One of the great injustices in the criminal justice system has been the failure of successive governments to implement reforms called for by Aboriginal communities, a leading Indigenous child care organisation says.
In a submission to the parliamentary inquiry into Australia's youth justice and incarceration system, the Victorian Aboriginal Child and Community Agency (VACCA) said by failing to address and implement the recommendations from multiple inquiries since the 1991 Royal Commission into Aboriginal Deaths in Custody, governments were "failing in their duty of care towards Aboriginal children and young people and serious reform has remained elusive".
"To end the criminalisation of Aboriginal children and young people, there needs to be a systemic approach which holistically addresses the complex combination of social, structural, political, historical, intergenerational trauma, and psychosocial factors that drive it," VACCA said.
They said this includes centring Aboriginal culture and healing; strengthening families and communities; prioritising education and early support; implementing restorative justice practices; address underlying factors; and empowering Aboriginal Community-Controlled Organisations (ACCOs).
The inquiry was set up last month, with Greens Senator David Shoebridge saying it was the first time a senate inquiry would examine federal responsibility for youth justice.
It came in the wake of calls to overhaul a youth justice system that saw an Aboriginal child dying in custody in Western Australia in August — the second child in less than a year.
In their submission, VACCA urged the committee to focus on the criminalisation of children, arguing many faced parental incarceration, which is linked to interactions with youth justice and child protection systems.
"Mainstream approaches to youth justice often emphasise risk and protective factors on an individual level rather than recognising historical and societal factors and how these impact entire communities," VACCA said.
"It is important to go beyond existing understandings of these factors, towards recognising the significant role played by historical, social, political, and systemic structures in influencing the over-representation of Aboriginal young people in youth justice."
The Agency said this is a preferred method to addressing the "criminality of children," which they argue fails to address societal factors and solely focuses on the individual —"which is entirely unfair".
VACCA also labelled the intersection of criminalisation and disability as serious and where "urgent reform is required".
"Systemic discrimination and barriers, in conjunction with an absence of support, are creating a pathway into prison, rather than into education, health and family supports," VACCA said.
In 2021-22, 67.9 per cent of Aboriginal young people under youth justice supervision in Victoria had an intellectual disability.
12 per cent had a language disorder, 6 per had autism spectrum disorder and 6 per cent had Foetal Alcohol Syndrome Disorder (FASD), with VACCA arguing the challenges associated with ensuring children and young people receive an accurate diagnosis meant these numbers were likely an underestimation.
The organisation also highlighted the recent backflip by the Victorian government in deciding to not raise the age of criminal responsibility to 14 — derided as a betrayal by Indigenous organisations in Victoria.
Medical, legal, and Indigenous organisations have long called for the age to be set at 14, in line with international standards, but opposed by the Victorian opposition - who want it to remain at 10 - and the Victorian police - who have advocated to be at 12.
Across the country, a number of jurisdictions have implemented decisions which negatively impact Indigenous children, often using youth crime as an electoral wedge.
Speaking to the National Press Club last week, National Child Commissioner Anne Hollonds said some politicians have told her there are "no votes in children" when she has tried to raise the issue of youth justice.
Juxtaposing the decision to not raise the age to 14 with the federal government's proposed ban on children under 16 accessing social media, VACCA asked: "If a 14-year-old child is not deemed to be mature enough to use social media, can another child of the same age be potentially held criminally accountable for their actions?"
While they accepted much of criminal justice is state based, they urged the considerable power of the committee to push for reform to ensure a better future for children.
"The youth justice system in Australia, particularly its impact on Aboriginal children, requires urgent and comprehensive reform," VACCA said.
"By learning from international best practices… and taking a unified, nationwide approach, we have the opportunity to create a more just, effective, and culturally responsive youth justice system."
