Indigenous Young People and Hyperincarceration in Australia

Introduction

This article considers the position of Indigenous young people within Australian juvenile justice, with a particular focus on detention, since this is the harshest penalty to which young people can be subjected to in this country. It exposes the dynamics of present incarceration trends and in so doing conceptualises the nature of state intervention in relation to Indigenous young people as a form of hyperincarceration. This refers to over-representation of specific youth within carceral institutions on the basis of the characteristics of that particular subject population. Hyperincarceration is a form of systemic, historical and continuing injustice.

Indigenous Young People in Context

To fully understand the issues and conflicts pertaining to Indigenous young people in Australia, it is essential to acknowledge the continuing legacy and present realities of colonialism in their lives. An initial sense of the impact of colonialism is provided in the Royal Commission into Aboriginal Deaths in Custody report (Johnston, 1991):

Australia’s history since the arrival of British settlers helps explain the great sense of injustice and the strong sense of common historical experience which Aboriginal people share today. It helps explain their economic, social, residential status and their attitudes to non-Aboriginal Australians and the nation whose foundation was premised on their dispossession. Following the takeover of their land by the British, the personal liberty of Aboriginal people was jeopardized. They no longer had the freedom to live as they pleased and their life choices were dictated much more by government and government-approved missions than was the case for non-Aboriginal people. Their children were taken away to dormitories or distant towns, as parents and kin were thought to be a degrading influence. The various colonial and later State, Commonwealth and Territory Governments introduced policies which led to intrusions into most aspects of their everyday lives. These included inspections of camp sites and other residencies, and limitations upon their mode of living, work, financial and leisure activities. Institutionalization was to be a dominant theme in Aboriginal lives. The general population discriminated against Aboriginal people in many ways, which affected their education, housing, employment, income and self-esteem. (vol. 2, p. 3)

Since British invasion, the Indigenous people of Australia – the Aboriginal peoples and the Torres Strait Islander peoples – have been subjected to a myriad of interventions, exclusions and social controls. This is not simply a historical legacy; it is part of the fabric of everyday life for many Indigenous people today. The modes of imposed state intervention have varied from place to place around the country, and taken different forms at different time periods, including, for example, open warfare and resistance through to periods of ‘protective’ legislation and the struggle for self-determination (Cunneen, 1994).

Just as the nature of this intervention emerged differently in different locations so, too, the contours of Indigenous life and the response to colonialism have varied considerably among Indigenous populations. That is, Indigenous people are heterogeneous in composition. There are differences within and between the various communities in terms of political and spiritual beliefs, regional and family ties, traditional and contemporary lifestyles, class and occupational position, and social identity (White and Wyn, 2013). These differences are crucial to acknowledge in any consideration of policy or project development with regard to how young Indigenous people interact with the institutions of criminal justice.

However, social indicators do provide evidence of the collective negative impact of colonialism on Indigenous people generally. These are acknowledged in the most recent ‘Closing the Gap’ report which shows that (Australian Government, 2014):

It is also the case that the majority of Indigenous people have low incomes, especially those living in rural areas, and that the standard of accommodation remains lower than that experienced by other Australians.

As recognised by the Royal Commission into Aboriginal Deaths in Custody (Johnston, 1991), and other more recent reports (Gooda, 2010) and studies (Cunneen et al., 2013), the explanation for these trends relates to the severe impact colonialism has had on Indigenous culture and ways of life, and the continuing effects of discriminatory policies and practices on Indigenous life chances within the mainstream social institutions.

The dislocations and social marginalisation associated with colonialism has had particular ramifications for Indigenous young people. The Aboriginal and Torres Strait Islander population is estimated to be about 2.4 per cent of the total Australian population, and is relatively young compared to the non-Indigenous population. Around 5 per cent of Australians aged 10–17 years are Aboriginal and Torres Strait Islanders (Australian Institute of Health and Welfare (AIHW), 2013b). Historically, it is worth noting that young Indigenous women were prone to policies which were intended to separate them from their families and communities, and which constituted a form of cultural and physical genocide (see Goodall, 1990). Rather than the breaking up of communities on the basis of ‘welfare’ or ‘protectionist’ rationale as in the past, this is now occurring through systematic ‘criminalisation’ of young Indigenous people, although the main target now is young men (Cunneen, 1994; Cunneen et al., 2013; National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (NISATSIC), 1997).

The negative impact of colonial state intervention into the families and communities of Indigenous peoples cannot be underestimated or understated. The Stolen Generations Inquiry estimated that between 1 in 10 and 1 in 3 Indigenous children, depending on the period and location, were removed from their families between 1910 and 1970; most Indigenous families have thus been affected by this phenomenon (NISATSIC, 1997: 37). Forced removals continue to have devastating effects, both for adult Indigenous people who were removed as children (and who have higher than usual rates of poor health and being arrested; Cunneen and Libesman, 2001), and in regard to intergenerational issues relating to complex trauma-related psychological and psychiatric effects affecting parenting skills and linked to unresolved grief and trauma, violence, depression, mental illness and other behavioural problems (NISATSIC, 1997). The nature of state intervention – whether for welfare or criminalisation purposes – has had a profound effect on Indigenous ways of life, their relationship to authority figures such as the police and to the experiences of young Indigenous people as they grow up in a (post)colonial context.

There is a close relationship between social marginalisation (incorporating racial discrimination and economic and social exclusion) and criminalisation (which constitutes one type of state response to marginalisation). Extensive research has been undertaken in recent years on the over-representation of Indigenous peoples in the criminal justice system. This research has provided considerable evidence of over-representation in most jurisdictions, and particularly at the most punitive end of the system, namely prisons and detention centres (Cunneen et al., 2013). It is essential to understand this social disadvantage within the context of colonialism, dispossession, the destruction of an Indigenous peoples’ economic base and specific colonial policies such as child removal (NISATSIC, 1997). Aboriginal and Torres Strait Islander peoples are not simply a disadvantaged minority group in Australia; they are the Indigenous peoples of Australia whose current socioeconomic status derives from a specific history of colonisation, and whose political status as Indigenous people gives them a number of rights and entitlements (see Cunneen and White, 2011).

One also has to take into account the close scrutiny and constant surveillance of Indigenous peoples by government authorities such as the police that has accompanied the colonial project up to and including today. Many of the confrontations between Indigenous young people and the police take place in the public domains of the streets, parks, malls and shopping centres. The visibility and minority status of Indigenous people, their association in groups and the historical antagonisms between police and Indigenous communities (it has generally been the police who have taken children away from Indigenous families, for example) contribute to ongoing tension and conflict between the parties (Cunneen, 2001; White, 2002, 2013). Zero tolerance has always been the general experience when it comes to Indigenous young people and policing. Research has demonstrated that the harder authorities push, and the more vilified they are by members of the general public, the more likely marginalised young Indigenous people are to engage in activities such as chroming and petrol sniffing (Ogwang et al., 2006). In some instances, it may manifest in gang culture and/or large-scale intergroup fighting within Indigenous communities (Memmott, 2010; Toohey, 2004).

Interviews with Indigenous young people also reinforce the fact that systematic discrimination and racism is a feature of everyday life for them. Social harm and humiliation is a daily experience that thereby shapes their self-esteem, and individual and collective identity (White, 2013). Disapproval of their dress, manner, speech and other behaviours by members of the general public can foster continued and renewed antisocial behaviour on the part of some Indigenous young people (Ogwang et al., 2006). Be this as it may, popular images and representations of Indigenous young people nevertheless tend to over-emphasise criminal activities and substance abuse while ignoring the significant proportions of young people not implicated or engaged in these activities (Palmer and Collard, 1993).

One legacy of colonialism has been heightened levels and perceptions of intra-family conflict, including child sexual abuse (Blagg, 2008; Kimm, 2004). The issue of Indigenous family violence is prominent in Australia and has led to massive state intervention in places like the Northern Territory (involving a systematic campaign to, purportedly, clean up and make safe Indigenous communities, particularly in regard to domestic and family violence). Where it occurs, such violence necessarily has a major impact on young Indigenous people who witness and/or are on the receiving end of it. When publicly re-presented as ‘moral panic’, it also influences the nature and scope of state intervention.

Compounding the stresses of dispossession and marginalisation on many Indigenous families and communities has been the removal of children from Indigenous households. This has already been alluded to above. To these observations, however, we can also add that for many of those who were removed from their parents, the role of parenting has subsequently been quite foreign, and in many cases individuals have also suffered from lack of communal support in childrearing (NISATSIC, 1997). This can lead to instances of neglectful parenting, abusive relationships and poor role modelling. The nature and quality of parenting is thus partly shaped by the nature and dynamics of family formation as determined by oppressive state policies and interventions. For young people, this can have major repercussions in terms of upbringing, role models, coping mechanisms and modes of conflict resolution.

Hyperincarceration and Indigenous People

The concept of ‘hyperincarceration’ is based on the notion that there is a broad complex of law, policy and practice that frames the use of imprisonment, and that increases in imprisonment are not undifferentiated but very selective (Cunneen et al., 2013). While it may make sense to talk about ‘mass incarceration’ in the context of United States penal developments (Garland, 2001; Wacquant, 2009), this is less accurate or insightful when it comes to conceptualising what is occurring in the Australian context. Here, what is striking is that increased imprisonment has been targeted at particular racialised groups, most dramatically evident in Indigenous over-representation figures, as well as other marginalised groups within the wider society, such as people with mental health disorders and drug and alcohol addictions (Cunneen et al., 2013).

In 2013, the number of people in prison in Australia exceeded 30,000 for the first time (Australian Bureau of Statistics, 2014a), of which just under a quarter (24%) were unsentenced. Australia is ranked 14th in the world in terms of imprisonment rate, recording an imprisonment rate of 130 per 100,000 people (International Centre for Prison Studies (ICPS), 2013). However, it is important to note that although comparatively high, this is an underestimate since the rate used for Australia in the international comparison differs from the higher total rate of 170 per 100,000 reported by the Australian Bureau of Statistics (2014a). It seems that the ICPS may have reported the total non-Indigenous rate of imprisonment in Australian only. Within Australia, the imprisonment rate in the Northern Territory is substantially higher than anywhere else at 821 per 100,000 adults, compared to 173 in New South Wales, 120 in Victoria and 170 nationally (Australian Bureau of Statistics, 2014b). For adults, the overall rate of imprisonment, nationally and for most states and territories, is growing, although there is little indication that this upward trajectory is now being mirrored in the case of juvenile persons held in detention.

Cunneen et al. (2013: 182) argue that the rapid increases in imprisonment rates across Australian jurisdictions since the mid-1980s can be seen as predominantly composed of Indigenous men, women and young people. This is the essence of hyperincarceration in the Australian context. Indeed, penal culture in this country hinges upon the nature of the colonial subject as ‘other’. The history of Australia is a history of colonial penalty in which subjugated populations have suffered hundreds of years of imprisonment and punishment. Mainstream punishment has always been directed against particular subjects and in the Australian context penal excess has been marked by racialised penal regimes developed specifically for Indigenous peoples (Cunneen et al., 2013: 37). The (limited) introduction of Indigenous sentencing courts and similar types of ‘alternative’ forms of punishment systems belies the longstanding, continuing and growing over-representation of Indigenous people within the harshest parts of the criminal justice system nationally.

Juvenile justice is generally institutionalised as separate from adult corrections, and as involving departments of health and human services, rather than criminal justice departments. The rationale for intervention tends to accept that young people in society are more vulnerable relative to adults, and that there is a need to devise positive developmental pathways for young people rather than punishments and retributive justice. Every jurisdiction in Australia has embraced some form of ‘restorative justice’, usually in the form of juvenile conferencing that allows particular offenders and particular cases to be dealt with in less coercive settings and with reparative objectives (Cunneen and White, 2011), although recent changes in Queensland appear to be undermining this in that state.

Nonetheless, the overarching focus of juvenile justice today seems to be less about the welfare, support and/or rehabilitation of the young person than with making them accountable and ensuring a modicum of community safety. A hybrid system that combines punitive features (such as juvenile detention) with reparation philosophies (such as juvenile conferencing) makes sense only insofar as it reflects a differentiated profile of young offenders. The serious and persistent offender is liable to be punished up to and including the use of detention. The low-risk offender is asked to make amends for their wrongdoing by repairing the harm and perhaps making an apology. Meanwhile, the potential offender is dealt with through deployment of risk assessment technologies and ongoing surveillance in order to prevent future deviation. All of this is over-laden by clear racial and class biases in the system.

For example, recent figures on the number and rate of young people under supervision in Australia (both in the community and in detention) show a fall in the number of young people under supervision in 2012–2013. Yet of those under supervision, young people aged 10–17 from the areas of lowest socioeconomic status were more than five times as likely to be under supervision as those from the areas of highest socioeconomic status (AIHW, 2014d: 7).

Between 2008–2009 and 2012–2013, the level of Indigenous over-representation in supervision on an average day increased in all states and territories for which data were available, except in South Australia and Tasmania (AIHW, 2014d: 1). Furthermore, in 2012–2013, Indigenous young people were 17 times as likely as non-Indigenous young people to have been under supervision and they were also, on average:

To put these figures into further perspective, the Indigenous youth population comprises less than 5 per cent of the total youth population in Australia. Yet, 49 per cent of all young men held in youth detention were Indigenous (that is, almost half), and 54 per cent of all young women held in detention were Indigenous (that is, more than half) (AIHW, 2014a: 1). Indigenous young people under supervision were more likely than non-Indigenous young people to have lived in remote or very remote areas before entering supervision (10% compared with less than 1%), and also more likely to have lived in areas of lowest socioeconomic status before entering supervision (44% compared with 35%; AIHW, 2014d: 15).

It is worth unpacking these figures further in order to explain the contemporary realities of hyperincarceration in Australia. Popular images of criminality and offending behaviour provides for a racialising discourse at the centre of which are Indigenous young men (Cunneen et al., 2013). This translates at an empirical level into high rates of intervention and incarceration, even when the system as a whole is contracting.

Over the 4-year period from June 2009 to June 2013, there was a small but steady downward trend in the number of young people aged 10–17 in detention and in the rate of detention (AIHW, 2013b: vii). This was mainly due to a decrease in the sentenced detention rate. Most young people under supervision in Australia (85%–86%) are supervised in the community. This treatment accords with the two main principles informing juvenile justice across the Australian jurisdictions: that young should be detained only as a last resort, and that they should be detained for the shortest appropriate period (Chrzanowski and Wallis, 2011). But not all young people are beneficiaries of the application of these principles.

Where to from Here?

Existing juvenile justice systems in Australia tend to exhibit a particular kind of bifurcation: ‘soft’ cases are dealt with leniently, developmentally and at front end of system; ‘hard’ cases are dealt with harshly, involve targeted populations and shift particular young people toward the back-end of the criminal justice system. The system filters out the ‘hard’ and the ‘chronic’ and places them in the worst parts of the system. This inevitably means that Indigenous young people are systematically dealt with more harshly, and with less recourse to alternative, diversionary and restorative measures, than their non-Indigenous counterparts.

One consequence of this bifurcated system is extreme over-representation of Indigenous young people. How then might juvenile justice systems address these issues? One response that is finding increasing favour is ‘justice reinvestment’:

Under this approach, a portion of the public funds that would have been spent on covering the costs of imprisonment are diverted to local communities that have a high concentration of offenders. The money is invested in community programs, services and activities that are aimed at addressing the underlying causes of crime in those communities. (Gooda, 2010: 3)

Theoretically,

The community has to be involved and committed to not only taking some ownership of the problem but also some ownership of the solutions. In my view, Justice Reinvestment if done properly also provides offenders a form of accountability to their community … Accountability to community is about making communities safer. (Gooda, 2010: 5)

In Australia, the favoured justice reinvestment model is based on the idea of re-directing money from youth detention centres and adult prisons to communities that feed directly into these prisons. Analysis is meant to be undertaken of the places from which detainees come, and then to redirect funds back into those communities (see, for example, Australian Human Rights and Equal Opportunity Commission, 2009; Gooda, 2010; McKenzie, 2013; see also Allard et al., 2013). However, by focusing the spotlight on these communities in this way (i.e. in a manner that portrays them as dysfunctional and deviant), the door is open for further stigmatisation of both community and individuals within them, and for coercive ‘outside’ intervention in these same communities. The spectre of the Northern Territory ‘intervention’ casts a dark shadow over any scheme that could, inadvertently, disempower communities rather than enhance their potential development. Moreover, the justice reinvestment focus on reinvestment as crime prevention and a decarceration strategy may obscure the broader social justice issues centring on employment, education and social inclusion that underpin much youth offending among Indigenous young people to begin with.

Justice reinvestment as an idea and potential practice thus carries with it certain hopes and risks. Overall, it tends to deal with the symptoms of social disadvantage without addressing the structural causes underlying much juvenile offending. Moreover, in the context of tight government budgets while the need for community development is growing rapidly (as the hard times hit), the resources for this are shrinking (due to government choice of priorities). Over-burdened services and practitioners can, at best, only hope to manage the social fallout of high levels of youth unemployment. Without dedicated job creation strategies and efforts to improve overall educational outcomes, the success of justice reinvestment seems less than assured. Moreover, the circumstances that require changing demand much more than simply ‘resources’ as such. They require the ‘wherewithal’ to take best advantage of any resources and opportunities that might be provided.

For Australia, justice reinvestment nonetheless has had particular resonance in relation to the situation of Indigenous young people and their relationship to juvenile justice. In some instances, and in some communities, allocations of funding away from detention to community building ‘makes sense’ to local populations and communities that are already struggling to come to grips with severe disadvantage. Rather than a general panacea or response to gross (or mass) incarceration, as in the United States (see La Vigne et al., 2014), justice reinvestment is seen in Australia to be most relevant to select groups of young people.

Overall detention rates and numbers are not high within this country; yet, over-representation rates of Indigenous youth continue to be a national and international disgrace. In the light of this, justice reinvestment approaches have garnered significant political support within Indigenous communities and advocacy bodies, precisely because of the dire nature of the contemporary policies and practices affecting Indigenous youth across the country (see Gooda, 2010). As Cunneen et al. (2013) also argue, the discourses around justice reinvestment are also important symbolically and ideologically in countering the dominant penal populism that has characterised debates over law-and-order and punishment in Australia over the last three decades.

Conclusion

The issues canvassed in this article are by no means new, nor are the explanations for Indigenous over-representation with the juvenile justice system particularly novel. Much of this has been previously discussed at length, for example, by the Stolen Generations Inquiry which reported on these matters back in 1997 (NISATSIC, 1997) and by the Royal Commission into Aboriginal Deaths in Custody in 1991 (Johnston, 1991). Yet, the imprisonment of Indigenous children and young people continues to be an intractable social problem.

In part, this is because of the manner in which popular discourses frame the problem. Selected aspects of behaviour (such as street and family violence) are seized upon as evidence of inherent criminality and deviancy, reinforcing the notion of the colonial subject as ‘other’. Criminal justice institutions are simultaneously ‘excused’ from blame, because they are simply doing their job and procedurally treating all who come before them in an equal way. The atrocities of colonial dispossession, the breaking up and degradation of families and culture, and personal humiliations are denied as is often the case with state crimes of this nature (see also Cohen, 2001). The victim is ‘an offender’, and this is the crucial and most vital premise for criminal justice intervention.

Criminology has had a role to play in this denial of context and harm as well, in part due to the ‘abstracted empiricism’ that has tended to plague its grounded study of crime and criminal justice (Wright Mills, 1959). The basic power relations of colonialism are largely ignored in favour of detailed exposition of the multiple factors that constitute the essence of Indigenous criminality and criminal record. Yet, as Cunneen (1999: 137) has asked in regard to the stolen generation, ‘What did criminology do while this genocide was taking place?’ His answer is that mainstream criminology has largely been complicit in this insofar as it has provided a ‘scientific’ foundation for the taking of Indigenous children from their families. A critical question for contemporary criminology is to what extent and in what ways it continues to sustain this sort of activity (such as the Northern Territory ‘intervention’), as well as how best it might contribute to addressing the more fundamental social harms.

The concept of hyperincarceration provides one means of reversing the mainstream logic that underpins both punitive penality and the conventional criminological gaze. It does so by locating the basis of over-representation historically in the subjugation of the colonial subject, and by challenging the legitimacy of a criminal justice system that not only allows this, but is structured to have precisely this outcome. In such analysis, the crimes of the state are necessarily accentuated. The adverse circumstance and behaviours of Indigenous young people, which generally only form the backdrop to continued exercise of state power over them, likewise come to the fore as part of the totality of the experience of Indigeneity in contemporary Australia. In such exposition matters of social justice are revealed as inextricably intertwined with the operations of criminal justice.