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By the turn of the century the New South Wales colonial administration had established a legal and criminal justice infrastructure based on the English legal system, but imbued with the raced and gendered discourses and strategies of governance outlined in chapter three (see Baldry and Cunneen 2011; Behrendt, Libesman & Cunneen 2009; Blagg 2008; Cunneen 2001; Cunneen and White 2011; Hogg 2001). There were a number of distinctions in the development of the juvenile justice system, which mean that its historical trajectory was different from that of the ‘mother country’.

The colonial police were distinct from the ‘New Police’ of England: they were militarised and had been actively involved in frontier expansion, clearing indigenous people from their lands and, from the nineteenth century onwards, governing reserves and missions where they had the responsibility for taking children away from their families and country (Hogg 2001; HREOC 1997; Jennet 2001; Osmond 2009; Sturma 1987; Van Krieken 1992). As Hogg and Golder (1987) explain, in the early years of the colony the police were also responsible for ‘a bewildering array of tasks’, which went beyond crime control and included all aspects of government administration and regulation (p.63). Consequently, individual officers held (and still do today) a considerable amount of legal discretion in day-to-day decision-making so that order could be directly established and maintained (Dixon 1997; Finnane 1987, 2002). The governing authority for the police was invested in a single commissioner who had a direct relationship at first to the governor of the colony and then to the police minister (Dixon 1997; Finnane 1987). As Finnane points out, this gave the police a high level of influence in government circles and from the nineteenth century onwards the police were, and continue to be, accorded a powerful voice in the development of legislative and policy reform (1987, p. 31; see also Finnane 2002).

Although courts had begun to establish distinct sentencing practices for juveniles from the 1840s onwards, it was not until 1905 with the introduction of the

Neglected Children and Juvenile Offenders Act (NSW) that a separate children’s

34 _{This is a very cursory overview and more detailed accounts of juvenile justice history can be found in}

Cunneen & White 2011; the edited collection of Borowski and Murray 1985; Borowski and O’ Connor (1997); Carrington & Pereira 2009; the NSW Law Reform Commission 2005; and Seymour 1988.

court was established (Cunneen and White 2011, p.14). Australian children’s courts dealt with both criminal and welfare matters and criminal proceedings were informed by the kinds of legal principles and trial procedures to be found in the adult court, but were also required to take ‘the best interests of the child’ into account in sentencing determinations (see discussion in Seymour 1985, 1988). The children’s courts were presided over by a specialised children’s court magistrate in metropolitan areas and social workers and probation officers were appointed from the early days to provide reports to the court and manage children released into the community on conditional discharge, probation, or parole (Cunneen & White 2011; Seymour 1985; 1988). From the early days of juvenile justice there were a number of diversionary options available to police and the courts such as warnings and cautions. Later, children’s aid panels were introduced which became an integral part of juvenile justice especially from the 1970s onwards (Alder & Polk 1985; Alder & Wundersitz 1994; Challinger 1985; Tierney 1985)

Children could be brought before the court for both criminal offences and what were termed ‘status offences’ (Carney 1985; Gamble 1985). Status offences were defined as ‘pre-delinquent acts, which, if not controlled, could escalate into more serious delinquency’ and were the means by which the children’s court sought ‘to control unruly children’ (Gamble 1985, p. 95). Status offences included being deemed to be neglected, or being in moral danger and included other behavioural issues that were found to need correction and treatment (see Carney 1985; Gamble 1985; Seymour 1985). High numbers of girls were referred to the court by parents and social workers for status offences, especially if their behaviour was seen to be promiscuous or in other ways gender inappropriate (see Carrington 1993, 1996; Carrington & Pereira 2009; Gamble 1985).

The children’s court could place convicted offenders and status offenders on control orders, which sentenced them to periods in detention35. Unlike convicted criminal offenders, status offenders were subject to control orders that were not reviewable by the courts and release from custody was a decision made at the discretion of the supervisor of the custodial institution (Carney 1985). Many of these custodial      

35 _{Custodial institutions included industrial schools, ‘homes’ and reformatories but there was very little}

difference in their regimes of discipline, work and punishment (Atkinson 1997; Cunneen & White 2011; Carney 1985)

6. A tale of two policy streams institutions were cruel places and as recent inquiries have discovered girls and boys were subject to brutal treatment, including sexual and physical assault36_.

From the turn of the century until the 1930s indigenous children living on missions and reserves were dealt with separately in relation to welfare and some criminal matters (Osmond 2009; Van Krieken 1992). The NSW Aboriginal Protection Act was introduced in 1909 and gave the Aboriginal Protection Board (established in 1893), the power ‘to assume full control and custody of the child of any aborigine’ (HREOC 2007 p. 34). The Board acted in loco parentis and in 1915 the Aborigines

Protection Amending Act gave total power to the Board, (which later became the

Aboriginal Welfare Board) to separate children from their families without even having to establish in court that they were neglected. In 1969 the Aborigines Welfare Board was dissolved and power to remove indigenous children from their families was incorporated into the 1939 Child Welfare Act (NSW) under the administration of the NSW Social and Child Welfare Department (Carrington & Pereira 2009, p. 102). Indigenous children were then sent to the same institutions as non-indigenous children. Although, as Carrington notes, perceptions of indigenous parenting practices and the extent of poverty amongst some communities meant that children were still removed and placed into wardship in disproportionally far higher numbers than non-indigenous children (Carrington & Pereira 2009, p.102). Indigenous children and young people also continued to be policed more heavily than other children, be less likely to be diverted to pre-court options like cautions and be more likely to receive custodial sentences (see for example Atkinson 1993; Blagg 2008; Carrington 1993; Carrington & Pereira 2009; Cunneen 2001; Cunneen & White 2011; HREOC 1997).

The intersection of the welfare and criminal systems was also tragically revealed in the large numbers of girls, young women, and indigenous children and young people, who passed between welfare institutions and the penal system (Carrington 1993, 1996; Carrington & Pereira 2009; Girls in Care Project 1986; HREOC 1997; Shaver & Paxman 1992).

36 _{Inquiries and reports include Parliament of Commonwealth of Australia, Standing Committee on Social}

Welfare 1985; Senate Community Affairs Committee 2005; NSW Select Committee on Juvenile Offenders 2005; Royal Commission of Inquiry Into Aboriginal Deaths in Custody 1991; Royal Commission of Inquiry Into Institutional Responses to Child Sexual Abuse ongoing).

As in many other jurisdictions by the late 1970s onwards there were moves in most Australian jurisdictions to separate out children’s welfare and criminal proceedings (Carney 1985, 1991; YJC 1990). By the 1980s a range of factors had combined together to create the climate for change. There was pressure from children’s rights and indigenous civil rights activists to introduce due process rights in relation to policing and court proceedings, as well as lobbying to provide children with access to legal representation (Alder and Wundersitz 1994, O’Connor & Sweetapple 1988; YJC 1990). These demands for reform ran alongside lobbying from within the public service and from non-government organisations about the poor treatment of juveniles in detention (Borowski 1985; YJC 1990). Towards the end of the 1980s the discourse of children’s right grew stronger with the impending ratification by Australia, of the Convention on the Rights of Child (see Alston & Brennan (eds.) 1991; YJC 1990). Brought together these shifts in approaches created a new policy climate in which the introduction of a suite of new legislation in New South Wales, separating out children’s welfare and criminal issues took place (see YJC Kids In

Justice Report 1990).

In 1987 The Children (Care and Protection) Act 1987 was introduced to deal separately with ‘the child in need of care’ or ‘at risk of harm’. Juvenile detention centres were established in the Children (Detention Centres) Act NSW 1987. The legislation included administrative details about standards and disciplinary procedures (YJC 1990). Detention centres were to act as correctional centres for convicted and remanded young people, separating them from children in substitute care deemed to be in need of care and protection who in turn were to be placed in secure residential institutions37 (Carrington 1993,1996). Detention centres and residential homes were placed under the control of the Director General of Family and Community Services. Status offences were formally de-criminalised in 1987 and initially the rates of detention of children and young people especially girls dropped dramatically (Carrington and Pereira 2009).

37_{Residential care continued to exist for those children and young people who could not be placed in foster}

families, or in community placements due to disabilities or behavioural problems. Ormond/Thornleigh, an annexe to Parramatta Girls home, continued to operate as a residential institution until 1977 and then re-opened as a truancy residential school until 1998 (Carrington & Pereira 2009).

6. A tale of two policy streams The Children Community Services Orders Act 1987 was also introduced and provided a statutory base for the introduction of community service orders as a sentencing and post release option. The Children’s Court Act 1987 laid down the procedural rules and guidelines for the separate children’s jurisdiction. The

Children (Criminal Proceedings) Act 1987 (NSW) (CCPA) also strengthened the

idea that children should be dealt with differently from adults. It set out a number of child-focused principles, which were to guide all criminal justice proceedings in relation to children, who were deemed to be criminal responsible from the age of 10 (NSWLRC 2005, p. 14). The government established that the CCPA should prevail in all criminal proceedings relating to children, except for the NSW Bail Act 1978 a point that will be returned to later in the thesis (see Appendix 6 for more details of the CCPA).

The package of legislation did not cover all aspects of the criminal process and there was still a wide range of legislation that lay outside of the child focused reforms

including the Crimes Act (NSW) 1900, Justices Act (NSW) 1902, Bail Act (NSW) 1978, Summary Offences (NSW) 1988, the Sentencing Act 1989 and the Police Service Act 1990.

Despite the significant changes to child welfare and criminal legislation outlined above and the range of diversionary options available to the children’s court, the NSW Youth Justice Coalition (established in 1988), considered that the NSW juvenile justice system still ‘appeared to be in turmoil’ and the organisation embarked on an ambitious project to develop a juvenile justice policy agenda and a range of policy options for the 1990s (1990, p.5).