The ceaseless work of independent Indigenous commissioners for Aboriginal youth justice reform in Australia

By Chris Woods

Friday February 21, 2020

Picture: humanrights.gov.au

Every Australian jurisdiction has run inquiries into Indigenous youth justice, but they vary wildly on follow-through. June Oscar and Justin Mohamed discuss where we are and what’s needed to resolve issues with Aboriginal youth experiences in our justice systems.

While deeply complicated, the causes for the overrepresentation of Indigenous youth in justice systems are readily identifiable. A combination of intergenerational trauma, broken connection to country and community, over-policing, a lack of diversion schemes, and exclusion from mainstream Australian culture are what a 2017 review commissioned by Victoria’s Department of Health and Human Services pointed to.

Less clear is how open, let alone willing, federal, state, and territory governments are to reform.

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All have run inquiries into Indigenous incarceration rates, practices, abuse, and death, but they vary wildly on follow-through — almost 30 years after the deaths in custody royal commission, roughly a third of recommendations remain untouched across state and territories.

Victoria only last year announced a plan to decriminalise public drunkenness, while Western Australia is still imposing prison sentences for parking fines. The Northern Territory government, in perhaps the most egregious example, initially agreed to the findings of the Don Dale royal commission but only to backflip, again ignoring recommendations to raise the age of criminal liability and even retroactively expanding certain guard powers.

“Governments currently invest around $16 billion annually into a system that has defeated its own objectives to rehabilitate and reduce reoffending,” Bunuba woman and Aboriginal and Torres Strait Islander Social Justice Commissioner June Oscar says.

“The investment is only set to increase to manage a booming prison population, diverting resources and funds away from the alternative approaches to addressing poverty.”

“We don’t need to keep having inquiries to discover what we need to do — those recommendations already exist,” she says. “We just need to implement them.”

But, as any reformist will tell you, half the job is hammering home existing solutions. The other half is finding new ways to advocate.

June Oscar

Oscar’s work at the Australian Human Rights Commission includes projects ranging from constitutional reform, to native title and women’s voices reports. In a call to reverse out-of-home rates, she argued, “data cannot remain faceless; it has to be told through our words and our experiences, our strengths and resilience, and our hope commitment and determination for a different future.”

On the overrepresentation of youth in justice, she urges governments at all levels to move away from a system of punitive measures to “a holistic, community-led, trauma-informed system of prevention and early intervention”, and points to two existing policies:

  • raise the age of criminal responsibility from 10 to, at least, the internationally-agreed human rights minimum of 14 — a reform that would require changes to either state or federal legislation; and
  • early intervention and family support strategies within the child welfare and justice spaces — just one aspect of another inquiry, the 2017 Australian Law Reform Commission’s report into the overrepresentation of Indigenous peoples in custody.

“A good place to start would be with embedding community-controlled, culturally and locally grounded, trauma-informed and innovative early childhood education. When kids have a good start, they have a better chance in life.”

The starting point for attending to those responsible for reforming these systems, Oscar argues, is a long, long overdue focus on truth-telling.

“All the issues Aboriginal and Torres Strait Islander people face are interconnected — and we cannot begin to properly fix those issues until we end this denial,” she says. “It is time we stopped pretending that meaningful change can happen in a system that is grounded in denial.”

A dedicated Aboriginal children’s commissioner

When it comes to states’ willingness to implement reform vs punitivity, a good indicator is openness to supporting independent, representative investigation and critique.

For her part, Oscar is at least encouraged that “governments are starting to work with and listen to Aboriginal and Torres Strait Islander people and embed co-design. We need that to be standard for governments at all levels as a first step.”

“There is good and necessary work happening all the time across the criminal justice system, from improved relationships between community and police and apologies condemning the wrongs perpetrated by the police in the past, such as that made by the WA Police Commissioner Chris Dawson,” she says.

“These actions are important but they are not enough on their own.”

As the delay on public drunkenness decriminalisation demonstrated, Victoria hardly gets a gold star on reform. However, it was the first state to appoint a Commissioner for Aboriginal Children and Young People. South Australia followed suit, with Queensland now on the way.

Citing the position’s focus on Indigenous wellbeing and cultural needs, it’s a role current commissioner Justin Mohamed called on the federal and remaining state and territory governments to adopt last year, when tabling the CCYP’s annual report in parliament.

Justin Mohamed

A Gooreng Gooreng man from Bundaberg in Queensland, Mohamed took over in Victoria from the inaugural commissioner, Andrew Jackomos, in May 2018.

In tabling that report, Mohamed listed just some of the work he and his staff had been able to achieve that year — a combination of advocating for “low-hanging fruit” policy reform and on-the-ground, complementary investigations:

  • reviewed the Aboriginal Children’s Forum;
  • advocated for a greater youth focus for the Aboriginal Justice Forum;
  • continued to press for the timely transition to Aboriginal carers for Aboriginal children, and for their guardianship in care by Aboriginal community-controlled organisations;
  • joined a federal, state and New Zealand call to raise the age of criminal responsibility to 14;
  • laid foundations for the Koori Youth Justice Taskforce — co-run with the Department of Justice and Community Safety — and the commission’s concurrent but independent systemic inquiry into the over-representation of Aboriginal children and young people in Victoria’s youth justice system — ‘Our youth, our way’.

Since then, both of the latter two inquiries have wrapped and Mohamed is currently compiling the final ‘Our youth, our way’ report, due to be tabled in March.

For this, Mohamed toured 16 individual communities across three months, running consultations ranging from interviews to workshops to visiting Aboriginal youth gatherings and speaking with young people themselves, as well as family members, youth justice representatives, child protection and community workers, legal representatives, and police.

Without pre-empting the report, Mohamed points to three areas that, to varying degrees, can be applied across all levels of decision-making. From first contact with authorities — he uses the example of police being called over broken cutlery or fists through walls — to broken youth justice centres that see 65% of young people with a youth justice order reoffend, to, finally, policymakers.

First and foremost, he emphasises the importance of simply listening to young offenders, and says one of the most crucial elements lost in the debate is their voice and agency.

“It was very … it was quite a moving time, for our staff and I,” Mohamed says.

“You see what’s on paper, then you see the person face-to-face and talk to them how open they were about their life and where they want to go in life, their aspirations, what they want to achieve, like any young person.

That was something, which is a good reminder for anyone in this field. Spend some time with young people and I think you will come away feeling invigorated, and that these young people really want to move forward.”

Secondly, Mohamed points to the long-established need to embed Indigenous culture within every policy, service, and decision made in their name, including within youth justice centres.

This advocacy has extended to the commission’s other report, of last year, called ‘In our own words: Systemic inquiry into the lived experience of children and young people in the Victorian out-of-home care system’. At launch time, Mohamed had argued the report demonstrated how the “protective and healing effect of connection to culture and community … continues to be undermined at every level.”

“A lot of time, the cultural element is included later on in the piece,” Mohamed says, calling for a “continual reinforcement from all the regions that we need to bring culture and give that back into the centre when we’re talking about a young Aboriginal person.

“And that includes returning to country, connection to family and kin — you know, exploring their Aboriginality themselves, so they are confident in who they are.”

Finally, and specifically amongst those decision-makers who are already inclined towards reform, Mohamed emphasises a need for efficiency, specifically at the service-delivery level. This ranges from communication, speed, consistency across regions — crimes in some communities, for example, can be treated wildly differently to crimes even a town over — to better resource allocation.

“That goes back to my previous comment: knowing what the young person wants or needs,” he says.

“The majority of the time, their request, and what would make their life easier or more supported, wasn’t a major financial ask.

“It was really about being heard, having someone they can call or speak to, being supported when they are trying new things. They may be going to a new school, might be entering the workforce for the first time; some of the things that young people are asking for is really about just the time they require. Like any young person, they feel wanted and they have someone to support them.”

Will these recommendations be different?

Which brings us right back to follow-through: how prepared is the Andrews government for fast, relatively radical reform? For Mohamed, the consequences aren’t just limited to the state.

“My understanding is this piece of work we’re undertaking is probably one of the first on a statewide level, how we’ve gone into communities and have pulled this apart and really looking very closely at what’s working and what’s not and what we can improve.

“And I think the other states are kind of watching this space that we’re doing in Victoria and see what comes out of it.”

While it’s too early to speculate on how the Andrews government will receive ‘Our youth, our way’, we can also examine how the government at least approached ‘In our own words’.

Not only is it another CCYP report, out-of-home care has a strong cross-over with youth justice — Mohamed notes that 85% of children with a youth justice order also have a child protection order or have been involved in child protection.

The report’s recommendations that focus on Aboriginal children and young people include:

  • ensuring stronger compliance with existing laws, to connect Aboriginal children and young people to culture; and
  • better support for self-determination, including through community-led early intervention and progressing the transfer of case management of Aboriginal children and young people in care to Aboriginal community-controlled organisations.

While it was only tabled in November 2019, a government spokesperson tells The Mandarin that the government welcomes reports like these and that “the wellbeing of children is always our highest priority and while we’ve come a long way, there’s still much more work to do”.

“We want to thank those who shared their experiences to inform this inquiry — we have accepted the recommendations in principle and are carefully considering how they are best implemented, including whether additional investment is required.”

The spokesperson added the caveat, “We also need to consider their intersection with other recommendations, policies, and existing priorities.”

For context, Victoria’s ‘Roadmap for Reform’ includes: a $116 million new model of kinship care; a first blueprint to better support our 6500 carers;  an $11m Homestretch program, extending the age of leaving care from 18 years to 21 years for some young people; and improving safety and supervision in residential care and introducing minimum qualification requirements, supported by $82.5 million over four years.

At the time of the report’s release, Mohamed acknowledged the findings as disappointing, specifically given that “we have seen real commitment and leadership from the Victorian government to address these issues and improve compliance with the Aboriginal child placement principle.

“While we have seen increases in the case management of Aboriginal children and young people by Aboriginal community-controlled organisations (41%), the pace of change is nowhere near enough,” he said at the time.

About his own report, Mohamed says that the justice department’s concurrent support with the Koori Youth Justice Taskforce — as well as his role’s financial and institutional support — demonstrate the willingness to “get this right”.

“So that could be something which I think the two reports together could be a very powerful way to see this reform happen,” Mohamed says.

“And I have to say that the state government, by even funding this and endorsing it, shows that there is a willingness to change the status quo.

“And it’s going to be the real test when the recommendations come back, on how they get implemented and how they get endorsed.”

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