Kath McFarlane, PhD Candidate - UNSW (Law)

Currently:◦ Chief of Staff, Minister in the NSW Govt.◦ PhD Candidate (Law) – University of NSW◦ Member Women’s Advisory Council, NSW Corrective Services

Previously:◦ Lecturer in Justice Studies, Charles Sturt University◦ Executive Officer, Children’s Court of NSW ◦ Executive Officer, The NSW Sentencing Council◦ Official Visitor, NSW Corrective Services ◦ Coordinator, No New Women’s Prison Campaign (NNWPC)◦ Coordinator, The Mulawa Project Prison Visiting Scheme

Evidence presented to the Federal Govt’s Committee on Aboriginal & Torres Strait Islander Affairs, Inquiry into the high levels of Indigenous juveniles and adults in the criminal justice system.

Preliminary PhD findings written up in the Institute of Sydney’s Criminology Journal Current Issues in Criminal Justice From Care to Crime: Young Women in the Criminal Justice System, Nov 2010.

Does a history of out of home care constitute a primary risk factor in the development of criminal behaviour?

Does it lead to an increased likelihood of involvement with the criminal justice system and juvenile and adult incarceration?

Care & Crime

The overwhelming bulk of evidence indicates that most young people do not engage in criminal activity.

Of those that do, the overwhelming majority do not go on to commit further offences.

However, ‘out of home care’ (ie placement out of home in an institution, foster care or kinship care) has been associated with juvenile re-offending.

A series of NSW Parliamentary Inquiries has found that State wards are highly likely to be over-represented in the criminal justice system.

For eg, in 1992 the Inquiry into Juvenile Justice found that female State wards were 40 times more likely to be detained in custody than non-wards.

Unable to meet bail conditions, they were frequently remanded in custody for essentially welfare-related reasons: ie homelessness, poverty, exposure to abuse.

The 1996 Wood Royal Commission reported that wards were over-represented in criminal activity and as victims of pedophilia and prostitution.

”No community with any real concern for the safety and well-being of its children can tolerate a system under which there is an inevitable, or even substantial, drift of State wards to juvenile detention, with its increased risk of progression to adult imprisonment.”

 

In 2010, the Strategic Review of the New South Wales Juvenile System, commissioned by the former Labor Minister for Juvenile Justice, Graeme West, recommended that addressing the risk factors of out of home care and its links to the juvenile justice system would be a ‘sound policy platform’.

Shortly afterwards, Minister West resigned from Parliament, citing Government refusal to adopt the Report’s recommendations and claiming he could achieve more outside of Government.

On community orders

In 2003, 36% of females and 21% of males on community orders (ie sentenced to community-based penalties) in NSW had been in care.

In custody

39% of females and 28% of males (both Indigenous and non-Indigenous) reported a ‘history of out of home care’.

By 2008, the numbers had dropped slightly for females, to 34%.

However, an astounding 62% of Aboriginal males, had been or currently were, in care.

This compared to 19% of non-Aboriginal females and 36% of non-Aboriginal males with a history of out of home care.

Young people on community orders, who were also in care, reported a raft of social disadvantage indicators, including:

◦ Having experienced a physical injury requiring medical treatment;

◦ Having had unwanted sex;

◦ Having no close friends;

◦ To have received special education & treatmentfor substance abuse;

◦ To be living in unsettled accommodation;

◦ To be unemployed;

◦ Having relatives who had been in prison; and

◦ To be in receipt of Government benefits.

International studies have shown that those in care are more likely to receive a caution or conviction than their peers.

There is evidence of early onset of delinquency in the care cohort compared to their non-care peers.

There is some evidence that this group is over-represented in serious or violent offences.

Whether a history of out of home care constitute a primary risk factor in the development of criminal behaviour; and

Whether it leads to an increased likelihood of involvement with the criminal justice system and juvenile and adult incarceration.

Findings

Examined 111 Children’s Court criminal files

Over 1/3 were in or had been in care

Another 23% were ‘extremely likely’ to be in care

At less than 0.5% of the NSW child population, this means that children in care are 68 times more likely to appear in the Children’s Court than the non-care cohort.

Young women comprised just over a quarter of the sample.

60% of the female cohort was identified as being of Aboriginal or Torres Strait Islander background – twice the rate of non-care Indigenous females in the sample.

The files showed the girls’ shared common backgrounds of homelessness and abandonment, with periods in refuges, group homes, and on the streets.

Many of the offences were fairly minor – including offensive language, resist arrest, etc.

Breach of curfew conditions, such as visiting relatives in exclusion areas, often brought young women back before the court.

Most offended in company – generally relatives or fellow residents in group welfare homes.

There is evidence of limited utilisation of referrals by police to alternatives to court – such as cautions or conferencing.

Almost ½ of the girls had been charged with malicious damage – all committed in foster care or group home where they lived.

Egs include: marking walls; kicking over a chair; throwing the door back

onto the wall.

None of the female non-care cohort was charged with this offence.

• Many girls were bail refused, or had bail conditions imposed upon them they could not

meet, resulting in them spending time in juvenile detention.

• Often, the young person was remanded back to the care of the group home or foster placement where the criminal charge had been laid.

• This created a cycle -young people were repeatedly brought before the court for incidents arising from their placement, only to be placed there again.

• There is evidence that involvement in the criminal justice system is intergenerational.

• Many of those people in custody or on community-based orders are following in the footsteps of their parents or grandparents.

• Significantly, many were removed from their families as a result of successive Government policies.

• These policies resulted in systemic and long-lasting disadvantage for hundreds of thousands of Australians.

• The Australian Government has given official recognition to the widespread systemic abuse of children perpetrated in the name of the State.

• This recognition began with HREOC’s Bringing Them Home report into the experiences of the Stolen Generations…

• was followed by the Senate Committee’s Lost Innocents – Righting the Record report into the transportation and institutional care of experience of British and Maltese child migrants….

• and followed with the Senate Community Affairs Committee series of inquiries into Australians who experienced put of home care as children.

The Federal Apology

On 13 February 2008, then Prime Minister Kevin Rudd issued a formal apology to all Aboriginal and Torres Strait Islander peoples on behalf of current and successive Commonwealth Governments.

We apologise for the laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians.

We apologise especially for the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country. For the pain, suffering and hurt of these Stolen Generations, their descendants and for their families left behind, we say sorry.

To the mothers and the fathers, the brothers and the sisters, for the breaking up of families and communities, we say sorry. And for the indignity and degradation thus inflicted on a proud people and a proud culture, we say sorry.

The ‘Forgotten Australians’ is the name given to those adults who grew up in out of home care - foster homes, orphanages and other institutions – throughout Australia, from the 1920’s until the 1990’s.

Other common terms include: - careleavers; fosterkids; wardies; and homies.

The term includes those people who were placed in juvenile detention institutions - such as the Parramatta Girls Home or Hay Gaol – for often spurious reasons, including being deemed ‘exposed to moral danger’ after being abused or neglected, or ‘uncontrollable’ for running away or being otherwise defiant.

In 2004 the Senate Community Affairs Committee’s series of Inquiries into Australians who experienced out of home care as children.

The first report (tabled in August 2004) estimated that approximately 500,000 Australians experienced out of home care in the last century alone.

In 2008, faced with an apathetic Government response and prompted by the Forgotten Australians’ unrelenting public campaign for recognition, the Committee took the highly unusual step of revisiting its Inquiry.

The bi-partisan Committee’s June 2009 report was highly critical of Government inaction.

18 months later, the Federal Government made an historic apology for the widespread emotional, physical and sexual abuse they suffered at the hands of their supposed caregivers.

Echoing the apology to the Stolen Generations made a year previously, the Government’s words acknowledged the suffering, abuse and systemic disadvantage experienced by many people who grew up in at the hands of the State, the Church and private agencies.

Children were ‘neglected and isolated, brothers and sisters separated, contact with family restricted or denied and opportunity disregarded’, with children pressed into harsh domestic service.

As the NSW Government subsequently acknowledged

“This has had untold consequences, with a legacy that has sometimes been passed down the

generations from family to family”.

Many people continued to experience significant disadvantage as adults, in the form of:

- Drug & alcohol abuse;- Poor education outcomes and limited

employment opportunities;- Poverty;- Homelessness;- Long term mental health and physical problems;- Difficulty in sustaining relationships;- Poor parenting skills; and - Contact with the criminal justice system.

Being a member (or descendant of) the Stolen Generations or The Forgotten Australians has been associated with involvement in the criminal justice system.

The 2001 NSW Inmate Health Survey found that 33% of Aboriginal women in custody reported being removed from their families as children.

Significantly, 31% of women said that their parents had been forcibly removed as children.

In 2008, 45% of Aboriginal women reported childhood removal.

The same report found that 32% of Aboriginal men in custody reported being removed from their families as children.

21% said that their parents had also been removed as children.

In 2008, 48% of Aboriginal men in custody reported being removed.

The reports also established that in 2001, 23% of non-Aboriginal women and 21% of non-Aboriginal men in custody had a history of out of home care.

In 2008, this had risen slightly to 29% of non-Aboriginal women and 24% of non-Aboriginal men.

The Stolen Generations report different physical and mental health outcomes than other non-removed offenders.

Compared to their non-removed peers, adult Aboriginal prisoners removed from their families as children reported:

◦ significantly worse mental health outcomes;

◦ were more likely to be jailed more than 5 times;

◦ to have experienced child sexual assault; and

◦ to have attempted suicide.

The Royal Commission into Aboriginal Deaths in Custody found that of the 99 deaths they examined, almost ½ had been removed from their families as children.

• The problems experienced by the Stolen Generations and Forgotten Australians are inter-linked and often inter-generational.

• Yet their over-representation in the criminal justice system has not been widely acknowledged by Government.

• It is not a demographic routinely collected by or reflected in corrections or court statistics.

• There are few Government policies or programs which specifically cater for juvenile or adult offenders who have experienced out of home care.

• While some States have established Trust Fund Reparation schemes, there has been no public acknowledgment of the role such schemes played in the widespread removal of Aboriginal children and the transmission of intergenerational disadvantage and subsequent involvement in the criminal justice system.

• This disadvantage was often used to then justify the removal of another generation of children.

• For example, ‘having no visible means of support’ was justification for child removal to a welfare institution, even when the parent’s poverty was the result of the misappropriation of Indigenous peoples’ wages by Aboriginal Protection Boards and welfare administration bodies.

• People who have been in the care of the State as children historically make up less than 0.2% of the NSW child population.

• However, the numbers in care are increasing: there are now 20,000 children in care in NSW.

• As the numbers of children in care increase, a comparable negative impact on crime rates and a corresponding increase in demand on the legal resources of the State can be expected.