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Social Justice Report 2001: Recommendations

Social Justice Report 2001

Recommendations

In submitting this
report I am required to make any recommendations as to actions that should
be taken by governments to improve the recognition of the human rights
of Indigenous people.[1] This year’s report contains
12 recommendations, which are reproduced here and discussed further in
the relevant chapters.

Juvenile
diversionary schemes in the Northern Territory

Recommendation
1: A Juvenile Justice Division be established and adequately resourced
within the NT Department of Justice. Prime responsibility for coordinating
pre-court and post-court diversion, especially family and victim-offender
conferences and referral to programs, be transferred from NT Police and
NT Corrections to specialist Youth Case Workers in the Juvenile Justice
Division. NT Police retain a Juvenile Diversion Division to implement
the continued significant police involvement in diversionary processes.

Recommendation
2: As an urgent priority, a review be undertaken by the Department
of Justice to establish program needs across the Territory, particularly
as they relate to regional areas and Indigenous people. The terms of the
review should include examining methods for coordinating youth service
delivery in justice, health and welfare related areas across government
departments, including through the NT Police proposal for community youth
development units, and the potential for Aboriginal customary law to be
recognised through diversionary processes. The review should be conducted
on the basis of widespread consultation, particularly with Indigenous
organisations.

Recommendation
3: The NT Law Reform Commission be empowered through legislation to
conduct an independent review of the operation of pre-court and post-court
diversionary schemes every four years. The review be required to consider
compliance with human rights standards and to be conducted on the basis
of widespread consultation with Indigenous organisations, communities
and young offenders.

Recommendation
4: The Juvenile Justice Act 1993 (NT) and Police Administration
Act 1978 (NT) be amended to provide legislative detail on juvenile
diversionary processes. The amendments should require the police to inform
the young person that they are entitled to access to a legal advocate
or a registered local community advocate (for example, in remote areas)
at any stage of the process and to facilitate contact immediately if so
required; and should require an admission of guilt prior to a diversionary
option, other than a verbal warning, being offered. The amendments should
also provide for review of decisions regarding diversion, and independent
monitoring and evaluation provisions (as outlined above). In relation
to Indigenous young people, the legislation should specify that they are
entitled to an interpreter as well an interview friend (in accordance
with the Anungu rules).

Recommendation
5: A children’s legal service be established and appropriately
resourced, including through the provision of a 24 hour phone hotline
for children’s legal advice.

Recommendation
6: It be made an offence to publish material identifying a defendant
or a young person who has participated in a diversionary option under
the age of 18 years.

Juvenile
diversionary schemes in Western Australia

Recommendation
7: The Young Offenders Act 1994 (WA) be amended to include greater
detail on the operation of diversionary options in WA, rather than matters
integral to the process being contained in Police General Orders. The
amendments should include the following as a minimum:

  • create a presumption
    that police will divert young people unless a range of specified criteria
    are not met;
  • provide for review
    of decisions regarding diversion;
  • require that a
    young person is informed that they are entitled to access to a legal
    advocate at any stage of the process;
  • require that an
    interpreter be freely available at all stages in the process where there
    is doubt about the ability of the young person to understand the proceedings
    or express themself in English; and
  • provide that previous
    cautions and justice team referrals cannot be cited in court as though
    they form part of a prior record.

Recommendation
8: The Department of Justice consult Regional Councils of the Aboriginal
and Torres Strait Islander Commission and Aboriginal community organisations
about the adequacy of current community based diversionary programs for
Indigenous juvenile offenders, particularly in regional areas, and their
form, organisation, management and coordination in the future.

Recommendation
9: Juvenile Justice Teams and conferencing processes be adequately
funded in regional areas. Funding be provided for the employment of Aboriginal
workers, and the training of Aboriginal people in local communities to
act as conference facilitators.

Recommendation
10: The Department of Justice coordinate the development of consistent
record keeping on diversionary processes across all agencies, particularly
the Department of Justice, Police and Children’s Court. Record keeping
must identify the ethnicity of offenders in order to identify the extent
of any racial bias in referral processes. This data should be subject
to ongoing and independent monitoring and evaluation.

Reconciliation

Recommendation
11: The Senate empower the Legal and Constitutional References Committee
to conduct an inquiry into the implementation and response to the reconciliation
process. The terms of reference of the inquiry should require the Committee
to examine the recommendations contained within the Roadmap to Reconciliation,
the final report of the Council for Aboriginal Reconciliation and the
Social Justice Report 2000 as well as the adequacy of the response of
the Federal Government to each of these. In determining the adequacy of
the response, the Committee should be required to consider processes by
which government agencies have reviewed their policies and programs against
the documents of reconciliation; as well as the adequacy of targets and
benchmarks adopted and monitoring and evaluation mechanisms.

Recommendation
12: At the time of tabling of the annual Social Justice Report in
Parliament, or within 15 sitting days, the Government furnish a response
to the report and its recommendations in Parliament. In the event that
the Government does not furnish such a response in Parliament, the Senate
consider the establishment of a parliamentary inquiry to consider matters
that appear in or arise out of the report and its recommendations, and
matters to which the Committee believes Parliament’s attention should
be directed.