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designed for Indigenous children must be the preferred sentencing option in all but themost serious cases demanding a custodial penalty. There are successful Indigenouscontrolled diversionary programs in various jurisdictions. However, they are limitedin number, under-resourced and under-utilised by the courts. Indigenous young peoplewho are diverted are, therefore, unlikely to benefit from programs designed anddelivered by their communities. As a result they are more likely to fail to completetheir sentences and to receive a custodial penalty in response to breaching their noncustodialorder. The Inquiry was referred to research by the University of WA’sCrime Research Centre which noted that the effects of Aboriginal young people notreceiving diversionary treatments or of ‘failing’ them are compounding.The courts may perceive Aboriginal youth to have ‘failed to respond’ to diversionary optionssuch as cautioning and family group conferences and consequently ‘up-tariff’ them, that is,give them a more severe disposition than justified by the current offence alone (ALSWAsubmission 127 page 370).Indigenous children and young people do not receive the same benefits ofdiversionary options as non-Indigenous young people. Moreover, existingdiversionary options are not of Indigenous making. The diversionary options in mostinstances are alternatives created by the non-Indigenous juvenile justice system fornon-Indigenous young people. To the extent that they extend to Indigenous youngpeople they are imposed on them and their communities. The inevitable consequenceof this process is entrenched over-representation of Indigenous young people indetention centres.Rules 13 and 14 aim to limit the sentencing options of courts to diversion into anIndigenous non-custodial program except in the most serious cases. Rule 15 requiresthe court to give its reasons in writing whenever a custodial sentence is imposed on anIndigenous young person.The existing criminal justice system, anchored in a philosophy of punishment and anarchitecture of imprisonment, can blind us to alternative means to achieve peace and orderwithin a framework of justice (Canadian Royal Commission on Aboriginal Peoples 1996apage 214).Standard 8: Juvenile justiceRecommendation 53a: That the national standards legislation incorporate thefollowing rules to be followed in every matter involving an Indigenous child oryoung person.Recommendation 53b: That the national standards legislation provide thatevidence obtained in breach of any of the following rules is to be inadmissibleagainst the child or young person except at the instance of the child or youngperson himself or herself.Rule 1. WarningsArrest and charge are actions of last resort. Subject to Rule 2, a police officer is toissue a warning, without charge, to a child or young person reasonably suspectedof having committed an offence without requiring the child or young person to
admit the offence and without imposing any penalty or obligation on the child oryoung person as a condition of issuing the warning.Rule 2. Summons, attendance noticeA child or young person may be charged with an offence when the alleged offenceis an indictable offence. The charging officer must secure the suspect’s attendanceat the court hearing in relation to the charge by issuing a summons or attendancenotice unless the officer has a reasonable belief that the suspect is about to commita further indictable offence or, due to the suspect’s previous conduct, that thesuspect may not comply with a summons or attendance notice.Rule 3. NotificationWhen a child or young person has been arrested or detained the responsibleofficer must notify the appropriate accredited Indigenous organisationimmediately of the fact of the arrest and make arrangements for the attendance ofa representative of that organisation.Rule 4. ConsultationThe responsible officer, in accordance with Standard 4, must consult thoroughlyand in good faith with the appropriate accredited Indigenous organisation as tothe appropriate means of dealing with every child or young person who has beenarrested or detained.Rule 5. InterrogationNo suspect or witness is to be interviewed in relation to an alleged offence unless,a. a parent or person responsible for the suspect or witness is present, unless thesuspect or witness refuses to be interviewed in the presence of such a person orsuch a person is not reasonably available,b. a legal adviser chosen by the suspect or witness or, where he or she is notcapable of choosing a legal adviser, a representative of the appropriateaccredited Indigenous organisation is present, andc. an interpreter is present in every case in which the suspect or witness does notspeak English as a first language.Rule 6. CautionNo suspect or witness is to be interviewed in relation to an alleged offence unless,a. the caution has been explained in private to the suspect or witness by his or herlegal adviser or representative,b. the interviewing officer has satisfied himself or herself that the suspect orwitness understands the caution, andc. the suspect or witness freely consents to be interviewed.Rule 7. Withdrawal of consentThe interview is to be immediately discontinued when the suspect or witness haswithdrawn his or her consent.
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(c) examine the principles relevant
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The Inquiry’s recommendations are
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child. We’d like to take this bab
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The benefits that influenced the pa
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Confidential submission 843, Queens
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Fair 23.4% 13.0%Poor 5.7% 2.4%Not s
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The Inquiry is aware that many othe
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Part 2Tracing the HistoryC h a p t
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appointed a Select Committee to inq
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The ‘protectionist’ legislation
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From this time on, States began ado
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For the Aboriginal child growing up
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3 New South Wales and the ACTAt Dar
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Indigenous children from their fami
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1933 and to those resisting removal
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towards their people since the time
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By the late 1930s it was clear the
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Mt Penang Training Centre [in the e
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had died.In Sydney my mother and Es
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She made us stay up late sewing, kn
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her family background made sure of
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and publicity that occurs with prop
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on the conditions under which Indig
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was rare for legal representation t
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whatever. Considering I come from a
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Aboriginal Child Care Agency (VACCA
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unacceptable or unchristian-like be
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government policy until at least 19
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Forcible separation through the dor
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ecome very frightened of her. We cl
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leave or escape from such reserve o
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and financial responsibilities.In 1
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Night is drawing nearThis always up
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several days later that she was adm
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than an Aboriginal Penal Colony. Ou
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6 Tasmania… there does not appear
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Ten years later few of the Islander
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with that. It was just the way of l
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in Tasmania. The idea being to even
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and my brothers and sisters.Confide
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domestic and farm work. Under the I
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If the police sent me only the most
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[In 1926] came a visit from A.J. Ne
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‘neglect’ was not a justificati
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accepted into the state schools. Fr
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I never received any money from my
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Several more years passed and I sti
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8 South AustraliaThe general opinio
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South lobbied for the power to remo
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In 1936 David Unaipon spoke on the
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Confidential submission 112, South
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tried to place all Indigenous child
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culture was gone, our family was go
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Goldsmith, argued for the establish
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At The Bungalow in the 1920s about
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future ‘absorption’. He wanted
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The stated intentions of the missio
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The assembled children were loaded
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emoval only on a children’s court
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Department of Aboriginal Affairs wh
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All the girls slept in one dormitor
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Part 3Consequences of RemovalChapte
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Totality of separationThe overwhelm
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When I first met my mother - when I
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Institutional conditionsThe living
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Confidential evidence, New South Wa
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Sexual assaults reported by Inquiry
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A good home with a kindly mistress
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They had to - if they didn’t do i
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and babies, infants and young child
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Confidential submission 109, Queens
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We were constantly told that we did
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of religion to us. We used to have
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poverty. These in turn cause their
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He says looking within himself that
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Most families provide growing child
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(Wolkind and Rutter 1984 page 47).
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The effects of institutionalisation
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Confidential submission 126, Victor
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Helen Siggers, a former nursing sis
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sense of being different from other
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The Sydney Aboriginal Mental Health
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The following table summarises the
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The effects of separation from the
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The policies of separation were oft
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It is possible for Aboriginal peopl
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aged between 6 months and 7 years.]
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Eventually I got married when I was
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The effects on family and community
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profound disadvantages (‘other li
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That’s also impacted on my own li
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Association in the Northern Territo
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I look at my son today who had to b
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Now I understand why Mum is the way
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emoved. More than one-third of thos
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Mother Jenny:Jenny grew up in a cha
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He was about 6 month becaus he was
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articulated needs to trace their fa
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Quoted by Link-Up (NSW) submission
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Bonds broken foreverEven for those
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I was in one of the cottages [in a
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the last she saw of him. She said t
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We kept in contact with one another
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Part 4ReparationKooris Come in All
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Two broad periodsBroadly speaking t
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the kingdom. The law defended indiv
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Jaggs 1986 page 7). However, no Sta
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The manner in which children were t
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page 211; see also Ex parte Earl of
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Source: Appendices to this report.F
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understanding. Indigenous children
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Nations Resolution of 1946, followe
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Article 2 states that,Everyone is e
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The Convention confirmed that genoc
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the extent to which that intention
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y Australia in July 1949, came into
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14 Making ReparationThe Government
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A human rights frameworkPrinciples
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(submission 754 page 50).The Broome
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(c) An official declaration or a ju
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There would be few Aboriginal peopl
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On behalf of our constituent nation
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It must be acknowledged that, no ma
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and effects of forcible removals.Ju
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[Thus] it will be the relevant indi
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The significance of Indigenous lang
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This recommendation extends only to
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general damages for the pain and su
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the United Nations Special Rapporte
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In relation to the compensation iss
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medical, psychological and social a
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It should be appreciated that the a
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Part 5Services for Those AffectedEm
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Inquiry to examine all services app
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governments should confine their ro
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the history of forcible removal and
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16 Access to Personal and Family Re
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Little effort has been made to iden
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What was very disturbing … was th
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through all of their files to disco
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Confidentiality provisions within t
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a former ward who was harmed or abu
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derogatory and racist language, so
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family history. Other agencies, how
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Non-discriminationThe arrangements
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Adequate resourcesThe deployment of
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implications’ of this task ‘sho
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That a consistent approach be adopt
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and access procedures so that they
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Murri academic Henrietta Fourmile m
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Recommendation 29b: That the Counci
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Royal Commission Recommendation 52
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can be kept to a minimum because of
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The SA Aboriginal Child Care Agency
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• consultation regarding record a
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operation.The funding constraints l
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States when James was six. The adop
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Confidential evidence 553, Northern
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expectations of two different cultu
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In other cases psychiatrists do not
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The need for trauma and grief couns
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worker is based at the State’s ps
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The Yorgum Aboriginal Family Counse
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When we began [in 1991], we were se
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Most States and the Northern Territ
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Territory Health Service [must] rec
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services, Aboriginal and Islander C
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It is a model that takes into accou
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There are very strong and cogent ar
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The effects of forcible removal are
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needed services. The point was clea
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Carol[Carol’s grandmother was rem
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me how to be a good mother. A year
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statements expressing understanding
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Policy deficienciesThe general expe
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Likewise there can be cases where r
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We have proposed that the churches
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A further problem is that we alread
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issues with relevant communities’
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Part 6Contemporary SeparationsThere
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disappointment in the family is you
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when I got my holidays from work. S
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missing information in both of thes
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part of welfare practice. The forma
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integrated into the Aboriginal Chil
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Reliance on a view of culture as fi
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Non-Indigenous care for Indigenous
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were placed with non-Aboriginal fos
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The protocol also provides for CSV
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identified an urgent need for statu
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Inadequate consultation with AICCAs
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The assessment of prospective foste
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seen as pathological or dysfunction
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It is not surprising, given the exp
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Department of Social Security inacc
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acknowledged and addressed.Conclusi
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have the scar today.I did not know
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22 AdoptionThere can be little argu
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of care (Ban 1993 page 5).• The c
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and counselling is to ‘explore al
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Aboriginal child. The Aboriginal ag
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In possession of this evidence, the
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Confidential submission 9, Queensla
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The criteria are alien to aborigina
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never got kicked out because she ne
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23 Family LawFamily law plays a rol
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• whether stability is to be pref
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family member. Thus there is still
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judges (Nicholson 1995 page 13, Coo
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without any legislative base. Howev
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The Australian Institute of Crimino
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While there are many occasions wher
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However, NSW had the highest number
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Dec 95 254 481.1 491 25.0Mar 96 276
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custody,• the Children’s Court
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In addition Indigenous people gener
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wilderness trek with several weeks
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submission pages D-26 to D-28).West
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Responses to law and order problems
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Arrests for public order offences s
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legislation. The available evidence
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also to provide greater control ove
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had high proportions of Indigenous
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alternative facilities. At times, n
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communities and show no understandi
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conferences lack specific time fram
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Similarly, when questioned about th
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Repeat offendersRecent changes to s
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justice system’ (1995 page 69).Pu
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[Significantly] contributes to on-g
Page 470 and 471: The Inquiry was repeatedly told tha
Page 472 and 473: oys will have no family visits for
Page 474 and 475: people or to reduce the levels of p
Page 476 and 477: Education (interim submission page
Page 478 and 479: dispossession and marginalisation -
Page 480 and 481: • the implicit or explicit interp
Page 482 and 483: their initiatives include programs
Page 484 and 485: private dwellings, of which three-q
Page 486 and 487: During the early part of the twenti
Page 488 and 489: always associated with the alienati
Page 490 and 491: Because of their high unemployment
Page 492 and 493: 26 A New FrameworkAn entrenched pat
Page 494 and 495: ecognised international right of al
Page 496 and 497: ange of possible outcomes other tha
Page 498 and 499: Aboriginal local governing bodies r
Page 500 and 501: submission 309, Anglican Church Soc
Page 502 and 503: matter holding instead that ‘we m
Page 504 and 505: ‘internally legitimised tribal au
Page 506 and 507: and/or the establishment of regiona
Page 508 and 509: In 1992 the Council of Australian G
Page 510 and 511: 3. That negotiated agreements will
Page 512 and 513: Recommendation 44: That the Council
Page 514 and 515: It is not surprising, given the exp
Page 516 and 517: inevitably face and be able to addr
Page 518 and 519: ureaucratic procedures (Homes for B
Page 522 and 523: Rule 8. RecordingEvery interview mu
Page 524: currently sets out four principles
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