The Lost Generations

By Amy McQuire, March 3, 2014, Tracker Magazine.

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NATIONAL: Across New South Wales we are losing a generation of children to prison. It’s an urgent problem because these are our future leaders, writes AMY MCQUIRE*.

The memory is hazy now, almost like a faded photograph in the back of her mind. She hardly talks about it.

But when it comes back to her, Lillian Lucas remembers herself aged 10, in a blue and white dress sitting in the courthouse, watching her mother cry. Handcuffs engulfed her tiny wrists.

She remembers being placed in the police cell for two days and being interviewed by a television station because of her age. But she can’t remember what that early crime – the one that first sent her to the police cells – was for. She was so small; she could have fit through the bars.

“I was pretty scared back then. I remember my mum coming in and I cried my heart out. All I wanted to do was go with her.… I was so frightened I couldn’t even speak,” she says.

Lillian doesn’t deny she got into trouble as a child. She thinks she may have been the first youth to be locked up in her home community – the small town in New South Wales so far west it inspired its own expression: “Out the back of Bourke”.

But the timeline of her early years is scattered. One day it may be pieced together through official records, but this memory, torn and faded, still hurts.

She remembers child protection trying to take her away from home, where her mother raised five other kids in an overcrowded house on Alice Edwards Village, the area of Bourke where many Aboriginal people live, and which she still describes as “third world”.

“Mum, she was on her own… and she was looking after all of us on her own. And then the best memory I have is when (child protection) tried to get me to go into a policeman and his wife’s care,” Lillian tells Tracker.

“His wife was Aboriginal and from what I can remember, they were beautiful people. I could never say a wrong word about them. And they made me feel welcome.

“But I love my mum. I wanted to be with her. It was a mansion compared to where I was living, but my heart wasn’t there. I kept running away and I wouldn’t stay there. And then they made me a ward of the state.

“I remember my mum sitting in Bourke courthouse crying. I knew there was something wrong, you know. But I was a kid. I didn’t know what was going on.”

Lillian kept running away, sleeping around Bourke and hiding with friends in order to get away from the child protection agencies she knew were coming.

She eventually was sent to Lithgow, more than 600 kilometres from her community.

She made it back to Bourke after again running away from the institution, and she still lives in Bourke today.

“This was my home. It’s the only place I know.”

Lillian is only 36-years-old. This was not a long time ago. When Kevin Rudd said ‘Sorry’, it was directed at the grandparents. But there were still children being taken off their families.

It’s a complicated issue packed tight with sensitivities, but the rate of Aboriginal child removals is growing in New South Wales.

Lillian sees children like her who are being taken off their parents by DoCs, often placed in non-Aboriginal families, or transported long distances from their homes.

In New South Wales, an Aboriginal child is 11.7 times more likely than a non-Aboriginal child to be placed in out-of-home care. In this state, 83.4 Aboriginal children per 1000 were taken away in 2012, compared to 7.1 non-Indigenous children.

This staggering statistic is troubling, because its well-documented that children who come into contact with the DoCS process early on are highly likely to end up in jail.

Like other members of the Bourke community, which is about 30 percent Aboriginal, Lillian sees a steady stream of Aboriginal children placed in handcuffs.

They are taken away from their communities and housed in the state’s overflowing detention centres. This sad fact is also backed by statistics.

From 2007 to 2012, 245 children in the north-west region of the state were placed in detention. Only a dozen of them were non-Aboriginal.

Across the state, Aboriginal children make up almost 50 percent of the juvenile detention population, despite being the minority in the land their ancestors walked for tens of thousands of years.

We are locking up the most disadvantaged and vulnerable members of Australian society, often because there is nowhere else for them to go.

You can read about these faceless, nameless children in the pages of the local papers.

In December, the Dubbo-based Daily Liberal newspaper ran a troubling case of a 12-year-old boy who ended up in court on the same day as his mother and brother.

In these north-western court houses, there are no specialized children’s courts like in the cities. Children are often heard on the same day as adults. If they aren’t already in custody, they occupy the same waiting rooms.

The 12-year-old boy had been arrested on warrants for multiple offences, which Dubbo-based Aboriginal Legal Service lawyers told the court stemmed from his desire to be back with his mother.

“He sobbed uncontrollably in the court dock and called out for his mother who sat in an agitated state in the public gallery,” the Daily Liberal reported.

“The mother inched forward as the boy’s level of distress escalated. Breaking court protocol, she stood at the back of the dock crying and holding her son’s hand before leaning through the metal bars to hug him tightly.

“Tears poured down the boys face as he called out: ‘Mummy, mummy, I’m sorry mummy. Leave me alone, I want mummy’.

“The court heard the boy was on two bonds from Dubbo District Court for damaging property and escaping custody.

“He has numerous failures to appear in court and eight breaches of bail, the police prosecutor said. He is in the care of the minister and was placed at Bourke.

He ran away and hid (at Dubbo) from police. Officers had to chase him.”

The boy’s teenage brother was brought before the court on the same day on charges of resisting and assaulting police, damaging property and being armed with intent to commit an indictable offence.

Police told the court the “offences stemmed from an attempt to stop his younger brother being taken into custody”.

The mother was also in court that day. ALS lawyers said she was distressed at having her son taken away from her.

These are our lost generations.

They are the children who are born into an invisible prison by circumstances of their birth, who are more likely to end up behind bars because their reality is heavily weighted against them.

They become statistics because of their geography, their race, their history and their parents, who once were those very same children; they are the kind that grew up too fast.

The decades passed and we locked up more and more. Now the criminal justice system is struggling to catch up.

To understand the extent of this problem, you only have to wade through the statistics. New South Wales is locking up more and more people – in fact over the past decades, the state’s inmate population has tripled.

This may seem horrific enough, but consider this: in the past three decades while this happened, the number of incarcerated Aboriginal people jumped from 216 to more than ten times that amount.

In 2011, New South Wales locked up 2303 Aboriginal adults.

Aboriginal adults make up 27 percent of the inmate population, a jump from 5 percent three decades ago. As of 2011, one in 40 Aboriginal adults are jailed in the state.

When you consider juveniles, the statistics get worse. In NSW, one in five young Indigenous males are locked up, and one in four young Indigenous men come into contact with the criminal justice system each year.

In 2010/2011 the average daily intake of juveniles into detention was 434 and almost half of these youth – 204 – were Aboriginal. A large number are on remand, where they have been refused bail and are awaiting a court date. The overwhelming majority of them – 80 percent according to a report for the NSW Minister for Juvenile Justice – never receive a full custodial sentence.

Bourke-based Aboriginal Legal Service lawyer Adam Barnes tells Tracker that juveniles often end up in detention for “no other reason than they are refused bail”.

“They’re not actually serving sentences, they are on remand waiting for their sentences to be finalised by the court and a lot of them are in there for offences which are not sufficiently serious that would see them being sentenced to full time custody.

“The result is you’re having kids that are being refused bail, in a lot of cases because there is nowhere for them to go. There is nowhere for them to be bailed to.

“That’s very sad.”

One reason for that, Mr Barnes says, is because the Bail Act doesn’t differentiate between adults and children. It applies equally to adults “but can operate harshly against children”. There is limited weight applied to whether the child will receive a non-custodial sentence.

Another Bourke ALS lawyer – David Pheeney, himself an Aboriginal man – says over the years the changes to
NSW Bail Laws have worked to the detriment of the most disadvantaged members of society.

“The bail laws aim to protect the community, and that’s important, but in reality when you take into account the circumstances of a lot of Aboriginal kids on bail, it’s difficult. Very difficult.”

Some of these children have already been taken off their families, and are in the care of the minister, Mr Barnes says.

“Is the minister discharging her duty of care? Are we as a society discharging that duty of care that they’re owed?”

“… I’ve had children as young as 12 being refused bail who are in the care of the minister, and the predominate reason I believe they are refused bail is because the representative of the minister has opposed a proposal for them to go and live with their family, whilst not coming up with an alternative.

“And that’s a worry because what you see is the interaction of care and protection laws and the criminal laws and they interact in a way to make the criminal side harsher on children.

“And most of these children, for the most part, are in for minor property crime. “We’re not talking about offences of extreme violence. And we’re also talking about kids who are very vulnerable.”

The blame often doesn’t lie with individual magistrates, rather within the system – magistrates are left with few options because of a severe lack of alternatives for children and adults in regional and remote areas.

It raises a troubling quandary: If Aboriginal children are placed in the care of the minister for their own protection, under the belief their families can’t take care of them, what does that say about the state’s ability to look after them, if the best alternative is a detention centre?

Aunty Dawn Smith, a stalwart of the Bourke community, tells Tracker she is sick of seeing children taken away from their families.

“It’s getting terrible, like the Stolen Generations,” she says.

“There’s no warning. They just come and take the kids.

“I get really cranky cause there’s nothing I can do about it. We get people coming into the office, and saying ‘Oh they took our children, and what can I do?”

“They should be given back to Aboriginal people, not sent off to white people.

The Aboriginal Legal Service ACT/NSW is not funded to handle family or civil law, so in Bourke, people have to wait for the civil lawyer to be brought in from Dubbo, once a month.

“In our days, when the old people went away on droving trips or other things they’d leave us with our aunties, or uncles or grandmothers,” says Aunty Dawn.

“Not these days. They take them straight from them. They don’t follow Aboriginal culture.”
Locking up kids who have been taken from DoCS could have detrimental affects for the child’s future.

Mr Pheeney told Tracker when he looks at a client’s file, he can see “entry points” when they first entered the criminal justice system.

“We need to think about what these entry points are… particularly in relation to children, particularly in the area of DoCS,” Mr Pheeney said.

“There are reasons why DoCS get involved… but the research says if children become involved very early on in the DoCS process, there is a high potential of them moving over to the criminal justice system.”

Mr Barnes says it’s “heartbreaking” to see children who could end up on the same path as their parents.

“A lot of children have got a lot going for them… they have the potential to do whatever if they could just get themselves out of this situation that’s going to see them go down this path.

“… There comes a point where you see a young person reach a certain age and I think the reality hits them: ‘I’m Aboriginal, I’m from Bourke, I’m sort of at the bottom of the heap so I’m going to take the path of least resistance’.

“You see it where some children turn into quite angry young adults. And it’s very sad but it doesn’t have to be that way. I think one of the things that has contributed to that is the fact they’re being brought into the criminal justice system for relatively minor stuff.”

At a recent court list day in Brewarrina, the crippling 40 degree heat made the shade of the courthouse seem almost merciful. But this protected European heritage building, and the small police station beside it, is not a safe place for children.

One teenager who was waiting for a court appearance, sitting in the shade of the courthouse verandah, remarked: “I’d rather go to jail than sit around in this heat. I’d go in and make a name for myself.”

His friend quickly admonished him: “Why would you do something so stupid?”

Aunty Dawn Smith, who is also a Bourke-based field officer for the ALS, later tells Tracker that sometimes she thinks the “jail is more a home to them than here”.

“It’s more or less a second home to them. They go in and their mates are in there, they can play games, they get football training, they can do odd jobs.

“There are more opportunities for them in there, than out here.”

But the truth is, despite appearances, on their first night in juvenile detention, many children cry themselves to sleep.

It’s a busy day as Dave Pheeney and Adam Barnes, ready themselves for the fortnightly court list.

The Legal Aid lawyer is comparatively less busy, but Mr Pheeney tells Tracker for the Aboriginal Legal Service team, this is a quiet day. It doesn’t seem that way to an outsider.

One Aboriginal man, sitting confused in the dock in prison greens, is refused bail for one charge, despite being granted bail the day before for another.

He is perplexed about how this could happen. His wife had been granted bail the day before.

The couple have four children and he is in ill-health.

The issue of bail can be perplexing to seasoned legal practitioners, much less a person on the stand, many of whom have low literacy and numeracy skills and are listening to a sea of legal jargon.

Another Aboriginal man is in court because he was caught with $250 of unaccounted cash in his pocket on the streets of Brewarrina.

The court heard the man’s workplace had been searched by police, who had found a small amount of marijuana, but no other evidence of drug dealing, like tick sheets, scales or reusable bags.

The man was also charged with attempting to self-administer marijuana at the station, although the police were unable to recover the substance he swallowed.

The man, who was in a stable relationship of 10 years with two children and was employed, was found guilty on all three charges and given a good behaviour bond.

On announcing the guilty plea, the magistrate told the court the man was a “foolish man” because he had “so much that so many men of this community don’t have”.

From the expression on his face, she believed he thought himself “above the law”.

“I’m not impressed at all,” the magistrate said.

The man had already spent six days in custody after being caught with the money, which lawyer Adam Barnes had earlier told the court could have been obtained lawfully from a number of different places.

But the magistrate was not swayed: “It didn’t appear from the way you are looking you learnt anything from your time in custody.”

All of this for being caught with $250 in his pocket.

The majority of Aboriginal children who end up in detention will have had at least one or two of their parents incarcerated. Juvenile justice statistics note that almost two-thirds of Aboriginal children in detention have at least one parent who is, or was, in prison. That’s compares to less than one third of non-Aboriginal children.

Aboriginal inmates are also more likely to have more children than non-Aboriginal inmates.

At another list day, this time in Bourke, a line of young Aboriginal women appeared for mention via video-link.

Aboriginal women, the backbone of communities across the country, are also the fastest growing incarcerated group in the country.

One little girl was brought in to see her mother on the screen. “Look… there’s your mummy,” her relative told her, as she waved. The woman’s dull expression changed to a smile when she saw her daughter.

Locking up Aboriginal men and women means their children are highly likely to follow that trajectory.

In short, we are locking up our next generation of leaders. And in the process, we are starving the communities of their most valuable resource – their children.

It’s easy to believe that Aboriginal men and women are being locked up because they deserve it. Simplistically, you would think they are committing more crime.

It’s far from the case, especially in regional and remote areas. A third of cases the ALS takes on have to do with traffic laws – the so-called ‘victimless crime’.

A 2007 state-wide ALS study found Aboriginal people in NSW were 21 times more likely to be imprisoned for driving offences than non-Aboriginal people.

About half of ALS clients in western New South Wales sentenced for a driving offence received a term of imprisonment between 2006 to 2012.

“A lot of the offences are unremarkable,” Mr Pheeney tells Tracker. “There are instances of drink driving, and that’s certainly offending against the community but by and large you are looking at things like never been licensed, driving while disqualified.

“The way the traffic laws fall, it is has a really disproportionate affect on Aboriginal communities in terms of the consequences and how penalties roll and how they affect people out here.

“Interacting with the road is a part of your life out here. You can’t avoid it.”

In 2010, Magistrate Margaret Quinn appeared before a NSW parliamentary committee probing the high rates of Aboriginal youth in the justice system.

Often, she said, magistrates had no alternative when it comes to driving offences.

“If you are caught, first of all, on a speeding offence and you do not have a licence, I can give you a fine on that first no-license offence,” Ms Quinn told the committee.

“A second offence carries a 12-month jail sentence and a three year disqualification.

“Naturally, you do not put people in jail as a first or second offence; it is a last resort.

“Then they come back again, still driving without a licence and you might wonder why – the availability of getting a licence in those country areas is not as good as in Sydney.

“When they come back again it might be their third or fourth offence of driving without a licence or driving cancelled….

“You are then looking at the history of the person and all of those subsequent offences carry a jail sentence.

“So by the time I have given a couple of good behaviour bonds, I think ‘Send them to probation and parole to get any options’.

“[But] there are not many options because the community service is not available or periodic detention is not available.”

Ms Quinn said she was then forced to look at options like “suspended sentences”. So even though “a person… has done nothing else of a criminal nature” they are very likely to go to jail for a driving offence.

“There are many of them in jail,” Ms Quinn said.

“… They might be the safest drivers of all, they just do not have a license. Many of them may not be able to read or write, which causes a difficulty and an embarrassment.”

Suspended sentences, which are seen as an alternative, often operate like deferred mandatory sentences in bush communities.

“A suspended jail sentence operates from the position that the [offenders’] lives are relatively stable,” Mr Pheeney says. “They have access to good housing, to good health care, employment.

“In a way, that might work well for upper middle class rich people – corporate people who have committed corporate crime – but for a lot of our community out there, the option of a suspended sentence is not a light one because if you do the slightest thing wrong, you could go to jail.

“It works well for one group, but not for other groups.”

Driving offenses have a way of compounding and further disadvantaging Aboriginal people in places like Bourke and Brewarrina, where they are highly visible to police officers and more likely to be driving unlicensed and unregistered.

Aunty Dawn Smith says Aboriginal people “are more targeted than white people”.

Tracker spoke to a local woman who said she was pulled up four times in the space of two hours whilst in Bourke. Another said she had racked up nearly $4000 in traffic fines. In areas of low employment, fines like these hit even harder.

It furthers the disadvantage already keenly felt in these communities. Offenses like these create virtual walls around people and the biggest victims are the children.

In an article for the Indigenous Law Bulletin in 2009, Melanie Schwartz and Chris Cunneen found that civil or family law issues can lead to criminal acts.

“Accumulated debt reinforces levels of poverty and inequality which are themselves associated in general terms with increased likelihood of contact with the criminal justice system…. Coming out of jail with debt is also understood to be a risk factor of recidivism. Thus the line between debt and crime can be quite direct.”

There is also the role of grief and trauma, stemming back to over 200 years of dispossession.

“It’s like an onion, with layers,” Mr Pheeney tells Tracker. “When you talk to a client and sort of develop trust where they can talk about their life, there are layers.

“They’ll say ‘I’m before the court today driving while disqualified. I have a suspended sentence. I could be going to jail.’

“But then they say ‘Two and a half years ago, my dad died and before that my uncles died’, and further down there are more layers.

“You ask them what happened to school and they say ‘I didn’t really go to school. I can’t read or write.’

“Have you ever had a job? ‘No, I can’t get a job because I can’t read and I don’t have a license.”
If we continue to lock up adults, largely for being disadvantaged and in poverty, the people we most harm will be children.

Former District Court judge Rod Madgwick told a parliamentary inquiry in 2010:

“Every time an adult Aboriginal offender is put in jail, there is very likely an effect on one or more Aboriginal children. There is a large chance that the incarceration of a parent, an uncle or somebody near to them will disrupt a child more and perhaps lead to that child’s involvement in criminal activity.”

The odds that this cycle will be broken anytime soon seem insurmountable.

But in Bourke, there is a strong prospect for hope: justice reinvestment, an approach that involves re-directing the enormous cost of incarcerating Aboriginal people back into programs that could help divert people from jail.

Kaleesha Morris is a Gumbaynggirr and Kulkagal woman, and a youth ambassador for Justice Reinvest NSW.
She grew up in Grafton, in the shadow of the notorious jail, watching her cousins follow the well worn path to prison.

Justice reinvestment is not “an entirely new approach”, Ms Morris told Tracker.

“It’s not reinventing the wheel. It’s basically what Aboriginal activists have been calling out for for decades, and that’s basically more community control and empowerment.

“The beauty of it is its evidence, success-based approach that has come from overseas. So we know that things have worked well with JR policies over in America, and we can apply them here as well.”

Locking up people costs the state a staggering amount of money.

A Senate Inquiry into Justice Reinvestment in 2012 found $130.6 million was spent on custodial sentences and $70.4 million spent on community-based supervision in NSW.

“Recent modelling by the University of NSW found that the ‘whole of life’ institutional costs of a female Aboriginal offender in NSW with a history of homelessness, drug and alcohol misuse, family violence and mental illness to be in the order of $1,118,126,” the inquiry found.

“The cost of detaining a juvenile offender in NSW in 2010–11 was $652 per day compared to the cost of supervision in the community by Juvenile Justice NSW of $16.73 per day.”

Ms Morris says justice reinvestment is about recognizing that communities know what will work best.

“JR will look like community control, and when I say that I mean communities will have the genuine opportunity to design their own solutions, to address the causes behind why our kids are going to jail.

“What would happen is you sit down with stakeholders in the community, and that includes parents, organisations on the ground, community councils and things like that.

“Communities can tailor each approach to produce policies that benefit their own needs.”
On Justice Reinvestment, the Bourke community has taken the lead and may be the first trial site for justice reinvestment in NSW.

There is a feeling in the air that replaces the despair of past decades, and it is a feeling driven primarily by Aboriginal people themselves, through a coalition called the Bourke Aboriginal Community Working Party.

Mr Pheeney believes justice reinvestment could be a “circuit breaker”.

“The community knows what the answers are. We have to support the community to rebuild and they can work out the solutions.”

Lillian Lucas is now actively involved in helping work out those solutions. She was able to rise above her past and is now actively working to better conditions in her own community.

“I never wanted to be in that cell again. I never wanted to be in trouble with the police,” Ms Lucas says.
“Sometimes I got in trouble along the way. But I knew for a fact it was time to change. I haven’t got a good past, but I haven’t got a bad past either. I’m not ashamed of that. It made me change who I wanted to be.”

Ms Lucas sees education as a powerful tool in solving the recurring issues around incarceration.

A Cuban adult literacy method – Yes I Can – which had enormous success in Wilcannia is now in place in Bourke, where Ms Lucas has a job as a coordinator.

In the first intake, there were 24 graduates and there will be a second graduation in March.

It was a program pushed for by the community, and not imposed from above.

“I’ve worked on this for the last seven or eight months, and I know where the answers lie,” Ms Lucas says. They lie within our own people.

“Sadly when our people are denied the basic human rights of learning how to read and write, there are barriers.

“Education is the key. The only way we’re going to stop it is if we take a stand.

“I can’t help what they did to my ancestors. But I can make a noise about it and I can educate my family and my people about the heartache it caused me.”

This strength is the kind that peeps through the cracks of the seemingly impenetrable walls of prisons across the state, the strength that loosens the invisible chains dragging legions of Aboriginal children to courthouses in handcuffs, places where children don’t belong.

It is the hope that despite the odds, maybe not all is lost.

* Amy McQuire is the editor of Tracker magazine. Her last feature was in late 2013, On the murders of three children in Bowraville, NSW.

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