indigenous australian youth and society
TRANSCRIPT
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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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