Over-policing of Aboriginal children in Australia: A system that criminalises Aboriginal children

Aboriginal and Torres Strait Islander readers are advised that the below contains the names of people who are deceased.

The 2021 World Congress on Justice With Children was held on the theme of ensuring access to justice for all children, including systemic racism and the disproportionate criminalisation of Indigenous children, who are over-represented in detention and throughout judicial proceedings in many countries. In the sixth blog in our series for the World Congress, Andreea Lachsz from the Victorian Aboriginal Legal Service in Australia details the impact on children and communities, and reforms needed to ensure equal access to justice for all children.

Systemic racism and racial profiling by police is an ongoing issue for Aboriginal and Torres Strait Islander children across Australia today. The relationship between Aboriginal communities and police is a fraught one, built on a history in which police actively participated in the colonisation of the land, playing a central role in violence towards and dispossession of Aboriginal people, denial of sovereignty and policies of protection and assimilation. Targeted and sustained efforts are needed to address the ongoing impact of colonisation on contemporary relationships between Aboriginal communities and police.

The 30-year anniversary of the Royal Commission into Aboriginal Deaths in Custody

This year marked the 30-year anniversary of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). Governments across Australia continue to overstate the degree to which they have actioned the Commission’s 339 recommendations, with many recommendations remaining unimplemented. And so, as the Black Lives Matter movement gains momentum around the world, Australia remains in a concerning state of inertia, with more than 470 Aboriginal and Torres Strait Islander deaths in custody since the watershed RCIADIC report was handed down.

As regards Aboriginal youth in custody, the Royal Commission made the following recommendation:

That governments and Aboriginal organisations recognise that the problems affecting Aboriginal juveniles are so widespread and have such potentially disastrous repercussions for the future that there is an urgent need for governments and Aboriginal organisations to negotiate together to devise strategies designed to reduce the rate at which Aboriginal juveniles are involved in the welfare and criminal justice systems and, in particular, to reduce the rate at which Aboriginal juveniles are separated from their families and communities, whether by being declared to be in need of care, detained, imprisoned or otherwise. (emphasis added)

For the 30-year RCIADIC anniversary, VALS spoke with Aunty Rosemary Roe, the aunt of G.J. Roe who died in custody in 1997, aged 11 years old. She described her nephew’s experience with police in Western Australia:

This young lad was only 11. He actually was targeted too much in the last 6 months of his life… He had an older brother that… spent like 25 to 43 years of his life in and out of juvenile and adult detention centres… in the end, [the police officers] were treating the young boy identically as the older boy, and the last 6 months of his life was a total misery… Anything they could find on him, they would take him to the police station and think it was stolen.

This year, VALS represented the parents of Raymond Noel Lindsey Thomas in the coronial inquest into his death during a police pursuit (Raymond Noel was driving an unregistered vehicle, but was otherwise a law-abiding driver when he first came to the attention of police). In his findings, the Coroner stated that, “Raymond Noel and his family’s adverse interactions with police is sadly the reality of the lived experience of many Aboriginal people in our community. Whilst we will never know why Raymond Noel took flight, the potential contribution of his adverse experiences with police cannot be excluded.”

Uncle Ray, Raymond Noel’s father, recounted for the court, the following incident from Raymond Noel’s childhood:

… the boys were playing on a woodchip mound, you know, on the docks with a couple of other cousins. Just being young boys, ten or eleven years old. Just what they do. And two police officers came along and their cousins run off and two police apprehended our boys, handcuffed them and made them sit on the gutter and one of the officers said, “If you move I’ll shoot ya”. Now, that’s the first interaction with police for a ten year old, eleven year old. So you could imagine the fear they must have felt.

Is it really just some bad apples?

VALS recently made a detailed submission to Victoria’s Criminal Justice Inquiry, in which addressing systemic racism across the criminal legal system, including Victoria Police, was a key recommendation. In that submission, we stated that:

Systemic racism can be understood as how laws, policies and practices across agencies work together to produce a discriminatory outcome for racial or cultural groups… the issue of systemic racism is deep-rooted, complex and is ultimately not about individuals within a system that otherwise operates well.

The lack of transparency and accountability of policing practices in relation to Aboriginal children in Victoria is an ongoing issue that needs urgent attention. The absence of publicly available data on stops, searches and field contacts (“reports by Victoria Police members completed following interactions that do not lead to arrests, cautions or charges”) is a critical missed opportunity to identify cultural problems in the police force. As has been highlighted by the Police Accountability Project, “[w]ithout data on whether racial profiling occurs in practice, it is not possible for police or anyone else to dismiss ongoing community concerns about systemic racial targeting by police.”

The failure to address an issue as fundamental as systemic racism in Victoria Police, while making commitments to reduce incarceration rates of Aboriginal children under the national Closing the Gap Agreement, the Victorian Closing the Gap Implementation Plan and the Victorian Aboriginal Justice Agreement (Phase 4 – Burra Lotjpa Dunguludja), raises serious questions about the Government’s commitment to reduce the hyper-criminalisation of Aboriginal children.

VALS and others have been highly concerned by reports of Victoria Police using a data tool to track children and young people and predict the risk of them committing a crime. While there is little information about this predictive policing tool in Victoria, and which cohorts of children are disproportionately categorised as “youth network offenders” or “core youth network offenders”, practices in other jurisdictions indicate a likelihood that Aboriginal children will be targeted by a model that incorporates existing racial biases. For example, in New South Wales, the Law Enforcement Conduct Commission’s investigation of the police force’s Suspect Targeting Management Plan (STMP) found “patterns of targeting that appear to have led to unreasonable, unjust and oppressive interactions for young STMP targets. [Their] analysis suggests a high proportion of young people (72% of the cohort) who the NSW Police Force had identified as ‘possibly [Aboriginal and/or Torres Strait Islander]’ were selected for STMP targeting.”

Laws that disproportionally harm aboriginal children

The story told by the data to which we do have access is an alarming one. The Productivity Commission has reported that Aboriginal and Torres Strait Islander young people are detained in youth detention facilities at 22 times the rate for non-Indigenous young people. That report immediately goes on to highlight that raising the minimum age of criminal responsibility from 10 to 14 years would lead to a 15% decrease in the number of detained Aboriginal children. Despite this, and despite the international condemnation of Australia at the UN Human Rights Council Universal Periodic Review this year, the only Australian jurisdiction that has committed to raising the age is the Australian Capital Territory.

Compounding this, under Victoria’s bail laws – the most punitive in Australia – Aboriginal children are subjected to the same bail test as adults. The bail laws ignore the overwhelming, indisputable evidence about children’s development and the harm that results from imprisoning vulnerable, often already traumatised, children. It is unreasonable and cruel, to hold a 10-year-old child to the same standard as an adult. This year, the Commission for Children and Young People reported “an increase of 95% in the number of remand orders made in relation to Aboriginal children aged 10 to 13 years between 2010 and 2019, compared to a decrease of 18% for non-Aboriginal children in the same age group.”

A fork in the road – taking the wrong path

We also know that, in Victoria, police are less likely to give Aboriginal children the opportunity to be diverted from involvement in the youth justice system. For example, Aboriginal children are less likely to receive cautions from police than non-Aboriginal children. Snap decisions by police regarding cautioning can have lifelong and devastating impacts for children; children who have often been let down by multiple systems. As I have noted before, “there is an opportunity, that is too often squandered by Victoria Police, to support Aboriginal children, particularly those children who have been removed from their families, to strengthen their connection to their community and culture,” rather than criminalising them.

At VALS, we are particularly concerned about the criminalisation of Aboriginal children in out-of-home care. The Sentencing Advisory Council has reported that police are called much more frequently by residential care workers than parents, often not because the “behaviour was severe but because of its frequency”, indicating that many staff do not have the skills or training to care for highly vulnerable, traumatised children. At VALS, we are aware of cases in which, by the time police attend the residential care unit, staff have decided there is no need for a child to be arrested or charged, but police have nonetheless made arrests, including solely on charges for resisting arrest or assaulting a police officer. We have represented children criminalised for minor property damage – a matter that should have been responded to in a trauma-informed manner and would certainly not have led to police involvement in the family home.

Despite VALS’ ongoing advocacy to minimise police involvement, we have seen a failure to recognise international evidence that clearly shows that the presence of police in schools leads to more contact with the criminal legal system for children, particularly minority youth. It has also led to police violence against African-American children in the United States. We have advocated against a police in schools strategy, noting that it is well-established that education and engagement with schooling is a crucial protective factor for children at risk of coming into the criminal legal system. We have emphasised that the presence of police officers would mean schools are no longer a safe space for many Aboriginal children, and would increase the likelihood of disengagement.

A childhood free from racism

What is all too clear is that all too often the question being asked is “how do we stop children offending”, instead of “how can systems stop letting down and criminalising vulnerable children”. In Victoria, and Australia, we have a long way to go. Addressing systemic racism in police forces is no small undertaking, but it is critical for anyone who is serious about ending the hyper-criminalisation of Aboriginal and Torres Strait Islander children. Public health issues, and issues relating to entrenched disadvantage, should not have a policing response.

Other reforms urgently need to be actioned while the ongoing work to address systemic racism is taking place, including implementing all of RCIADIC’s recommendations, raising the age of criminal responsibility to at least 14 years old (and the age of detention to at least 16), reforming punitive bail laws and providing the necessary social supports and early prevention and intervention services.

As stated by one Aboriginal participant with lived experience of the youth justice system in the Koorie Youth Council’s Ngaga-dji Project, “I need more support before ending up in custody, don’t wait till I’m on my last leg.”