Australia's anguish: the Indigenous kids trapped behind bars

On an average night in 2019, there were 949 children behind bars in Australia – more than half of them were Aboriginal or Torres Strait Islander.

Of all 10-year-olds incarcerated, 80% were Aboriginal children.

Aboriginal kids make up only 6% of all 10- to 17-year-olds in Australia but they are 54% of the juvenile detention population.

They are jailed at 22 times the rate of non-Indigenous young people. And they are jailed younger. In 2019 nearly 65% of children under 14 in detention were Aboriginal and Torres Strait Islander.

Related: 'Hell scared': how a terrified homeless boy found himself locked up alone in the 'hole'

Study after study has shown that contact with the criminal justice system at a young age can do lasting damage to children, their families and communities.

The younger a child is the first time they’re sentenced, the more likely they are to reoffend violently, to continue offending and to end up in an adult prison before their 22nd birthday. According to a 2016 report by the Sentencing Advisory Council, 94% of children in detention aged 10 to 12 returned to prison before they were 18.

The collective anguish about Aboriginal children trapped in the juvenile justice system is expressed in the Uluru statement from the heart:

Proportionally, we are the most incarcerated people on the planet. We are not an innately criminal people. Our children are alienated from their families at unprecedented rates. This cannot be because we have no love for them. And our youth languish in detention in obscene numbers. They should be our hope for the future.

Guardian Australia today launches Childhood in custody, a series about how juvenile justice operates in Australia, as told by those who live and work in the system.

A Noongar boy, homeless since the age of 14, talks about the terror of his first night in jail, but how it was better than sleeping on the streets. A stolen generations parent who has experienced police violence watches his son face similar treatment. Police in two states talk about wanting to move beyond a culture of targeting Aboriginal kids. A youth worker tries to stem the tide of children going from foster care to jail, with little funding, while a magistrate expresses frustration at the limited options he has to help kids out of the system. They all talk about what they have seen and what they would like to see change.

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A psychologist and Nyamal woman, Dr Tracy Westerman, says prison doesn’t teach 10-year-old children anything but can make existing problems worse.

“Kids don’t have the internal ability to weigh out moral reasoning at that age,” she says. “You lack the ability to regulate thoughts, behaviours and emotions. Quite often, you can be highly impulsive, you can have impulse control issues.

“Imagine putting that kind of person in an environment with hundreds of other kids that are the same.”

Many Aboriginal children in detention have at least one neurological impairment.

In Westerman’s home state of Western Australia, a 2018 study found that almost every child in detention was “severely impaired” in at least one brain function, be it memory, language, attention or executive function – which limited their ability to plan and understand consequences.

The study of 99 children in Banskia Hill detention centre found nine out of 10 kids had some cognitive impairment, and one in three had foetal alcohol spectrum disorder – the highest known rate in the world of FASD among any population in the justice system. Seventy-four per cent of the children in the study were Aboriginal.

Related: High rate of Aboriginal incarceration 'starts young', NSW inquiry hears

“Impairments may come across in behaviours with young people appearing wilfully naughty, defiant, or lazy, when in reality they may been be struggling to remember, understand or comprehend what is required of them,” the researchers wrote.

In his 14 years as president of the children’s court of Western Australia, Denis Reynolds says he regularly saw Aboriginal children aged 10 to 13 who were so small “they could hardly see over the dock” and who had “serious neuro-developmental impairment”.

“We’re saying they’re bad kids,” says the judge, who is now retired. “What we should be saying is these kids are crying out for support and we need to be providing it.”

Out-of-home care and punitive policing

Studies show a strong link between the time children spend in out-of-home care and juvenile detention.

From 2014 to 2019 more than half of the young people who had been in the justice system had also received child protection services. Aboriginal and Islander children are overrepresented in the out-of-home care system in every jurisdiction in Australia.

Aboriginal children are also disproportionately targeted by punitive policing. In New South Wales, for example, Indigenous kids are significantly overrepresented in the number of strip-searches conducted by police.

NSW police have also been operating a secretive blacklist known as the suspect target management plan, or STMP, largely made up of Indigenous children – 72% – deemed to be at risk of committing crimes.

The NSW Law Enforcement Conduct Commission found that many of the children, some as young as nine, had not been charged with a crime and were not aware they were a target.

Between 2017 and 2019 the state’s highest concentration of kids subject to the STMP were in the western Sydney suburb of Mount Druitt.

At 13 Isaiah Sines was strip-searched by police on his way to the shops in the suburb. Isaiah says he was told to strip down to his underpants on the side of a busy road.

“It was embarrassing,” he says. “I didn’t know what to do so I just complied.”

Isaiah doesn’t know if he was on the STMP but says there were periods when police stopped him almost daily. One day he was stopped twice, by the same officers. The first time he was strip-searched. The second time he was questioned.

The age of criminal responsibility

Increasing the minimum age of criminal responsibility from 10 to 14 could lead to a decrease of about 15% in the number of young Aboriginal and Torres Strait Islander people in detention, according to the 2020 Productivity Commission report, Overcoming Indigenous Disadvantage.

Related: NSW police strip-searched 96 children in past year, some as young as 11

But governments – with the exception of the Australian Capital Territory’s – are reluctant to act, citing community safety concerns.

In November 2018 the Council of Attorneys-General agreed to consider raising the age. But when the council met again last July it decided that further work was needed “on adequate processes and services for children who exhibit offending behaviour”.

“There is a significant risk that a simple increase to the minimum age of criminal responsibility would leave this cohort of children without proper support services,” said South Australia’s attorney general, Vickie Chapman.

Her NSW counterpart, Mark Speakman, said any reforms “would need to be in the best interests of the NSW community, with the safety of the community a key consideration”. It’s a view shared by many states. But Queensland’s attorney general, Sharon Fentiman, said bluntly: “There are no plans to raise the age of criminal responsibility in Queensland.”

The Northern Territory government said it was considering how to raise the age from 10 to 12 years, as recommended by the royal commission into the protection and detention of children in the NT.

All but one of the 32 kids now in juvenile detention in the NT are Aboriginal boys. There have been numerous times over the past decade when every single child in detention in the territory is Aboriginal. The NT is building a $55m replacement for the much-maligned Don Dale youth detention centre, which is due to open in 2022, and spending $13m on the Alice Springs youth detention centre.

In August the ACT became the first and only jurisdiction to commit to raising the age to 14, by promising to amend legislation in the next parliamentary term.

“Locking up kids fails the children themselves and it also fails to protect our community,” said the ACT’s attorney general, Shane Rattenbury. “If we want to reduce future offending, expanded support and diversion is the way.”

So what else works?

Circle sentencing works, according to the NSW Bureau of Crime Statistics and Research.

The restorative justice program is available in 12 NSW local courts. The magistrate works with Aboriginal elders, victims and the offender’s family to determine an appropriate sentence.

In April Boscar found that Aboriginal people who take part have lower rates of imprisonment and recidivism than those who are sentenced in the usual way.

Some states also have their version of the NSW youth Koori court, which was established in 2015. Elders, lawyers and police meet to discuss the issues that may lie behind a young person’s offending. They develop plans for each offender. Participants have up to 12 months to complete the program and their performance is taken into account during the sentencing process.

Both these options are for sentencing. But the youth worker Daniel Daylight says waiting for kids to come to court and plead guilty is starting way too late.

“I want to stop people from ever going to court. I want to stop us focusing on having culturally safe courts, when really we need to have culturally safe communities and cities.”

Tracy Westerman says therapeutic approaches are needed, to diagnose and manage children’s developmental issues, to divert them away from the justice system. Ultimately, jailing 10-year-olds puts Australia behind international human rights standards.

“When do we lose our compassion for a child who is being abused or traumatised in their home?” she asks. “Well, effectively Australia says we lose that compassion at 10.”