indigenous australian youth and society

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Author: Ariel Brown

Year: 2011

Indigenous Australian Youth and Society

An examination of the discriminatory practices experienced by Australia’s Indigenous Youth -

presented against the backdrop of the ‘United Nations Convention on the Rights of the Child’

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“We all know that an Australian Government would not dare to proceed under cover of darkness in

this way against Australian citizens unless they were young ones or black ones”

(Whitlam, E.G. (1972) in Taffe, 2005).

The UN Convention on the Rights of the Child (CROC) provides a blueprint for the rights of

the child; it recognises that children are “rights bearers, and as human beings are entitled to

be treated with dignity, and with equal concern and respect without discrimination” (AHRC,

2001, p.1). Australia signed the CROC on the 22nd of August 1990, and it came into force for

Australia on the 16th January 1991. However, in response to a finding by the Australian Law

Reform Commission and the Human Rights & Equal Opportunity Commission that Australia

was failing to comply with the terms of the CROC, the treaties committee made an inquiry

into this complaint between 1997 and 1998 and recommended that Australia had significant

work to do in improving the lives of Australian children:

“Action needs to be taken with regard to the protection of the rights of indigenous children -

to cultural identity… to basic health and social security provisions (where applicable); and

greater inclusion of children in decisions that affect their welfare” (AHRC, 2001, pp. 7-8).

In article 1 of the CROC, a child is defined as “a human being under the age of 18 years”

(AustLII, 1995). In Australia this article has generally applied, except in the Queensland

Criminal Justice System who only very recently (as of the 1st November 2010) complied with

this age distinction (YAC, accessed: Dec.2010). However, though this paper is based upon all

‘Articles’ contained in the CROC, the primary ‘Article’ is article 2 which directly requires “all

state parties to respect the rights of the child without discrimination of any kind irrespective

of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion,

political or other opinion, national, ethnic or social origin, property, disability, birth or other

status” (AustLII, 1995). Thus according to Australian law it is unlawful to discriminate on the

grounds of gender, marital status, disability or race, and it applies to health, work,

education, economics and particularly the criminal justice system (Aboriginal Justice

Advisory Council, 2002). This paper will demonstrate, that though over a decade has passed

since the treaties committee admonishment, Australia’s Indigenous children are still

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disproportionately experiencing racial discriminatory practices that impinge on their human

rights and their ability to fully participate equitably in Australian society.

Discrimination can be defined as a process by which members of a socially defined group

are treated unfairly because of their membership to the group. It is a pattern of unfair

treatment expressed in interactions among and between individuals and institutions, and

intended to maintain privileges for dominant groups at the cost of deprivation of others.

The most significant form of discrimination affecting the wellbeing of indigenous people is

‘Racism’, and as Professor Mansouri et al. (2009) points out, there is a positive co-

relationship between racism and “decreased health and wellbeing for Australian Indigenous

Youth” (Larson et al.(2007) in Mansouri, (2009), sect. 2.4).

This racial discrimination which has its roots in the early colonisation of Australia (Bessant,

2007, pp. 267-269) is of particular concern for children and young people as they are the

most vulnerable to the impacts on their health, employment and education (VicHealth,

2008). A child’s health is of primary concern to the community, and in articles 23 - 24 of the

CROC it states, that all children have the right to physical and mental wellbeing and

therefore must be given free access to primary health care facilities provided by state

parties; and if a child suffers a disability the state must ensure that the child has effective

access to education, training, health care, employment and recreation (AHRC, 2001, pp.19-

20).

A survey conducted in 2001 found that 30% of indigenous people, including children, were

experiencing racist discrimination; the consequences of this are reduced and unequal access

to the societal resources required for wellness, employment, education, housing, medical

care, and social support (Mansouri, 2009, pp. n-q). Thus our indigenous people are less

healthy and have a lower life expectancy than white Australians; in 2005 white persons

could be expected to live 16.4 – 17.2 years longer than an indigenous person. Furthermore,

in 2005 the ABS recorded an indigenous infant mortality rate at thirteen deaths per 1000

live births – a number that far outweighs the infant mortality rate for white Australians.

Another feature to consider here is that 68% of indigenous people are under 30 years of

age, with 40% being young children under 15 years of age (Bessant 2007, p.270).

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In addition to poor health and wellbeing, Australian indigenous youth also experience

discrimination in education. All children have the basic right on an equal basis to an

education, and state parties are obliged in accordance with article 28 of the CROC to provide

free and compulsory primary, secondary and tertiary education without discrimination to

Australia’s youth. And while under care of the educational authorities it is the responsibility

of the state to ensure that a child’s dignity and human rights are protected (AHRC, 2001,

p.21). However, it is well recognised that indigenous youth are the most educationally

disadvantaged group in the Australian community – in 1970 under 10% of indigenous

students attended secondary school, in 2004 this figure rose by 40%, however these

indigenous students left school in years 10 and 11 (McRae et al., 2005 in Adermann,

accessed February, 2011). Major life stressors such as anxiety and depression, health

problems such as severe otitis media (inflammation of middle ear), plus vision and speech /

language problems often result in an indigenous child having severe learning problems,

interacting with peers and forming and maintaining friendships, or they may simply avoid

school or classes (Adermann, accessed Feb.2011). This has resulted in one third of

indigenous high school students leaving school by the age of 15 years, and 83% of

indigenous youth over 15 years of age having no formal education other than primary and

some secondary schooling (Foley, 2003, p.12). Causative factors such as victimisation and

subsequent isolation due to being indigenous, results in school withdrawal (Howard, 1998 in

Adermann, accessed Feb.2011), and in low self-esteem which further leads to anxiety and

depression (Groome & Hamilton, 1995; Malin & Maidment, 2003 in Adermann, accessed

Feb. 2011). When we consider the importance of education for socioeconomic status and

the development of social capital, these problems are of particular concern. As Urquhart

(2009) states:

“An important precursor to succeeding academically and gaining desirable employment is

sound literacy and numeracy skills. National data highlighting students' performance in

these areas show the literacy and numeracy abilities of Indigenous students to be well below

those of non-Indigenous students”.

Initially, European settlers viewed the Australian indigenous people as a ‘cheap’ labour

force, and they were exploited as such. Today human rights policies such as the CROC,

together with national legislation, state that equal work entitlements and opportunities are

the basic rights of all, without discrimination. However, despite these policies the Australian

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Indigenous people continue to experience considerable disadvantages in the Australian

workforce (Urquhart, 2009). The current pattern in employment for Indigenous people is:

36% of Indigenous people in the labour force are in major cities - 25% of these are between

25 and 34 years (Urquhart, 2009); this suggests that 11% are either over 34 years old or

under 25 years. However, as this paper noted earlier, 68% of indigenous people are under

30 years of age – with 40% being young children under 15 years of age (Bessant 2007,

p.270). This suggests that 28% are youths between the ages of 15 and 30 years of age; and

as the previous section on education shows, the majority of indigenous youth leave school

by the age of 15 years. This implies that this 28% of indigenous youth are unemployed and

dependant on the welfare system.

Thus, according to Dennis Foley (2003) indigenous people are the most economically

disadvantaged group in Australian society - they have a “higher welfare-dependency ratio,

fewer marketable skills, less work experience and much lower, almost non-existent,

economic base.” Due to discrimination and prejudice by Australian employers, the

indigenous level of unemployment is between 38 - 54% (Urquhart, 2009) which has kept

them in poverty and at the fringe of society. This discrimination and prejudice contravenes

the CROC’s article 2.1:

“States Parties shall respect and ensure the rights set forth in the present Convention to

each child within their jurisdiction without discrimination of any kind, irrespective of the

child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political

or other opinion, national, ethnic or social origin, property, disability, birth or other status.”

Another significant factor of even greater import that impacts indigenous youth

employment is criminalisation and incarceration which permanently removes the few

employment opportunities that may exist (Cunneen, 2001).

The most disadvantaged and vulnerable youth in Australia today are our indigenous youth,

and it is they who receive the most attention from officials in all levels of the criminal justice

system, starting with the police – “the ‘gate-keepers’ who decide who will enter the system

and how they will enter” (White, 2006, p.18). The conflict relationship between police and

the indigenous community throughout Australia has constantly been the source of local,

national, and international criticism of the failure of government to eradicate racist

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behaviour within public institutions (Cunneen, 2001, p.1). As Commissioner Elliot Johnston

of the ‘Royal Commission into Aboriginal Deaths in Custody observed:

“…it is my opinion that far too much police intervention in the lives of Aboriginal people

throughout Australia has been arbitrary, discriminatory, racist and violent” (Cunneen, 2001,

p.1).

The criminalisation of indigenous youth should not be underestimated, for instance, in

South Australia a longitudinal study found that seven out of ten indigenous boys and four

out of ten indigenous girls had experienced formal contact with police during their

adolescence. In addition, indigenous youth (36%) are twice as likely, compared to non-

indigenous youth to be referred straight to court, “denying them access to a diversionary

system for which South Australia has gained worldwide acclaim for the opportunities it

affords young offenders” (Cunneen, 2001, p.9 & Gayle, 1990, in Dunn, accessed Feb. 2011,

p.185). And in Western Australia indigenous children constitute 80% of all juveniles dealt

with under state laws; in regional areas this escalates to 90 per cent. This is aggravated by

the absence of detention centres in regional areas where young offenders are removed

from their families, communities and culture and sent to a detention centre in Perth for at

least 6 months (Dunn, accessed Feb. 2011, p.100). Incarceration in detention centres

separates them from family and community which can lead to depression (Smith, 1992, p.2)

and compromises the CROC Article 20 where the state is required to be sensitive to the

needs of the child with emphasis placed on culture, language and religion; and CROC Article

25 where the state is required to pay particular care to the physical and mental well-being

children in institutional care.

Similar statistics can be found throughout Australia in other states and is a reflection of the

police discretionary powers that invariably disadvantage indigenous youth (Cunneen, 2001,

p.9). This is in direct contravention of the UN Convention on the Rights of the Child:

States Parties shall respect and ensure the rights set forth in the present Convention to each

child within their jurisdiction without discrimination of any kind, irrespective of the child's or

his or her parent's race.. (CROC 2.1)

States Parties shall take all appropriate measures to ensure that the child is protected

against all forms of discrimination.. (CROC, 2.2)

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The very fact of being arrested rather than reported gives police a legitimate justification to

increase surveillance of indigenous youth: “to have been noticed by the law is to remain

subject to the law’s scrutiny” (Edmunds, 1989, in Cunneen, 2001, p.133). The result of these

high levels of indigenous juvenile criminalisation almost insures exclusion from social

participation and removes any of the few employment opportunities that may exist. As a

consequence of this discriminatory surveillance, nearly one third of all persons held in police

custody are indigenous, (Cunneen, 2001, p.104) and in a country that is 98% non-indigenous,

there is a gross over-representation of indigenous youth making up the majority of

detainees in detention centres.

The next point of contact following arrest is acquiring legal representation; for indigenous

youth offenders this is unlikely despite the existence of Aboriginal legal services. This is

particularly relevant for Indigenous youth living in remote areas. When representation is

available additional problems may arise due to language barriers and inadequate time for

instructions, and thus a youth might be led to plead guilty where there is a valid defence to

the charge (Law, Reform Commission of WA, 2005):

“The practice of appearing with only hurriedly-gained instructions, especially where language or cultural differences jeopardise understanding, may result in substantial injustice to individuals”

(J Muirhead in ‘Putti v Simpson’ cited in Law, Reform Commission of WA, 2005).

Additionally, from the time those young indigenous offenders come into contact with the

criminal justice system they are exposed to direct and systemic racism and abuse from

those who are supposed to protect and support their human rights. Reports from

indigenous youth include “police harassment, “bashing of kids”, racist language and denying

them access to public space” (Blagg, 2005, p.111). One young ‘Koori’ girl reported: “Girls are

more afraid of the police than boys, they fear being raped, it has happened around here”

(Blagg, 2005, p.117). And Chris Cunneen’s study which interviewed 171 indigenous

teenagers in relation to police violence found that 82% of the respondents had experienced

violence when encountering police (cited in Smith, 1992, p.2). Thus, when in detention,

indigenous youth “remain vulnerable and are often victims of severe neglect and abuse”

(Blagg, 2005, p.133).

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This is a violation of Articles 37 against inhumane treatment of children and Article 40 a

child’s right in the criminal justice system. According to Article 40 of the CROC: Every child

alleged as or accused of having infringed the penal law has at least the following

guarantees:

To be presumed innocent until proven guilty according to law

To be informed promptly and directly of the charges against him or her, and, if appropriate,

through his or her parents or legal guardians, and to have legal or other appropriate

assistance in the preparation and presentation of his or her defence

To have the matter determined without delay by a competent, independent and impartial

authority or judicial body in a fair hearing according to law

Not to be compelled to give testimony or to confess guilt; to examine or have examined

adverse witnesses and to obtain the participation and examination of witnesses on his or her

behalf under conditions of equality

To have the free assistance of an interpreter

Whenever appropriate and desirable, measures for dealing with such children without

resorting to judicial proceedings, providing that human rights and legal safeguards are fully

respected.

To conclude, in Australia we have no Minister (except NSW) or Ombudsman for Children,

and no agency has been given authority to monitor Australia’s compliance to the

‘Convention’ in an effective way despite our long history of displacement, murder,

exploitation, discrimination and forced separation of indigenous children from their families

and cultural heritage. Many of Australia’s laws including WA and NT mandatory sentencing

are a breach of international human rights standards, including Article 37 and especially

Article 40 of the UN convention (Freeman, 2001, p.iii).

This paper has demonstrated that Australia’s indigenous children are in trouble and are not

being treated in accordance with the high standards set out by the CROC. The Royal

Commission into Aboriginal Deaths in Custody have acknowledged that racism has become

institutionalised towards indigenous people; to the indigenous youth these discriminatory

practices have become part of their everyday life, and are only ever acknowledged when it

becomes physical or exclusionary (Foley, 2003, p.17). And despite the recommendations of

the Royal Commission, and Australia’s obligations to comply with the ‘UN Convention on the

Rights of the Child’ treaty, the Australian government has been unable to reverse this trend.

Thus Australia’s Indigenous children are still disproportionately experiencing racial

discriminatory practices that impinge on their human rights and their ability to fully

participate equitably in Australian society.

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