How Western Australia Criminalizes Indigenous Children

Casuarina prison is a sprawling, concrete jungle on the southern outskirts of Perth, Western Australia (WA). It is a maximum-security, adult facility, home to people who may never leave its confines.

However, on July 20, the penitentiary “welcomed” a new cohort of prisoners: 17 kids under the age of 18, who had been moved from the Banksia Hill Juvenile Detention Center to Casuarina for what the state called an “escalation in extreme behavior.”

The stand-alone area at Casuarina where the boys have been placed – known as Unit 18 – has seen at least three suicide attempts and multiple instance of self-harm.

Megan Krakouer, the director of the National Suicide Prevention and Trauma Recovery Project, told The Diplomat that “at least 12 of these kids have mental or behavioral issues that require a therapist and extensive care.”

“They are not getting this kind of help, and this only leads to hate, not rehabilitation,” she said.

The state government has justified this move as temporary, but for many, it is a continuation of the extreme and punitive behavior that has consistently impacted the First Nations children in Western Australia over a long period.

Shameful Statistics

When current WA Premier Mark McGowan was elected in 2017, his Labor party promised to lower the rate of Indigenous incarceration in the state, which is the highest in the nation. First Nations people are 16 times more likely to be incarcerated in WA than non-Indigenous people, a number that has only risen despite the promise of the government.

Dr. Hannah McGlade, a Noongar academic and human rights lawyer, isn’t surprised by the state’s failure to uphold its promise.

“Our government cares little for Aboriginal lives,” McGlade told The Diplomat. “So many promises turn out to be empty words without genuine commitment. The rhetoric has to end.”

The persistent pattern of incarceration is a direct result of punitive measures that have been enacted by various governments. These decisions have resulted – intentionally or otherwise – in many being pushed into the prison system.

In the past month, the Australian High Court upheld a law designed to keep the worst offenders in prison indefinitely, even after their sentences have been complete.

Known as the High Risk Serious Offenders Act (HRSOA), the legislation was challenged in Australia’s apex court when Peter Garlett, a 23-year-old Noongar man, was imprisoned after stealing AU$20 and a necklace while pretending to be armed. Despite this being his first adult offense, when his sentence was up, the Western Australian government asked the High Court to keep Garlett, now 28, in prison. The court agreed, effectively paving the way for preventative incarceration in Australia.

Although five of the seven High Court judges upheld the constitutional validity of the HRSOA, many academics, lawyers, and activists who deal with the lives of First Nations people inside the legal system on a regular basis, note that this will only further trap Indigenous Australians in the carceral system. Garlett had been in near-continuous detention since he was 12, and this became the rationale for keeping him in prison beyond his criminal sentence.

One of the judges even hypothesized that the law could “potentially lead to the imprisonment of one seventh of the entire prison population of Western Australia for offenses that they have not committed.”

Kieran Pender, an honorary lecturer at the ANU College of Law and a writer who has covered the case, told The Diplomat that the law was “concerning.”

“As the dissents in [the case] make clear, this trend is deeply troubling and has significant implications for the rule of law and individual liberty in Australia,” Pender said.

McGlade was even more direct in her views, noting “the act violates the rule of law, the separation of powers, and principles of justice.”

Pointedly, she lamented that “there is once again, no justice done for Aboriginal people.”

Indigenous Australians are far more likely to experience poverty and disadvantages in education, wealth, and employment. Crimes such as the ones Garlett was charged with have been proven to be more prevalent in communities that suffer from societal disadvantages and/or poverty.

Tom Penglis is co-founder and executive director of the Western Australian Justice Association and was unequivocal in his thoughts about the HRSOA.

“It disproportionately impacts First Nations people because First Nations people are overrepresented in many of the offenses (such as robbery),” he said.

“This is a crystal-clear example of an indirectly discriminatory law: one that is not discriminatory in its express terms but is discriminatory in its practical effect.”

The implementation of laws like the HRSOA may not seem controversial. It was designed for high-risk prisoners – such as those convicted or sex crimes or terrorism. For a state government that often has campaigned on a “tough on crime” stance, it is a vote winner.

However, when the HRSOA is extrapolated to encompass crimes that are routinely associated with poverty, the only result is more people who are imprisoned for longer, often for crimes that do not warrant such long sentences.

Indigenous people’s over-representation in the prison population is part of the “systematic disadvantage” facing them. Former Chief Justice of Western Australia, the Hon. Wayne Martin AC, defined this term as “the disadvantage which Aboriginal people suffer because the system is structured in such a way as to produce adverse outcomes for Aboriginal people more commonly than for non-Aboriginal people.”

Though Indigenous people make up less than 4 percent of the state population, nearly 40 percent of Western Australia’s prison population is Indigenous. That is particularly troubling given the horrific record of Australian prisons. Since the Royal Commission into Aboriginal Deaths in Custody in 1991, over 500 First Nations people have died while imprisoned in Australia. In 2020-2021 alone, 13 prisoners died in custody in WA – five of them Aboriginal.

No custodial or police officer has ever been found criminally responsible for any of these deaths.

Children at the Center of Incarceration

The structural forces pushing Indigenous people into Australia’s prisons start early. In the Banksia Hill Juvenile Detention Center, three-quarters of the inmates are Indigenous. Despite its mandate to rehabilitate people for their eventual release, reports show some of the prisoners receiving as little as five hours of education a month. In April, the state’s prison watchdog outlined a series of “cruel, inhumane, and degrading” treatments in the facility’s Intensive Support Unit.

Children have reportedly made suicide pacts due to their treatment, with some being kept in isolation for 23 hours a day. When sentencing one teenager who assaulted a guard after this treatment, WA Children’s Court president Judge Hylton Quail asserted that “when you treat a damaged child like an animal, they will behave like one.”

“If you want [to create] a monster, this is how you do it,” Quail added.

When the inmates are released, the lack of rehabilitation inside is stark. Re-offending is rife, with many Indigenous people having little to no support on the outside – after having been brutalized on the inside.

Krakouer, the director of the National Suicide Prevention and Trauma Recovery Project, lamented that the system simply “perpetuates a cycle.” She also was at pains to highlight the fact that suicide was most likely for many in the 12 months after release.

Krakouer told a Royal Commission into Disability that “our children are being failed.”

“We’re denying people in the prison system access to the very fundamentals we should all have as human beings.”

Talking to The Diplomat as she prepared for yet another funeral, Krakouer was clear in why these tragedies continue: “Unaddressed trauma kills people.”

Finding a Way Forward

In 2020, Australia, like many Western nations, held protests as part of the Black Lives Matter movement as outrage around the treatment of African Americans in the U.S. justice system hit a crescendo.

In Western Australia, with decidedly less fanfare, Indigenous people are incarcerated at a higher rate than African Americans.

Penglis and McGlade point to the age of imprisonment in Australia being only 10 years old as devastating. Both have pushed to have it raised to 14.

“The mandatory detention law and low age of criminal responsibility drives high Aboriginal incarceration,” McGlade told the Diplomat.

“We are seeing punitive and harsh treatment of our children, some as young as 10 and children with disabilities. If we respected children’s human rights, we wouldn’t be throwing them in prison.”

Penglis argues that one way to lower incarceration is a policy shift toward reinvestment and away from over-policing and imprisonment – something he acknowledges is not electorally popular.

McGlade is adamant that until the government starts to address these issues seriously and listen to Indigenous people, no justice will be done.

“We need a charter of Human Rights for everyone, especially Aboriginal people who bear the brunt of human rights violations.”

What is certain is that this cycle – which starts with children as young as 10 being removed from their homes and imprisoned, and which too often ends in tragedy – is destined to continue unabated unless there is a dramatic alteration in how First Nations people are treated and respected in the justice system.

As one former Banksia inmate who is currently imprisoned as an adult lamented of his time in juvenile detention: “Banksia took me to a dark place and ruined my life.”