How The Youth Justice System Is Failing Indigenous Children

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Last year, this video of an Indigenous boy being arrested by NSW police went viral for the violent way that a police officer responded after being sworn at and threatened. 

The arrest happened just days after George Floyd was killed during an arrest in Minneapolis, and there was massive public outcry when the video of this Sydney arrest started circulating.  

But advocates pointed out at the time that these stories weren’t exactly rare, they were just starting to be caught on camera.  

The relationship between police and Indigenous youth can be uneasy, to say the least.  

For Indigenous kids, inequities exist at every stage of the justice system, from arrests on the street to sentencing.  

Indigenous juveniles are massively overrepresented in youth detention populations and Australia has been repeatedly called out on an international stage for failing to address this glaring human rights issue.   

Indigenous kids aren’t just being locked up at a shocking rate, they’re also dying in custody as well.  

Three of the 99 deaths that spurred the Royal Commission into Aboriginal Deaths in Custody back in 1987, three were juveniles, and between 1989 and 1996, 15 more Indigenous juveniles died in custody.  

Today, Indigenous kids under 18-years-old only make up 6% of Australia’s population. And yet they make up half of the population in youth detention centres. 

That percentage varies from state to state; in 2019 for example, every single child in detention in the Northern Territory was Indigenous.  

And children as young as 10-years-old can be charged with a criminal offense and face a sentence in youth detention.  

The United Nations has called on the Australian government multiple times to raise the age of criminal responsibility to 14 but so far, only the ACT has moved to fall in line with those standards.  

In the 30 years since the Royal Commission, the situation for Indigenous kids in the justice system has gotten far, far worse.  

Meena SinghHuman Rights Law CentreWe’re talking about something really systemic that comes from racist ideas that shape attitudes and those attitudes then shape decisions.   

Locking young people up has devastating consequences for the rest of their lives. 

The juvenile detention system can compound issues of poverty and trauma, and incarcerating a child has a massive impact on their social and neurological development at a crucial time in their lives. 

Keenan Mundine, Deadly Connections: “It really messes you up mentally, being removed from your community. When you go to custody, you’re not in there learning life skills, ways to be better. Nobody’s talking about their trauma. Nobody’s talking about what’s going on at home – what they’ve been through, how it affects them.” 

Sending a young child into juvenile detention also nearly guarantees that they’ll have multiple prison sentences throughout their lives.  

94% of kids aged 10 to 12 who are locked up in detention will return by the time they’re 18.

So, how does this cycle keep happening?  

The issues between Indigenous people and the justice system start early.  

On the streets, Indigenous kids are unfairly targeted by police, often for really low-level crimes like swearing.  

Many Indigenous kids have these early and frequent interactions with police because they come from a background of disadvantage.  

Around one in three Indigenous households are living below the poverty lineand the crimes Indigenous kids are picked up for by police tend to be a reflection of the problems associated with poverty, like theft or public order charges.   

Keenan Mundine: “I was 14 with no mum and dad, on the streets taking care of myself in any way possible. So I was left to my own devices and the people on the streets at that time were like my cousins. Unfortunately, the skills they showed me was to break the law and take things. That got me into juvenile custody for my first offense. And that began my long battle with the criminal justice system, of going in and out of juvenile custody on to adulthood.” 

Interactions can escalate quicklyand for Indigenous people who have experienced heavy-handed policingthat’s built a lot of resentment.  

Police have a huge amount of discretion in deciding how a juvenile will be dealt with once they’re arrested.  

That discretion isn’t exercised with Indigenous kids nearly as much as non-Indigenous young offenders, and that means they end up in front of courts more often.  

Meena Singh: “When our kids get locked up, we see the opportunity for them to fulfill their lives and to become the people we hope they will be, we see that that hope gets smaller and smaller.”  

Alternative court systems like Koori Courts have started to be established in recent years to try and take into account the situations that Indigenous kids are coming from, and reconnect them with their communities.  

But in order to get access to those services, young people have to plead guilty to their charges.   

Koori Courts have also been criticised for failing to build up young offenders’ skills and autonomy.   

Keenan Mundine“There’s no self-determination. In terms of the way we operate and putting culture at the centre of everything that we do when working with individuals, families, communities – we always work from self-determination and capacity building.”  

Beyond the court system, the way Indigenous kids are treated within detention facilities has also become a cause for national concern.   

These facilities can be violent, and they can be abusive. 

In 2016, the ABC aired a Four Corners investigation into the Don Dale Juvenile Detention Centre in Darwin.  

It was a horrifying insight into the reality of Indigenous youth imprisonment; boys were being exposed to tear gas, restrained with spit hoods, and held in isolation.  

Meena Singh: “We still hear really disturbing stories about children in prison. More recently, we’ve been really concerned about the treatment of children being kept in police watch houses in Queenslandwhich are designed to hold adults.” 

But, nothing exposes the abject failures of Australia’s youth justice system more than when children die behind bars.  

The report of the Royal Commission into Aboriginal Deaths in Custody was released in 1991 and it made specific recommendations for how Indigenous youth detention needs to change.  

The report said that prison needed to be considered a last resort, particularly for Indigenous youth.  

It also said that juveniles need better psychological risk assessments, better safety, and better relationships with their custodians.  

But little, if any, improvement has been made in these institutions in the years since.  

Meena Singh“Prisons are for punishment. They don’t have rehabilitative outcomes for them. We know this for adults, and we know this for children as well. And the very act of going into prison – whether it’s in custody while you’re waiting for your sentence or whether you’re serving a sentence – it’s a very traumatic experience.”  

The unavoidable fact is that in order to stop kids going through this trauma, Australia needs to tackle its’ appallingly high rate of Indigenous juvenile imprisonment.  

Programs run by organisations like Keenan Mundine’s Deadly Connections are trying to establish pathways for Indigenous kids to keep them out of the justice system and empower them to forge their own lives in the community.  

That program in particular highlights the desperate need for broader investment in this kind of social support for kids.  

Keenan Mundine“I know for myself, when I was alone and abandoned, how it felt and how it made me suffer mentally. So, to be in a position to not only give boys jobs and give former criminals jobs, but to also walk alongside my staff and my community and help us heal as a collective and as individuals, so we can stay connected and keep our community safer and strongerthat’s one of the biggest privileges.” 

Community-led programs like Mundine’s can provide long-term solutions to the problems caused by the youth justice system in Indigenous communities.  

But in order for these programs to be established, there needs to be serious investment from state governments who recognise that the system is failing Indigenous kids to begin with and, for the most part, that recognition just isn’t happening right now.