Youth and the justice system: the vicious circle

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Protesters outside outside NSW Parliament House, calling on the government to reopen the inquest into the death of Aboriginal teenager Thomas 'TJ' Hickey.

(AAP Image/Mick Tsikas)

Peter Schultz sat alone in the paddy-wagon's cage as it drove even farther away from his hometown, wishing he was back with his parents. It was dark outside in outback Western Australia and he didn't know where he was. He was frightened.

Peter was 12. One evening in March 2010, two police officers took him from his youth pastor's house in his hometown of Coolgardie and locked him in the cage at the back of their vehicle. Telling his powerless father they were taking Peter into custody, they then drove him 45km away to Kalgoorlie, where he was detained overnight in the police lockup.

A few weeks previously, Peter was "mucking around" with two of his friends and in their antics broke a wall of a local museum. "It was one boring moment when he was with his mates and got into trouble," explained Peter's father, Les Schultz, a respected pastor in his community where he also works in mental health with the Red Cross. "We had him under control. We had him in youth groups and he was playing music - playing the guitar. We got him into soccer and tried to keep him occupied."

Although he had never been in trouble with the police before, Peter and his friends were taken to court and charged with property damage. Each was put on a curfew with stipulations to be in the company of a parent between 7pm and 7am. On the evening of 31 March, Schultz had a community meeting in his front yard with the deputy principal and chaplain of the local Christian Aboriginal parent-directed school. Peter, who was at home at the time, was asked by the school chaplain to go to another pastor's safe house five doors down. He did as he was told.

Schultz said at around 7.30pm the police arrived. "It was actually the chaplain who asked Peter to go to the youth pastor's house because he didn't want him to hear what we were talking about. He was with an 18 year-old, a responsible young fella, playing guitar. [But] they just said ‘He's not supposed to be down there,' as if I was sitting around doing nothing when I was supposed to be looking after him. It was totally unnecessary ... I certainly never said anything to stir them up, but they just went over the top. They took him away in the dark, a 12-year-old in a cage at the back of a paddy-wagon. I think it's just power gone to their heads. It's just unfortunate that a little 12-year-old boy had to cop it."

Schultz and his wife had to travel to Kalgoorlie the following day to attend court before they could bring their son home. He said the experience has had a profound effect on Peter. "He was wondering why. He was confused more than anything. He didn't understand why he was being taken away and I couldn't explain to him. We certainly didn't get much sleep that night. I doubt Peter got any sleep either."

"He told us afterwards he saw all his uncles' and aunties' names scratched into the prison wall," Schultz added. "So that's obviously changed his perception in life. He thought then, ‘So everybody's been here, and even me.' That would have gone deep into his thinking pattern. It builds a culture of youth against police, because kids are taking in exactly what's going on. They know when it's fair, and when it's unfair ... It takes him into a vicious circle that could have been avoided."

Unfortunately, Peter's experience is not uncommon. WA has the highest Indigenous incarceration rate in Australia, while the Goldfields has the highest rate in WA. Although Indigenous people represent just 3.8% of WA's population, at 30 June 2011 they accounted for 38.5% of WA's adult prisoners. Indigenous youths are even worse affected, comprising 71% of WA's juvenile detainees in the March 2011 quarter, although representing just 6% of young Western Australians.

WA's disproportionate Indigenous incarceration statistics, the highest in the world, are in part due to its use of mandatory sentencing legislation, in operation since 14 November 1996. The laws effectively remove judges' discretion to consider alternatives to detention appropriate to the person's age, individual circumstances or the seriousness of the offence by stipulating minimum sentences of detention or imprisonment for particular offences.

A "three strikes" system operates, where both adults and juveniles as young as 10 convicted of even the most minor offence for a third time face a minimum of 12 months in custody, with the same minimum sentence applied to every further conviction. By its very nature, the legislation targets the young and the disadvantaged, with regular instances of Indigenous youths being ensnared for the most innocuous breaches of the law.

On 23 May 2005, a 15-year-old boy who had been abandoned by his family and living as an orphan was arrested for attempting to steal a $2 ice-cream from his local supermarket in Onslow in WA's remote northwest. The boy, who initially denied taking the ice-cream when confronted by a staff member, the wife of a local policeman, confessed when asked again and returned the ice-cream to the supermarket. Although it was still uneaten and undamaged, police spent $10,000 escorting the boy more than 1500 kilometres away from his community to Perth the next day. He waited in custody for almost three weeks before facing the Children's Court on 11 June, where he was sentenced to 12 months' detention.

On 16 November 2009, a 12-year-old boy was charged with receiving a chocolate "Freddo Frog" worth 70 cents and a $4 novelty sign from a friend on his way to school in Norham, an hour east of Perth. Police took the boy into custody, detaining him for several hours before he faced court on two charges of receiving stolen goods. After WA Liberal Premier, Colin Barnett, defended their actions on local ABC radio, saying "Maybe the police were making a statement to him," it was met with public uproar, resulting in the charges being dropped the following day.

A report released four months later in March 2010 by the Australian Institute of Criminology found that while increasing numbers of minor offenders were being detained, there was no evidence mandatory sentencing had made people safer in their homes or provided any additional protection for property. The report found Indigenous youths were worst affected, being 4.5 times more likely to have contact with the criminal justice system than non-Indigenous youths, with almost a third of all cases heard in WA's Children's Court involving Indigenous juvenile offenders. Of those, it found only 30% were dealt with by way of caution compared with 70% of non-Indigenous juvenile offenders, with Indigenous youths 28 times more likely to end up in detention.

Various human rights groups argue that the laws breach international covenants and treaties, most importantly that they violate children's rights in international law. Although the Convention on the Rights of the Child stipulates detention of a juvenile must not be arbitrary and only used as a last resort, while the International Covenant on Civil and Political Liberties states that no person should be subject to detention without a right of review of that sentence, the WA government continues to advocate the laws.

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Les Schultz says police should work with communities and know there are constructive safe-houses where kids are looked after even if they’re not at home. "That's what leads to deaths in custody, when police pick people up for 'willy-nilly' things without using common sense ... It's pointless them taking kids out safe-houses and putting them into prison, putting them in danger. That's one reason kids get depressed, and a lot of deaths come from depression."

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In particular, it has ignored clear warnings from the disastrous effects of similar laws in the Northern Territory, where mandatory sentencing to protect property rights was introduced four months after WA on 8 March 1997. After it was widely deplored during its four and a half years of operation, it was repealed on 19 October 2001.

The laws had stipulated that anyone aged 17 or over who was convicted of theft or damage to property, regardless of significance, was jailed for at least two weeks, while juveniles charged with any second conviction served a minimum of 28 days. Particularly iniquitous cases, including the sentencing of an 18-year-old Aboriginal man to 14 days for stealing $2.50 cigarette lighter, a 24-year-old Aboriginal mother to 14 days for receiving a stolen $2.50 can of beer and an 18-year-old Aboriginal man to 90 days for stealing 90 cents from a car, prompted calls for its abolishment.

On 12 May 1999, Kevin Cook, a 29-year-old homeless and mentally impaired Aboriginal man, was sentenced to a year's imprisonment in Berrimah prison for wandering into a backyard of a Darwin suburban house when drunk and stealing a $15 towel from a clothes line "to use for a blanket" because he was cold. Cook, who was sentenced as it was his third minor property offence, pleaded guilty as he believed there was "no choice for him but to do his time." His previous offences had been for the theft of food and other items necessary for survival.

Three months later, in August 1999, a 17-year-old Aboriginal boy was sentenced to one year's imprisonment for stealing a $3.50 packet of biscuits. The same year, a social justice report by the Human Rights and Equal Opportunities Commission told of the attempted suicide of a 15-year-old Aboriginal boy who had been referred to the Department of Family, Youth and Children's Services at age 12 due to lack of parental support, and since the age of 14 had been looking after himself. He attempted suicide after he was detained on a charge of property damage, his crime being to break a window on hearing about the suicide of a close friend.

Just months later in January 2000, 15-year-old Johnno Wurramarrba became the first victim of the Territory's legislation to die in custody while on a 28-day mandatory sentence. Although his isolated Angurugu community on Groote Eylandt is home to one of the world's richest mines, BHP Billiton subsidiary Gemco which produces around a quarter of the world's manganese, locals live in appalling socio-economic conditions and share nothing of its wealth. Despair has produced alcoholism and substance abuse known as "chroming", involving the sniffing of petrol, oil, paint and other chemicals.

Wurramarrba, who was orphaned when his father was killed in a motor accident after his mother died when he was a baby, broke into his local community council office and took some felt pens, pencils and a bottle of liquid paper, before breaking into a local primary school and taking oil and paint. At the time of his trial, his grandmother, who was his guardian and carer, was ill in Royal Darwin Hospital. As it was his second appearance at Alyangula Courthouse he was sentenced to 28 days' detention, and on 17 January was taken 800km away from his remote island community to be detained at a juvenile detention centre in Darwin.

On 10 February, just five days before he was due to be released, he was found hanging by his bed sheet in his cell, having been sent to his room five minutes earlier for refusing to wash up. After being rushed to Darwin Hospital, he died nine hours later. His tribal grandfather, Clancy Manijamanja, said the boy was a victim of the worsening economic and social situation on Groote Eylandt, blaming cuts in royalty payments from Gemco. Despite this, just weeks after Wurramarrba's death, three other young men from Angurugu were imprisoned for stealing biscuits and cordial from an open Gemco storeroom because they were hungry. Two were sentenced to a year's imprisonment and the third for 90 days.

The tragic events in Groote Eylandt sparked a furious debate about the inappropriateness of mandatory sentencing to protect property rights, resulting in the laws being referred to the then UN Human Rights High Commissioner, Mary Robinson, for investigation, and ultimately the repealing of the laws in the Territory the following year. However, they still operate for a range of other offences, including several under the Misuse of Drugs Act which carry minimum 28-day sentences. Assault causing harm by first offenders also carries a mandatory sentence, with neither provocation nor the circumstances of the offender taken into account.

As in WA, the Territory's Indigenous population are disproportionately over-represented in custody. Although Indigenous people represent 32% of the Territory's residents, Indigenous prisoners comprised 82% of the total daily average prisoner population in the March 2011 quarter, and Indigenous youths 98% of the total average number of juvenile detainees.

The ongoing high incarceration rates have kept mandatory sentencing legislation at the forefront of political debate, with prisons in both the Territory and WA both dangerously overcrowded. Many criticise the laws as contradicting the Royal Commission into Aboriginal Deaths in Custody's recommendations of the use of arrest only when absolutely necessary and imprisonment as a last resort. WA, which had the highest imprisonment rate for Indigenous people before the Commission, had already experienced a 24 percentage point increase in Indigenous incarceration rates since its conclusion at the time mandatory sentencing took effect, despite the state's adoption of the Young Offenders Act in 1994 stipulating the use of detention only as a last resort.

Green Party spokesperson for Indigenous Affairs, Rachel Siewert, says the legislation targets impoverished people. "We oppose mandatory sentencing for anybody, but if you look at the incarceration rate for Aboriginal people, it's at a disproportionate level ... The majority of Aboriginal people are on low incomes, and have lower levels of education, meaning more and more people end up in the justice system ... [but] there's no consultation with Aboriginal communities and a constant failure to address underlying issues. Until we fix those, the incarceration problem will just keep getting worse, [but] the Federal Parliament is taking a much more punitive approach."

Since taking office in September 2008, WA's Liberal government widened the scope of mandatory legislation and introduced minimum jail sentences for a range of offences, including assaults on public officers. Barnett tried to further increase police powers in February 2010, proposing the Criminal Investigation Amendment Act to remove the legal requirement of reasonable suspicion before police have power to stop and search people. However, it was rejected in October that year by the WA Legislative Council after it was widely condemned as infringing civil liberties and privacy rights, with many arguing Aboriginal youths would be disproportionately targeted.

Existing police "stop and search" powers are already known to be over-used in other areas with high Indigenous populations. A 2001 study by the Aboriginal Justice Advisory Council in New South Wales found that in Bourke, police used their powers at 492 times the state average and people were searched at 30 times the average rate. The study also found police used their "move on" powers at 321 times the average in Walgett, 173 times more in Moree and 145 times more in Broken Hill.

Days after Barnett's proposal, a senior WA judge retired, voicing serious concerns about the direction of the state's law reform. Leaving the WA Supreme Court on 25 February 2010, Honourable Justice Christine Wheeler said over-reliance on imprisonment as a punishment was one reason behind her decision to retire, adding, "reasonably often people, often young people, people with young children, people with mental problems, are in jail for longer than is strictly necessary or sometimes when not necessary at all."

One month later, on 26 March 2010 retiring Perth Chief District Court Judge, Antoinette Kennedy, similarly criticised the government for creating a culture of fear in WA and introducing laws which erode civil rights. "It's cheap and it doesn't require any leadership to say we're going to increase all penalties and we're going to lock everybody up longer ... I've often had lawyers say to me about their clients, ‘It was inevitable that my client would end up in the criminal justice system' and when you look at the lives that they've had as small children you know that that's right ... So, if we know it's inevitable that certain people will end up in the criminal justice system, why aren't we doing something about it where we can stop it?"

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Fabian Brown has a long criminal record, stands outside an Aboriginal land administration building decorated with indigenous art in his home town of Tennant Creek in central Australia. Brown has been in and out of prison since he was 17.

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Despite the alarm, Queensland, which previously only had a mandatory life sentence for murder, followed suit in June 2011 by introducing mandatory sentences of up to three months for a minor assault on police and emergency officers, and up to 14 years for a more serious assault. Similar concerns were raised regarding judges being legislatively prevented from considering the circumstances of individual cases. President of Queensland's Council of Civil Liberties, Michael Cope, argued, "Assault includes a whole range of concepts. It can involve just touching someone ... If you tie the hands of judges, injustice is inevitable. People are sent to jail for minor offences for which no-one would have otherwise sentenced them."

Many understandably fear the legislation will further damage the already strained relations between the police and Indigenous people. With communities routinely subject to a greater level of surveillance, the common charges of offensive language, resisting arrest and obstructing police are often thought to be used against people whose only crime was coming into contact with police.

The phenomenon is by no means new, having been regularly cited as a reason for Indigenous over-incarceration, most prominently by the independent investigation into the horrendous death in custody of 18-year-old Daniel Yock in Brisbane by the Workers Inquiry in 1993. It reviewed the police radio log before Yock's arrest on 7 November, which revealed they had tailed the youths simply for being drunk and "walking on the road etc". Several witnesses saw two police chase Yock and tackle him from the back while he lay face-down on a suburban street in broad daylight, before throwing him unconscious into the back of a paddy-wagon and driving around for 15 minutes looking for another youth, making no attempt to take him to hospital. When the paddy-wagon arrived at the watch-house 31 minutes later, Yock was dead in the back of the van.

Although it was claimed that Yock, a formerly fit and healthy young man, died as a result of an extremely rare and untraceable heart malfunction known as a Stokes-Adams attack, the Workers Inquiry blamed police harassment of Aboriginal youth, saying it was an "everyday occurrence" in Brisbane's West End and other working class areas. Yock's friend told the inquiry, "The police are getting worse ... You are just walking along and they pull you over and question you. What is your name, where are you going and what are you up to? They write it all down. They call your name through and see if you have any warrants. If you have warrants they take you in. Whenever they see you they pull you up. They do it for no reason."

A report released three years later by the Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner in October 1996 said that the WA Aboriginal Legal Services reported that "police regularly stop and question Aboriginal people, make derogatory remarks, and use an offensive language charge when interference is resented." It said this was "not infrequently" accompanied by charges of assaulting police and resisting arrest, claiming such police initiated interventions are known as the "trifecta" phenomenon, with the three charges cynically dubbed "ham, cheese and tomato".

Unwarranted bail refusals following such incidents are known to cause innocent people to be detained on remand. A 2001 study by the Aboriginal Justice Advisory Council in New South Wales told of one young Aboriginal man who was mistakenly identified by police as a different man with outstanding warrants. When approached to be apprehended, he became frightened and confused about what was happening and was arrested for offensive language and resisting police. When his grandmother was unable to attend his bail hearing to guarantee he would be of good behaviour because of a lack of transport between their town and the court, he was remanded in custody.

The report found that Indigenous defendants were two and a half times more likely to be refused bail than non-Indigenous defendants. In 1999, 10% of Indigenous people who were refused bail were later found not guilty or had their case dismissed, and 45% of Indigenous people who were later found guilty had committed offences not serious enough to warrant prison terms. However, they were compelled to spend time in prison waiting for their cases to be finalised.

A 2006 report by WA's Law Reform Commission similarly found the number of Indigenous people sentenced to imprisonment or detention was much higher than the proportion that appeared in court. It found that despite the abolition of blatantly prejudiced laws and policies, structural racism described as "the discriminatory impact of laws, policies and practices," remains within WA's criminal justice system and contributes to the over-representation of Aboriginal people. The report also found that Indigenous people feel alienated from the criminal justice system, quoting one Indigenous interviewee who said, "When I think of the legal system, I think of it as an enemy. It is not there for my benefit. It has imposed gross injustices on my people and crushed my people's way of life."

It is not difficult to see where such attitudes stem from. Outrage was caused in Queensland in March 2004 when an 11-year-old boy was detained overnight in an adult prison after being arrested in Normanton for writing his name in spray paint on the road while on bail for break-and-enter and stealing charges. Despite tearful requests from his mother for the child to be allowed to use a seatbelt in one of the three vacant rear passenger seats of the police vehicle, he was placed alone in a weld mesh prisoner's cage behind the four-wheel-drive and later transferred to another cage at the back of a paddy-wagon for the 500km journey to Mount Isa, which took more than three hours.

The arresting officer later said that on arrival at Mount Isa, the child refused to be interviewed, detaining him overnight in a cell on his own before his court appearance the next day. However, the Mount Isa legal aid lawyer who got the child bail the following day said the first they heard of his case was on the following morning, and that he had no legal representation at Normanton Court. Without his parents or a legal representative, the only other person in the court was an Aboriginal field officer who had no legal training or standing and could not argue for bail.

The then police minister, Judy Spence, said her inquiries revealed police had "followed all protocols". However, Aboriginal activist Murandoo Yanner argued, "It is no wonder our kids grow up frightened of police and holding them in contempt when they see what happens to young children who need guidance, not imprisonment. Murderers and rapists get bail in Queensland, but not black children."

Recent figures show Indigenous youths continue to be held in disproportionate numbers on remand. A report on juvenile detention by the Australian Institute of Health and Welfare released on 9 February 2012 found that on an average night in the June 2011 quarter, 48% of those in detention were not yet sentenced. Indigenous youths were over-represented in all states and territories, with an Indigenous youth aged 10–17 20 times more likely to be held on remand in the June 2011 quarter and 26 times more likely to be in sentenced detention as a non-Indigenous youth.

This over-representation was highest in WA, where an Indigenous youth aged 10–17 was 29 times more likely to be held on remand in the June 2011 quarter and an astronomical 50 times more likely to be in sentenced detention as a non-Indigenous youth.

Overall rates were highest in the Northern Territory where the number of youths held on remand was more than twice the national rate, 90% of whom were Indigenous. In September 2011, Northern Territory Supreme Court Judge, Dean Mildren, criticised the conditions at Darwin's remand centre as breaching the United Nations minimum rules for the treatment of prisoners, saying those on remand at the jail were being detained in conditions worse than those serving sentences.

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Protesters attend a rally to mark the twentieth anniversary of the handing down of the report of the Royal
Commission into Aboriginal Deaths in Custody, Perth. Around 300 people marched to state parliament to protest the lack of government action to prevent indigenous people being imprisoned and dying in jails at a much higher rate than non-indigenous people.

Image: AAP Image/Lloyd Jones

Interpretation problems are known to be a significant factor contributing to the disproportionate rate of bail refusals for Indigenous people. Indigenous affairs, health and human rights Professor, Gracelyn Smallwood, commented, "Most of our people are in jail due to a lack of cultural understanding. English is only their second or third language. They find court very intimidating." WA's equal opportunity commissioner, Yvonne Henderson, similarly criticised a lack of interpreters in the Kimberley, the Pilbara and the Goldfields as contributing towards disproportionate Indigenous imprisonment rates. "A significant number of people who go to court don't understand what's happening. Often witnesses have no interpreter, or people don't have an interpreter when they're initially questioned by police, which results in them being refused bail."

The effects on how Indigenous defendants are perceived often mean they are refused bail or sentenced where a non-Indigenous person might be exculpated or given a lesser sentence. Efforts made to address this through increasing Indigenous ownership of the administration of justice have perhaps not been acknowledged enough for their successes. The first Aboriginal community court established in 1999, the Nunga Court in Port Adelaide, heard over 5,000 cases in its first ten years of operation and reported an attendance rate of over 80%, compared with an attendance of below 50% for Aboriginal people in non-Indigenous courts.

The Koori Courts in Victoria, in operation since 2002, have reported successes in reducing recidivism, with the Shepparton and Broadmeadows courts reporting reoffending rates of about 12.5% and 15.5% respectively, compared with 29% in the general court system. Circle sentencing is similarly often preferred for its many benefits, such as the opportunity to address the underlying causes of criminal behaviour within communities and through local language, avoiding the intimidation of a courtroom or legal jargon. Not only are jail terms avoided, but the more holistic approach considers offenders' backgrounds, while community work or special programmes are designed to link them back into communities and break the cycle of reoffending.

A report released in January 2007 by the NSW Bureau of Crime Statistics and Research found juveniles who received a caution or youth justice conference were less likely to reoffend than those who were referred to the Children's Court. A more recent survey of youth justice conference participants by the Queensland Department of Communities found high levels of satisfaction with the process, with more than 95% of participants surveyed, including victims, reporting that they thought the process was fair and were satisfied with the outcome.

However, many criticise the stipulation that offenders must plead guilty to be eligible to participate in Indigenous courts, with sentences tending to fall in the middle-to-heavy end of penalties. For youth justice conferencing, the offender must be referred by either the police or the court, and must also plead guilty.

With most offenders coming from impoverished communities and often committing minor offences, many believe support services and assistance would be more appropriate. Research has found that criminal behaviour among Indigenous people is strongly linked with poverty, lack of education, high unemployment, overcrowded housing, drug and alcohol abuse and the impacts of former child welfare policies on family relationships.

Poor health is also a known factor, with many preventable and treatable diseases remaining rife in remote communities. Ototis media, infection of the middle ear, is much more common among Indigenous people, with a recent inquiry finding 92% of Darwin prisoners and 95% of Alice Springs inmates suffer from hearing loss. An estimated 80% of Indigenous children suffer from chronic infection during their developmental years, having major learning implications and similarly affecting how people relate to police, and in turn how many are sentenced.

However, with little or no consideration given to offenders' socio-economic circumstances or backgrounds, both young and older Indigenous people continue to be disproportionately represented in the formal criminal justice system. This understandably fuels a cycle of resentment and distrust of the authorities, which in turn cause increasing clashes between Indigenous people and the law.

The most recent Australian Bureau of Statistics report showed that at 30 June 2011, the imprisonment rate for adult Indigenous prisoners was over 14 times higher than the rate for non-Indigenous prisoners, being 1,868 per 100,000 adult Indigenous population in comparison to 130 per 100,000 adult non-Indigenous population. In WA that rate was 18 times higher. Nearly 74% of adult Indigenous prisoners had a prior adult imprisonment.

The result means Indigenous Australians are, by far, the most jailed race in the world. In the United States, infamously home to just 5% of the world's population but 25% of its prisoners, African Americans are the most over-incarcerated with a 40% share of the prisoner population in 2011, over three times their 13% share of the wider population. In Australia, Indigenous people comprised 26% of the prisoner population in 2011, almost ten and a half times their 2.5% share of the wider population.

For adult Indigenous males, the current incarceration rate is over five times that of black South African males at the peak of apartheid. In WA, that rate is eight times the apartheid figure.

The proportion of Indigenous deaths in custody corresponds with over-incarceration rates. According to the Australian Institute of Criminology Deaths in Custody Programme, between 2000 and 2007 inclusive 20.2% of all adult deaths in custody were of Indigenous persons. That figure is steadily rising, with the number of adult Indigenous deaths in custody between 1992 and 1999 inclusive having been 18%.

The incontrovertible statistics are more ominous given most deaths in custody occurred after imprisonment for minor offences. A large majority of Indigenous female deaths in custody were of persons incarcerated for "good order" offences such as public drunkenness, breach of bail conditions, fine default, vagrancy and offensive behaviour. Almost a third of Indigenous male deaths in custody were of persons imprisoned for property offences.

With youths comprising more than half of the Indigenous population, most of those people who enter the criminal justice system will do so as children. Appalling socio-economic conditions in many Aboriginal communities mean the Indigenous mortality rate is typically 18 to 19 years younger than that of other Australians. In 2008, 49% of the Indigenous population was under 20 years and a further 16% were aged between 20 and 30 years, while just 3% of the Indigenous population was aged 65 years and over. The median age of the Indigenous population in 2008 was just 21 years.

The high rates of imprisonment for young Indigenous people are feared by many not only to be creating another incarcerated generation, but an incarcerated race, with youths detained for misdemeanours entering an almost inescapable vicious circle, having little choice but to grow up in fear of police and with little respect for the law.

As far back as 1991, Northern Territory Correctional Services warned against the dangers of incarcerating juveniles at an early stage in their development, stating: "The evidence is clear that the more access juveniles have to the criminal justice system the more frequently and deeply they will penetrate it … It has been shown that punishment of criminal offenders through incarceration in a juvenile detention centre or prison ... has little positive effect. What happens in many cases is that the detainees learn from their fellow inmates how to become more effective at committing crime."

However, with incarceration rates soaring unabated, the government is responding by building new prisons. In WA, where prisons were operating at 130% design capacity in 2010 and at 150% design capacity by January 2012, a new young adults' facility is being planned at the Rangeview Juvenile Remand Centre.

In a government media statement released on 1 November 2011, WA Corrective Services Minister, Terry Redman, said the facility would focus on helping young men "turn their lives around". Simultaneously, a new $232 million, 350-bed prison is underway to replace the overcrowded Goldfields prison, providing an increase of 250 beds and to house both minimum and maximum security prisoners.

In the Northern Territory, where the prison system was operating at 120% design capacity in 2009, and where by June 2011 there had been a 37% increase in the number of Indigenous prisoners since the Intervention's introduction, plans are currently in place for a new $300 million, 800-bed prison, also to house both minimum and maximum security prisoners.

Many understandably view this approach as detrimental, considering such vast sums of money could much more effectively be spent on preventative measures such as improving health, education and employment conditions in communities. In an interview on ABC Radio National in August 2011, Chief executive of the North Australian Aboriginal Justice Agency, Priscilla Collins, said, "... You need to address what the underlying issue is ... I have seen the structure of the new prison and yes it is good in that ... when people go there, there are more education programmes and rehab programmes. But those programmes should be available for people outside of the prison. You know, people shouldn't have to wait till they get to prison to be able to access those services."

The devastating impact of the lack of such services and youth diversionary programmes is plainly evidenced by the alarming number of Indigenous youths appearing before the courts. Unless this national crisis is acknowledged and addressed, the criminal justice system's continued failure is a surety. For while childhood mischief or desperate acts of survival make no child a criminal, labelling them as such and unjustly depriving them of their human right to liberty is one likely way to do it.

By Emma Purdy - Article also published in the National Indigenous Times (Print Edition)

This Treaty Republic article has been re-edited by Emma