an initial statement so that we can then go on to discuss the issues you want to raise.

Mr Gillespie —Firstly, let me pay my respects to the Kaurna people on whose land we meet today. Mr Chairman, it is hoped that ALRM’s submission will assist the committee in formulating government policies to reverse the excessive rate of Aboriginal youth incarceration and participation in the criminal justice system. We note that many of the issues and concerns presented to the committee previously by our sister organisations equally apply throughout the nation, including to South Australia.

One of the key issues that we face as an organisation is the gross underfunding of Aboriginal legal aid in this state and indeed across the nation. One consequence of the underfunding is that, historically, ALRM has never had sufficient resources to provide adequate representation in the youth court jurisdiction. In fact, historically, ALRM has only ever had one dedicated Adelaide Youth Court solicitor, whereas mainstream legal aid have had three—and yet we generally cover about 60 per cent of those appearing in the courts. So you can understand our frustration with regard to the lack of funding. This situation of only having one representative has been in place for about 30 years.

With regard to youth programs within ARLRM, we have one program currently running, but that program—on intervention, prevention and rehabilitation—runs outs at the end of this financial year and, unfortunately, at present there are no indications from the Commonwealth that it will extend that particular program, which again disadvantages our youth.

With regard to our funding, it has effectively been static since 1996—not 2006 but 1996. While I very much appreciate the recent budget announcement of $34.9 million over four years, of which $8 million will go down in the first financial year of 2010-11, the unfortunate situation is that ALRM were initially, under the funding allocation model, allocated only $17,000. That is correct: $17,000 out of $8 million. We do appreciate the Attorney-General’s Department increasing that to just over $100,000, but when that is out of $8 million it is a clear indication that the funding model is flawed. We as an organisation, including all the ATSILS—that is, the Aboriginal and Torres Strait Islander Legal Services—have, from day one of this funding allocation model, expressed concern that it was inequitable, inappropriate and flawed.

I want to highlight an example of the targeting of Aboriginal youth by police, one very simple example in Port Lincoln, where a youth picked a lemon from a lemon tree branch hanging over a fence. The youth was arrested and charged with stealing. The youth was transported to Adelaide by police, was kept in the Magill youth facility and then fronted up to court; and, in a nutshell, the court told the police to stop wasting the court’s time and dismissed the charge. That is just one example of the overtargeting—

CHAIR —When did that occur?

Mr Gillespie —From my recollection, that occurred last year. But that is indicative of how Aboriginal people are targeted by the police, which in turn results in their overrepresentation in the justice system, including in detention. I might add that the UN Human Rights Council in April 2009 expressed a number of concerns to the Australian government, and one of the concerns was the targeting of Aboriginal people across Australia, not just in here in Adelaide. That is youth, males and females, and that happens in all jurisdictions. If the UN Human Rights Council is expressing concern, I think that the Australian government should take notice, because the correlation between gross underfunding and the overrepresentation in the justice system is clear. Unfortunately, it appears the government is not really taking notice of the ATSILS and certainly not taking much notice of the UN.

I would very simply highlight that ALRM proposes the provision of legal advice from a dedicated youth justice diversion solicitor to assist Aboriginal youth in reducing their participation in the justice system.

CHAIR —What would you say was the shortfall in your funding at present, speaking with as much detachment as you can manage?

Mr Gillespie —About $1.7 million, and when we were initially offered $17,000 you can understand my frustration, to the extent that I will be communicating with the Attorney-General, strongly suggesting that that model should be reviewed by an independent party—because every ATSIL, since its inception of that funding model, has expressed concern and yet our concerns seem to be ignored by the government officials within the Attorney-General’s Department. And there is clearly something wrong when an organisation like ALRM only receives, in the initial offer, $17,000 out of $8 million. It is inequitable.

CHAIR —So this is not just a question of the total amount of money but of the distribution amongst the various Australian jurisdictions?

Mr Gillespie —Yes.

CHAIR —Who got the majority of the money?

Mr Gillespie —Queensland, New South Wales and Western Australia. One of the key issues—

CHAIR —They do have the majority of the Aboriginal population too, of course, but you are still saying—

Mr Gillespie —Yes. The funding model even provided negative funding initially to some of the jurisdictions. An organisation like ALRM cannot survive on static funding since 1996. In real terms our funding is down about 40 per cent, and we have a huge exodus of staff and great difficulty in recruiting experienced staff based upon the salaries that we offer. This means that our organisation is being ‘juniorised’. In other words, we have less experienced solicitors and lawyers representing our clients. We are overburdened because of the tremendous increase in case matters, and this is evidenced by the Australian National Audit Office report No. 13 2005, I think it was.

I will quickly go on, Chair, because I know this is a very brief introduction. ALRM asks the committee to consider and endorse the proposals that we have put in place in this submission, and in particular the suggestion that the Commonwealth funded activities in the state through the ATSILs need close Commonwealth supervision and effective oversight and the facilitation functions being performed. ALRM is also bringing to the committee’s attention other significant issues which are of concern to the board and management of ALRM—we know that it is not part of this particular inquiry but they may need to consider it in their deliberations in other activities on behalf of the committee.

Just to conclude on two things, we have unprecedented Aboriginal youth incarceration. This has prompted the UN Permanent Forum on Indigenous Issues to incorporate this matter of concern on the April 2010 agenda of the permanent forum. ALRM presented an intervention—which is at the back of your papers—to the forum on behalf of the Australian delegation to the UN. I also enclose a report that was presented to the UN. Finally, within the intervention that I presented at the UN permanent forum in April this year I highlighted a number of characteristics of the overrepresentation of Aboriginal people in the justice system and a number of issues that contributed to the continuing marginalisation. These included inadequate resources in funding and support for organisations like ALRM and, finally, the overpolicing and targeting of our youth in addition to our adult males and females.

CHAIR —You have concerns about direct funding. Is it possible to make any estimation, from your point of view, as to what proportion of cases are the result of what you would define as overpolicing? I know it is impossible to be precise but have you got even a rough idea about that?

Mr Gillespie —I think Mr Charles will answer that.

Mr Charles —I spoke to my colleague who services the youth court this morning. His estimation is that per week two or three, and up to four, Aboriginal cases before the youth court in Adelaide are deliberately sent back by the judges because the subject matter of the charge is not worthy of the attention of the court.

CHAIR —That is 200 a year.

Mr Charles —The proposal we have is that there be a dedicated solicitor’s position available to speak to the youths when they are in police custody to arrange for them to be diverted straightaway, to avoid this process of to-ing and fro-ing in and out of the court. We point to the statistics from the office of crime statistics which indicate a gross disproportion in the number of Aboriginal youths compared to non-Aboriginal youths getting diverted or going to court. Referring to page 4 of our submission, we note from the office of crime statistics report of 2006:

Aboriginal youths are more likely to be referred to court and less likely to be diverted to a Police caution. Six in ten Aboriginal apprehensions (61.5%) were directed to court compared to less than half (46%) of the non-Aboriginal apprehensions.

We say that speaks for itself. We try, in the course of our submission, to analyse why that might be so. We make a specific suggestion which would involve the Commonwealth funding us for an extra position, a youth court solicitor dedicated to assisting a process of diversion to get kids into family conferences, into cautions and out of the court system.

Mr Gillespie —Chair, you want to know if the proportion of Aboriginal involvement in the justice system is a result of targeting by police. Is it correct?

CHAIR —Yes.

Mr Gillespie —My suggestion would be that the majority of the participation of Aboriginal people in the justice system is a result of targeting. I would go as far to say it would between 60 and 70 per cent. This might sound a high figure to you and other committee members. However, the incarceration rate of Aboriginal males in the justice system is about 30 per cent in this state and about 40 per cent nationally, and it is even higher for women. I understand the incarceration rates in jails in WA for women approaches 50 per cent. In South Australia youth make up about 50 per cent of those incarcerated. So the targeting has a strong correlation with the incarceration rates and also with the gross underfunding of legal services.

Mr Charles —The appendix to our submission, which is the office of crime statistics summary, shows some really clear disparities: 57.9 per cent of Aboriginal youth aged 15 years and under, compared to 44.3 per cent non-Aboriginal youths, were arrested and dealt with by police. That relates to apprehension reports and is the third dot point in the statistics on page 4 of the OCSAR report. It is a clear point there. That also relates to young children. A higher proportion of Aboriginal than non-Aboriginal apprehensions involved relatively young individuals under 15 years, 57 per cent compared to 44 per cent. That really adumbrates Neil’s point about the targeting of young people.

Just in relation to those statistics; we approached the South Australian Office of Crime Statistics, asking for an advance copy of the 2007 report, which is due any time. We were told that they were not then available—when we were preparing this submission—but we undertake to ensure that this committee is provided with a copy of the 2007 statistical analysis as soon as it becomes available. Obviously, these figures are not entirely up to date, but they were the best that we could get.

CHAIR —Of course, yes.

Mr Charles —I think that third dot point there really emphasises precisely what my CEO has said to you.

Mr Gillespie —My colleague may elaborate further, however, ALRM has been pursuing programs from the Commonwealth with regard to youth over a number of years. With respect, they tend to start to get off the ground and then they fall in a heap. We have communication with Dr Boersig from the Attorney-General’s Department before you. Unfortunately, very little fruit is borne with regard to these programs.

CHAIR —To interrupt—when you say that they tend to fall in a heap, do you mean they become defunded?

Mr Gillespie —With respect, they tend not to be funded at all. It just seems to go into a big hole and we do not even receive communication back with regard to submissions. Mr Charles may wish to comment further on this, but we have had a long history of dealing with the Attorney-General’s Department, and it is rather frustrating for us to see our young people continue to be locked up. We put forward suitable programs and they just do not seem to bear fruit.

Mr Charles —The point we make is that here is a very clear example—we have got enormous amounts of statistics to prove our point about the overrepresentation of Aboriginal youth in the courts rather than in the diversion programs. We have put the practical suggestion which we put to this committee to the Attorney-General’s Department for the last three years. Correspondence went to Dr Boersig in 2007-2008, and then in 2009-2010—I will check those dates. Electronic submissions were made under the relevant Commonwealth government program for youth diversion for this Youth Court diversion solicitor’s position. Nothing has come back from the department.

This is not just a case of an e-sub being looked at and passed aside. This is a case where there has been specific, very directed and very targeted correspondence sent to senior officials in the department, asking for their intervention on our behalf and pointing out the merits of what we submit is a very good idea—we do not deny that, we think it is a good idea, that this youth justice solicitor’s position be created—yet we have not got anything back.

We have actually done a number of other things with it but we are really loathe to pursue the point, for example, by having discussions with the senior officers of the police department about the implementation of such a program because, frankly, what is the point of doing so unless we have some indication that we are going to get support from the Commonwealth to do it? We do not think that the senior officers of the police department are going to want to give us the time of day when they ask, ‘Is there money, is there support? Is this program ever going to eventuate with Commonwealth support?’ For three years we have put it up, and for three years we have heard nothing.

Really, the important item of support that we do bring to your attention, however, is that we have had extensive discussions with His Honour, Judge McEwen, the Chief Judge of the Youth Court. He knows that he is getting too many Aboriginal youths in his court; he knows that he wants to divert them back into programs and cannot always do so—but they say a significant number are diverted back; and he gives our proposal his complete support and endorsement. Indeed, he has asked me to say that to you today. But until we have some indication, whether from this committee or by other means, that the Commonwealth officials are actually going to support what we say, there is little point in ALRM pursuing this proposal with the police department and the senior officers of police until we know we are going to get somewhere.

CHAIR —Sure, but you must understand that although I have had a different role in the not-too-distant past, I am now the chair of a parliamentary committee, not the minister, and far less a bureaucrat. I will undertake to make sure that our conversation today is brought to the attention of the Attorney-General and his department—possibly the Attorney-General is the best one for me to do—and hope that there is some communication made with you in consequence.

Mr Charles —We would be most grateful for that. The further point I wish to make is that we would be very pleased to hear from the Attorney-General’s Department in relation to this very detailed proposal. Not only would we like to hear, we would also like to be in the position of having Commonwealth government support. We know that making this proposal work at the state level is going to require a certain amount leverage with state officials, possibly the kind of leverage that ALRM, as a non-government organisation, will not necessarily have. I do not think I need to say anything more than that.

CHAIR —One understands the concerns you have at the level of funding and staffing. You have presented that case with as much force as is necessary. Is there anything you would like to say about the more general causes of Aboriginal incarceration. I accept that you believe that some of the disproportion is the consequence of unreasonable targeting by law enforcement officials, but is there anything beyond that? I acknowledge that Michael was talking to us earlier today about just these things, but I am quite interested in the point of view of the ALRM.

Mr Michael Wanganeen —ALRM has taken the initiative in relation to trying to work with appropriate other agencies within the state to look at youth and youth justice within the court system and also at the incarceration rate. That is under the youth incarceration officer and also with ALRM working with Families SA, correctional services and the court system itself. We are trying to have a uniform approach and see how best we can put our resources together to ensure that the interest of the client is taken into account so that it actually gets looked at and serviced a lot better than it has in the past.

Mr Gillespie —Chair, I do not know if it is marked up in your copy, but the intervention that I presented at the UN lists very clearly some of the characterisations of why Aboriginal youth are engaged in the criminal justice system. I will just very quickly read them out for the benefit of Hansard:

  • intergenerational poverty;
  • overcrowding in poor housing conditions;
  • low levels of literacy and numeracy;
  • low quality of health, well-being and life expectancy;
  • welfare dependency;
  • social marginalisation;
  • poor and unsuitable service delivery by governments;
  • inadequate resources, funding and support for culturally appropriate Indigenous owned and controlled services; and
  • over-policing, targeting and discrimination by police and law enforcement authorities.

Those are some of the key issues in a nutshell.

CHAIR —I am interested to establish that you acknowledge all those other causes but because of your specific professional concerns you are wanting to draw particular attention to the question of policing.

Mr Gillespie —I would dearly love to be in a position to provide far better statistics and data, but unfortunately our organisation does not have the resources to be able to collate data efficiently and effectively. This is something that we have been pursuing rigorously since I have been the CEO of ALRM. Unfortunately, those kinds of demands have been declined in the past by the Commonwealth. I do acknowledge the position of the Commonwealth as a supplementary funder to the state in regard to criminal matters.

CHAIR —We are going to suggest that the Bureau of Statistics seek to generate much more detailed statistics in order to guide policy in this area.

Mr Charles —I think this point about the policing needs to be put into a context. Many of the youths involved in the anecdotes which we have provided to you are about overpolicing by the targeted use of bail legislation by police—little Johnny gets put on a police curfew by police, because police are the primary bail authorities, and they impose strict conditions of bail, which, when you are living in a remote country town, are pretty hard to get altered. Then, inevitably, little Johnny breaches it. He breaches it a couple of times and suddenly finds himself in custody. Then he has charges of breached bail, which are often potentially comparatively trivial, but they are absolutely about police having effective surveillance over Aboriginal youth. I am not sure whether the civil liberties implications of police surveillance of a 15-year-old are fully appreciated. My submission is that they are pretty frightening.

CHAIR —Two things come to mind. One concerns driving licence offences and the other concerns remand populations, at least in some jurisdictions. I am at present unsure of the circumstance here in South Australia. A high proportion of inmates are in fact remand prisoners—is that the case here?

Mr Charles —Mr Chair, we would like to refer you to one of our appendices again. That is the letter to the attorney dated 8 June 2009, which regards then-proposed amendments to the Bail Act and the Young Offenders Act. Our concerns are therein expressed about the idea that, firstly, country court registries in Ceduna, Coober Pedy and Kadina were going to be closed. They all happen to be centres of Aboriginal population. That would mean that police control over bail would become much more stringent and that the ability to have bail reviews and effective superintendence of youth bail by a judicial officer would be reduced because there would not be a registry and the court would only be there when it visited, once a month, once every two months or whenever.

In that submission, we made very specific recommendations and proposals in relation to bail in remote centres of Aboriginal population. We pointed to the coroner’s recommendation from 2002 that there be a remand facility or a detention facility on or near the APY Lands. We also make an alternative proposal about having intensive supervision of youths by a magistrate over long weekends, for example, by bail review. Again, these proposals were put to the government and we have heard nothing.

CHAIR —Was that letter to the state attorney-general?

Mr Charles —Yes.

CHAIR —Thank heavens!

Mr Charles —We have constantly been positive, we are constantly making specific and, we submit, useful proposals to ameliorate the position of Aborigines, and we ask you to have a particular look at that letter.

CHAIR —And remand prisoners as well?

Mr Charles —That is specifically, with respect, about remand prisoners and the inherent dangers of Aboriginal youths being picked up on a Friday night of Easter and being in a police cell in Ceduna for four days waiting to be brought down, or being transferred to a youth training centre and spending Easter there without proper consideration of bail and without any real prospect of release. Again, the opportunity to target somebody by arresting them on a Friday night is pretty obvious.

CHAIR —I was thinking of the situation in which somebody is remanded by a court for a substantial period before they come to trial.

Mr Charles —Yes, quite clearly that is also a continuing problem. We are not saying that the bail criteria under the Bail Act are inadequate or wrong, but we do point to the fact that, for example, the royal commission into deaths in custody made specific recommendations about the provision of bail hostels. There was one in Port Augusta many years ago, but it folded very quickly. Specific recommendations about ameliorating the problems with detention have not been carried through. That is just one of many examples.

We also say this, Mr Chairman: look at what has happened to the criminal law of South Australia, over the last 10 years at least. Again, the Office of Crime Statistics and Research is very useful because on its webpage it gives you a complete list of amendments to the criminal law of South Australia over the last 10 years, and that list goes for pages. What used to be a simple offence is now an aggravated offence. What used to be a minor matter is now a major matter. What used to be an indictable offence is now a major indictable offence. The whole of the criminal law has been made more severe. Penalties have been increased and the criminal law as a whole is tougher than it was.

CHAIR —So, by definition, Aboriginal people have been affected disproportionately by it.

Mr Charles —Precisely so.

CHAIR —I want to talk about motor vehicle offences. In plenty of jurisdictions—and I think also this one, especially in remote areas—people seem to be charged with driving licence offences, leading to imprisonment in ways that used to be achieved by what we used to call in New South Wales the trifecta, which was offensive behaviour, resisting arrest and assaulting police. We do not have that anymore, but we do have these driving offences.

Mr Charles —Yes, we do. The position in remote communities is that so many senior adult people have had their licences disqualified for so long, sometimes until further order, that they are never going to get their licences back. They are living in remote communities. They do not have any access to alcohol. They are perfectly good, safe drivers and are not allowed to drive. Having remote area licences might be well worth consideration by this committee. The cumulative effect of the penalties is such that people never get their licences back. Another example is that what used to be offence that got a fine was the offence of driving unlicensed. You would get a fine for it. Now it is a dramatic offence and if you are caught driving without a licence—not driving disqualified but driving without a licence—then you get a disqualification on top. You are charged with driving without a licence, you get your penalty and then you get disqualified from getting a licence in future. It is hardly an encouragement to cease committing the offence. It is a simple point, but we ask you to note that that is one of the examples of the making of the criminal law of South Australia more severe in the last 10 years. That is a very clear example. It obviously operates to the effect that people are never able to get a licence.

CHAIR —Do people end up in prison as a consequence of being charged for driving while disqualified?

Mr Charles —Yes, they do, frequently. There are numerous Supreme Court decisions about whether or not they can be suspended or what the circumstances are. When you have people with accumulations of offences, then, inevitably, they are imprisoned and for longer and longer periods.

Mr Gillespie —The trifecta still happens in South Australia.

Mr Charles —Absolutely.

Mr Gillespie —As it continues in New South Wales, Western Australia, Queensland and the Northern Territory.

CHAIR —But maybe in a somewhat different form in New South Wales now. Some of those offences were abolished. In any event, we thank you for your passionate submission. We undertake to draw your correspondence to the attention of the Attorney-General.

Mr Charles —I would be most grateful.

Mr Gillespie —Mr Chairman, I look forward to the committee’s report and its expected recommendations to improve the access to justice for Aboriginal people, including our youth. Thank you.

CHAIR —Thank you all.

Mr Michael Wanganeen —Could I just ask, Chair: when is it likely that we will get some feedback in relation to today’s hearing?

CHAIR —Although nothing is yet quite certain, I expect that we will bring down a set of interim recommendations within less than two months. It will take a bit longer to write a full report, which would have more recommendations in it. But my idea is that we should get some basic recommendations done sooner rather than later. They would have a brief argument supporting them, but the full report will take longer.

Mr Michael Wanganeen —Thank you.

Mr Gillespie —Thank you. We hope that the committee is the Aboriginals’ friend and champion in Canberra.

CHAIR —Thank you. We have had to get used to powerful advocacy during our travels.

[3.06 pm]