EMRIP - The impacts of First Nations engagement with justice systems

A Statement by Aboriginal and Torres Strait Islander Social Justice Commissioner, Katie Kiss on Item 10

17th Session of the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP)
Wednesday 10 July 2024

Thank you, Madam Chair,

I make this statement in my capacity as Australia’s Aboriginal and Torres Strait Islander Social Justice Commissioner, on behalf of the Australian Human Rights Commission, Australia’s National Human Rights Institution. 

I would like to acknowledge all First Nations Peoples and Government representatives here today. 

Madam Chair,

The purpose of my statement today is to encourage the Expert Mechanism to conduct a study on the impacts of First Nations engagement with the justice systems they are subjected to. This includes the child protection system, the youth justice system, and the criminal justice system. 

Over 30 years ago, the Royal Commission into Aboriginal Deaths in Custody published its report. Since then, there have been 568 Indigenous deaths in custody in Australia. Our youth, and our women, who are the fastest growing prison demographic in Australia, are dying while incarcerated by suicide and the neglect of health and wellbeing by those charged with their care. 

The paramount driver of the grossly disproportionate rate of deaths in custody for our people is over-incarceration. Aboriginal and Torres Strait Islander people represent just over 3% of Australia’s population but over 33% of Australia’s prisoner population in 2023. 

As Aboriginal leader Noel Pearson once said, “we are not a criminal people”. The root cause of our over-representation in prisons and jail cells is structural, not individual.  

Many of the Royal Commission’s recommendations remain unimplemented. 

The 2018 Deloitte Economics Review of the Implementation of the Royal Commission which has previously been relied on by the Australian Government to assert otherwise, specifically excludes an assessment of how effective state actions against each recommendation have been in achieving outcomes and is therefore fundamentally inadequate in assessing the implementation of those recommendations. 

Madam Chair,

We suggest that this future study highlight the rights of Indigenous children and young people who are entering and experiencing harms within out-of-home care and detention systems at alarming rates.  

Australia ranks 32nd out of 38 OECD countries on child wellbeing. Making up just 6% of the Australian population aged 10-17, over half of all young people in detention on an average night in the June quarter of 2022 were Aboriginal or Torres Strait Islander people. Official inspections have repeatedly reported on the maltreatment of children in youth detention in some jurisdictions. 

Advocates across Australia are calling for national youth justice standards to prevent the violence against children—such as that which took place in a Brisbane watchhouse on 7 August last year—which is being perpetrated by state officers and condoned by the leadership. 

First Nations children are disproportionately affected by failing ‘tough on crime’ policy approaches adopted by Australian state and territory governments, such as “Adult crime, Adult Time”, these sloganised approaches only serve to perpetuate racial profiling and negative stereotyping, condemning our children to a lifetime of abuse, deprivation and disadvantage – a cycle that repeats from generation to generation.     

We need to address the root causes of involvement in crime and violence to ensure our communities are safe for everyone to live in and thrive. Children exposed to structural and systemic discrimination, and intergenerational trauma, combined with experiences of poverty, out-of-home care, maltreatment, domestic and family violence, drug and alcohol abuse and homelessness, make up the majority of those in the youth justice systems. 

Prevention and early intervention, that centres family and child well-being and the best interests of children, must be the focus. Locking up children does not reduce crime, nor does it curb the transition from youth detention to a life of adult incarceration.  

It is not only about redesigning the youth justice system, but also about addressing how the youth justice system interacts with other systems that are meant to support children and their families.  

Finally, Madam Chair, Australia cannot continue to simply tinker with flawed systems. The crisis in youth justice requires national leadership and cooperation across jurisdictions. We need a national approach to addressing the underlying causes of youth engagement with the justice system, that assures the rights of First Nations Children and Youth in accordance with the Declaration on the Rights of Indigenous Peoples, and which responds in ways which facilitate healing. 

States need to make better decisions based on evidence that ensure First Nations children get the start they need in life so they can enjoy positive futures that respects their right to self-determination - better life expectancy, educational achievement and economic opportunity.    

This issue requires urgent attention, Madam Chair and we ask EMRIP to consider this for future consideration. 

Thank you .