Problems of particular groups — varied experiences of children


4.51 All children are disadvantaged to varying degrees in their participation in legal processes.[104] Some children have particular problems. Children in different situations have very different experiences in their contact with legal processes. Evidence to the Inquiry described the experiences of children in rural and remote areas, Indigenous children, children from non-English speaking backgrounds and children with disabilities.

Children living in rural and remote areas

4.52 Children in rural and remote communities face particular difficulties in relation to availability of goods and services, education and employment opportunities, support services and other resources. Rural residents find welfare and community services inadequate and inaccessible and believe that rural and remote areas are not receiving an equitable share of economic and social resources. These areas have less than half the range of general community services available in urban areas and the services are more expensive to operate than in urban communities.[105]

The vast array of urban welfare services are either unavailable in rural and remote areas or are so inaccessible and under-resourced as to be virtually nonexistent.[106]

4.53 Rural and remote children involved with legal processes also experience problems such as access to appropriate and timely legal services, detention facilities that are not designed to accommodate young people and children’s detention or care facilities that are hundreds of kilometres away from their families.

For young people in rural and remote communities, numerous factors make their…situation more difficult: limited access to services, inflexible program requirements and a general lack of understanding by bureaucracies [of] the unique needs of rural communities. Young people in rural and remote communities are disadvantaged by their lack of access to subsidised services such as transport, health care, charity organisations and public housing which are available to young people in larger metropolitan areas. In financial crisis, rural young people rarely have access to a social worker or local financial support like their urban counterparts.[107]

Children from non-English speaking backgrounds

4.54 Children from non-English speaking backgrounds are not a homogenous group. They have different cultural traditions, and may include first, second and even later generation immigrants, male and female children, those from high and low socio-economic backgrounds and so on. Accordingly, these children do not all have the same needs or problems. However, they may often face common difficulties with regard to their participation in legal processes.

4.55 Although Australia’s population is made up of approximately two hundred different ethnic groups, many government services continue to be offered as if all people were of Anglo-Australian background and familiar with processes in Australia.[108] In general, children of non-English speaking background tend to find the legal processes involved in obtaining these services bewildering and marginalizing.[109] They are conducted in a language with which they are not familiar and rely on a high level of communication, both written and spoken, containing highly technical terms unlikely ever to have been part of their experience.[110] As a result, many children of non-English speaking background do not have access to the government services available to them.[111]

4.56 Accessible and reliable interpreters are often critical to the administration of justice for children suspected of a crime, yet only three Australian jurisdictions provide individuals with a statutory right to an interpreter when being questioned by police.[112] State and Territory police forces have different rules regarding the use of professional interpreters and there is a great deal of discretion exercised by individual police officers in judging whether a person has adequate English skills.[113]

4.57 Children of non-English speaking background may also encounter

    • inadequate and inappropriately targeted information concerning law, procedures, rights and obligations

    • legal and correctional institutions inadequately dealing with their particular needs and problems

    • problematic relations with police

    • inadequate research and evaluation of multicultural issues in the juvenile justice area.

Indigenous children

4.58 Many Indigenous children come from rural and remote areas and are affected by the same problems as other rural and remote children in their contact with legal processes.[114] Many have difficulties similar to those facing children of non-English speaking background, due to language and/or cultural barriers. For Indigenous children these problems may be exacerbated by an expectation that they speak ‘standard’ English or that their mannerisms and understandings are the same as those of other Australian English speakers.[115]

4.59 In addition, the difficulties that commonly arise in all children’s involvement in legal processes, including barriers to access, lack of understanding, marginalisation and agency complexities, affect Indigenous children on a greater scale. Indigenous children are vastly over-represented in those legal processes that have links with adverse outcomes and other legal processes.[116] Statistics from New South Wales indicate that Indigenous children are over-represented in exclusion and suspension proceedings.[117] In the care and protection system, they are over-represented in each stage of the process, from notification to substantiation to placement away from home.[118] They are over-represented in each stage of juvenile justice processes, from charges, arrest and appearances in court to the more serious sentences.[119] The extensive contact by Indigenous children with these legal processes is of great concern to the Inquiry.

4.60 The operation of legal processes, particularly those involved in the care and protection and juvenile justice systems, must also be viewed against past practices which have discriminated against Indigenous peoples. The forced separation of Aboriginal children from their families has caused widespread breakdown of family relationships and structures and loss of personal, family and cultural identity among Indigenous people. Past assimilation policies and practices which tore apart families and communities continue to have a negative impact on individuals, families and communities.[120]

Children with disabilities

4.61 Children with disabilities are not a homogenous group. The term ‘disability’ includes behavioral problems, learning disabilities, physical or intellectual impairments and psychological and psychiatric conditions.[121] Children with certain of these disabilities may be over-represented in the educational discipline, care and protection and juvenile justice legal processes.[122]

4.62 When the same discipline code is applied equally to all students in a school, it can have a harsh effect on students with certain disabilities — particularly those with disabilities that have a behavioral element.[123] For example, the Inquiry was informed that a young person with Tourette’s Syndrome had been suspended from school numerous times for swearing, even though he was unable to control his outbursts.[124] Students with disabilities are also frequently targeted as scapegoats for the misbehaviour of other children.[125]

4.63 Children with physical, behavioral and intellectual disabilities are more susceptible to child abuse.[126] In particular, children with intellectual disabilities are over-represented as victims of crime, particularly of sexual assault.[127] One submission to the Inquiry noted that women and girls with ‘impaired mental functioning’ are believed to make up more than 29% of all victims of rape.[128] These children may be frequently involved in care and protection or criminal witness processes.

4.64 Intellectually impaired children or those with learning disabilities may also constitute a significant percentage of children in detention facilities.[129] A study undertaken in NSW prisons in 1988 found that 12 to 13% of the prison population had an intellectual disability, that is, approximately four times that of the general population.[130] Although this research does not relate to children, it indicates a trend that may also be present in the juvenile justice system. Research conducted by the South Australian Department of Family and Community Services on young people entering its juvenile justice system indicates that many of these young people could be classified as intellectually impaired — 28% were of borderline or below average intellectual functioning.[131]

4.65 Given their contact with these legal processes, children with disabilities may be particularly vulnerable to the adverse outcomes associated with some legal processes. Submissions to the Inquiry also drew attention to areas in which children with disabilities may be particularly disadvantaged within the legal system, including an inability to communicate,[132] susceptibility to manipulation (particularly in the context of questioning and investigations)[133] and barriers to participation based on stereotypes of their abilities to participate.

[104] See paras 4.3-10.

[105] C Croce ‘Towards a national rural youth policy’ (1994) Transitions 26.

[106] ibid.

[107] ibid.

[108] SA Multicultural & Ethnic Affairs Commission IP Submission 86.

[109] Multicultural Interest Group IP Submission 137.

[110] ibid.

[111] P Boss et al (eds) Profile of Young Australians Churchill Livingstone Melbourne 1995, 18.

[112] See para 18.120.

[113] J Chan ‘Police accountability in a multicultural society’ (1995) 6(4) Criminology Australia 3.

[114] See paras 4.52-53.

[115] The differences between Indigenous and non-Indigenous speakers’ English usage have been well documented: see para 18.114.

[116] See paras 4.36-50 for a description of these processes and the links between them.

[117] See para 2.47.

[118] See para 2.68, table 2.16.

[119] See paras 2.82-83, 2.85-86, 2.90, 2.97, 2.100, 2.118-119.

[120] Aboriginal Legal Service of WA IP Submission 75. This point was extensively documented in the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC Sydney 1997.

[121] See para 2.9 for statistics on children with disabilities.

[122] S Moran IP Submission 73.

[123] C Flynn Disability Discrimination in Schools National Children’s and Youth Law Centre Sydney 1997, 27.

[124] Dept of Families, Youth and Community Care Minutes of Meeting Brisbane 31 July 1996.

[125] C Flynn Disability Discrimination in Schools National Children’s and Youth Law Centre Sydney 1997, 27.

[126] See B Verdugo et al ‘The maltreatment of intellectually handicapped children and adolescents’ (1995) 19(2) Child Abuse and Neglect 205; Qld Advocacy IP Submission 104.

[127] See NSWLRC Report 80 People with an Intellectual Disability and the Criminal Justice System NSWLRC Sydney 1996, 33–34.

[128] Qld Advocacy IP Submission 104.

[129] See NSWLRC Report 80 People with an Intellectual Disability and the Criminal Justice System NSWLRC Sydney 1996, 25–26.

[130] id 25. This study used a definition of intellectual disability which included both the results of intelligence tests and social and adaptive skills.

[131] SA Dept of Family and Community Services IP Submission 110.

[132] Qld Advocacy IP Submission 104.

[133] Australian Psychological Society IP Submission 131.