Indigenous youth and the criminal justice system in Australia

The over-representation of Indigenous children in the criminal justice system is well documented. One of the most important outcomes of the Australian Royal Commission into Aboriginal Deaths in Custody, finalised in 1991, was to highlight the difficulties faced by Indigenous people within the criminal justice system, particularly in the area of Indigenous juvenile incarceration. The orthodox response by one State within the federation, New South Wales, as expressed in legislation and court sentencing practice, is marked by a failure to stem the everincreasing rates of Indigenous incarceration. Focusing upon court practice and case law, this chapter critiques the orthodox responses by government over the past ten years to the problem of Indigenous juvenile incarceration. Criticism of the government’s inability to address this problem is longstanding and damning, and underscores the inadequacy of various strategies used to address this issue. Drawing from a postcolonial theoretical framework, the chapter questions the orthodox response by the government to this problem. it is suggested that the failure of government calls for a rethinking of law reform, and that ‘restorative justice’ may provide a pathway forward.