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Cunneen, Chris; Libesman, Terry --- "Editorial" [2001] IndigLawB 64; (2001) 5(11) Indigenous Law Bulletin 31

Editorial

by Chris Cunneen and Terri Libesman

This article appeared as the editorial for volume 2, No 44 of the Aboriginal Law Bulletin, in June 1990.

The over-representation of Aboriginal youth in the juvenile justice systems of various states and territories in Australia is a national scandal deserving of immediate attention of relevant authorities. The article by D’Souza outlines the current available information on Aboriginal over-representation in areas such as arrests, custodial sentences and wardship. In some states, the level of Aboriginal over-representation is greater in juvenile institutions than it is in adult prisons. Semple, in a study of males committed to juvenile institutions as at 30 June 1987, found that Aboriginal male juveniles were 25 times more likely to be incarcerated than non-Aboriginal male juveniles in NSW.[1] The level of over-representation in Victoria was 20, in Queensland 16, in Western Australia 14, in South Australia 10, and in Northern Territory 7.

Heather Goodall’s article shows the need to reinsert discussions of the impact of juvenile justice within the broader history of colonialism within Australia. In some respects it is now more difficult to critique such an impact because the overt racism underlying government intervention in earlier decades has been replaced with appeals to the rule of law. Yet the research by Gale, Bailey-Harris and Wundersitz demonstrates clearly the differential impact of the system on Aboriginal youth. Aboriginal youth are disadvantaged at every stage of the system where discretionary decisions are made. And this process occurs despite years of government enquiry and legislative change designed to implement a more equitable system.

Many of the articles in this issue raise the question of policing. Clearly the role of the use of police discretion in relation to arresting Aboriginal juveniles for trivial offences, with the decision to charge rather than caution, with the setting of oppressive bail conditions and with detention in police cells is a national issue. Again as Gale, Baily-Harris and Wundersitz demonstrate, the initial decision to proceed by way of formal charge influences the later progression through the juvenile justice system. Research in NSW confirms the observation by Stewart Brown that police are reluctant to use cautions with Aboriginal juveniles.[2]

One of the most disturbing features of the articles in this issue is the common perception by many of the authors that the situation for Aboriginal youth in relation to juvenile justice has been deteriorating over recent years. Stewart Brown refers to the increased number of Aboriginal youth appearing before the courts in Alice Springs. Heather Sculthorpe refers to the increased number of Aboriginal youth detained in police cells in Tasmania. Steve Sharrat refers to the increase in the number of charges being laid against juveniles in Western Australia. Gale, Bailey-Harris and Wundersitz point to the situation where Aboriginal juveniles have less chance of diversion and more chance of incarceration than in earlier periods. The research from NSW also confirms such a trend where the percentage of Aboriginal youth compared to all youth incarcerated in detention centres has grown from around 18% in the early 1980s to currently around 25%.

If Goodall’s article alerts us to the fact that the issue of Aboriginal youth and juvenile justice needs to be placed in the historical perspective of colonial relations, there is also the explicit need to place Aboriginal youth and juvenile justice within the broader context of the political arena of law and order. The 1980s has seen the development of a more draconian approach to (so-called) law and order issues. As Goodall acknowledges the rural recession and the growth of a young Aboriginal population has found expression in the ‘anxiety’ over law and order issues and the calls for stronger state intervention through increased policing. Articles in this issue of the Aboriginal Law Bulletin from South Australia, Western Australia, Northern Territory and Tasmania all refer to the current or likely impact of law and order policies. The impact of such policies finds expression in increased police numbers, in the increased use of minor charges, in the introduction of strengthened public order legislation, of more draconian bail conditions and the ready use of more severe sentencing options. At the broader level the social, economic and political relations which give rise to the conditions of ‘disorder’ are defined narrowly in terms of ‘crime’. Underlying the increase in the processes of criminalisation, there has been a political move away from self-determination and economic self-sufficiency. Thus the long-term political solutions to an effective decrease in Aboriginal over-representation in the juvenile justice system have been pushed to the background.

The strengthening of ‘law and order’ regimes in various states and territories will no doubt further serve to structurally disadvantage Aboriginal youth in their relations with the justice system. One can expect an increase in the level of incarceration if current policies are followed. In NSW since the election of a conservative government on a law and order platform, the number of Aboriginal youth detained has been steadily rising. In addition the average length of sentence for juveniles has risen from 80 days in 1987 to 200 days by the end of 1989[3]. There is a commonality in many of the proposed law and order solutions around the country. In both NSW and the Northern Territory there has been the proposed imposition of financial penalties for parents of convicted juveniles. In Queensland, Western Australia, Tasmania and NSW there have been curfews imposed in certain areas either through bail conditions or court orders. In NSW there have been bail and probationary conditions imposed on Aboriginal youth which have required them to leave and stay away from particular towns – often where their families reside. There have been increased sentences for some offences such as motor vehicle theft.

Clearly then, the fears and prejudice of those generating law and order campaigns is diffusing into legislative policies and practices. Whilst institutionalisation of Aboriginal children in the Protection Board era was justified on overtly racist grounds, a continuity is evident in the characterisation of Aborigines as a threat to the dominant Anglo culture. This fear has been and continues to be expressed in terms of a moral danger to the fabric of society. The real danger lies in such normative values, which threaten Aboriginal culture - as is evidenced by the gross over-representation of Aboriginal youth and adults in the criminal justice system.

Chris Cunneen is Associate Professor and Director of the Institute of Criminology atthe University of Sydney Law School. Chris worked at the Indigenous Law Centre during the late 1980s, and has worked on a number of inquiries including the Stolen Generations Inquiry and the National Inquiry into Racist Violence.

Terri Libesman is a lecturer in the Law Faculty, University of Technology, Sydney. She researches and teaches in the area of Indigenous peoples and the law.


[1] Semple, D (1988) ‘Juvenile Justice Trends and Future Directions in Western Australia’, Paper presented to the Australian Bicentenial International Congress on Corrections, Sydney.

[2] Cunneen, C and Robb, T (1987) Criminal Justice in North West New South Wales, bureau of Crime Statistics and Research, Sydney.

[3] Cunneen, C (1990) ‘Aborigines and Law and Order Regimes’, Journal for Social Justice Studies, Vol 3.

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