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Jared Sharp delivered the presentation at the 2014 Young People at Risk Forum. The 2014 Young People at Risk Forum reviewed the challenges and solutions surrounding intervention programs around topics such as suicide prevention, substance abuse, mental health, education, employment and housing. Additionally, the forum focused on culturally competent care and care within Aboriginal communities. For more information about the event, please visit: http://www.informa.com.au/yprisk14
Citation preview
How the justice system can
increase the vulnerability of
Aboriginal young people, and
what we can do about it!
Jared Sharp
Manager, Law &Justice Projects
North Australian Aboriginal Justice Agency (NAAJA)
This Presentation:
1. NT Justice context
2. Procedural Justice
3. Innovative approaches to enhance procedural justice:
I. Understandable, accessible processes:
• NZ Family Group Conferencing
II. Providing young people with intensive, culturally safe support:
• NAAJA‟s Throughcare Project
• Senior Indigenous Youth Justice Worker
III. Culturally strengthening court processes:
• Community Council
IV. Empowering young people:
• New York Youth Courts
4. Recommendations
North Australian Aboriginal Justice
Agency (NAAJA) • NAAJA provides high quality and culturally
proficient criminal and civil legal assistance for
Aboriginal people in the Top End.
• In addition to the criminal and civil legal practices,
NAAJA has a Law & Justice projects section (policy
& law, community legal education, Throughcare
project).
True Justice, Dignity and Respect
for Aboriginal people
Young people in detention - how does
the NT compare?
South
Australia
Tasmania
Northern
Territory
Population 1,662,200 512,400 236,900
Youth
detention as
at June
2009
58
32
33
Youth
detention as
at June
2013
58
17
49
Source: Australian Institute of Health and Welfare 2013. Juvenile detention population in Australia 2013. Juvenile justice series no. 13. Cat. no. JUV 31. Canberra: AIHW
Young people in detention - how does
the NT compare?
Youth Detention rate (number of young people per 10,000 relevant population)
• National average is 3.25
• NT rate is 18.66 as at June 2013 (it was 12.17 as at June 2009)
• WA is next highest at 6.12
• Most jurisdictions around 3 per 10,000
Over-incarceration of Aboriginal
young people in NT
82%
99%
0%
20%
40%
60%
80%
100%
120%
NT Population NT Adult PrisonPopulation
NT JuvenileDetentionPopulation
Indigenous
Non-Indigenous30%
Child protection in the NT
• On just about every wellbeing and safety measure NT children
are at greater vulnerability than children in other jurisdictions.
• NT Children‟s Commissioner has identified hazards confronting
NT children:
o Exposure to family violence
o Teen parenting (carer instability, poverty)
o Exposure in utero to alcohol/nicotine
o Parental use of other substances
o Poor nutrition
o Various diseases such as otitis media
o Abuse and neglect
o Poor school enrolment and attendance
Child protection in the NT
Basis of substantiations (2011-12):
Neglect 53%
Emotional 27%
Physical 17%
Sexual 3%
Systemic issues affecting Aboriginal young people
"Overcrowding, poverty means that we have created an environment that when
looked at from white middle class eyes is neglect"
Frank Hytten, CEO Secretariat of National Aboriginal and Islander Child Care
Source: DCF 2012, cited by Dr Howard Bath, NT Children‟s Commissioner, „Vulnerability, Risk and Justice for Children and Young
People in the Northern Territory‟, paper at the Fourteenth Annual Biennial conference of the Criminal Lawyers Association NT, Bali,
June 27, 2013. See: http://www.clant.org.au/index.php/the-bali-conference/2013
Child protection applications made as
first step not last resort
Example:
• NAAJA Civil team supports parents in child protection applications in relation
to their children
• T is a mother of a newborn baby.
• Department of Children and Families (DCF) removed baby shortly after birth
and applied for short term protection order
• T wishes to breastfeed. Concern is that in similar cases, DCF have not made
it a priority for children in care to get consistent supply of mother‟s milk
• Major protective concerns are domestic violence
• Father, however was in prison
• Court ordered that baby be returned to mother‟s care, at least until father
released from prison
9
Over-representation of Aboriginal
young people
• 570 of the 695 children in care in the Northern Territory
were Aboriginal as at 30 June 2012 (82%)
Source: NT Children‟s Commissioner, 2012 Annual Report
2. Procedural Justice
• What is procedural justice?
1. Extent to which court proceedings are understandable, comprehensible,
2. Extent to which parties have a voice in decision-making
3. Decisions made which address needs of community, victim, defendant
Aboriginal people and procedural justice:
• Foreign legal concepts
• Historical (and current) power imbalances
• Social cohesion (Prof Tony Vinson) – link between offender and
their community. Where is the focus on cultural reconnection,
healing, bringing in family and community to reestablish links?
11
Lack of Procedural Justice (Youth Justice)
Pre court
• Opportunity to access diversion to avoid need for court
• Involvement of Elders, community leaders, family
• Supports provided for YP, parents, family
• Alternative bail options to avoid being taken into custody
Court
• Language used in court
• Complex concepts
• Formality of „adult like‟ court process
• Being in cells near adults, psychological impact
• Young person not directly involved in courtroom conversation
• Only Aboriginal person in court (absence of family, Elders)
• Sometimes process happens as if young person not even there
Post court • Support to attend appointments
• Support to understand court orders
• Support to address changes in circumstances
Lack of Procedural Justice (Child
Protection)
Pre court
• Opportunity to develop care plan to avoid need for court intervention
• Supports provided for parents, family
Court
• Language used in court
• Complex concepts
• Formality of court process (ie. giving evidence)
• Parties not directly involved in conversation
• Only Aboriginal person in court
Post court
• Support to attend appointments
• Support to understand court orders
• Support to address changes in circumstances
3. What are some innovative
approaches to enhance procedural
justice?
• „lynch-pin‟ of NZ youth justice and child protection
systems
• Blended Maori/Western model
• All child protection matters must go to FGC
before application can be made
• Conferencing or alternative used in almost all
youth justice matters
15
I. Family Group Conferencing
I. Family Group Conferencing
Purpose:
“to take power out of the hands of the State and
judiciary and place it with the family and whänau” –Judge Boshier, NZ Family Court
Recognises:
those directly involved (young person, whänau, victim and
community) are best placed to put together a plan to
address underlying issues, support young person, bolster
family
I. Family Group Conferencing
NZ evaluations:
• From 2001 – 2011, decrease in apprehensions and
offending (in contrast to adults)
• 1/3 of young people who go through FGC didn‟t re-
offend within 2 years.
• Another 1/3 only re-offended in minor way
• Some criticisms: held in offices, tired outcomes
17
I. Family Group Conferencing
Conferencing in the NT:
• In legislation, but conferences do not form an active part
in youth justice or child protection practice in the Northern
Territory
• The result?
• parties disempowered, lack voice, lack understanding
• families not brought into the process
• Too much left to courts
• Impacts quality of plans/sentencing outcomes
• Key issues not addressed
I. Family Group Conferencing
Recommendation 1
FGC be implemented in the NT:
• Youth justice – pre-court diversion, court diversion,
sentencing
• Child protection - all matters where DCF considering
applying for a protection order should first go to FGC
II. Intensive, culturally safe support
Support gaps in the NT
Young people cycling through courts, detention, then prison
Not addressing key issues:
• Very limited access to therapeutic programs in the community
• Very limited access to programs in detention
• Not engaged with school, training, work
• Precarious housing
• Leave detention to same situation
• YP doesn‟t understand the system
The result?
• YP quickly return to detention, graduates to prison
(NT recidivism is highest in Australia)
II. Intensive, culturally safe support
NAAJA‟s Throughcare Project
• Established 2009
• Prison-based workers, support detainees access services and develop post release plans (especially parole)
• Intensive workers, support detainees 6 months pre release and at least 6 months post release
• What is Throughcare?
support from custody to successful reintegration into the community
Voluntary
“continuous, co-ordinated and integrated” (Clay, 2000)
How Throughcare works 6 months pre-release
Build relationship
Learn about aspirations, barriers and goals
Assist to develop a release plan that empowers them to identify their own goals and work
with them to address any barriers
Encourage and support
Work with family, home visits
Work with other agencies in coordinated way
6 or more months post-release
Progressively empower client to take increasing control over their affairs
Not simply doing tasks for client, but supporting client when no one else able to
Working with individual and family
Encouragement, support through ups and downs
Link with services
Work with other agencies in coordinated way
Throughcare’s success
• Only 13% of our clients return to prison whilst part of our program
• 57% recidivism rate in the NT
• Fiscally-sound: Throughcare well and truly pays for itself. If we keep just 5 kids out of detention for 12 months, we are paying for the annual cost of the project
• Community-based, integrated within NAAJA, culturally strengthening
• Voluntary, on client‟s terms, helps build trust
II. Intensive, culturally safe support
Senior Indigenous Youth Justice Worker
• based on Throughcare model
• Provides early intervention, prevention and
intensive case management services to YP
who are beginning to come in contact with the
criminal justice system.
• works intensively with the YP and their families
to steer them away from the criminal justice
system
II. Intensive, culturally safe support
Senior Indigenous Youth Justice Worker
• underlying issues
• areas of need – e.g. accommodation, employment
support, education, counselling needs, and drug and
alcohol rehabilitation, family issues
• link with services and facilitate referrals
• link with mentors and Elders
• attending appointments, community work
• support/advocate DCF and Corrections
• court reports - a „face behind the offender‟ by giving a
sense of the YP‟s ideas, beliefs and goals
Senior Indigenous Youth Justice Worker –
initial impact
• Identifying issues YP face – alcohol/drugs, exposure to
violence, cognitive impairment, disability, petrol sniffing
• Referrals to support services
• Facilitating engagement with services
• Giving services fuller picture of YP being dealt with
Senior Indigenous Youth Worker:
referrals/engagement July – December 2013
Accommodation
Centrelink
Counselling
Diversion
AODCounsell
ing
Community
Work
Education
Employment
FamilySupport
Fines/Debt
MentalHealth
Support
Mentoring
OtherHealth
Support
Transport
Identification
Male 9 2 5 2 1 9 12 5 16 1 0 4 0 12 1
Female 2 0 1 0 0 0 4 0 4 0 2 3 1 2 0
0
2
4
6
8
10
12
14
16
18
Nu
mb
er
of
cli
en
ts
II. Intensive, culturally safe support
Recommendation 2
Throughcare and Indigenous Youth Worker roles be expanded across NT:
• Aboriginal community-controlled is crucial
• NAAJA Throughcare model should be expanded across NT and Australia
• Youth justice – not just 1 worker in Darwin, and funding certainty needed
• Child protection – Indigenous Youth Worker role urgently needed
III. Culturally strengthening processes
29
Rangatahi Court
Pasifika Youth Court Cree Court
Children‟s Koori Court
III. Culturally strengthening processes
We need a Bi-Cultural Justice System:
Key role for Elders, community leaders
Bringing in family
Less formal, intimidating
Culturally safe
Reconnecting Aboriginal YP with culture
Getting full picture of the individual
Getting to underlying issues
Aboriginal judges and magistrates needed
Local, community-driven initiatives
Growing evidence base
Example: Community Council (Toronto, Canada)
• Running for 20 years
• YP pleads guilty, court refers sentencing to Community
Council
• panel of 3 Elders, service providers meet with defendant and
family
• Culturally safe environment, seek to re-engage YP with community,
identity, emphasis on culture and pride in culture, pride in self, getting
YP to think about future goals
• Deal with issues underpinning offending – cultural/healing focus
• Council decides plan
• Court approves plan if appropriate
Growing evidence base
Example: Community Council (Toronto, Canada)
Ontario Department of Justice evaluation:
1. Program reduced an offender‟s likelihood of recidivating
by 33.7%
2. Clients said Community Council helped them more than
regular court to change behaviour and life
circumstances
3. Community Council was important link between
Aboriginal offenders and the community of Aboriginal
services
III. Culturally strengthening processes
Recommendation 3
Aboriginal justice programs needed in NT
• empower and support communities to take ownership of
local justice issues
• empower courts and give them the resources to trial new
things tailored for local communities.
• Aboriginal judges and magistrates to lead the way
IV. Empowering young people
New York Youth Court
• Modelled on conventional court process
• Real life cases referred by judge - YP pleading guilty to
minor offence
• Youth Court includes a „sentencing jury‟ to decide
appropriate ways for YP to get back on track
• harnesses empathy, expertise YP have for other YP
34
Red Hook Youth Court
How do Youth Courts work?
• Jury considers what will help young person - community
work, essay(s), decision-making session, goal-setting
session, conflict resolution, or referral to social worker (at
CCI).
• Decide dispositions by consensus voting
• Judge announces decision
Example – „Alice‟
• Trespassing.
• If you could go back, would you change anything? (Yes)
• „Do you understand how trespassing can affect your future goals?‟ (wants to be singer)
• „Are you a positive influence?‟ (besides this, yeah)
• „What learn from this experience?‟
• Action Plan: 1. community work.
2. chose not to give her a letter of apology. Alice didn't think she needed to. Jury thought if they asked to write one, it wouldn‟t be heartfelt.
3. essays. „What steps do you need to take to achieve your goal?‟ (250 words) to help her take steps to reach goal. Another on how trespassing negatively affects the community and her future (300 words)
4. referred to social worker
Why Youth Courts are so good
• Kids ask the hard questions that never get asked in court
• Questions are more effective coming from peers. Young
person squirmed under the persistent fire of 12 of their
peers!!
• entirely rehabilitative. Ensuring young person knows what
did was wrong, and turning something negative into a
positive.
• non-judgmental. No snide comments, arrogance from
Members
Why Youth Courts are so good
• Kids who have been respondents sometimes end up as
members!
• Teaches about the law
• Teaches to work as part of team and leadership. Also
leads to further education, employment (At Red Hook,
almost all the kids told me they want to become lawyers)
• Compliance rate is off the charts. Nothing compels
respondents to do what Youth Court decide, yet 94% do
complete!!
IV. Empowering young people
Recommendation 4
Implement a Peer Court in the NT
• positive peer influences for YP in trouble with the law
• pathway for YP to learn about, and move to career in the
law
Thank you!
More info?
www.naaja.org.au
41