Samantha Lee has seen it all with what the youth justice system has to offer. As a senior solicitor at the Redfern Legal Centre, she not long ago represented a 14-year-old First Nations boy who was taken into custody and questioned by police. Watching the CCTV footage of the process, she says, was not easy.
“It’s excruciating to watch this very slight young boy being questioned by quite large police officers, with no-one around him to support him in that process,” she says.
Her client’s experiences are part of an issue lingering in the youth justice system. Although the number of young offenders in detention is declining year on year, First Nations people continue to be over-represented in juvenile custody populations in New South Wales, according to a new federal government report.
Data from the Australian Institute of Health and Welfare (AIHW) shows during the 2022-23 financial year, about 160 children aged 10-17 were held in detention on an average day in NSW, a decrease of 22 per cent over the previous five years. But, of those children, 98 were Indigenous.
In the same period, Indigenous youth were around 24 times more likely to be in sentenced or unsentenced detention than non-Indigenous offenders, according to the AIHW. The NSW Bureau of Crime Statistics and Research states that Aboriginal and Torres Strait Islander youth make up 6 per cent of the total juvenile population in NSW.
Rodney Dillon, Amnesty International Australia’s Indigenous rights advisor and a Palawa elder, says incarcerating young Aboriginal and Torres Strait Islander offenders does more harm than good and puts them at a greater risk of reoffending.
“When we put [First Nations youth] in detention centres, it’s the apprenticeship to crime,” he says.
“We know as soon as kids get in this system, it’s like quicksand and they never get out.”
Lee says young First Nations offenders often come from a lower socioeconomic background – which can contribute to their contact with the youth justice system – but also suggests police officers have not been properly understanding or enforcing the NSW Young Offenders Act, which aims to keep children out of custody.
Redfern Legal Centre solicitor Samantha Lee. Photo: Supplied.
“Police officers [must be] turning their minds, when on the ground, to the legal thresholds to stop and search and to arrest a young person… arrest is a last resort, not the first port of call,” she adds.
Under the NSW Young Offenders Act, police officers are strongly encouraged to steer children away from court by offering alternative measures to those who have committed certain minor offences. This involves issuing formal warnings or cautions, or requiring the young offender to attend a Youth Justice Conference, where they meet with the victims to discuss the impact of the crime and create an outcome plan moving forward.
While arrest and custody are designated for serious crimes – and most young offenders are dealt with under these diversionary measures – young First Nations people make up a disproportionate number of offenders who do require incarceration.
Recent figures from Youth Justice NSW reveal First Nations youth made up 56.3 per cent of young people sentenced to detention, and 57 per cent of those remanded in custody, during the 2022-23 financial year; a steady increase from the previous two years. The proportion of young Indigenous offenders attending Youth Justice Conferences has remained consistent over the past five years, but is well below that of non-Indigenous offenders, sitting at 38.3 per cent last financial year.
Dillon believes solutions led by Aboriginal and Torres Strait Islander people at all levels (“from policing to justice to diversion systems”) will be most effective for addressing over-representation, while Lee suggests a broader cultural change is needed in the NSW Police force to ensure they understand the impact incarceration has on Aboriginal young people.
NSW Police did not comment on Indigenous matters specifically, but a spokesperson said in a statement that they are working closely with their specialist units and delivering early intervention and diversion programs “to empower the youth to make the right decisions”.
A spokesperson from Youth Justice NSW said the agency was “actively working towards reducing the over-representation” by increasing its Aboriginal workforce, partnering with the Aboriginal Legal Service to address Closing the Gap targets, and delivering “culturally specific” community programs such as Nyanga Ngara, an alternative sentencing program.
Despite this, concerns have been raised surrounding the Minns government’s recent changes to youth bail laws, which require a “high degree of confidence” from police or magistrates for bail to be granted to teenagers who are charged with a serious motor vehicle theft or break-and-enter offence. The changes will last for 12 months before they are re-evaluated, but Dillon believes they are directed at “putting more Aboriginal people in [the] prison system, instead of trying to divert kids away from it”.
Lee acknowledges the need for the community to feel safe but is adamant the new laws are not effective in developing a “holistic approach” to reducing over-representation.
NSW Attorney-General Michael Daley was contacted for comment but did not respond in time for publication. He has previously recognised concerns surrounding the “potentially serious consequences for young people and, in particular, Aboriginal young people” due to the bail reforms.
It’s [about] opportunities for young people as they get older, having healthy homes… and making sure that they’re not over-policed.
Similar concerns have long been the basis of a campaign to raise the age of criminal responsibility in states and territories. Currently, in most Australian jurisdictions, children as young as 10 can be arrested, charged and held in detention, but the United Nations recommends setting the age of criminal responsibility at 14 years. While the Northern Territory raised the age to 12 in August 2023 – and both Victoria and the ACT are looking to follow suit – other states including NSW are reluctant to raise the age.
Dillon says holding children criminally responsible at 10 can significantly increase the chances of them coming into further contact with the justice system by the age of 21.
Even with the NSW Government’s recent announcement of Project Pathfinder – a partnership with the National Rugby League and NSW Police to provide mentorships to at-risk youth in regional areas, which have higher populations of First Nations people – both Dillon and Lee argue more needs to be done in the long-term to address over-representation than solely introducing social crime prevention strategies.
“Just bringing in NRL players… will give [at-risk youth] some joy, but it’s deeper than that,” Lee adds.
“It’s [about] opportunities for young people as they get older, having healthy homes… and making sure that they’re not over-policed.”
Lee feels the issue is not an easy fix.
“It is a holistic, long-term vision,” she says, “but I think we can say [that] putting kids into police custody, or not giving them bail, will not heal the problem but just add to it in the long term.”
Main image AI generation by Leonardo in Canva montage.
