External monitoring, charters and conventions come together to improve youth justice detention

Events at Darwin’s Don Dale Youth Detention Centre in 2016 alarmed the community and shone a spotlight on the unsuitable treatment and environment in youth detention centres across the country.

Riots, like those seen at Don Dale and other detention centres, demonstrated how complaints and concerns among residents could fester unaddressed and escalate without appropriate and timely intervention. It is essential that the wellbeing of residents and staff in institutions closed to public view is assessed and monitored to ensure young people in juvenile detention, who are some of our most vulnerable, are protected.

Improving and strengthening the way places of detention are monitored is one way to prevent mistreatment. In jurisdictions across Australia there are processes in place to investigate and review detention facilities.

In South Australia, the Training Centre Visitor Unit (TCVU) conducts visits to both campuses of the Adelaide Youth Training Centre (AYTC). Legislated in the Youth Justice Administration Act 2016, the Training Centre Visitor protects and promotes the rights and best interests of young people on remand or sentenced at the AYTC. This allows the visitor ‘to act as an advocate for the residents of a training centre to promote the proper resolution of issues relating to the care, treatment or control of the residents.’

The ability to make a complaint to an independent person, like an official visitor, is also one of the rights in the Charter of Rights for Youths Detained in Detention Centres.

In March, the TCVU released a report about its pilot visiting program and review of records. During the pilot, residents raised issue with the frequency of unclothed searches. By identifying these kinds of resident concerns and raising them with AYTC management and the Minister, external visitors can draw attention to degrading procedures as well as potentially preventing the issue from escalating. Readers may have seen a recent article in the Advertiser in which Penny Wright, the Training Centre Visitor, made it clear that she did not support the continuation of excessive and intrusive strip searching and methods such as ‘squat and cough’.

This preventative approach will be further refined following Australia’s ratification of the Optional Protocol to the Convention Against Torture (OPCAT). OPCAT is an international agreement that’s main aim is to prevent the mistreatment of people in detention.

Australia has three years in which to fulfil its obligations and develop an independent National Preventative Mechanism (NPM) to comply with its obligation under OPCAT. The NPM conducts inspections of all closed spaces and places of detention. Australia joins 88 other countries as a party to OPCAT, 71 of which have designated their NPM.

The Australian Human Rights Commission has been conducting consultations on how Australia should implement OPCAT.  The Commonwealth Ombudsman is also coordinating an assessment about how a ‘diffuse’ NPM model might operate across State and Territory jurisdictions.  At the moment it is unclear what Australia’s NPM will look like and what the involvement of existing monitoring bodies will be.

The TCVU will conduct its first formal inspection of the AYTC in the final quarter of this year. It will be informed by the work and information gained during the program of visits and reviews of records that have been implemented since mid-2018. This inspection process is being developed so it will be compliant with OPCAT requirements.

Around the world, jurisdictions similar to Australia are having success with models of juvenile rehabilitation that are radically different to those here. Much stronger independent oversight and monitoring will increase transparency and identify problems before they intensify. Success can also be measured by the way these programs challenge and force reconsideration of the largely penal model that dominates Australia’s thinking.

Training centre report reveals residents’ concerns

The Training Centre Visitor (TCV) is an independent statutory officer set up to promote and protect the rights of children and young people on remand or sentenced to detention in the Adelaide Youth Training Centre (AYTC). The Training Centre Visitor Unit (TCVU) reviews the suitability and quality of the environment and facilities via visits, inspections and review of records. The TCVU is legislated in the Youth Justice Administration Act 2016 and reports to the Minister for Human Services.

Its report on the 10-week pilot visiting program and subsequent review of records was tabled in Parliament on 4 April. The TCVU visited both of the AYTC campuses—Jonal and Goldsborough—five times each over the course of the pilot. The report identifies issues affecting residents of the Centre including unclothed searches, facilities, privacy and access to cultural programs.

Unclothed searches

For any young person, but particularly one with a history of trauma and abuse, an unclothed search can be distressing.

Residents raised concerns with the visitors about the frequency of unclothed searches. At Goldsborough campus, 65 per cent of searches happened after personal visits from family and others. A number of young people reported that they were less welcoming of personal visits due to anxiety about being unclothed searched.

The TCVU is advocating to ensure the correct method of search is used. According to the Youth Justice Administration Act (2016), the Centre is obliged to conduct partial unclothed searches in a way that ensures that young people are not completely naked at any time during the search. The TCVU is advocating for the consistent use of an ion scanner to avoid excessive unclothed searches after personal visits. It is also continuing to review all search logs to ensure they are meeting legislative requirements.

Cultural programs

The Youth Justice Regulations (2016) reinforce that the individual cultural identity of Aboriginal and Torres Strait Islander children and young people be recognised and their beliefs and practices be supported, respected and valued.

Current and past residents of AYTC have expressed concern about the lack of Aboriginal staff and Aboriginal cultural programming. This is a particular concern at the Jonal Campus where, although numbers are low, the population can be 60 to 100 per cent Aboriginal young people.

 

Information gathered during the pilot period has influenced the development of the program moving forward. From 2019, the TCVU will run based on quarterly visiting rounds, linked to school terms. There will be five fortnightly visits to each campus per term, with less formal visits between terms. The information gained through these visits, along with quarterly reviews of records, will inform the first formal inspection of the Centre later in 2019.

Download the Training Centre Visitor’s Report.


Rights concerns over Youth Treatment Order Bill

Penny Wright – Guardian for Children and Young People

We know that substance misuse can have terrible consequences for children and young people.  Their developing brains can be seriously harmed by the use of legally available substances like alcohol and solvents, as well as cannabis and a growing array of other drugs.

Substance abuse can lead to reduced intellectual capacity, permanent behaviour changes and long-term, debilitating mental health problems. It can also exacerbate or be associated with other dangers, risky behaviour, criminal associations and vulnerability to exploitation.

Occasionally the consequences are very public and are reflected in tragic headlines. We want to protect children and young people and we want to protect the community.

My office and I give credit to the Government for acknowledging and trying to address this difficult issue, with the introduction of the Controlled Substances (Youth Treatment Orders) Amendment Bill into Parliament last year. However, in providing for the detention of young people for up to 12 months for compulsory treatment, the Bill raises many serious concerns.

Deprivation of liberty

Our community is rightly cautious about depriving anyone of liberty who has not been convicted of committing an offence.  Our legal system and international treaties to which we are a signatory protect the right of people, including young people, to their freedom.  We deprive people of their liberty only under exceptional, very specific circumstances and with the assumption that their rights will be protected in relevant legal processes.

There is a danger when the legal deprivation of liberty might be misused by a community to dispose of people who are inconvenient. So, as a community we must be wary about any solution that creates a ‘too hard basket’ into which inconvenient and hard to deal with young people can be relegated.

Human rights

These concerns are backed up in a submission from the Castan Centre for Human Rights Law at Monash University, which was released in February. It argues that the Bill poses a significant risk to a number of human rights and also reiterates that detention should only be used as a last resort and for the shortest period of time.

The submission raises further issues around international human rights laws concerning the protection of people with disability from forced medical intervention. The Bill, at present, has no specific protections for children and young people with disabilities.

Will this ‘solution’ work?

The second question about the proposed treatment orders is their efficacy.  The Bill was introduced with scant consultation with the many government and non-government agencies that have long     involvement and experience with young people affected by substance misuse.  It also seems to have been drafted with little regard for the experience of other similar jurisdictions in Australia and overseas and for the considerable body of research that points to the complexity of the problem but also provides some valuable ways forward.

A significant number of the young people who come into state care become involved in substance misuse.  The range of circumstances—physical, emotional and sexual abuse, and neglect—that bring them into state care also leave many deeply affected by trauma.  Self-medicating with legal and illegal substances can become for them a viable way to cope with the pain of that trauma in the absence of other treatments.  For others, deprived of secure family and community attachments, the community of drug users can provide a much-needed family and identity not provided elsewhere.

Young people in care and detention

This particular group of young people is well known to those of us at the Office of the Guardian.  They do not define the extent of the problem but do give an indication of the complex reasons why young people turn to substance abuse. Our experience shows the diversity and complexity of the solutions we need to offer if we are going to be effective.  There is already a serious shortfall in the provision of drug rehabilitation services for young people who actually want them. Government responses that assume ready access to non-existent services or new programs that are not properly planned and resourced, are doomed to fail.

If there is a case for the involuntary detention of some drug-affected young people for short periods, that evidence must be mustered. But informed opinion agrees that effective rehabilitation will be achieved only by long-term, evidence-based programs that address the individual causes and in conjunction with the family and community that surrounds them. Treatment needs to be health focussed, rather than treated as a legal issue.

The Youth Treatment Orders Bill, which is again due for debate in the Legislative Council this week, should be withdrawn in its current form. Let us make use of the knowledge and experience in our community, alongside the considerable body of research to craft a response, and voluntary services, that offer genuine hope of assisting children and young people with a substance abuse problem, while still safeguarding their freedom.

Some gaps closed but many remain for Aboriginal and Torres Strait Islander peoples

More than a decade on from the original report, the 2019 Closing the Gap report shows only two of the seven original targets are on track to be met.

Important targets around education, health and employment have expired before they were met, while other targets to halve the gap in life expectancy remain off track.

These shortfalls perpetuate Aboriginal disadvantage and contribute directly and indirectly to the high proportion of Aboriginal children and young people coming into state care and coming into contact with the youth justice system.

What’s been achieved?

The target to see 95 per cent of all Indigenous four year olds enrolled in early education by 2025 is on track to be met. In 2017, South Australia had education enrolments about the 95 per cent benchmark with universal enrolments.

Halving the gap in Year 12 attainment, or equivalent, by 2020 is on track to be met. Nationally, the gap has decreased from 36 percentage points in 2006 to 24 percentage points in 2016.

What’s remains to be done?

A number of the original targets expired last year, on the tenth anniversary of Closing the Gap. These included a target to halve the gap in child mortality. While the rate has declined by 10 per cent since 2008, the gap has widened because the non-Indigenous rate has declined faster.

The national school attendance rate was around 82 per cent for Indigenous students in 2018. There has been no improvement in school attendance rates for indigenous students in South Australia in the last four years. While there has been improvement, targets to close the gap in literacy and numeracy have also not been met.

Large gaps remain between the life expectancy of Indigenous and non-Indigenous Australians. The target to close the gap within a generation, by 2031, is also not on track to be met.

Targets to halve the gap in employment outcomes between Indigenous and non-Indigenous Australians within a decade have not been met. The gap has not only not narrowed, but it has widened.

After 11 years of Closing the Gap significant gaps remain. Ambitious targets were set but many observers have noted that the failure to work closely with the Aboriginal and Torres Strait Islander community and to make the necessary structural, systemic changes have led to a largely disappointing result.

What’s next?

The latest Closing the Gap report promises a new collaborative approach.

Last year, the council of Australian Governments (COAG) developed Closing the Gap Refresh. It commits the Commonwealth Government to creating a partnership with Aboriginal and Torres Strait Islander representatives to ensure the next phase is driven by principles of empowerment and self-determination.

Indigenous advocates have pushed for new targets to address the over-representation of Aboriginal and Torres Strait Islander young people in out-of-home care.

Nationally, Aboriginal and Torres Strait Islander young people are ten times more likely to enter out-of-home care than their non-Indigenous counterparts. It’s predicted the number of Aboriginal and Torres Strait Islander children in out-of-home care will more than triple over the next 20 years without intervention.

In South Australia, Aboriginal and Torres Strait Islander children and young people are seven times more likely to be in care than the same age group in the general population and Draft Closing the Gap Refresh Targets mandate targets that will see significant and sustained program to eliminate the over-representation of Aboriginal children in out-of-home care.

Aboriginal and Torres Strait Islander young people are still over-represented in the justice system, making up more than 50 per cent of young Australians in detention. Another state led target is to reduce the rate of young people in detention by 11 to 19 per cent by 2028.

Under the new framework, different levels of government are held accountable and responsible for different priorities. State and territory governments will also be required to make annual reports on its Closing the Gap strategies and progress.

The Productivity Commission’s Indigenous Commissioner will also independently review progress every three years.

There is still much of the new strategy that is uncertain as federal, state and territory governments finalise the draft targets and develop appropriate responses. For example, South Australian government released its Aboriginal education strategy late last year to increase outcomes for Aboriginal students but it remains to be seen how it will work to meet these targets to close the gap of young people in out-of-home care and youth justice.

Australia reports to the UN on child rights

The United Nations Convention on the Rights of the Child is one of the most important documents in preserving the rights of children around the world.

Every five years the Australian Government must report to the UN Committee on the Rights of the Child, a requirement of Australia as a signatory to the UN Convention on the Rights of the Child.

The Australian Government is currently preparing for its meeting with the Committee, following the release of its report in January 2018.

In this post, we look at two accompanying reports responding to Australia’s report to the UN Committee on the Rights of the Child.

The Australian Child Rights Taskforce is a peak body made up of more than 100 organisations advocating for the rights of Australian children. Convened by UNICEF Australia, the taskforce released its ‘alternative’ report, which includes the voices of 572 children and young people consulted in 30 locations around the country. It makes 191 recommendations to promote and protect the rights of children in Australia.

Similarly, the Australian Human Rights Commission (AHRC), an independent statutory organisation promoting and protecting human rights in Australia, released a report. It was written following consultations with approximately 450 children and a further 22,700 through an online national poll on child rights.

While the Government’s report is no longer available online, these two reports look exhaustively at matters relating to children in Australia. We are considering some of the areas relating specifically to children and young people in out-of-home care.

Since Australia last reported to the Committee, there have been 24 separate inquiries, which have each identified issues with the child protection sector. The AHRC report finds the number of children and young people in out-of-home care has increased by 18 per cent in the past five years. The alternative report identifies problems with inconsistency and a lack of emphasis on frameworks being child centred.

Concerns for care leavers

Both reports identify concerns with young people leaving out-of-home care, with the AHRC report finding nearly 35 per cent of young people who leave out-of-home care become homeless. Last year the South Australian Government committed to extending the age young people leave out-of-home care from 18 to 21 years of age.

However, this does not yet include the 11 per cent of children and young people in residential and emergency care. Both reports recommend the Australian Government increase, or consider increasing, the age children leave care and call on governments to implement policy to prepare young people transitioning to independence.

Over-representation of Aboriginal and Torres Strait Islander children and young people

The reports are both concerned with the over-representation of Aboriginal and Torres Strait Islander children and young people in child protection and out-of-home care. Indigenous children are almost ten times more likely to enter out-of-home care than non-Indigenous children.

The alternative report makes a number of recommendations in this area, including the implementation of nationally consistent standards to respect all five elements of the Aboriginal and Torres Strait Islander Placement Principle. It also calls on the Australian Government to commit to ‘Closing the Gap’ targets to reduce the rate of Aboriginal and Torres Strait Islander children in out-of-home care.

Transgender and gender diverse young people

Transgender and gender diverse children in Australia can now access Stage 2 medical treatment without requiring court authorisation, but this does not extend to include children and young people in the out-of-home care and juvenile justice systems. These children still require a court authorisation to begin treatment.

What’s next?

The UN Committee will consider the findings of these reports ahead of the formal meeting with Australia. At the end of this process, the UN Committee will provide the Australian Government with its Concluding Observations, which will include progress made by Australia and recommendations for improvement.

While the Committee cannot legally enforce its recommendations, it can provide guidance for the Australian Government to improve its practice and better protect the rights of children and young people. The process is also the opportunity to highlight specific issues, like those discussed above, and create interest for the public and other advocates to hold the Australian Government to account and to take action.

Further observations from young people in residential care

In our previous post, we quoted children and young people verbatim about some of their feelings about living in residential care.

It is not always ‘easy listening’ but we are committed to ensuring the voices of children and young people are heard, so that we can really try to understand their experiences as they feel them.

Resi care can be challenging and we know that ensuring safety and protection in residential care can make it hard to make a place feel like ‘home’.

We also know that carers work in wonderful ways with children from a variety of cultural backgrounds and abilities, many of whom have a history of trauma.

So here are some further vignettes, recorded by our Advocates from the Child and Young Person’s Visitor Program while visiting children and young people in residential care facilities.

New mural to celebrate the creativity of young people in care and detention

A dozen young people who live in residential care, their carers and artist Fran Callen got together last week in the latest stage of  a mural project to celebrate the creativity of young people in state care and in youth detention.  The completed mural will  dominate the entrance space in the new offices of the Guardian for Children and Young People.

Young people in foster care and from the Adelaide Youth Training Centre will soon be adding their paint before the final artwork takes its place on the wall.  Watch this space…

In the meantime, here is is a video featuring the residential care artists at work.