Aboriginal and Torres Strait Islander young people in the justice system
1st Jun 2023
In my ten years working in the Civil Law and Human Rights Unit of the Aboriginal Legal Service of Western Australia Limited (ALSWA), I have desperately fought for change, but the grim reality is that we still live in the middle of a colonial war. I have witnessed Aboriginal children charged with trivial offences that non-Aboriginal children would never be charged with, followed around shops, not given mental health support, having to mourn family and friends who have passed tragically too young, enmeshed in the criminal justice system due to systemic factors, and detained in cruel and barbaric conditions.
Many of our young clients – some as young as nine years old – have been harassed and brutalised by police, including being strip-searched, punched, hit with torches, dropped outside of town to walk home, threatened, called racist and ableist derogatory names, arrested unlawfully and mauled by police dogs. In relation to the latter, ALSWA has represented over 40 people (14 children) who have been injured by police dogs. Some of the injuries have included irreparable damage to faces, necks and limbs.
We must remember that children’s behaviour is a response to feeling unsafe, unheard, anxious or overwhelmed. These children have huge potential to contribute to society. When we meet with them they are polite, respectful and insightful, and resilient despite their tough circumstances. They are tomorrow’s leaders; they must be nourished and rehabilitated instead of forgotten and dismissed.
As many commentators have said: Banksia Hill Detention Centre is in crisis. The notorious Unit 18 of Casuarina, a maximum-security adult prison, which was gazetted a youth detention centre in July 2022, is even worse. ALSWA has sent over 60 complaint letters about conditions for children detained at both Banksia Hill and Unit 18 since February 2022. The young people have raised extremely concerning instructions including:
• Extensive lockdowns (including no time out of cell at all).
• Sexually inappropriate behaviour by officers.
• Excessive use of force.
• Young people sleeping in wet clothes/bedding.
• Clothes and cells being extremely dirty, with rubbish left in cells for days.
• Officers using degrading and unprofessional language.
• Children in distress and experiencing thoughts of self-harm and powerlessness.
On 25 August 2022, the Supreme Court of WA declared that the confinement of our 15-year-old client to his cell for over 20 hours a day at Banksia Hill on 26 dates that year, in January, February, May and June, was unlawful. (VYZ By Next Friend XYZ v Chief Executive Officer of The Department of Justice  WASC 274).
Justice Tottle found ‘that the applicant was locked in his cell for long hours on successive days. Between 4 and 6 February 2022 the records show that the applicant was locked in his cell for approximately 70 of 72 hours’ and that ‘staff shortages were the primary cause of the applicant being locked in his cell on those days’ (at ).
On 11 May 2023, Tottle J heard further judicial review applications on behalf of three ALSWA clients. The three young people have instructed ALSWA that they experienced ongoing lockdowns when they were locked in their cells for 20 to 24 hours a day. The allegations span 178 days between April 2022 and January 2023. One applicant alleges 134 dates on which unlawful lockdowns occurred, including four days in August 2022 with no time out at all – totalling over 96 hours of continuous confinement – along with two days in January 2023, again with no time out. They are seeking declarations that this confinement was unlawful as well as prerogative relief, in the form of prohibition or an injunction, ensuring that the applicants are not confined to their cells unless in accordance with the Young Offenders Act 1994 (WA) and regulations.
Due to the ongoing lockdowns, ALSWA’s clients’ mental health has deteriorated leading to increasingly distressed states and serious self-harm and suicide attempts.
The solutions are simple:
- A trauma-informed, culturally-appropriate therapeutic model of care at Banksia Hill.
- Banksia Hill must employ properly trained and remunerated staff who want to mentor the young people – not punish and humiliate them.
- Resource and empower communities to support young people and their families.
- Raise the age of criminal responsibility to 14 years of age.
- Ensure young Aboriginal and Torres Strait Islander peoples are engaged and connected with the community so they can thrive.
The ALA thanks Alice Barter for this article.
Alice Barter is the Managing Lawyer of the Civil Law and Human Rights Unit of the Aboriginal Legal Service of WA. She first volunteered at ALSWA in 2005. Alice has also worked as a state prosecutor at the WA DPP, a domestic violence lawyer at SCALES CLC and as counsel assisting at the Perth Coroner’s Court. In her current role, Alice works in youth justice; coronial inquests; police accountability; prisoners’ rights; personal injury; government accountability; false imprisonment; racial discrimination; guardianship and administration; strategic litigation; law reform and policy.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).