16. Criminal Justice Targets and Aboriginal Justice Agreements

16.1     Reducing Aboriginal and Torres Strait Islander incarceration requires a coordinated governmental response, and effective collaboration with Aboriginal and Torres Strait Islander peoples. This chapter makes two recommendations that aim to improve both of these. It recommends that there should be national targets to reduce both the rate of incarceration of Aboriginal and Torres Strait Islander people, and the rate of violence against Aboriginal and Torres Strait Islander people. Both goals are interrelated, and will facilitate improvements not only in the rate at which Aboriginal and Torres Strait Islander people come in contact with the criminal justice system, but also in community safety.

16.2     The ALRC also recommends that Aboriginal Justice Agreements (AJAs) should be in place in states and territories. The success of many of the recommendations made in this Report relies on the development of collaborative relationships between government and peak Aboriginal and Torres Strait Islander organisations. AJAs can provide a foundation on which to facilitate, build, and solidify these relationships.

16.3     The ALRC recommends that there should be national criminal justice targets to reduce both the rate of incarceration of Aboriginal and Torres Strait Islander people, and the rate of violence against Aboriginal and Torres Strait Islander people.

16.4     These should be developed by the Commonwealth Government, in consultation with state and territory governments, and in partnership with peak Aboriginal and Torres Strait Islander organisations.

16.5     Criminal justice targets will focus attention on achieving tangible outcomes in reducing incarceration and victimisation, and improve accountability in relation to these. They will also promote whole-of-government cooperation and coordination to achieve them. Submissions considering criminal justice targets gave unanimous support to their introduction.^[1]

Closing the Gap targets

16.6     In 2005, Tom Calma AO, the then Aboriginal and Torres Strait Islander Social Justice Commissioner, called on the Australian Government to commit to achieving equality for Aboriginal and Torres Strait Islander peoples in the areas of health and life expectancy within 25 years.^[2] This led to the National Indigenous Health Equality Campaign in 2006, and to the adoption of the Close the Gap Campaign that demanded state, territory and federal governments commit to closing the health and life expectancy gap between Aboriginal and Torres Strait Islander peoples and other Australians within a generation.^[3]

16.7     In 2008, the Council of Australian Governments (COAG) approved the National Indigenous Reform Agreement, setting out six Closing the Gap targets to:

• close the life expectancy gap within a generation;
• halve the gap in mortality rates for Indigenous children under five within a decade;
• ensure access to early childhood education for all Indigenous four year olds in remote communities within five years;
• halve the gap in reading, writing and numeracy achievements for children within a decade;
• halve the gap for Indigenous students in year 12 attainment rates by 2020; and
• halve the gap in employment outcomes between Indigenous and non-Indigenous Australians within a decade.^[4]

16.8     In 2014, a new target to close the gap in school attendance by the end of 2018 was agreed to.^[5] The 2017 Prime Minister’s Report on progress to meet these targets indicates that only the target to halve the gap in Year 12 attainment rates is on track to be achieved.^[6]

16.9     In 2017, nearing the tenth anniversary of Closing the Gap, Commonwealth, state and territory governments have agreed to work together with Aboriginal and Torres Strait Islander leaders, organisations, communities and families on a refreshed agenda and renewed targets.^[7]

16.10  This is an opportune time to develop criminal justice targets as part of a renewed whole-of-government commitment to address Aboriginal and Torres Strait Islander disadvantage.

16.11  There have been sustained calls to adopt justice targets as part of the Closing the Gap framework.^[8] The Australian Government has previously resisted this, arguing that the adoption of additional targets will dilute the impact of existing targets, and that targets at the Commonwealth level are not appropriate, given that responsibility for criminal justice issues relating to Aboriginal and Torres Strait Islander peoples largely rest with the states and territories.^[9]

16.12  However, as Chapter 2 discusses more fully, the forms of disadvantage experienced by Aboriginal and Torres Strait Island peoples that are the subject of existing targets are deeply interrelated with incarceration. As the National Congress of Australia’s First Peoples argued:

Incarceration has severe flow on effects on all factors of family and community life, particularly in the case of female incarceration, and thus impacts factors like life expectancy, health outcomes and education attainment—all aspects of Closing the Gap measures.^[10]

16.13  The Australian Government can provide national leadership on this issue, and drive coordinated action to achieve the target. The Law Council of Australia submitted:

Australian governments must work together and in proper consultation with Aboriginal and Torres Strait Islander organisations to find and implement effective solutions. The introduction of a justice target in the Closing the Gap framework, accompanied by a considered and properly funded intergovernmental strategy is likely to lead to greater consistency in the implementation of programs across Australia and encourage greater accountability by governments.^[11]

16.14  The Aboriginal and Torres Strait Islander Social Justice Commissioner has articulated the value of targets in terms of the cooperative action they promote:

It is not the targets in and of themselves that have led to changes but the enhanced level of cooperation at the Council of Australian Governments level and targeted increases in funding. However, without the targets in place to guide this work, and a mechanism whereby the Prime Minister annually reports to Parliament against these targets, there is a real risk that our progress would stall.^[12]

Target to reduce incarceration and victimisation

16.15  The ALRC recommends that criminal justice targets be focused on reductions in both the rate of incarceration of Aboriginal and Torres Strait Islander people, and the rate of violence against Aboriginal and Torres Strait Islander people. The latter target is particularly significant for Aboriginal and Torres Strait Islander women. As discussed in Chapter 11, Aboriginal and Torres Strait Islander women are disproportionately likely to experience family violence. Moreover, Aboriginal and Torres Strait Islander women prisoners are highly likely to have experienced family and other violence. The ALRC considers that both targets are interrelated, and will facilitate improvements not only in the rate at which Aboriginal and Torres Strait Islander people come in contact with the criminal justice system, but also in community safety.^[13]

Suggested targets

16.16  The ALRC has not recommended specific targets, mindful of the need to ensure Aboriginal and Torres Strait Islander leadership in developing policy relating to Aboriginal and Torres Strait Islander peoples. It considers that targets should be developed in consultation with Aboriginal and Torres Strait Islander peak organisations.

16.17  There was significant support in submissions for the targets recommended by the Change the Record Coalition, a coalition of Aboriginal and Torres Strait Islander, human rights and community organisations. Its ‘Blueprint for Change’ for Aboriginal and Torres Strait Islander incarceration rates recommended the following targets:

• close the gap in the rates of imprisonment between Aboriginal and Torres Strait Islander people by 2040; and
• cut the disproportionate rates of violence against Aboriginal and Torres Strait Islander people to at least close the gap by 2040; with priority strategies for women and children.^[14]

16.18  Other submissions agreed that targets should be developed in consultation with Aboriginal and Torres Strait Islander organisations.^[15] The Criminal Lawyers Association of the Northern Territory cautioned that targets need to be realistic,^[16] while the Australian Capital Territory (ACT) Government endorsed the value of targets that ‘stretch’ governments to achieve them.^[17]

16.19  A number of submissions argued that ‘headline’ targets should be accompanied by sub-targets.^[18] For example, the Aboriginal Legal Service of Western Australia (ALSWA) suggested that, a target to reduce incarceration could include sub-targets for:

• reduced arrest rates;
• reduced numbers of people in remand;
• increased police diversion;
• increased resourcing for Aboriginal Community Controlled programs and services;
• increased compliance rates for community-based orders; and
• increased numbers of prisoners released on parole.^[19]

16.20  ALSWA further suggested that a target to reduce violence could include sub-targets for:

• increased alternative accommodation facilities for victims and perpetrators;
• increased resources for Indigenous-specific legal services to assist victims of violence; and
• increases in culturally competent perpetrator programs.^[20]

16.21  A number of submissions argued that one sub-target should relate to resourcing of Aboriginal and Torres Strait Islander organisations.^[21]

Targets must be supported by other frameworks

16.22  The adoption of criminal justice targets needs to be supported by a plan and resources to achieve them. The approach taken for existing Closing the Gap targets provides a model for this. Closing the Gap targets are contained within a ‘National Agreement’ between the Commonwealth and states and territories—the National Indigenous Reform Agreement.^[22]

16.23  A National Agreement is a key component of the federal financial relations framework—a framework through which the  Commonwealth  and  the  States  collaborate  on  policy  development  and  service delivery to implement that agenda.^[23] A National Agreement defines objectives, outcomes, outputs and performance indicators, and clarifies the roles and responsibilities that guide the Commonwealth and the states and territories in the delivery of services in key sectors.^[24]

16.24  The National Indigenous Reform Agreement is further supported by a number of ‘National Partnership agreements’, on specific areas, such as Indigenous early childhood development, remote service delivery and Indigenous economic participation. National Partnership agreements ‘define the mutually agreed objectives, outcomes, outputs and performance benchmarks or milestones related to the delivery of specific projects, improvements in service delivery or reform’.^[25]

16.25  The ALRC considers that criminal justice targets would need to be similarly supported by agreements within the federal financial relations framework. The recommendation for criminal justice targets in the Change the Record Coalition’s Blueprint for Change, endorsed by many of the submissions in this Inquiry, also called for a National Agreement to accompany the setting of criminal justice targets.^[26]

16.26  The ALRC also considers that regular public reporting of progress against the criminal justice targets should occur. The Prime Minister reports progress against the Closing the Gap targets to Parliament annually.^[27] When requested by COAG, the Productivity Commission is also responsible for providing an independent assessment of the progress of the Commonwealth, state and territory governments toward the Closing the Gap targets, and associated performance indicators,. Its last report to date was for the 2013–14 year.^[28]

16.27  The ALRC considers that AJAs should operate in all state and territory jurisdictions. Submissions to this Inquiry considering this issue gave unanimous support to the development of AJAs.^[29]

16.28  An AJA is a formal agreement between governments and Aboriginal and Torres Strait Islander communities to work together to improve justice outcomes. It enables strategic planning in relation to criminal justice issues affecting Aboriginal and Torres Strait Islander peoples, enabling the creation of joint justice objectives across departments and agencies. It facilitates partnerships between government and Aboriginal and Torres Strait Islander communities and organisations at multiple levels, including at the local level, to work together to develop, implement and evaluate responses to over-incarceration. It also improves accountability—setting out clear objectives and providing measurable action plans.^[30]

16.29  State and territory governments may have other justice strategies or frameworks that seek to reduce Aboriginal and Torres Strait Islander incarceration. However, the ALRC considers that AJAs are an important initiative to promote partnership with Aboriginal and Torres Strait Islander peoples, drive strategic planning, and facilitate collaborative, culturally appropriate, and effective criminal justice responses.

16.30  The success of many of the recommendations made in this Report relies on the development of collaborative relationships between government and relevant Aboriginal and Torres Strait Islander organisations. AJAs can provide a foundation on which to facilitate, build and solidify these relationships.

16.31  AJAs may be challenging to develop. They rely on government agencies working together, and the development, identification and engagement of relevant Aboriginal and Torres Strait Islander organisations.^[31] States and territories that seek to formalise Aboriginal and Torres Strait Islander participation in criminal justice decision making would need to develop suitable governance structures that reflect the diversity of Aboriginal and Torres Strait Islander communities in that jurisdiction.

History of Aboriginal Justice Agreements

16.32  AJAs were first introduced following a summit of key Aboriginal and Torres Strait Islander organisations in 1997. These organisations were concerned about a gap in state and territory government accountability left after the requirement for state and territories to report on Aboriginal and Torres Strait Islander incarceration, as recommended by the Royal Commission into Aboriginal Deaths in Custody, concluded.^[32] Subsequently, these organisations met with Commonwealth, state and territory ministers responsible for criminal justice, and it was resolved to develop AJAs.^[33]

16.33  At their inception, AJAs were to be developed in all states and territories (excluding the Northern Territory (NT)) in partnership with Aboriginal and Torres Strait Islander groups. They were required to cover the ‘delivery, funding, and coordination of Indigenous programs and services’.^[34] AJAs were to include, among other things, targets to reduce the rate of over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system and to decrease incarceration rates.

16.34  Not all jurisdictions adopted an AJA. The AJAs of states and territories are outlined in the table below.

Table 16.1: Aboriginal Justice Agreements in states and territories 2000–2017

16.35  The ACT and Victoria have current AJAs. The NT is currently developing an AJA. All other states either did not adopt an agreement, or the AJA has lapsed.

16.36  AJAs generally involve numerous state and territory government portfolios, including: Premier and Cabinet; Aboriginal and Torres Strait Islander policy development; Justice and Attorney-General; Police; Corrective Services; and Family Services.^[35]

The ACT Partnership

16.37  The ACT AJA—called ‘the Partnership’—was developed with the ACT Aboriginal and Torres Strait Islander Elected Body in 2015.^[36] The Partnership includes an action plan to reduce the average number of Aboriginal and Torres Straits Islander people in prison to less than 10% of the prison population. It aims to do this by ‘improving accessibility, utilisation and effectiveness of justice-related programs and services’, including diversionary programs.^[37]

16.38  The ‘action plan’ outlines key initiatives, measures and delegates for each program. In the area of criminal justice, this includes: developing culturally appropriate corrective services programs; increasing participation in throughcare; creating outreach support to aid compliance with community-based orders; and maximising existing diversion options.^[38]

16.39  The Partnership and its actions are to be monitored by the Elected Body and the Aboriginal and Torres Strait Islander Sub-committee of the ACT Public Service Strategic Board. Annual community forums seeking feedback from the community on the effectiveness of service outcomes are to be held, and publicly available progress reports are to be submitted to the ACT Attorney-General annually.^[39]

The Victorian agreements

16.40  Victoria has taken a long-term, staged approach to developing an AJA. The first phase began with AJA1 which, among other things, created infrastructure to facilitate ongoing, multi-layered collaboration with government and Aboriginal and Torres Strait Islander groups, including the creation of the Aboriginal Justice Forum and Regional and Local Aboriginal Justice Advisory Committees (RAJAC).^[40]

16.41  The Aboriginal Justice Forum (AJF) meets three times per year and is constituted by Victorian Government representatives and the Koori Caucus. The Caucus is comprised of representatives from the nine RAJACs and other peak Aboriginal and Torres Strait Islander organisations. The Caucus meets six weeks prior to the AJF to determine and discuss issues for the agenda, and again the day before the AJF.^[41]

16.42  AJA2 outlined a government action plan and set benchmarks for monitoring the success of the programs developed under the Agreement.^[42]

16.43  The Victorian AJAs were evaluated in 2012. The evaluation found that the Agreements delivered ‘significant improvements in justice outcomes for Koories in Victoria’, but that improvements could be made.^[43] For example, it found that there were limited diversion options available for women, one of a number of key risk points in the system that could be strengthened to reduce over-representation.^[44]

16.44  The evaluation found that, while Aboriginal and Torres Strait Islander over-representation had increased, the increase was less than would have been expected without AJA2.^[45] The evaluation further found that AJA2 had delivered ‘gross benefits’ to Victoria of between $22 and $26 million, and it recommended the development of AJA3.^[46]

16.45  AJA3 was introduced in 2013. AJA3 expanded on the programs—including diversion programs for Aboriginal and Torres Strait Islander women—and targets of AJA2, and has six objectives:

• crime prevention and early intervention;
• diversion and strengthening alternatives to imprisonment;
• reducing re-offending;
• reducing conflict, violence and victimisation;
• responsive and inclusive services; and
• strengthening community justice responses and improving community safety.^[47]

Northern Territory

16.46  The NT Government, through the Aboriginal Justice Unit located within the Department of the Attorney-General and Justice, began consultations to develop an AJA in July 2017:

the AJU will focus on gathering information and perspectives from remote and regional communities in the NT to drive the development of the content of the AJA.

It is intended that under the framework of the AJA, NTG will enter into a partnership with Aboriginal and non-government organisations to address the complex issues that contribute to the disadvantage and rising incarceration and recidivism rates of Aboriginal Territorians.^[48]

How should Aboriginal Justice Agreements be developed?

Collaboration with Aboriginal and Torres Strait Islander peoples

16.47  AJAs provide an important means by which partnerships with Aboriginal and Torres Strait Islander peoples can be developed or strengthened, as well as an opportunity to ensure that Aboriginal and Torres Strait Islander peoples are centrally involved in policy development affecting them. Many submissions emphasised the need for genuine partnership with Aboriginal and Torres Strait Islander peoples in developing justice strategies.^[49] As the Australian Red Cross stressed, ‘to be successful, any response to justice issues for Aboriginal and Torres Strait Islander peoples must be driven and owned by Aboriginal and Torres Strait Islander communities and organisations’.^[50]

16.48  The North Australian Aboriginal Justice Agency (NAAJA), quoting Rob Hulls, the former Victorian Attorney-General, argued that the NT AJA represented an ‘opportunity to lead the nation’, so long as it was born out of genuine consultation with Aboriginal and Torres Strait Islander peoples. NAAJA emphasised the importance of consultation, but noted also the issue of ‘consultation fatigue’ in circumstances where policy changes have been frequent.^[51] It is clear that the AJA must found a sustained commitment to working with Aboriginal and Torres Strait Islander communities to meet shared and agreed upon objectives.

16.49  Victorian Aboriginal Legal Service commended the value of the staged approach taken by Victoria to developing its AJA, which first concentrated on ‘developing key infrastructure to facilitate collaboration between government and the Aboriginal community’.^[52]

Flexible and responsive to context

16.50  The NT Anti-Discrimination Commission noted in its submission supporting the value of AJAs, ‘each jurisdiction will have a unique demographic, geography, profile of Aboriginal communities and history of that jurisdiction’.^[53]As a result, there is no single template for an AJA that can be used across Australia. Each AJA will need to be developed from the bottom up, through extensive consultation with Aboriginal and Torres Strait Islander peoples. This is likely to take considerable time—in the NT, consultation commenced in July 2017 and the final agreement is expected in December 2018.^[54]

16.51  The Kimberley Community Legal Service argued that any governance mechanisms for AJAs should be careful not to supplant or undermine existing governance in Aboriginal communities: ‘[f]lexibility with regard to the regional governance mechanism must be a central consideration in developing AJAs, as particular details of regional and local bodies would necessarily differ from community to community and region to region’.^[55]

16.52  In a similar vein, Legal Aid NSW argued that consideration should be given to whether a set of local AJAs may be preferable to a statewide AJA in NSW.^[56]

Key features of Aboriginal Justice Agreements

Joint objectives

16.53  AJAs should provide for the creation of joint justice objectives across government departments and agencies. Programs and initiatives to address incarceration rates can otherwise be siloed from other agencies and initiatives.

16.54  The Law Council of Australia submitted that:

AJAs are likely to have also led to increased whole-of-government planning directed towards addressing Aboriginal and Torres Strait Islander social disadvantage, relevant to addressing rates of incarceration. Further, three of the five jurisdictions which have developed an AJA since 2000 have also formulated whole-of-government ‘overarching’ Aboriginal and Torres Strait Islander strategic policy, covering a broader social and economic framework, with some emphasis on justice issues.^[57]

16.55  In the Western Australian context, Kimberley Community Legal Services argued that ‘without an AJA, efforts to minimise the overrepresentation of Aboriginal people in WA’s criminal justice system will continue to be diminished by the lack of coordination between WA justice programs’.^[58]

16.56  Reflecting on the Victorian AJA, Jesuit Social Services observed that ‘AJAs have a positive impact by focusing government attention on the need to work to address ATSI justice issues, and by contributing to a more coherent government focus on those issues’.^[59]

Aboriginal and Torres Strait Islander governance

16.57  AJAs should facilitate participation through agreed systems of governance. The Change the Record Coalition saw AJAs as operationalising the principle of self-determination:

Community control and ownership is essential for strategies to address the high rates of incarceration to be successful, and Aboriginal Justice Agreements are a valuable tool in formalising and institutionalising the principle of self-determination and the direct role of Aboriginal Community Controlled Organisations.^[60]

16.58  Fiona Allison and Professor Chris Cunneen have argued that AJAs have ‘effectively progressed indigenous community engagement, self-management, and ownership where they have set up effective and well-coordinated community-based justice structures’.^[61]

16.59  The appropriate governance structures will differ across states and territories, and should be responsive to existing Aboriginal governance mechanisms. The Law Council of Australia submitted that:

A direct relationship exists between the formulation of an AJA and the existence of an independent community-based Aboriginal and Torres Strait Islander representative advisory body. Where advisory bodies do not exist, there is less chance that the AJA will be developed, and also less chance that government justice agencies will develop their own strategic policies and initiatives.^[62]

16.60  The Aboriginal Legal Service NSW/ACT observed that the ‘dismantling over time of Aboriginal representative bodies and its impact upon policy development is a point of particular concern’, and argued that any AJA in NSW ‘must include participation of local Aboriginal organisations and communities to monitor the effectiveness of the AJA’.^[63]

16.61  The Aboriginal Legal Service of WA advocated for the establishment of an ‘independent Aboriginal Justice Council/Congress with representatives from across the state’ as part of a renewed AJA process in WA.^[64]

16.62  In Victoria, part of the process of developing an AJA involved developing governance infrastructure and a representative process, which enables any group or body to participate in the Aboriginal Justice Forum.^[65]

Accountability frameworks

16.63  Many submissions emphasised the need for AJAs to commit to measurable outcomes, and for ongoing monitoring and evaluation against these outcomes.^[66] For example, Legal Aid NSW argued that

AJAs must set clear and measurable outcomes in order to be effective, and be subject to independent monitoring and evaluation against those outcomes. Aspirational policy frameworks, and/or those with no provision for monitoring and evaluation, are less likely to have practical impact.^[67]

16.64  The ACT Government highlighted the value of Aboriginal and Torres Strait Islander oversight of progress under an AJA. It noted that the Aboriginal and Torres Strait Islander Caucus’ role is to monitor ‘progress under the Partnership … consider reports of lead agencies and advise on claims of achievement when the statistics or experience on the ground suggest otherwise’.^[68]

16.65  Fiona Allison and Professor Chris Cunneen have argued that AJAs can improve government accountability, and emphasised the need for ‘maximum Indigenous input into those processes’.^[69]

16.66  The ALRC considers that AJAs should have clear objectives and provide measurable action plans for governments. Government accountability is facilitated by processes which promote ongoing participation, discussion and review, and by conducting independent evaluations.

15.1     This chapter discusses the relationship between the child protection system, juvenile justice and adult incarceration. Research suggests that the links between these systems is so strong that child removal into out-of-home care and juvenile detention could be considered as key drivers of adult incarceration.

15.2     While child protection and juvenile detention fall outside the scope of this Inquiry, the ALRC considers that a national review of the child protection laws and processes that affect Aboriginal and Torres Strait Islander children is warranted.

15.3     The ALRC is aware of current, and recent inquires that may encompass a review of child protection laws and processes for Aboriginal and Torres Strait Islander children, including the Royal Commission into the Protection and Detention of Children in the Northern Territory,^[1] and the 2017 New South Wales Legislative Council Inquiry into Child Protection. The Royal Commission into Institutional Responses to Child Sexual Abuse has also recently reported on out-of-home care, which may include a national response focusing on the reduction of all abuse in that setting. State and territory governments have also developed out-of-home care strategies.^[2] However, the ALRC notes that there has not been a national review of the laws and processes operating within the care and protection systems of the various states and territories. The Australian Human Rights Commission expressed support for such a review suggesting ‘it is timely for a national review of the laws and processes operating within the care and protection system of states and territories’.^[3]

15.4     In terms of this Inquiry, it is the view of the ALRC that the incarceration rate of adult Aboriginal and Torres Strait Islander peoples cannot be fully and satisfactorily addressed without a national review of Aboriginal and Torres Strait Islander children in child protection, and the state and territory laws that see such children placed into out-of-home care.

15.5     The Terms of Reference for this Inquiry do not include an investigation into child protection, child removal or the juvenile justice system. However, given the link between out-of-home care, juvenile justice and adult incarceration, a link that has been shown in many studies and reports, the ALRC considers that the issue warrants further attention.^[4] In consultations, the ALRC was told many times of the normalisation of incarceration in many Aboriginal families, and in particular those where children have been removed, or have been in juvenile detention.

15.6     Juvenile detention is a key driver of adult incarceration. A 2005 study by Chen et al. into the likelihood of juveniles re-offending as adults, found that 90% of Aboriginal and Torres Strait Islander youths who appeared in a children’s court went on to appear in an adult court within eight years—with 36% of these receiving a prison sentence later in life.^[5]

15.7     The Royal Commission into Aboriginal Deaths in Custody reported in 1991 that almost half of the 99 Aboriginal and Torres Strait Islander people whose deaths were reviewed by that Commission had previously been removed from their parents.^[6] The 1997 Bringing them Home Report further highlighted the relationship between out-of-home care and the increased likelihood of coming into contact with the criminal justice system.^[7] Having a criminal record—particularly as a juvenile or as a young adult—in turn increases the likelihood of unemployment, poverty and substance abuse, which again increases the likelihood of future incarceration.^[8]

15.8     The seriousness of the issue of the removal of Aboriginal and Torres Strait Islander children into out-of-home care was highlighted in the Australia Human Rights Commission Social Justice and Native Title Report 2015:

The overrepresentation of Aboriginal and Torres Strait Islander children and young people in the child protection system is one of the most pressing human rights challenges facing Australia today.^[9]

15.9     Young people placed in out-of-home care are 16 times more likely than the equivalent general population to be under youth justice supervision in the same year.^[10] In its 2010 Report, Family Violence—A National Legal Response, the ALRC noted:

There is a strong correlation between juvenile participation in crime and rates of reported neglect or abuse … Research indicates that an offending child or young person is likely to have a history of abuse or neglect, and to have been in out-of-home care. In Victoria, a study of young people sentenced to imprisonment by the children’s court over a period of eight months in 2001 found that 88% had been subject to an average of 4.6 notifications to the child protection agency. Almost one-third had been the subject of six or more notifications, and 86% had been in out-of-home care. Over half of these had had five or more care placements.^[11]

15.10  This risk increases when the child is Aboriginal or Torres Strait Islander.^[12] In 2014–15, Aboriginal and Torres Strait Islander children represented 90% of all children on care and protection orders.^[13] At June 2015, Aboriginal and Torres Strait Islander children were placed into out-of-home care at 9.5 times the rate of non-Aboriginal children.^[14]

15.11  In joint advice correspondence to the ALRC from Community Legal Centres NSW, Women’s Legal Services NSW, Redfern Legal Centre, Kingsford Legal Centre, the Public Interest Advocacy Centre, Community Legal Centres NSW and the National Association of Community Legal Centres,^[15] attention was drawn to the links between out-of-home care, the criminal justice system and homelessness relying upon a 2012 study of the Australian Institute of Health and Wellbeing.^[16]

15.12  The correspondence suggested that a review undertaken by Katherine McFarlane of some 111 NSW Children’s Court criminal files^[17] found that 34% of young people appearing before the court were, or had been, in out-of-home care, and that children in care were 68 times more likely to appear in the Children’s Court than other children. McFarlane also identified that many of these children and young people were charged with assault against staff or damage of their out-of-home care property. Further, 26% of the care cohort and overall sample was female and 60% of the female care cohort was Aboriginal or Torres Strait Islander females.^[18]

15.13  Judge Johnstone, President of the Children’s Court of New South Wales, noted that children who had been placed into out-of-home care were over-represented in the criminal justice system.^[19] Similarly, Mission Australia expressed alarm at the growing rate of Aboriginal and Torres Strait Islander children in out-of-home care that is now almost ten times that of other children, and the over-representation of these children in the juvenile justice system.^[20] Mission Australia submitted that ‘concerted efforts are required to address both of these concerning statistics through systems’.^[21] Community Legal Centres New South Wales suggested:

There is a clear connection between care and protection interventions of children and future offending, with complex social disadvantage and vulnerability impeding the ability of a significant majority of the young people accessing the Children’s Court to meaningfully participate and engage in decisions that will have a long-lasting impact on their life course.^[22]

15.14  The Royal Commission into the Protection and Detention of Children in the Northern Territory also noted the crossover of children in out-of-home care into detention finding that the NT Government agency, ‘Territory Families’, and its predecessors, had failed to provide the support required for some children in out-of-home care to avoid pathways likely to lead them into the youth justice system.^[23]

Removal

15.15  There has been significant criticism of the various state and territory child protection systems where there has been a nationwide increase in the number of Aboriginal and Torres Strait Islander children in out-of-home care. In their 2017 report, the Australian Institute of Health and Welfare found that, as at 30 June 2016, there were:

16,846 Aboriginal and Torres Strait Islander children in out-of-home care—a rate of 56.6 per 1,000 children. Across jurisdictions, rates ranged from 27.3 per 1,000 in Tasmania to 87.4 per 1,000 in Victoria … Nationally, the rate of Indigenous children in out-of-home care was 10 times the rate for non-Indigenous children. In all jurisdictions, the rate of Indigenous children in out-of-home care was higher than that for non-Indigenous children, with rate ratios ranging from 3.4 in Tasmania to 17.5 in Western Australia.^[24]

15.16  The Australian Institute of Family Studies, commenting on these statistics, highlighted the stark disparity between Aboriginal and Torres Strait Islander child removal as compared to non-Indigenous child removal noting:

Australian Bureau of Statistics (ABS) population projection data for 30 June 2016 indicates that Aboriginal and Torres Strait Islander children would comprise 5.5% of all children aged 0-17 years in Australia; yet in 2015-16 they constituted 36.2% of all children placed in out-of-home care.^[25]

15.17  Grandmothers Against Removal, a national Aboriginal Elders group of grandmothers affected by the removal of Aboriginal children, stated:

The number of Aboriginal children in “out of home care,” is higher than ever and rising rapidly. Far more children are being taken today than during the Stolen Generations of the 20th Century. The numbers have increased 400 per cent since Kevin Rudd’s “apology” for the crimes of the past. The proportion of children being placed with their Aboriginal family is also steadily declining. Many end up in the juvenile detention system and Aboriginal children are 28 times more likely to be in prison than non-Aboriginal children.^[26]

15.18   Further, Adelaide Titterton suggests that the numbers of children being removed from their families and put into out-of-home care could create a new Stolen Generation of Aboriginal children:

[T]he disproportionately high levels of Indigenous children currently in out-of-home care calls into question what options Indigenous families have available to them to avoid their children being ‘taken away’. Many have suggested that the over-representation of Indigenous children in out-of-home care risks creating another ‘Stolen Generation’.^[27]

15.19  Natalie Lewis raised significant alarm around the growth of Aboriginal and Torres Strait Islander children entering into out-of-home care suggesting:

If we continue to do what we are currently doing in child protection, the numbers of Aboriginal and Torres Strait Islander children in out-of-home care (OOHC) will at least treble in the next 20 years. The outlook is even worse than the data predicted last year. The rates of over-representation of Aboriginal and Torres Strait Islander children continue to increase across jurisdictions. Not only are we not closing the gap, we are failing to arrest the widening of the gap.^[28]

15.20  Central Australian Aboriginal Congress submitted to this Inquiry that the Northern Territory Government needed to devise a comprehensive strategy to address out-of-home care for Aboriginal children in the Northern Territory.^[29] Australians for Native Title and Reconciliation Queensland Inc also supported the proposal for a national review of out-of-home care stating:

Given the links between OOHC and incarceration AQ fully supports the Discussion Paper Incarceration Rates of Aboriginal and Torres Strait Islander Peoples’ proposal that a national review of the laws and processes operating within the care and protection systems of the various states and territories be undertaken as a further essential response to address the over-representation of Aboriginal and Torres Strait Islander people within both the institutions of welfare and of justice.^[30]

15.21  The Taskforce 1000 investigation, Always was, always will be Koori children: a systemic inquiry into services provided to Aboriginal children and young people in out-of-home care in Victoria, raised significant concerns about the care and protection system operating in Victoria. The Victorian Commissioner for Aboriginal Children and Young People, Andrew Jackomos, found that, while children were taken from home for their own safety, many went on to suffer physical, mental and cultural neglect across multiple agencies, including child protection, police, education, and health.^[31]

15.22  Commenting at the time of the release of the Taskforce 1000 final report Commissioner Jackomos stated:

Many children did not know they were Aboriginal, were split from siblings, and left for years in residential care – isolated from family, culture and country – when they might have been in the loving care of grandparents or other relatives… We had child protection officials tell us they had been unable to trace a child’s Aboriginal family for years when we were able to track them down on Facebook within minutes.^[32]

15.23  The report found of 980 Aboriginal children and young people in out-of-home- care more than 86 per cent were case managed by a non-Indigenous agency, 60 per cent placed with a non-Indigenous carer, 42 per cent away from their extended family, and more than 40 per cent separated from brothers and sisters.^[33] The report further found that, in Victoria, Aboriginal children are 12.9 times more likely than non-Indigenous children to be placed into out-of-home care and represent 17.6% of all children in state care despite Aboriginal peoples comprising less than 1% of the Victorian population.^[34]

Costs

15.24  The Australian Human Rights Commission Social Justice and Native Title Report 2015 found the costs of providing child protection and out-of-home care services are increasing. Nationally, approximately $3.3 billion was spent in 2013–14, representing a $77.8 million increase from the previous year and a total increase of $543.4 million since 2009–10.^[35]

15.25  The Report set out the extremely high cost of child protection services across the various states and territories for the period 2013–2014 as being:

Cost per notification:

NSW: $513, VIC: $309, QLD: $996, WA: $1,178, SA: $687, TAS: $358,
ACT: NA, NT: $549

Cost per notification investigated:

NSW: $1,111, VIC: $1,626, QLD: $2,322, WA: $1,843, SA: $1,395,
TAS: $2,080, ACT: $1,461, NT: $1,204

Cost per child commencing protective intervention who is on an order:

NSW: $24,262, VIC: NA, QLD: $16,328, WA: $8,793, SA: $9,108,
TAS: $4,433, ACT: $7,530, NT: $17,087

Cost per placement night:

NSW: $123, VIC: $152, QLD: $143, WA: $174, SA: $170, TAS: $122,
ACT: $146, NT: $279.^[36]

15.26  The ALRC considers that a national review of the out-of-home care system would be able to address the question of whether a different approach modelled on Justice Reinvestment approaches could make more effective use of the resources that are currently being expended on the child removal.

13.1     Aboriginal and Torres Strait Islander people are less likely to drink alcohol than non-Indigenous people, but those who do drink, are more likely to drink at harmful levels.^[1] This chapter concerns the harmful use of alcohol in Aboriginal and Torres Strait Islander communities and the links between alcohol, offending and incarceration.

13.2     While liquor licensing laws fall within state and territory jurisdictions, the Terms of Reference ask the ALRC to have regard to laws that may contribute to the rate of Aboriginal and Torres Strait Islander peoples’ offending including, for example, laws that regulate the availability of alcohol.

13.3     The chapter outlines a range of responses that have been adopted to address alcohol-related offending, including liquor accords, restrictions on the sale of alcohol, banned drinkers registers and mandatory treatment programs.

13.4     The ALRC makes two recommendations. Firstly, that all initiatives to reduce the harmful effects of alcohol in Aboriginal and Torres Strait Islander communities should be developed with, and led by, these communities to meet their particular needs. Secondly, that Commonwealth, state and territory governments should enable and provide support to Aboriginal and Torres Strait Islander communities, that wish to address alcohol misuse, to develop and implement local liquor accords; and/or develop plans to prevent the sale of full strength alcohol or reduce the availability of particular alcohol ranges or products within their communities.

13.5     Other substance abuse issues may also contribute to incarceration, including the use and availability of illicit and non-illicit drugs, and the use of inhalants. However, these substances are not included in the Terms of Reference and have therefore not been the subject of inquiry.

13.6     During the consultation process, the ALRC was made aware of other issues linked to the consumption of alcohol, for example the introduction of Cashless Debit Cards in communities and volumetric taxation of alcohol. The ALRC considers that both these issues fall outside of the scope of the Terms of Reference for this Inquiry.