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How the justice system can increase the vulnerability of Aboriginal young people, and what we can do about it! Jared Sharp Manager, Law &Justice Projects North Australian Aboriginal Justice Agency (NAAJA)

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Jared Sharp delivered the presentation at the 2014 Young People at Risk Forum. The 2014 Young People at Risk Forum reviewed the challenges and solutions surrounding intervention programs around topics such as suicide prevention, substance abuse, mental health, education, employment and housing. Additionally, the forum focused on culturally competent care and care within Aboriginal communities. For more information about the event, please visit: http://www.informa.com.au/yprisk14

TRANSCRIPT

Page 1: Jared Sharp

How the justice system can

increase the vulnerability of

Aboriginal young people, and

what we can do about it!

Jared Sharp

Manager, Law &Justice Projects

North Australian Aboriginal Justice Agency (NAAJA)

Page 2: Jared Sharp

This Presentation:

1. NT Justice context

2. Procedural Justice

3. Innovative approaches to enhance procedural justice:

I. Understandable, accessible processes:

• NZ Family Group Conferencing

II. Providing young people with intensive, culturally safe support:

• NAAJA‟s Throughcare Project

• Senior Indigenous Youth Justice Worker

III. Culturally strengthening court processes:

• Community Council

IV. Empowering young people:

• New York Youth Courts

4. Recommendations

Page 3: Jared Sharp

North Australian Aboriginal Justice

Agency (NAAJA) • NAAJA provides high quality and culturally

proficient criminal and civil legal assistance for

Aboriginal people in the Top End.

• In addition to the criminal and civil legal practices,

NAAJA has a Law & Justice projects section (policy

& law, community legal education, Throughcare

project).

True Justice, Dignity and Respect

for Aboriginal people

Page 4: Jared Sharp

Young people in detention - how does

the NT compare?

South

Australia

Tasmania

Northern

Territory

Population 1,662,200 512,400 236,900

Youth

detention as

at June

2009

58

32

33

Youth

detention as

at June

2013

58

17

49

Source: Australian Institute of Health and Welfare 2013. Juvenile detention population in Australia 2013. Juvenile justice series no. 13. Cat. no. JUV 31. Canberra: AIHW

Page 5: Jared Sharp

Young people in detention - how does

the NT compare?

Youth Detention rate (number of young people per 10,000 relevant population)

• National average is 3.25

• NT rate is 18.66 as at June 2013 (it was 12.17 as at June 2009)

• WA is next highest at 6.12

• Most jurisdictions around 3 per 10,000

Page 6: Jared Sharp

Over-incarceration of Aboriginal

young people in NT

82%

99%

0%

20%

40%

60%

80%

100%

120%

NT Population NT Adult PrisonPopulation

NT JuvenileDetentionPopulation

Indigenous

Non-Indigenous30%

Page 7: Jared Sharp

Child protection in the NT

• On just about every wellbeing and safety measure NT children

are at greater vulnerability than children in other jurisdictions.

• NT Children‟s Commissioner has identified hazards confronting

NT children:

o Exposure to family violence

o Teen parenting (carer instability, poverty)

o Exposure in utero to alcohol/nicotine

o Parental use of other substances

o Poor nutrition

o Various diseases such as otitis media

o Abuse and neglect

o Poor school enrolment and attendance

Page 8: Jared Sharp

Child protection in the NT

Basis of substantiations (2011-12):

Neglect 53%

Emotional 27%

Physical 17%

Sexual 3%

Systemic issues affecting Aboriginal young people

"Overcrowding, poverty means that we have created an environment that when

looked at from white middle class eyes is neglect"

Frank Hytten, CEO Secretariat of National Aboriginal and Islander Child Care

Source: DCF 2012, cited by Dr Howard Bath, NT Children‟s Commissioner, „Vulnerability, Risk and Justice for Children and Young

People in the Northern Territory‟, paper at the Fourteenth Annual Biennial conference of the Criminal Lawyers Association NT, Bali,

June 27, 2013. See: http://www.clant.org.au/index.php/the-bali-conference/2013

Page 9: Jared Sharp

Child protection applications made as

first step not last resort

Example:

• NAAJA Civil team supports parents in child protection applications in relation

to their children

• T is a mother of a newborn baby.

• Department of Children and Families (DCF) removed baby shortly after birth

and applied for short term protection order

• T wishes to breastfeed. Concern is that in similar cases, DCF have not made

it a priority for children in care to get consistent supply of mother‟s milk

• Major protective concerns are domestic violence

• Father, however was in prison

• Court ordered that baby be returned to mother‟s care, at least until father

released from prison

9

Page 10: Jared Sharp

Over-representation of Aboriginal

young people

• 570 of the 695 children in care in the Northern Territory

were Aboriginal as at 30 June 2012 (82%)

Source: NT Children‟s Commissioner, 2012 Annual Report

Page 11: Jared Sharp

2. Procedural Justice

• What is procedural justice?

1. Extent to which court proceedings are understandable, comprehensible,

2. Extent to which parties have a voice in decision-making

3. Decisions made which address needs of community, victim, defendant

Aboriginal people and procedural justice:

• Foreign legal concepts

• Historical (and current) power imbalances

• Social cohesion (Prof Tony Vinson) – link between offender and

their community. Where is the focus on cultural reconnection,

healing, bringing in family and community to reestablish links?

11

Page 12: Jared Sharp

Lack of Procedural Justice (Youth Justice)

Pre court

• Opportunity to access diversion to avoid need for court

• Involvement of Elders, community leaders, family

• Supports provided for YP, parents, family

• Alternative bail options to avoid being taken into custody

Court

• Language used in court

• Complex concepts

• Formality of „adult like‟ court process

• Being in cells near adults, psychological impact

• Young person not directly involved in courtroom conversation

• Only Aboriginal person in court (absence of family, Elders)

• Sometimes process happens as if young person not even there

Post court • Support to attend appointments

• Support to understand court orders

• Support to address changes in circumstances

Page 13: Jared Sharp

Lack of Procedural Justice (Child

Protection)

Pre court

• Opportunity to develop care plan to avoid need for court intervention

• Supports provided for parents, family

Court

• Language used in court

• Complex concepts

• Formality of court process (ie. giving evidence)

• Parties not directly involved in conversation

• Only Aboriginal person in court

Post court

• Support to attend appointments

• Support to understand court orders

• Support to address changes in circumstances

Page 14: Jared Sharp

3. What are some innovative

approaches to enhance procedural

justice?

Page 15: Jared Sharp

• „lynch-pin‟ of NZ youth justice and child protection

systems

• Blended Maori/Western model

• All child protection matters must go to FGC

before application can be made

• Conferencing or alternative used in almost all

youth justice matters

15

I. Family Group Conferencing

Page 16: Jared Sharp

I. Family Group Conferencing

Purpose:

“to take power out of the hands of the State and

judiciary and place it with the family and whänau” –Judge Boshier, NZ Family Court

Recognises:

those directly involved (young person, whänau, victim and

community) are best placed to put together a plan to

address underlying issues, support young person, bolster

family

Page 17: Jared Sharp

I. Family Group Conferencing

NZ evaluations:

• From 2001 – 2011, decrease in apprehensions and

offending (in contrast to adults)

• 1/3 of young people who go through FGC didn‟t re-

offend within 2 years.

• Another 1/3 only re-offended in minor way

• Some criticisms: held in offices, tired outcomes

17

Page 18: Jared Sharp

I. Family Group Conferencing

Conferencing in the NT:

• In legislation, but conferences do not form an active part

in youth justice or child protection practice in the Northern

Territory

• The result?

• parties disempowered, lack voice, lack understanding

• families not brought into the process

• Too much left to courts

• Impacts quality of plans/sentencing outcomes

• Key issues not addressed

Page 19: Jared Sharp

I. Family Group Conferencing

Recommendation 1

FGC be implemented in the NT:

• Youth justice – pre-court diversion, court diversion,

sentencing

• Child protection - all matters where DCF considering

applying for a protection order should first go to FGC

Page 20: Jared Sharp

II. Intensive, culturally safe support

Support gaps in the NT

Young people cycling through courts, detention, then prison

Not addressing key issues:

• Very limited access to therapeutic programs in the community

• Very limited access to programs in detention

• Not engaged with school, training, work

• Precarious housing

• Leave detention to same situation

• YP doesn‟t understand the system

The result?

• YP quickly return to detention, graduates to prison

(NT recidivism is highest in Australia)

Page 21: Jared Sharp

II. Intensive, culturally safe support

NAAJA‟s Throughcare Project

• Established 2009

• Prison-based workers, support detainees access services and develop post release plans (especially parole)

• Intensive workers, support detainees 6 months pre release and at least 6 months post release

• What is Throughcare?

support from custody to successful reintegration into the community

Voluntary

“continuous, co-ordinated and integrated” (Clay, 2000)

Page 22: Jared Sharp

How Throughcare works 6 months pre-release

Build relationship

Learn about aspirations, barriers and goals

Assist to develop a release plan that empowers them to identify their own goals and work

with them to address any barriers

Encourage and support

Work with family, home visits

Work with other agencies in coordinated way

6 or more months post-release

Progressively empower client to take increasing control over their affairs

Not simply doing tasks for client, but supporting client when no one else able to

Working with individual and family

Encouragement, support through ups and downs

Link with services

Work with other agencies in coordinated way

Page 23: Jared Sharp

Throughcare’s success

• Only 13% of our clients return to prison whilst part of our program

• 57% recidivism rate in the NT

• Fiscally-sound: Throughcare well and truly pays for itself. If we keep just 5 kids out of detention for 12 months, we are paying for the annual cost of the project

• Community-based, integrated within NAAJA, culturally strengthening

• Voluntary, on client‟s terms, helps build trust

Page 24: Jared Sharp

II. Intensive, culturally safe support

Senior Indigenous Youth Justice Worker

• based on Throughcare model

• Provides early intervention, prevention and

intensive case management services to YP

who are beginning to come in contact with the

criminal justice system.

• works intensively with the YP and their families

to steer them away from the criminal justice

system

Page 25: Jared Sharp

II. Intensive, culturally safe support

Senior Indigenous Youth Justice Worker

• underlying issues

• areas of need – e.g. accommodation, employment

support, education, counselling needs, and drug and

alcohol rehabilitation, family issues

• link with services and facilitate referrals

• link with mentors and Elders

• attending appointments, community work

• support/advocate DCF and Corrections

• court reports - a „face behind the offender‟ by giving a

sense of the YP‟s ideas, beliefs and goals

Page 26: Jared Sharp

Senior Indigenous Youth Justice Worker –

initial impact

• Identifying issues YP face – alcohol/drugs, exposure to

violence, cognitive impairment, disability, petrol sniffing

• Referrals to support services

• Facilitating engagement with services

• Giving services fuller picture of YP being dealt with

Page 27: Jared Sharp

Senior Indigenous Youth Worker:

referrals/engagement July – December 2013

Accommodation

Centrelink

Counselling

Diversion

AODCounsell

ing

Community

Work

Education

Employment

FamilySupport

Fines/Debt

MentalHealth

Support

Mentoring

OtherHealth

Support

Transport

Identification

Male 9 2 5 2 1 9 12 5 16 1 0 4 0 12 1

Female 2 0 1 0 0 0 4 0 4 0 2 3 1 2 0

0

2

4

6

8

10

12

14

16

18

Nu

mb

er

of

cli

en

ts

Page 28: Jared Sharp

II. Intensive, culturally safe support

Recommendation 2

Throughcare and Indigenous Youth Worker roles be expanded across NT:

• Aboriginal community-controlled is crucial

• NAAJA Throughcare model should be expanded across NT and Australia

• Youth justice – not just 1 worker in Darwin, and funding certainty needed

• Child protection – Indigenous Youth Worker role urgently needed

Page 29: Jared Sharp

III. Culturally strengthening processes

29

Rangatahi Court

Pasifika Youth Court Cree Court

Children‟s Koori Court

Page 30: Jared Sharp

III. Culturally strengthening processes

We need a Bi-Cultural Justice System:

Key role for Elders, community leaders

Bringing in family

Less formal, intimidating

Culturally safe

Reconnecting Aboriginal YP with culture

Getting full picture of the individual

Getting to underlying issues

Aboriginal judges and magistrates needed

Local, community-driven initiatives

Page 31: Jared Sharp

Growing evidence base

Example: Community Council (Toronto, Canada)

• Running for 20 years

• YP pleads guilty, court refers sentencing to Community

Council

• panel of 3 Elders, service providers meet with defendant and

family

• Culturally safe environment, seek to re-engage YP with community,

identity, emphasis on culture and pride in culture, pride in self, getting

YP to think about future goals

• Deal with issues underpinning offending – cultural/healing focus

• Council decides plan

• Court approves plan if appropriate

Page 32: Jared Sharp

Growing evidence base

Example: Community Council (Toronto, Canada)

Ontario Department of Justice evaluation:

1. Program reduced an offender‟s likelihood of recidivating

by 33.7%

2. Clients said Community Council helped them more than

regular court to change behaviour and life

circumstances

3. Community Council was important link between

Aboriginal offenders and the community of Aboriginal

services

Page 33: Jared Sharp

III. Culturally strengthening processes

Recommendation 3

Aboriginal justice programs needed in NT

• empower and support communities to take ownership of

local justice issues

• empower courts and give them the resources to trial new

things tailored for local communities.

• Aboriginal judges and magistrates to lead the way

Page 34: Jared Sharp

IV. Empowering young people

New York Youth Court

• Modelled on conventional court process

• Real life cases referred by judge - YP pleading guilty to

minor offence

• Youth Court includes a „sentencing jury‟ to decide

appropriate ways for YP to get back on track

• harnesses empathy, expertise YP have for other YP

34

Page 35: Jared Sharp

Red Hook Youth Court

Page 36: Jared Sharp

How do Youth Courts work?

• Jury considers what will help young person - community

work, essay(s), decision-making session, goal-setting

session, conflict resolution, or referral to social worker (at

CCI).

• Decide dispositions by consensus voting

• Judge announces decision

Page 37: Jared Sharp

Example – „Alice‟

• Trespassing.

• If you could go back, would you change anything? (Yes)

• „Do you understand how trespassing can affect your future goals?‟ (wants to be singer)

• „Are you a positive influence?‟ (besides this, yeah)

• „What learn from this experience?‟

• Action Plan: 1. community work.

2. chose not to give her a letter of apology. Alice didn't think she needed to. Jury thought if they asked to write one, it wouldn‟t be heartfelt.

3. essays. „What steps do you need to take to achieve your goal?‟ (250 words) to help her take steps to reach goal. Another on how trespassing negatively affects the community and her future (300 words)

4. referred to social worker

Page 38: Jared Sharp

Why Youth Courts are so good

• Kids ask the hard questions that never get asked in court

• Questions are more effective coming from peers. Young

person squirmed under the persistent fire of 12 of their

peers!!

• entirely rehabilitative. Ensuring young person knows what

did was wrong, and turning something negative into a

positive.

• non-judgmental. No snide comments, arrogance from

Members

Page 39: Jared Sharp

Why Youth Courts are so good

• Kids who have been respondents sometimes end up as

members!

• Teaches about the law

• Teaches to work as part of team and leadership. Also

leads to further education, employment (At Red Hook,

almost all the kids told me they want to become lawyers)

• Compliance rate is off the charts. Nothing compels

respondents to do what Youth Court decide, yet 94% do

complete!!

Page 40: Jared Sharp

IV. Empowering young people

Recommendation 4

Implement a Peer Court in the NT

• positive peer influences for YP in trouble with the law

• pathway for YP to learn about, and move to career in the

law