While it is very difficult not to see these young people as victims of broader social injustice, they are by no means helpless victims. Crime among the repeat offenders group can be seen as a form of retaliation against authority, especially the police, but also against white society in general. These young people know they are poor so they take ‘a piece of the action’ for themselves. Crime is a source of pride for many within their own subcultural group.322 However, by embodying in the juvenile justice system a legalistic notion of crime as an individual act of choice deserving of punishment, it is inevitable that socially marginalised groups will bear the brunt of its application. The system perpetuates the notion that it is founded on impartial legal justice in the face of all the evidence to the contrary. Weighty evidence from studies in most States guarantees one thing: that Aboriginal youth will be over-represented in arrest, court appearance and detention rates. This reflects a legal process unable to deal with juvenile crime in its holistic, social and historical context.
State governments have never seriously asked themselves why so many Aboriginal youth are involved in crime in the first place. To do so would be politically unpalatable. It would involve taking the side of Aboriginal people; of acknowledging the injustice and committing the considerable funds needed to bring hope to these young people. It would involve tackling police practices and attitudes. There is simply no tradition in Western Australian politics for this kind of action to be taken on behalf of Aboriginal young people.
Neither State nor Commonwealth governments have been prepared to develop preventative programs of sufficient scope to keep young Aborigines from entering the system in the first place. One of the known effective ways to prevent juvenile crime is to encourage education and school attendance. Yet, for decades in Western Australia school participation rates for Aboriginal youth have been significantly below the national average which, in itself, is half that of non-Aboriginal youth. Howard Groom, a specialist in Aboriginal education, outlines the complex set of factors behind the high drop out rate of young Aborigines from school.
The academic problems of Aboriginal adolescents are rarely related to their intelligence and ability. The causes lie in a range of issues. Many involve unsatisfactory relationships and feelings of insecurity and not belonging in the classroom, false expectations held by teachers and racism from teachers and peers … Aboriginal students may come to the point of feeling that to achieve in school terms they have to give up their Aboriginal identity and forfeit their acceptance by the Aboriginal peer group … They may realise that too few Aboriginal adolescents have succeeded and found a good job; they may see school as a waste of time, or irrelevant to their lives.323
The backdrop of the assimilation experience gives these issues further significance. The parents of many of these children were themselves denied an adequate education. In Western Australia, only 13 percent of seventeen year old Aborigines were participating in education (31 percent nationally). Keeping young people out of crime depends on providing them with employment. Yet, in Western Australia 52 percent of fifteen- to nineteen-year-olds and 53 percent of twenty- to twenty-four-year-old Aborigines in the labour market are without jobs.324
In 1994, the House of Representatives Standing Committee on Aboriginal Affairs was critical of the failure of Western Australian governments to produce evidence of positive outcomes of programs to reduce the rate of involvement of Aboriginal youth in the criminal justice systems, or the rate at which they are separated from their families and communities.325 The Committee questioned the sincerity of the Western Australian Government in making a genuine commitment to bring about a reduction in the rate of Aboriginal young people entering the criminal justice system. In fact, governments in Western Australia had willingly sponsored measures which were calculated to increase this rate.
Since the early 1990s successive Western Australian governments have responded to ill-informed community opinion about the causes of juvenile crime and introduced several waves of ‘get tough’ legislation, which predominantly target Aboriginal youth. In 1992 the Lawrence Labor Government introduced the Crime (Serious and Repeat Offenders) Sentencing Act which laid on the statute books minimum mandatory sentences for repeat offenders. Later, changes to the Bail Act were made whereby juveniles could only be bailed to a responsible adult. These changes were made without consultation with the Aboriginal community and in the face of persistent criticism that they ‘would impact predominantly on youth, leading to increased numbers of young indigenous youth being held in custody.’326 In addition, proposals for increased penalties for assaults on police officers has attracted criticism from legal circles because such charges often ‘escalate from interventions by the Police in the lives of non-offending Aboriginal youth through routine questioning and asking for names and addresses.’327
Most recently, the State Government has added the United States-inspired ‘three strikes and you’re in’ to its ‘get tough’ legislative armoury. This measure, which imposes a mandatory one-year gaol term for third-time home burglars, was recently investigated by a Senate inquiry into legal aid. Evidence to the inquiry indicated 600 youths were sitting on their ‘second strike’—75 percent of them Aborigines. Responding to these figures, inquiry member Senator Nick Bolkus commented: ‘It seems to me that we are talking about the next generation of young Aborigines growing up in prison.’328
The State Government’s response to a recent case involving a fourteen year old boy from Broome indicates its determination to pursue this new form of removing Aboriginal children from their families. Before the boy appeared in the Perth Children’s Court he had already spent forty-two days in custody thousands of kilometres away from his family. He had pleaded guilty to burglary, his third offence. Therefore, he came under the Government’s new legislative regime. The President of the Court sentenced the boy to twelve months imprisonment but released him immediately into an intensive supervision program in the community.
Not surprisingly, the Attorney-General was quick to publicly denounce the President’s decision and equally quick to state the intention of the Government to block such a loophole with amending legislation. Assessments of this legislation point out its potential danger to Aboriginal people and particularly to Aboriginal youth living in remote regions. If these young people are given a mandatory sentence by the Court it must be served in a juvenile detention centre, all of which are located in Perth. Thus, Aboriginal children from remote areas will be separated from their family, customs and lifestyle for a considerable period. Mandatory detention ‘will prove to have lethal consequences and neglect any true form of culturally appropriate rehabilitation.’329
The ‘three strikes and you’re in’ legislation runs the risk of increasing the numbers of Aboriginal youths in custody. This in turn will feed into the adult prison system because, once Aboriginal youths enter the treadmill of the justice system, most find it hard to extricate themselves.
Where reforms are made to the system of juvenile justice in an attempt to divert children and youth away from the formal court system, such innovations apply less often to Aboriginal young people. As Michael Dodson has pointed out, Aboriginal young people are less likely to receive a caution, more likely to be arrested than receive a summons, more likely to be refused bail and more likely to receive a detention order. Reflecting on these figures, Dodson brings to light their underlying meaning. The figures, he writes, are not a matter of bad luck but of systemic, underlying racism.
Even if the discretionary decisions of police, magistrates, judges, prosecutors and correctional officers may not be made on the basis of race, the context of their decisions are shaped by race. The family circumstances, education and employment history of young Indigenous offenders—the product of other established and predictable forms of systemic discrimination—are marshalled against our kids. Even when their ‘best interests’ are uppermost in the minds of those exercising judgement, the end results of their ju
dgements serve to deepen and add another level of knock-on oppression to young lives.330
Thus, removing the children continues unabated. It is the convenient, politically acceptable way of dealing with the problems associated with extreme social disadvantage and racial marginalisation widely experienced by Aboriginal youth.
What about the young people who emerge from the justice system’s ‘correctional’ facilities? Are they better prepared for getting on with life in constructive ways than before they went inside? Here again, the parallels with assimilation are stark. Another generation of Aboriginal children is growing up without the benefit of close contact with their families. A New South Wales study of young Aboriginal detainees found many worried about the lack of contact with families; over one third claimed they missed their families. Some were eight or ten hours drive from their homes, making visits from their families difficult. Even telephone contact was difficult because some families did not have immediate access to one.331
Just as the missions rendered so many of their young Aboriginal charges dysfunctional, so can the detention centres, and for very similar reasons. Young people cannot develop social competence in a closed facility removed from their communities. Social Justice Commissioner Michael Dodson has written of young life being ‘diminished by contact with the juvenile justice system’. It is, he writes further, ‘a crude system of prohibitions and punishments. Beneath the rhetoric of ‘rehabilitation’ carried out in ‘correctional’ centres lies the reality of a system that most often deepens the damage to kids who are already in trouble.’332 In some, it sparks an angry aggression against a society in which they feel they are offered no legitimate place. Some become institutionalised. They accept periods of incarceration in terms of its positive benefits of providing food and shelter and as a respite from the grinding realities of living at the margins.
Just as the indiscriminate removal of Aboriginal children under assimilation had a destructive impact upon wider Aboriginal society, so does the ongoing detention of significant numbers of these young people today. As the Aboriginal Legal Service has highlighted: ‘Incarceration as a response to crime is fraught with its own problems, including the collectivisation of criminal attitudes resulting in the indirect development of criminal careers and social alienation.’ Michael Dodson has expressed much the same point: ‘Alienation and disaffection, in turn, becomes a further source of negativity and aggression.’333 These are the very characteristics of an underclass; a poor, marginalised group living on drugs and crime, with a value system alien to mainstream society. Assimilation was instrumental in creating the conditions for such an underclass to exist in today’s society. Juvenile justice mimics its approach in taking away these children. In each case white society has, and uses, the legitimacy of the law to sanction its actions and to provide a convenient mask to cover the racial attitudes which have supported this practice.
The removal of Aboriginal children from their families will only increase unless significant steps are taken to address the underlying causes of their disadvantage. The Aboriginal population is overwhelmingly young: 50 percent of the Aboriginal population is under fifteen, compared with 22 percent of the overall population; 15 percent of the Aboriginal population is under five, more than double that of the whole nation. If these figures are overlaid onto the current imprisonment rates of Aboriginal youth, there will be a 15 percent increase in the number in detention by 2001.334
Similar trends can be noted for those removed because of reasons of ‘neglect’. In Western Australia, 35 percent of all children in foster care are Aboriginal, the second highest in Australia after the Northern Territory. Overwhelmingly, the neglect is a manifestation of the impact of poverty and dispossession on parenting. Fewer Aboriginal children are removed for reasons of emotional, sexual or physical abuse than is the case in the non-Aboriginal community. There is a general recognition that the underlying causes of this over-representation include ‘the intergenerational effects of previous separations from family and culture, poor socioeconomic status and systemic racism in the broader community.’335
Since assimilation officially ended in the early 1970s, the Western Australian welfare department has struggled to deal with the issues of Aboriginal child poverty. In 1974, the Royal Commission into Aboriginal Affairs recommended that the [then] Child Welfare Department should avoid the removal of Aboriginal children from home and make efforts to assist them in improving their domestic arrangements. The Welfare Department itself was aware of these criticisms, and especially the objections raised against its policy of cross-cultural adoptions. It justified this policy in a submission to the Royal Commission on the basis that it could not recruit enough ‘suitable’ Aboriginal foster-parents. However, the departmental submission to the Commission acknowledged concerns that it applied the ‘European yardstick and standards’ to Aborigines, which were not appropriate.336 Consequently, and in spite of its spirited defence of its practices to the 1974 Royal Commission, little changed. In 1980 a report into child welfare found that 56 percent of the children in the care of the Department were Aboriginal, two-thirds of whom were placed with non-Aboriginal caregivers. Another decade elapsed and another report was undertaken. It found 46 percent of children in substitute care were Aboriginal, however a high proportion were now placed with relatives or with Aboriginal caregivers. Problems of ensuring the quality of the services for children removed from their families and taken into substitute care remained. In 1992 the Department’s handling of this issue was roundly criticised in a report to the Minister for Community Services. Services were judged as being poorly coordinated and without a ‘visible plan’. Moreover, ‘Departmental workers appeared under pressure and under-resourced, and often seemed to have little understanding of, or regard for, the principles of good placement practice.’337
Arising out of these developments is an obvious, but important question: what have governments learnt about the damage done to the Aboriginal community by policies which tolerate the removal of large numbers of their children from their families? The principles of the assimilation era appear to be firmly lodged in the attitudes of Western Australia’s political elites, not to mention sections of the community at large. The strength of this legacy became all too apparent when, in September 1996, the Minister for Education, Colin Barnett, announced that the Government was contemplating setting up a system of hostels to enforce better educational standards for Aboriginal children. Under the plan, children would live in rural hostels during the week, to ensure they attended school, but would be allowed to go home on the weekends. Media reports of his statement sent a chill through those familiar with assimilation:
He warned that the Government’s answers to the problem [of Aboriginal education] might not be politically correct. ‘We are going to grab hold of these kids’, he said. ‘I am not sure how. We might break a few rules but we are not going to let another generation of children be lost’.338
The Minister was sternly rebuked, not least by the head of the Human Rights Inquiry into the stolen generations, whose hearings were still in progress. His plan was stillborn but he left every indication that the attitude of white dominance—however well intended—still had strong advocates. His comments illustrate, too, that a much deeper appreciation is needed on the problems facing Aboriginal children and young people. The West Australian put this in very succinct terms in an editorial following the release of the Human Rights and Equal Opportunity Report into the stolen generations. ‘The report should help us to understand’, it wrote, ‘how the wrongs of the past are visited on the socially alienated Aboriginal children of today. They put the antisocial activities of some Aboriginal children into a historical and psychological context.’339
8
The Politics Of Removal And Reconciliation
The stolen generations’ struggle for recognition has been a long one. Their struggle for justice is ongoing, especially because the issue has become embroiled in the resurge
nce of right wing politics in Australia. While several Aborigines believe the policy of removing children from their families has haunted the conscience of white Australia,340 the outward signs are few. Neither the 1974 Royal Commission into Aboriginal Affairs nor the 1994 Report of the Task Force on Aboriginal Social Justice—the two landmark official investigations in Western Australia in recent times—engaged in more than passing reference to the assimilation era or its long-term impact. This failure to hold the policy to account left Aborigines to cope alone with its effects and their sense of outrage and loss.341
In the meantime, Aborigines themselves mobilised public recognition. In 1990 Patrick Dodson’s investigation into the Underlying Causes of Deaths in Custody documented some of the effects of removal and mission life on contemporary Aboriginal disadvantage. In 1995 an even more concerted effort to uncover the truth about the fate of these people was undertaken by the Aboriginal Legal Service. It interviewed 600 Aboriginal people and documented their stories in a way which highlighted the connection between their removal from their families and their subsequent life experience.
National prominence was finally given to the issue with the establishment in 1995 of the Human Rights and Equal Opportunity Commission Inquiry by the Keating Labor Government as part of its commitment to reconciliation. Two years later, in May 1997, Patrick Dodson launched the Human Rights and Equal Opportunity Commission’s Report (HREOC) of its investigation into the stolen generations at the National Reconciliation Convention in Melbourne. By this time, considerable publicity had been given to the work of the Commission in gathering the harrowing personal testimonies of those who had been taken from their families. Dodson touched a raw emotional nerve among the 1800 people attending the Convention which included Aborigines and many whites. Pausing momentarily, he said, ‘one thing missing from this report are the mothers’ stories—but how could a mother possibly bear to tell of her loss?’ The comment stunned the audience. ‘Those listening sat numb, with tears staining their faces.’342 Their reactions seemed to symbolise the broader awakening slowly taking place among Australians to the suffering Aboriginal people have experienced at the hands of government policy. However, it soon became clear that not all Australians—or even a majority of them—shared this understanding.
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