Victorian Aboriginal Legal Service 6 Alexandra Parade, P.O. Box 218 - - PDF document

Presentation to Youth Work Students at Victoria University re things to know about the Indigenous Australian community – October 2007

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Presentation to Youth Work Students at Victoria University re things to know about the Indigenous Australian community – October 2007 I acknowledge the traditional owners of the land on which we are meeting, the Wurundjeri people of the Kulin Nations and pay my respect to their Elders past and present. My name is Greta Clarke and I am the Research Officer at the Victorian Aboriginal Legal Service which I will refer to as VALS from this point on. You will also hear me say the word Koorie which is the word use for Indigenous Australian Victorians. I am a non-Indigenous Australian who is grieved by the injustices committed against Indigenous Australians since colonisation. My motivation for working at VALS is because my liberation is bound up in the liberation of Indigenous Australians. I do not speak on behalf of the Aboriginal community as I am aware that my own culture affects how I hear information from my Aboriginal colleagues and how I pass it on to others. Much of my work involves recognising aspects of the dominant culture, how the dominant culture impacts the Indigenous Australian community and suggesting ways that the two cultures can fit together. I am going to talk about:

• 1. The over-representation of Indigenous Australians in the criminal justice system

and the underlying issues behind this trend;

• 2. VALS, the Victorian Aboriginal Legal Service;
• 3. Why we need a specific Aboriginal Legal Service and what you as Youth

Workers can learn from Aboriginal organisations.

• 4. Good examples of how the justice system has been make more accessible for

Indigenous Australians and how justice outcomes have been improved for Indigenous Australians. I will talk about the Koori Court and VALS’ Youth Cautioning and Diversion Program. OVER-REPRESENATION AND UNDERLYING ISSUES An authority on the over-representation of Indigenous Australians in the criminal justice system and the underlying causes for this is the Royal Commission into Aboriginal Deaths in Custody Report of 1991. The RCIADIC Report found that Aboriginal people did not die in custody at a greater rate than non-Indigenous Australians but they entered the criminal justice system as a rate disproportionate to the general Indigenous Australian

Victorian Aboriginal Legal Service Co-operative Ltd.

Head Office: 6 Alexandra Parade, P.O. Box 218 Fitzroy, Victoria 3065 Phone: (03) 9419 3888 (24 Hrs) Fax: (03) 9419 6024 Toll Free: 1800 064 865

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• population. Indigenous Australians make up a little under 2.5 per cent of the national

population. The RCIADIC was reviewed in Victoria in 2005 and the Review Report made similar findings to those in 1991. It was found in 2005 that Indigenous Australians are more than twelve times more likely to be held in Victorian prisons than non-Indigenous people. The statistics tell a sorrier tale for juveniles as between 2002-2004 the incarceration rate for Indigenous juveniles was 26 times higher than the rate for non-Indigenous juveniles (Australian Bureau of Statistics 2002-2004.1 The RCIADIC Review provided up-to-date statistics from 2001 on underlying issues that contribute to the over-representation in the criminal justice system and some of these are:

• 1. Education and Training: the highest levels of schooling completed at Year 12

levels was 13 per cent for Indigenous Australians and 32 per cent for non- Indigenous Australians.

• 2. Employment and Economic Status: unemployment among Indigenous

Victorians was as much as 3 times higher than for non-Indigenous Victorians.2 Median incomes were $287 for Indigenous Australians and $383 for non- Indigenous Australians.

• 3. Housing: Only 12 per cent of adult Indigenous Australian Victorians fully owned

their own home without a mortgage, compared to 41 per cent of non-Indigenous Australians.

• 4. Families and Children: the rate at which Indigenous Australian children were

the subject of a child protection substantiation was nine times higher than the rate for other children.

• 5. Health and Well-being: the difference in life expectancy compared to non-

Indigenous Australians was – 20 years less for Indigenous male Victorians and 18.6 years for Indigenous female Victorians.

• 6. Alcohol and Other Substances: Nationally 57.1% of Indigenous Australians

reported ever using illicit drugs, whereas 37.7% of non-Indigenous Australians reported this. VALS has identified other factors that contribute to the over-representation:

• 1. Tough on crime: A tough on crime approach means that tougher or punitive

attitudes to crime are common. VALS prefers a ‘smart on crime’ approach that acknowledges that tough on crime approaches often have a disproportionate impact on marginalised communities, such as Indigenous Australians. Also, tough on crime approaches (ie: locking people up and throwing away the key) do not work in terms of rehabilitation.

• 2. Poor Koorie police relations which makes Koories highly visible to police:

According to a VALS’ CSO “[f]or some reason the police and the wider

1 Australian Institute of Criminology ‘Australian Crime Facts and Figures 2005’ as at

http://www.aic.gov.au/publications/facts/2005/facts_and_figures_2005.pdf

2 Victorian Implementation Review of the Recommendations from the Royal Commission into Aboriginal

Deaths in Custody Statistical Information Volume 2 October 2005 p. 20

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community equate blackness with trouble. Because of been over-policed Koori children use up their ‘out of jail cards’ and compile a lengthy juvenile record early in their teens. Every Koori child between 10 and 18 I know of has had a negative experience with the police in Swan Hill”.

• 3. Re-offending: in 2002-2003 50% of Indigenous Australian prisoners returned to

prison within two years of being released compared with 34% of non-Indigenous Australians.3

• 4. Systemic discrimination or racism within the justice system: systemic racism

is a concept that focuses on outcomes rather than attitudes or intentions of those administering the criminal justice system. For instance public drunkenness laws arguably indirectly discriminate against Indigenous Australians as Indigenous Australians use public space as cultural space and the law makes visible to police this use of public space. Indigenous Australians use public space as cultural space as they have large gatherings of extended family outdoors rather than indoors as they will not all fit inside.4 The statistics reflect the disproportionate impact of public drunkenness laws on Indigenous Australians: the 1991 RCIADIC reported that drunkenness cases made up 57% of Aboriginal custodies compared with 27%

• f non-Aboriginal custodies.5
• 5. Rite of passage: Indigenous Australians see prison as a rite of passage and way to

get culture. The people involved in the RCIADIC Review were told this by prisoners they visited.

• 6. maltreatment: statistics from 2002 indicate that maltreated Indigenous

Australian children are 4.3 times more likely to subsequently offend than non- Indigenous Australian children.6 VALS VALS’ vision is to be a service ‘For Koories- by Koories’ and to be both a sword and shield. VALS assists Indigenous Australian peoples in their struggle for justice and self-

• determination. VALS is a community controlled Aboriginal organisation which commenced

in the early 1970s when a group of forward thinking Koori Elders and non-Koori lawyers concerned at the number of Kooris attending court without legal representation. VALS is funded by the Commonwealth Attorney General’s Department. There has been no major increase in funding since the early nineties however during this time the Indigenous Australian population has more than doubled. VALS was incorporated as a Co-operative on 10th June 1975. VALS has offices at Fitzroy, Morwell, Bairnsdale, Shepparton, Swan Hill, Mildura, Heywood and Ballarat. VALS is a Statewide Legal Service for Indigenous

3Victorian Department of Justice ‘Who returns to prison? – patterns of re-offending among prisoners

released from custody in Victoria in 2002-2003, Corrections Research Paper Series Paper no 1 June 2007, P14.

4 VALS Submission in response to the ‘Systemic Racism as a Factor in the Over-representation of

Aboriginal People in the Victorian Criminal Justice System’ Report - sent 17 October 2005

5Royal Commission into Aboriginal Deaths in Custody (1991) Volume 2 para 21.1.2 6 Dr Anna Stewart, Dr Susan Dennison, Ms Elissa Waterson Final Report: Pathways from Child

Maltreatment to Juvenile Offending (School of Criminology and Criminal Justice Griffith University) October 2002, p. 97 as in Australian Institute of Criminology Trends and Issues Paper in Crime and Criminal Justice no: 241.

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Australians and managed by an Indigenous Australian Board of Directors elected by the community. VALS is a Statewide 24 hour service and the way the after-hours service works is that calls are diverted to a Client Service Officer’s mobile who may deal with the call themselves or involve the on-call solicitor. VALS is a free legal service for Aboriginal and Torres Strait Islander people, but can assist non-Indigenous Australians if doing so would benefit an Indigenous Australians. Eligibility to use VALS depends on whether people over 18 pass a means test, so youth are not subject to the means test. The 8 criminal law solicitors service the metropolitan and regional courts out of the Fitzroy with the exception of Bairnsdale as a solicitor is based there. The 3 Family lawyers and 1 civil lawyer work out of Fitzroy. Why we need Aboriginal Legal Services and why they should be valued I will now address a question that may be in your mind-why should Aboriginal people have their own legal service, can’t Aboriginal people use Victoria Legal Aid and why are there no legal services for others, such as Sudanese or Greek people? VALS replies to this question by arguing that:

• 1. Firstly, a specific service for Indigenous Australians is needed due to the pure fact
• f the over-representation of Indigenous Australians in the criminal justice

system.

• 2. Secondly, the need for specific legal services that target the needs of a particular

group makes sense for all distinct groups not just Indigenous Australians. The existence of the VALS does not preclude the establishment of a Sudanese legal service.

• 3. Thirdly, not everyone is on an even playing field and this is why we need

substantive equality, such as special treatment. Formal equality assumes everyone is equal but substantive equality recognises that affirmative action is required for disadvantaged people to access their rights.

• 4. Fourthly, Indigenous Australians are experts on helping other Indigenous
• Australians. VALS is a community based service that has specialist skills that

mainstream services do not. from VALS services are based on an understanding

• f cultural issues and the impact of the past, such as dispossession, on the present.

VALS is aware that it needs to cater for the fact that Aboriginal people are suspicious and disrespectful of a legal system they perceive as being part of the authority structure that has dispossessed and oppressed them. The unique understanding of VALS about Indigenous Australians is apparent in the following as other legal services either do not do these things, or to the same extent as VALS:

• VALS does not merely address the legal problems of clients, rather VALS takes a

holistic approach and seek to address the issues which have led to a legal program

• arising. For instance, a person who was under the influence of alcohol when they
• ffended will be linked in with a drug and alcohol service.

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• VALS provides the role of CSO which is filled by an Indigenous Australian
• person. CSOs act as a bridge between the legal system and the Indigenous

Australian community. The presence of a CSO who clients can identify with and feel supported by at a police station interview, solicitor client interviews or at Court makes the legal system more accessible to them. This is apparent by the fact VALS observed a trend where the rate at which clients were charged with failing to appear at Court increased when a CSO position was vacant.

• VALS takes services to people and actively seeks out problems rather than

waiting for clients to approach us. We have a longstanding arrangement with Victoria Police that whenever an Indigenous Australian or Torres Strait Islander person is taken into custody the Victorian Aboriginal Legal Service is notified by Victoria Police. This ensures that Indigenous Australian people who come in contact with the criminal justice system have access to legal representation from the first point of contact. This minimises the potential for adverse consequences to flow on from the initial contact, such as making a confession when not guilty. VALS is against the policy of mainstreaming which pushes for Aboriginal people not to have their own services and use mainstream services only. This is because VALS recognises the need for Indigenous Australians to have a choice between Aboriginal services and mainstream services. The choice is important because whilst the majority of Indigenous Australians use VALS (around 90%), some prefer to use mainstream services. This may be because they may know someone who works at VALS and they do not want the VALS worker to know they have a legal problem. TIPS Now I will tell you some tips that you may find useful. If we start from the premise that the existence of both specific Aboriginal services and mainstream services that are culturally sensitive is justified then it makes sense for mainstream services to learn how to better meet the needs of the Aboriginal community by asking Aboriginal organisations for help. However, when doing this you need to keep in mind the need not to burden Aboriginal organisations. VALS would like you to know the following things:

• 1. Legal advice is essential.
• 2. It is helpful for VALS when Support workers, such as youth workers, support

their client during a Court case.

• 3. Be aware that assaults of Indigenous Australians by Victoria Police occur so ask

your client if they are happy with their treatment by police. Also, people may not make a complaint about police because of fear of future harassment by police and desire to leave the police station as soon as possible.

• 4. It is acceptable to ask someone if they are of Aboriginal or Torres Strait Islander
• Descent. This is a relevant piece of information as it help you link them in with

appropriate services.

• 5. If you are developing a new program you should make it culturally inclusive from

the beginning rather than find out well into the program that it does not work for

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Indigenous Australians and then try and fix it. It is important to consult Indigenous Australians adequately. Programs work better if Indigenous Australians are involved at the beginning and have ownership of the program.

• 6. If you want to develop a partnership with an Aboriginal organization be aware

that partnerships can take a long time and patience is required.

• 7. Cultural security: Cultural awareness does not just mean being aware of

Aboriginal names, places and traditions, but exploring our cultural blinkers. Be self reflective and ask yourself: why do I have no Indigenous Australian clients and do something about it to create a culturally secure service for Indigenous Australians. Koori Court An example of adapting the criminal justice system to take into account the needs of Indigenous Australians is Koori Courts. Koori Courts were introduced in 2000 as part of the Victorian Aboriginal Justice

• Agreement. The VAJA is an agreement that was signed by different Government

Departments and representatives of the Aboriginal Community and is a commitment to a partnership towards achieving justice for the Aboriginal community. There are currently 8 Koori Courts, 2 of these are Children’s Koori Courts (Melbourne and Mildura). Koori Courts are sentencing Courts so people are required to plead guilty to appear before the Koori Court. The Koori Court has increased Indigenous Australian’s access to justice by making the Western legal system more meaningful. This has been done by involving Elders and Respected persons who advise the Magistrate on the best sentencing option and often speak directly to the accused. It is more meaningful to come face to face with an authority figure of one’s culture than an authority figure of a foreign culture. The Koori Court is not a soft option as anecdotal evidence suggests that people choose not to reappear in the Koori Court if they re-offend to avoid facing their Elders. Also, the Koori Court has improved access to justice by making the Western court room less culturally alienating and intimidating. The Magistrate sits at the same table as the accused as the layout of the Court room is not hierarchal. At the Koori Court you can take the time required, narrative story telling, put things in place to help. The Koori Court has had a success rate of reducing re-offending. A 2005 review of the Koori Courts in Victoria found that Koori courts are successful in reducing repeat

• ffenders, with re-offending rates of 12.5% and 15.5% compared to the general Koori re-
• ffending rate of 29.4% (almost half).

Cautioning VALS’s Youth Cautioning and Diversion Pilot Project is an example of an attempt to reduce the over-representation of Indigenous Australian youth in the criminal justice

• system. A caution is a formal warning given by police as opposed to an arrest.

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If a group of youths come to the attention of police it is common for the non-Indigenous Australian youth in this group to be cautioned and the Indigenous-Australian youth to be

• arrested. VALS’ research found that from July 2000 to June 2001, Indigenous Australian

juveniles received fewer cautions in all crime categories (except rape) than non- Indigenous juveniles as “the level of under utilisation of cautioning of Indigenous Australian young people is in the order of 10-15% when you focus on people who have had no prior police contact”. 7 This was seen as concern given that cautioning is a means

• f diverting children away from the justice system as there is slightly more re-offending

amongst the court processed juveniles than those who received a caution (Challinger 1981). The Pilot VALS is running has been developed in consultation with relevant parties which is important: Government, Police, Aboriginal people, youth, and workers involved with youth. The pilot commenced in March 2007 for a 12 month period in the following places and there is hope it will go to other places:

• 1. Mildura in recognition of the under-usage of cautioning as Mildura has the lowest

State average of cautioning of Indigenous Youth.

• 1. La Trobe valley in recognition of the ineffectiveness of cautioning as whilst La

Trobe Valley had the highest rate of cautioning there is a high re-offending rate after cautioning. The pilot attempt to address the following issues identified by the Aboriginal community and Victoria police surrounding cautioning of Indigenous Australian youth:

• Aboriginal young people are more likely to receive harsher outcomes from

police decisions to apprehend and prosecute, even when offence and criminal history differences are controlled for.

• Police do not always apply discretionary powers in a consistent manner.

police commitment to the effective diversion of Indigenous young people, either through cautioning or informal warnings, is paramount.

• Young Indigenous Australian people re-offend at a greater rate than non-

Young Indigenous Australian people. If the offender has a prior offence, a caution is not applicable.

• Parents or guardians are unavailable. The parents or guardian must be present

for a young person to be cautioned. The result of the Pilot is that there is a Local Police Policy that applies to Mildura and La Trobe that will hopefully be extended to other places, CAUTION Police give a caution given whenever appropriate (ie: admit offence, no more than third

• ffence, consent of accused/parent).

7 Victorian Aboriginal Legal Service, ‘Police Cautioning of Indigenous Juvenile Offenders in Victoria’

2003.

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1. If Police do not give a caution they must complete a ‘Failure to Caution Form’ which provides a reason that no caution was given and this reason is reviewed to determine if it is appropriate. 2. Police should attempt to locate the parent to be present at the caution. This may require postponing the caution until the parent is available or the Youth Resource Officer at the police station choosing another family member of elected Aboriginal community member to stand in for the parent. 3. Police should consult with the local Koori Justice workers as to the most effective way to deliver a caution. 4. The caution will be delivered by an elected Police Officer who is of high ranking to ensure consistency in the cautioning process. 5. The following people should be present at the caution, and provided notice, or if not possible told that a caution has been given: Youth Resource Officer who reviews the caution, parent, support people, elected members of the community, justice worker, Client Service Officer. 6. The Youth Resource Officer (and possibly justice worker) creates a ‘Background File’ which contains information gathered at the caution (ie: factors involved in the offence such as alcohol and other factors such as whether the youth lives at home). A joint discussion occurs between the parties at the caution about who the youth should be referred to and whether a mentor is appropriate. 7. A caution should take place at a neutral location, or where necessary, a less ‘formal’ room within the police station. FOLLOW UP

• 9. A follow up meeting occurs 2-6 weeks after the caution. The meeting will be

held with the offender, police representative, family or community member, Koori Educator and any other individual who has since been involved with the offender attend the meeting. The purpose of this meeting will be to ‘check-in’ on the progress

• f the offender since receiving the caution. Follow up can continue for up to 3

months. CONCLUSION To finish I would like to encourage you to think about how you can best meet the needs

• f Indigenous Australians whether you end up working for an Aboriginal organisation or

a mainstream organisation. I encourage you to provide a culturally sensitive service that is accessible to the Aboriginal community by:

• not losing sight of the underlying reasons for the over-representation of

Indigenous Australians and attempt to address these issues and the problems Indigenous Australians have in accessing the legal system.

• using the resource of Aboriginal organisations like VALS.
• Seeking out information about positive initiatives such as the Koori Court and the

Youth Cautioning and Diversion Program.