Kath McFarlane,
PhD Candidate - UNSW (Law)
◦ Chief of Staff, Minister in the NSW Govt.
◦ PhD Candidate (Law) – University of NSW
◦ Member Women’s Advisory Council, NSW Corrective Services
Lecturer in Justice Studies, Charles Sturt University
Executive Officer, Children’s Court of NSW
Executive Officer, The NSW Sentencing Council
Official Visitor, NSW Corrective Services
Coordinator, No New Women’s Prison Campaign (NNWPC)
Coordinator, The Mulawa Project Prison Visiting Scheme
Evidence presented to the Federal Govt’s Committee
on Aboriginal & Torres Strait Islander Affairs,
Inquiry into the high levels of Indigenous juveniles
and adults in the criminal justice system.
Preliminary PhD findings written up in the Institute
of Sydney’s Criminology Journal Current Issues in
Criminal Justice From Care to Crime: Young Women
in the Criminal Justice System, Nov 2010.
Does a history of out of home care constitute a
primary risk factor in the development of criminal
Does it lead to an increased likelihood of
involvement with the criminal justice system and
juvenile and adult incarceration?
Care & Crime
The overwhelming bulk of evidence indicates that most
young people do not engage in criminal activity.
Of those that do, the overwhelming majority do not
go on to commit further offences.
However, ‘out of home care’ (ie placement out of
home in an institution, foster care or kinship care) has
been associated with juvenile re-offending.
A series of NSW Parliamentary Inquiries has found that
State wards are highly likely to be over-represented in
the criminal justice system.
For eg, in 1992 the Inquiry into Juvenile Justice found
that female State wards were 40 times more likely to
be detained in custody than non-wards.
Unable to meet bail conditions, they were frequently
remanded in custody for essentially welfare-related
reasons: ie homelessness, poverty, exposure to abuse.
The 1996 Wood Royal Commission reported that wards
were over-represented in criminal activity and as
victims of pedophilia and prostitution.
”No community with any real concern for the safety and
well-being of its children can tolerate a system under
which there is an inevitable, or even substantial, drift of
State wards to juvenile detention, with its increased risk
of progression to adult imprisonment.”
In 2010, the Strategic Review of the New South Wales
Juvenile System, commissioned by the former Labor
Minister for Juvenile Justice, Graeme West,
recommended that addressing the risk factors of out of
home care and its links to the juvenile justice system
would be a ‘sound policy platform’.
Shortly afterwards, Minister West resigned from
Parliament, citing Government refusal to adopt the
Report’s recommendations and claiming he could
achieve more outside of Government.
On community orders
In 2003, 36% of females and 21% of males on
community orders (ie sentenced to community-based
penalties) in NSW had been in care.
In custody
39% of females and 28% of males (both Indigenous
and non-Indigenous) reported a ‘history of out of
home care’.
By 2008, the numbers had dropped slightly for
females, to 34%.
However, an astounding 62% of Aboriginal males,
had been or currently were, in care.
This compared to 19% of non-Aboriginal females
and 36% of non-Aboriginal males with a history of
out of home care.
Young people on community orders, who were
also in care, reported a raft of social
disadvantage indicators, including:
◦ Having experienced a physical injury requiring
medical treatment;
◦ Having had unwanted sex;
◦ Having no close friends;
◦ To have received special education & treatment
for substance abuse;
◦ To be living in unsettled accommodation;
◦ To be unemployed;
◦ Having relatives who had been in prison; and
◦ To be in receipt of Government benefits.
International studies have shown that those in care are
more likely to receive a caution or conviction than their
There is evidence of early onset of delinquency in the care
cohort compared to their non-care peers.
There is some evidence that this group is over-represented
in serious or violent offences.
Whether a history of out of home care constitute
a primary risk factor in the development of
criminal behaviour; and
Whether it leads to an increased likelihood of
involvement with the criminal justice system and
juvenile and adult incarceration.
Examined 111 Children’s Court criminal files
Over 1/3 were in or had been in care
Another 23% were ‘extremely likely’ to be in care
At less than 0.5% of the NSW child population, this
means that children in care are
68 times more likely to appear in
the Children’s Court than the
non-care cohort.
Young women comprised just over a quarter of the
60% of the female cohort was identified as being of
Aboriginal or Torres Strait Islander background –
twice the rate of non-care Indigenous females in the
The files showed the girls’ shared common
backgrounds of homelessness and abandonment,
with periods in refuges, group homes, and on the
Many of the offences were fairly minor –
including offensive language, resist arrest, etc.
Breach of curfew conditions, such as visiting
relatives in exclusion areas, often brought young
women back before the court.
Most offended in company – generally relatives or
fellow residents in group welfare homes.
There is evidence of limited utilisation of referrals
by police to alternatives to court – such as
cautions or conferencing.
Almost ½ of the girls had been charged with
malicious damage – all committed in foster care or
group home where they lived.
Egs include:
marking walls; kicking over a chair; throwing the door back
onto the wall.
None of the female non-care cohort was charged
with this offence.
Many girls were bail refused, or had bail conditions
imposed upon them they could not
meet, resulting in them spending time in
juvenile detention.
Often, the young person was remanded back to the
care of the group home or foster placement where
the criminal charge had been laid.
This created a cycle -young people were repeatedly
brought before the court for incidents arising from
their placement, only to be placed there again.
There is evidence that involvement in the criminal
justice system is intergenerational.
Many of those people in custody or on
community-based orders are following in
the footsteps of their parents or grandparents.
Significantly, many were removed from their families
as a result of successive Government policies.
These policies resulted in systemic and long-lasting
disadvantage for hundreds of thousands of
The Australian Government has given official
recognition to the widespread systemic abuse of
children perpetrated in the name of the State.
This recognition began with HREOC’s Bringing
Them Home report into the experiences of the
Stolen Generations…
was followed by the Senate Committee’s Lost
Innocents – Righting the Record report into the
transportation and institutional care of experience
of British and Maltese child migrants….
and followed with the Senate Community Affairs
Committee series of inquiries into Australians who
experienced put of home care as children.
The Federal Apology
On 13 February 2008, then Prime Minister Kevin Rudd issued
a formal apology to all Aboriginal and Torres Strait Islander
peoples on behalf of current and successive Commonwealth
We apologise for the laws and policies of successive
Parliaments and governments that have inflicted profound
grief, suffering and loss on these our fellow Australians.
We apologise especially for the removal of Aboriginal and
Torres Strait Islander children from their families, their
communities and their country. For the pain, suffering and hurt
of these Stolen Generations, their descendants and for their
families left behind, we say sorry.
To the mothers and the fathers, the brothers and the sisters,
for the breaking up of families and communities, we say sorry.
And for the indignity and degradation thus inflicted on a proud
people and a proud culture, we say sorry.
The ‘Forgotten Australians’ is the name given to those
adults who grew up in out of home care - foster
homes, orphanages and other institutions –
throughout Australia, from the 1920’s until the 1990’s.
Other common terms include:
- careleavers; fosterkids; wardies; and homies.
The term includes those people who were placed in juvenile
detention institutions - such as the Parramatta Girls Home or
Hay Gaol – for often spurious reasons, including being deemed
‘exposed to moral danger’ after being abused or neglected, or
‘uncontrollable’ for running away or being otherwise defiant.
In 2004 the Senate Community Affairs Committee’s series
of Inquiries into Australians who experienced out of home
care as children.
The first report (tabled in August 2004) estimated that
approximately 500,000 Australians experienced out of
home care in the last century alone.
In 2008, faced with an apathetic Government response
and prompted by the Forgotten Australians’ unrelenting
public campaign for recognition, the Committee took the
highly unusual step of revisiting its Inquiry.
The bi-partisan Committee’s June 2009 report was
highly critical of Government inaction.
18 months later, the Federal Government made an
historic apology for the widespread emotional, physical
and sexual abuse they suffered at the hands of their
supposed caregivers.
Echoing the apology to the Stolen Generations made a
year previously, the Government’s words acknowledged
the suffering, abuse and systemic disadvantage
experienced by many people who grew up in at the
hands of the State, the Church and private agencies.
Children were ‘neglected and isolated, brothers and
sisters separated, contact with family restricted or
denied and opportunity disregarded’, with children
pressed into harsh domestic service.
As the NSW Government subsequently acknowledged
“This has had untold consequences, with a legacy
that has sometimes been passed down the
generations from family to family”.
Many people continued to experience significant
disadvantage as adults, in the form of:
- Drug & alcohol abuse;
- Poor education outcomes and limited
employment opportunities;
- Poverty;
- Homelessness;
- Long term mental health and physical problems;
- Difficulty in sustaining relationships;
- Poor parenting skills; and
- Contact with the criminal justice system.
Being a member (or descendant of) the Stolen
Generations or The Forgotten Australians has
been associated with involvement in the
criminal justice system.
The 2001 NSW Inmate Health Survey found that 33%
of Aboriginal women in custody reported being
removed from their families as children.
Significantly, 31% of women said that their parents had
been forcibly removed as children.
In 2008, 45% of Aboriginal women reported childhood
The same report found that 32% of Aboriginal men
in custody reported being removed from their
families as children.
21% said that their parents had also been removed as
In 2008, 48% of Aboriginal men in custody reported
being removed.
The reports also established that in 2001, 23% of
non-Aboriginal women and 21% of non-Aboriginal
men in custody had a history of out of home care.
In 2008, this had risen slightly to 29% of non-Aboriginal
women and 24% of non-Aboriginal men.
The Stolen Generations report different physical and
mental health outcomes than other non-removed
Compared to their non-removed peers, adult
Aboriginal prisoners removed from their families as
children reported:
◦ significantly worse mental health outcomes;
◦ were more likely to be jailed more than 5 times;
◦ to have experienced child sexual assault; and
◦ to have attempted suicide.
The Royal Commission into Aboriginal Deaths in
Custody found that of the 99 deaths they
examined, almost ½ had been removed from
their families as children.
The problems experienced by the Stolen
Generations and Forgotten Australians are interlinked and often inter-generational.
Yet their over-representation in the criminal
justice system has not been widely acknowledged
by Government.
It is not a demographic routinely collected by or
reflected in corrections or court statistics.
There are few Government policies or programs
which specifically cater for juvenile or adult
offenders who have experienced out of home
While some States have established Trust Fund
Reparation schemes, there has been no public
acknowledgment of the role such schemes played in
the widespread removal of Aboriginal children and
the transmission of intergenerational disadvantage
and subsequent involvement in the criminal justice
This disadvantage was often used to then justify the
removal of another generation of children.
For example, ‘having no visible means of support’
was justification for child removal to a welfare
institution, even when the parent’s poverty was the
result of the misappropriation of Indigenous
peoples’ wages by Aboriginal Protection Boards and
welfare administration bodies.
People who have been in the care of the State as
children historically make up less than 0.2% of the
NSW child population.
However, the numbers in care are increasing: there
are now 20,000 children in care in NSW.
As the numbers of children in care increase, a
comparable negative impact on crime rates and a
corresponding increase in demand on the legal
resources of the State can be expected.