Youth ‘Justice’ in Australia Barry Goldson, Chris Cunneen, Sophie Russell, David Brown, Eileen Baldry, Melanie Schwartz and Damon Briggs

Youth ‘Justice’ in Australia Histories of Human Rights Violation, Racialised Injustice and Prospects of Redress

Barry Goldson, Chris Cunneen, Sophie Russell, David Brown, Eileen Baldry, Melanie Schwartz and Damon Briggs*

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6 Barry Goldson is Professor/Charles Booth Chair of Social Science at the University of Liverpool; Chris Cunneen is Professor of Criminology at Jumbunna Institute for Indigenous Education and Research at the University of Technology Sydney; Sophie Russell is Research Associate at UNSW and a Doctoral Candidate at the Faculty of Law, University of Technology Sydney; David Brown is Emeritus Professor, Faculty of Law, UNSW; Eileen Baldry is Professor of Criminology at UNSW; Melanie Schwartz is Senior Lecturer, Faculty of Law, UNSW; Damon Briggs is Principal Curriculum Lead for ‘Frontline’, a social work education agency in the UK.

Eileen Baldry et al, ‘“Cruel and Unusual Punishment”: An Inter-Jurisdictional Study of the Criminalisation of Young People with Complex Support Needs’ (2018) 21(5) Journal of Youth Studies 636. The Comparative Youth Penality Project (‘CYPP’) was supported by an Australian Research Council Discovery Project Grant [grant number DP 130100184], an Economic and Social Research Council award [grant number ES/J500094/1] and a financial contribution from the Howard League for Penal Reform. The principal findings from the Project will be published later this year: Barry Goldson, Chris Cunneen, Sophie Russell, David Brown, Eileen Baldry, Melanie Schwartz and Damon Briggs, Youth Justice and Penality in Comparative Context (Routledge, 2020). United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA Res 40/33, UN GAOR, UN Doc A/Res/40/33 (29 November 1985) (‘Beijing Rules’). United Nations Guidelines on the Prevention of Delinquency, GA Res 45/112, UN GAOR, UN Doc A/Res/45/112 (14 December 1990) (‘Riyadh Guidelines’). United Nations Rules for the Protection of Juveniles Deprived of their Liberty, GA Res 45/113, UN GAOR, UN Doc A/Res/45/113 (14 December 1990) (‘Havana Rules’). Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered in force 2 September 1990) (‘CRC’). Australia formally ratified the CRC on 17 December 1990.

i Introduction

This issue of the Court of Conscience seeks to highlight how the law, and both legal and social institutions, often fail to respect and uphold the human rights of identifiable groups of children who are perceived to be among the most vulnerable members of society. In keeping with this underpinning thematic, we turn our attention to children enmeshed within youth justice processes. Indeed, if children per se might be conceptualised as being both inherently and structurally vulnerable, those in conflict with the law—‘young offenders’—are arguably more vulnerable still. The international evidence is unequivocal in this respect and, wherever we might care to look, such children are typically drawn from the most socially and economically marginalised and dispossessed families, neighbourhoods and communities. Exposed to a myriad of racialised, gendered and class-based injustices—and often compounded further by histories of social welfare and child protection intervention and mental ill-health and/or cognitive/neuro-disabilities—youth justice populations represent skewed and profoundly disadvantaged demographics.1

Our article derives from an extended programme of research—the Comparative Youth Penality Project (‘CYPP’)—that both addresses a wide range of pressing issues and forms the first major comparative study of Anglo-Australian youth justice and penality.2 For present purposes, we focus on youth justice in Australia and consider three key questions. First, how do international human rights standards pertain to law, policy and practice in the realm of youth justice? Second, to what degree is youth justice implicated in the production and reproduction of social injustices, especially in respect of Aboriginal and Torres Strait Islander children? Third, what prospects do self-determined localised initiatives offer for securing redress, recognising human rights and obtaining justice for Indigenous children?

ii International Human Rights Standards and Youth Justice

Three international human rights instruments are especially significant in the youth justice sphere. First, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘Beijing Rules’).3 Second, the United Nations Guidelines on the Prevention of Delinquency (‘Riyadh Guidelines’),4 and third, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (‘Havana Rules’).5 Furthermore, the core provisions contained within the Beijing Rules, the Riyadh Guidelines and the Havana Rules were substantially bolstered in 1990 when the United Nations Convention on the Rights of the Child (‘CRC’)—the most widely ratified human rights instrument in history—came into force.6 More recently, the United Nations Committee on the Rights of the Child has also adopted General

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13 Committee on the Rights of the Child, General Comment No 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019). CRC (n 6) art 2.1 (emphasis added). Ibid art 3.1 (emphasis added). Ibid art 37(a)–(c) (emphasis added). Very similar provisions are replicated in the other international human rights standards cited above. Chris Cunneen, Barry Goldson and Sophie Russell, ‘Juvenile Justice, Young People and Human Rights in Australia’ (2016) 28(2) Current Issues in Criminal Justice 173, 173; Goldson et al (n 2). Children from Arabic, African and Pacific Islander backgrounds are also significantly overrepresented in the realms of youth justice and penality in Australia. Committee on the Rights of the Child, Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia, UN Doc CRC/C/AUS/CO/5–6 (1 November 2019). Comment No 24 that encapsulates the core provisions of human rights compliant youth justice.7

Taken together, the United Nations human rights standards impose a wide range of obligations and provide a well-established framework for modelling youth justice statute, formulating policy and developing practice in Australia, alongside each of the other nation states to which the same instruments apply. Specific provisions of the CRC are especially salient, including:

Article 2.1 ‘States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind …’8

Article 3.1 ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.9

Article 37(a)–(c) ‘No child shall be subjected to … cruel, inhuman or degrading treatment … imprisonment of a child shall be … used only as a measure of last resort and for the shortest appropriate period of time … every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person’.10

Notwithstanding the centrality of ‘non-discrimination’, ‘best interest’ and ‘last resort’ principles within international human rights instruments, there is ample evidence that youth justice in Australia is often characterised by discriminatory, damaging and excessively punitive interventions.

iii Histories of Human Rights Violation and Racialised Injustice

In order to obtain a complete sense of the relationship between international human rights standards and the operational processes of youth justice, we applied a systemic analysis. Beginning with the point at which criminal responsibility is formally imputed and progressing through each discrete stage of the system, up to the point where the child might ultimately be deprived of her/his liberty, our research exposes systemic human rights violations and implicates youth justice in Australia as a primary driver of persistent injustice(s) (especially racialised injustice(s)).11

Indeed, we argue that the very children in greatest need of the protections and benefits conferred by international human rights standards are often those whose rights are most severely compromised if not flagrantly violated. In particular, the striking over-criminalisation of Aboriginal and Torres Strait Islander children at the front end of youth justice processes, and their equally conspicuous over-representation at the back (and most punitive) ends of the same processes, reveal historically embedded and seemingly worsening forms of racialisation and racism. Of course, the experiences of settler colonialism in Australia included the brutal dispossession of Aboriginal and Torres Strait Islander peoples and the youth justice system is seemingly implicated—both historically and contemporaneously— in maintaining modes of colonial ordering that continue to subjugate Aboriginal and Torres Strait Islander children.12 The most recent report issued by the United Nations Committee on the Rights of the Child echoes our own research findings: 47. The Committee again regrets that its previous recommendations have not been implemented and remains seriously concerned about: … (b) The enduring overrepresentation of Aboriginal and Torres Strait Islander children and their parents and carers in the justice system; (c) Reports that children in detention are frequently subjected to verbal abuse and racist remarks, deliberately denied access to water, restrained in ways that are potentially dangerous and excessively subjected to isolation; (d) The high number of children in detention, both on remand and after sentencing …13

In fact, in every state and territory in Australia, Aboriginal and Torres Strait Islander children are manifestly over-represented in penal detention compared with their non-Indigenous counterparts, and in some discrete states and territories such disproportionality assumes especially striking forms. In Victoria, Aboriginal and

Torres Strait Islander children are locked-up at 12 times the rate of non-Indigenous young people; in New South Wales the corresponding differential stands at 18 times; in Queensland 32 times; in South Australia 36 times, and in Western Australia 38 times.14 Within this context, the specific nature of the child’s domiciliary/familial location is critical and the Australian Institute of Health and Welfare distinguishes between ‘Major cities’, ‘Inner regional’ districts, ‘Outer regional’ areas, ‘Remote’ settings and ‘Very remote’ communities:

On an average day in 2017–18 Indigenous young people under [youth justice] supervision were more likely than non-Indigenous young people to have lived in Outer regional areas (23% compared with 7%) and

Remote or Very remote areas (20% compared with less than 1%) …

Young people aged 10-17 from Remote areas were … 5 times as likely [as those from Major cities] to be in detention on an average day, while those from Very remote areas were 9 times as likely …15

Self-Determination and Prospects of Redress

Set against ‘centuries of colonisation’ that have rendered ‘the contemporary position of Indigenous peoples … [as] one of profound social, economic and political marginalisation’, and taking account of the persistent human rights violations and deeply problematic racialisation of youth justice in Australia, alternative—if not replacement—approaches are imperative in which the ‘prioritisation of Indigenous voices … the fundamental importance of Indigenous knowledges … the Indigenous right to self-determination, and the importance of Indigenous agency’ are applied and enacted.16 By drawing selectively from our research sites, we briefly review three such innovations here: the Koori Children’s Court in Victoria; the Yiriman Project in the Kimberley region of Western Australia; and the Maranguka Justice Reinvestment Project (‘Maranguka JR Project’) in Bourke, New South Wales.

The Koori Children’s Court was enabled by the provisions of the Magistrates’ Court (Koori Court) Act 2002 (Vic). Section 1(b) of the Act specifies the primary objective of ‘ensuring greater participation of the Aboriginal community in the sentencing process … through the role to be played in that process by the Aboriginal elder or respected person and others’. Significantly, Elders assume prominent roles in proceedings and ‘there is a strongly performative element to Aboriginal courts … [including the display] of Indigenous flags, art and other cultural objects [that reinforce] the importance of Indigenous culture in the sentencing process’.17 The Koori Children’s Court, alongside other ‘Indigenous sentencing courts’, have been evaluated and a common theme in the evaluations is the increased participation and ownership of the program by local Indigenous communities.

The Yiriman Project is based in the Kimberley region of Western Australia, a State where ‘Aboriginal young people make up just over 6 per cent of 10 to 17 year olds, but account for more than three quarters of those in juvenile detention’.18 The Project was initially established in 2000 by Aboriginal Elders representing four Kimberley language groups the Nyikina, Mangala, Karajarri and Walmajarri. The Project might not ‘“fit” comfortably into contemporary government language, or policy directions’19 but its longevity reflects the faith that Aboriginal Elders have invested and sustained and ‘[t]he project has been praised by the Productivity Commission as a “project that works” … it was a winner in the 2012 Indigenous Governance Awards, and [it] was also cited in the March 2015 National Mental Health Commission Report … as an exemplar of national best practice for working with Aboriginal youths at risk’.20

The Maranguka JR Project, located in the remote town of Bourke in north-west New South Wales, is ‘the first major pilot site in Australia to adapt and implement an Aboriginal-led place-based model of justice reinvestment’.21 For over two decades, the Aboriginal and Torres Strait Islander communities have been overrepresented in youth justice systems. Accordingly, a coalition of local Aboriginal leaders and state-wide organisations identified that a new approach was needed. Taken in the round, the Maranguka JR Project has been shown to facilitate promising approaches to local decision making and enable the mobilisation of communitybased services that build strength and reduce contact with youth justice systems.

Our research re-confirms that Aboriginal and Torres Strait Islander communities cannot rely on ‘top-down’ (mis)applications of international human rights standards to provide justice for their children. Irrespective of the progressive provisions

14 Australian Institute of Health and Welfare,

Youth Justice in Australia 2017–18 (Report, 10 May 2019) 9. 15 Ibid 11. 16 Chris Cunneen and Juan Tauri, Indigenous

Criminology (Policy Press, 2016) 1. 17 Ibid 124. 18 Kathryn Thorburn and Melissa Marshall, ‘The

Yiriman Project in the West Kimberley: An

Example of Justice Reinvestment?’ (Current

Initiatives Paper No 5, Australian Institute of

Criminology, July 2017) 1. 19 Ibid 5. 20 Ibid 3. 21 KPMG, Maranguka Justice Reinvestment

Project: Impact Assessment (Report, 27

November 2018) 6.

of such instruments, in practice youth justice is often mutated and disfigured in ways that give rise to human rights violations and racialised injustices. Conversely, ‘bottom-up’ and self-determined innovations offer some prospects of redress and, as such, we support the fundamental principles underpinning such approaches. But we also sound a note of caution insofar as such localised initiatives—however effective—ultimately fall short of the complete realisation of Aboriginal and Torres Strait Islander self-determination in the spheres of youth justice. Whatever the legitimacy and effect of the same initiatives, therefore, they ultimately fail to produce an equally shared jurisdiction between Aboriginal and Torres Strait Islander peoples and the settler colonial state and, in and of themselves, they can never substantially disrupt the configurations of power and decision-making that remain vested in state institutions. At a moment in our history when the ‘Black Lives Matter’ movement is raising consciousness and shining a light on racialised injustices around the world, now is the time for state institutions and those with power in Australia to recognise the rights and provide justice for all children.