Young people share cultural considerations in court project

Aboriginal and Torres Strait Islander young people continue to be overrepresented in South Australia’s youth justice system. In 2017-18, Aboriginal children and young people made up 66 per cent of the average daily 10 to 17 year olds in detention in the Adelaide Youth Training Centre. This is despite constituting less than five per cent of the state’s total population of children and young people.

In response to these concerning statistics, the Courts Administration Authority (CAA) called on Training Centre Advocate Travis Thomas and Advocate, Aboriginal Children Conrad Morris from the Office of the Guardian to assist with a project to interview Aboriginal young people about their experiences in the youth justice, child protection and courts systems.

Travis and Conrad were asked to identify young people that could be involved in the project. They then held an initial workshop to brief the young people on what the process would involve and what kind of questions they may be asked. This created a safe environment that allowed the young people to open up about their experiences.

Despite being initially surprised at being asked to participate, both young people were eager to get involved and share their stories.

Training Centre Advocate, Travis Thomas, behind the scenes of filming

Led by Justice Martin Hinton, this was part of a larger project that aims to bridge the gap in existing cultural awareness training for Judges and Magistrates. The project interviewed Aboriginal South Australians of different ages and from different mobs, including Stolen Generations. It aimed to draw on the experiences of Aboriginal people who have come into contact with the justice system and bring to life the findings of many reports published.

‘That would help us to overcome things like systemic racism and ethnocentrism, and to better understand what we needed to do to deliver justice to Aboriginal people appearing in our courts,’ Justice Hinton says.

The CAA wanted to speak with young people in care and custody because of the known correlation between care experience and imprisonment later in life.

One of the key things Justice Hinton took away from the project is the understanding that things started going wrong for the young people when they were removed from their family and community.

‘Being taken into care and into custody separates them from family, many family members are also in custody. The effect on culture, identity and self-esteem is devastating. They struggle to know who they are,’ Justice Hinton says.

Both young people shared pride in their Aboriginal heritage with one saying, ‘it’s good because it makes me feel like I belong somewhere. Not every person can say I belong to these people and everything like that.’

With maturity and conviction beyond their years, they shared their lived experience of the system and dealing with the intergenerational trauma they have experienced as young Aboriginal people.

Another take away from the project was that young people don’t feel like they’re being listened to when they’re in court.

‘Children and young people in particular can lose their voice in the systems—they are talked at, not too or with. This is a familiar experience within the court system where children and young people rely on their representative to talk for them,’ says Travis.

This was affirmed, with one of the young people saying, ‘sometimes when I’m in court I’ll tell my lawyer to say stuff, he says it but he doesn’t say it in the way that I want him to say it’ and ‘I never understand what they say in court. I always ask to speak to my lawyer after to tell me what happened… You’re just in and out and then you have to be like what just happened, I don’t know.’

The young people involved voiced their opinions on what cultural considerations the Judges and Magistrates need to think about when working with Aboriginal young people.

When asked what they think the Judges don’t understand about being Aboriginal, one of the young people replied, ‘they don’t understand us. They don’t take the time to talk to us properly or talk to people that know us. Like if the Judge sat there and talked to my Nana, I reckon they would think different about me.’

Justice Hinton acknowledges that this program is, of course, not a silver bullet. However, he hopes the understanding taken from project will have a knock-on effect on the profession and begin to filter back into society generally.

‘This project will be a step in the all too slow process of the change that must happen,’ he says.

When asked what they would change about the system, one young person said it would be to ‘employ people who’ve already been through law and that. They could come in and help. Like other Indigenous people, non-Indigenous people, but still that’s been through the jail system. They would have a better understanding.’

Many others assisted the CAA and the Office of the Guardian in the project’s development and consultation. These included Steven Van Diermen from CAA, Shane Tongerie from Youth Justice and the Department of Child Protection for supporting the two young people to participate.

Office of the Guardian celebrates NAIDOC Week

This NAIDOC week we were fortunate to be involved in a number of events celebrating the history, culture and achievements of Aboriginal and Torres Strait Islander peoples.

This year’s theme ‘Voice. Treaty. Truth. Let’s work together for a shared future‘ acknowledges that Indigenous Australians have always wanted a greater role in the nation’s decision making processes.

Office of the Guardian and Training Centre Visitor staff at the NAIDOC Family Fun Day

Office of the Guardian and Training Centre Visitor Unit staff joined in the celebrations at the South Australian NAIDOC Family Fun Day at Tarntanyangga (Victoria Square). The event followed the NAIDOC March and included more than 40 stall holders from government and non-government organisations.

Unfortunately, the rainy weather kept Oog away, but the staff team had valuable discussions and shared some of our resources.

Voice. Treaty. Truth. poster painted by Arrin Hazelbane

Arrin Hazelbane from the Commissioner for Aboriginal Children and Young People kindly allowed us to display his poster at our stall after the march.

Office of the Guardian resources at the stall

NZ remand homes emphasise culture and connection

In 2017-18, half of the young people detained in the Adelaide Youth Training Centre were on remand, awaiting trial or sentencing.  Though not convicted of an offence, they are removed, often far, from family, community and culture adding to their stress and social dislocation and placing them into contact with young people already experienced in serious offending.

Faced with a similar situation, youth justice authorities in New Zealand have trialed a different approach.

Te Whare Awhi or ‘the home of support’ is a community-based remand home in Palmerston North in New Zealand’s north island. It opened in late 2017 and is one of five of its kind across the country. It provides an alternative to youth justice detention or police cells for young people on remand.

The intention is to create a safe home-like environment for young people going through the court process without taking them away from their community.

The length of stay depends on the circumstances, but the average is 30 days.

Kyle Kuiti is the Operations Manager of Youth Justice Residences and was previously Manager of Youth Justice Residence in Palmerston North, including Te Whare Awhi.

‘Taking them away from community strips them of everything…’

Mr Kuiti said this new approach sets residents up for a far more successful transition back to community.

‘Taking them away from community strips them of everything and then we’re left wondering why they fail,’ he said.

Initially, the remand homes were for young people on the lower end of the offending spectrum but they now house those charged with more serious offences for whom it is judged likely to be effective.

Before remand homes were established, there were few options for young people on remand. As in South Australia, young people were placed in youth justice detention because there was nowhere else for them to go.

The remand homes keep young people charged with minor offending away from more serious offenders and help prevent them returning to the justice system.

During their time in the remand homes, young Māoris remain part of the community. They’re encouraged to get involved with sporting clubs and other positive social activities and encouraged and supported to engage with education.

Kyle Kuiti said that initially communities were tentative when the remand homes were opened but now attitudes have changed.

‘When we do community projects now, the neighbours come in to give their support,’ he said.

New Zealand’s Māori young people are over-represented in the youth justice system, as are Aboriginal and Torres Strait Islander young people in Australia.

‘Everything we do is wrapped around culture…’

Mr Kuiti said incorporating Māori culture in youth justice is vital and that it’s at the centre of their practice.

‘Everything we do is wrapped around culture. Prior to this, we would talk about culture but we didn’t invest in it,’ he said.

Te whare tapa whā is a Māori model of care. It identifies four areas of Māori health—taha whanau (family health), taha tinana (physical health), taha hinengaro (mental health) and taha wairu (spiritual health).

The model envisages each of these as the four walls needed for the house to be strong. If one wall is weak or out of balance, the house is not stable.

Kyle Kuiti said this approach and model of care works with all young people, not just young Māoris.

‘We might just need to adapt it a little to fit with their culture. It’s not about trying to squeeze a family to fit into the model, it’s about working with them to make it fit for them.’

The remand homes are part of the community, not removed from it. Across New Zealand, iwi—Māori communities or extended kinship groups deliver a range of social services. Kyle Kuiti said it involves working with communities, rebuilding trust and connecting families with available services.

‘It’s about empowering communities to take care of themselves and working with families to determine their needs.’

‘We want to help young people realise they would rather be in communities than in a youth justice residence,’ he said.

The importance of a strong connection to culture

From observations and conversations with young residents, the Training Centre Visitor Unit has stressed the importance of a strong connection to culture for residents of the Adelaide Youth Training Centre – and the New Zealand model has appeal.

‘Allowing young people awaiting trial or sentencing to stay close to their community in a homelike facility would mean they could maintain vital kinship and cultural connections,’ said Training Centre Visitor Penny Wright.

In May this year, New Zealand’s Office of the Children’s Commissioner conducted a review of Oranga Tamariki—Ministry for Children and looked at remand decision-making for young people and their whānau (extended family or local community of related families). Its recommendations include that Oranga Tamariki significantly increase the number of community-based remand and specialist care options and that these facilities be located close to whānau and staffed by people experienced in working with young people.

Education of young people in care

For children and young people in care, the benefits of education go far beyond grades—it’s an opportunity to meet friends, learn new things and find a sense of stability. The Guardian’s report, Children and Young People in State Care in South Australian Government Schools 2008-2018 looks at how well the system serves their needs and identifies a number of ongoing trends.

In 2018, 60.9 per cent of all students in care were enrolled in South Australian Department for Education (DE) schools, up from 57 per cent in 2017. The remainder may be enrolled in non-government schools, below school age or not enrolled for other reasons.

In the same period, 34.7 per cent of children and young people in care in DE schools identified as Aboriginal, which compared to 6.4 per cent of all students in the DE population.

Absence and attendance

Children and young people in care enrolled in DE schools show a higher rate of absence at 13 per cent, compared to 9.5 per cent for the general school population. Absence rates are higher for students in secondary school than for those in primary school.

The report also finds Aboriginal children in care are more likely to be attending school than Aboriginal children not in care.

Suspension and exclusion

According to the report, suspension and exclusion rates are consistently higher for children and young people in care than the broader cohort. The DE defines suspension as times when the student does not attend school for one to five days and exclusion as when the student does not attend for four to ten weeks, or the rest of the term or semester for students over 16.

Students in care in DE schools are suspended at a rate four times higher than DE students not in care and the report identifies violence and the main reason for suspension.

Learning and intellectual disability

The proportion of children and young people with an identified disability continues to be significantly higher for those in care than the broader school population.

In 2018, 30.3 per cent of students in care in DE schools were classified as having a disability, compared to the state average of 9.8 per cent.

NAPLAN results

Data consistently indicates children and young people in care in DE schools achieve poorer outcomes in NAPLAN in relation to meeting the National Minimum Standard.

Participation rates in NAPLAN testing are low for students in care in DE schools. While many have valid reasons for not participating, this makes tracking the experience of young people in care difficult. For example, only around half of eligible Year 9 students participated in NAPLAN testing in 2018.

Check out the Guardian’s report Children and young people in state care in South Australian Government Schools 2008-18 for further analysis, available below.

National principles for child safe organisations

The Royal Commission into Institutional Responses to Child Sexual Abuse found many organisations had failed to protect children and to respond appropriately when information about abuse was disclosed.

In response to findings and recommendations from the Royal Commission, the Australian Government commissioned the development of the National Principles for Child Safe Organisations. The National Children’s Commissioner, Megan Mitchell led the development of the National Principles, in consultation with relevant peak organisations, children and young people, and Commonwealth and state governments.

Reflecting the ten child safe standards recommended by the Royal Commission, the National Principles go beyond sexual abuse to include other forms of harm to children and young people.

The National Principles apply to government, non-government and commercial organisations, including early childhood services, schools, out-of-home care, sports clubs, churches, youth groups, health services and youth detention services.

The ten National Principles put the best interests of children and young people front and centre. They cover all aspects of what organisations need to do to keep young people safe—from the culture of the organisation and the role of families and communities, to the recruitment and ongoing training of staff and respecting equity and diversity.

Many organisations across the country already work hard to ensure children and young people are protected from harm. The National Principles are not intended to override existing measures, but create a national minimum benchmark.

How will they be implemented?

In February 2019, the Council of Australian Governments (COAG) endorsed the National Principles.

Alongside the National Principles, the National Office for Child Safety (NOCS) was established in the Department of the Prime Minister and Cabinet as part of the Australian Government’s response to the Royal Commission. The NOCS will work with state and territory governments and organisations to lead the implementation of the National Principles.

In South Australia, the Department for Education will lead the implementation of the National Principles with state-specific resources and supporting tools to be developed. Organisations providing care to children and young people will need to continue to meet the Child safe Environments: Principles of Good Practice while the implementation of the National Principles is progressing.

How can an organisation adopt the National Principles?

Each National Principle is accompanied by key action areas and indicators that act as a guide for organisations to ensure they are implemented in practice.

The Australian Human Rights Commission (AHRC) has developed a range of tools and resources to assist in the implementation of the National Principles. An introductory video provides further explanation on the development and future implementation of the National Principles and a Learning Hub and Practical Tools provide organisations further guidance.

For children and young people

The National Principles are about putting children and young people at the centre of practice. The AHRC has developed resources for children and young people and a version of the National Principles in child-friendly language. It also covers information for parents and carers how to identify an organisation is child safe.

 

National Reconciliation Week

National Reconciliation Week artwork

Penny Wright – Guardian and Training Centre Visitor

National Reconciliation Week (NRW) is a time for all Australians to learn about, and celebrate, our shared histories, cultures, and achievements and to explore the part we can each play in reconciliation.

Each year, this special week runs from 27 May to 3 June, commemorating two significant dates—the successful 1967 referendum that effectively granted Aboriginal people the right ‘to be counted’ in their own land, and the High Court Mabo decision.

This year’s theme Grounded in Truth: Walk Together in Courage, highlights the importance of truth-telling in fostering positive relationships between Aboriginal and Torres Strait Islander people and the broader community. To better understand each other, we must be willing to have—and encourage—honest and challenging conversations with each other and within ourselves.

That was certainly the experience of nearly 2000 South Australians at the NRW Breakfast hosted by Reconciliation SA on 27 May. It is the biggest event of its kind in Australia and in her keynote speech, Dr Chelsea Bond of the University of Queensland spoke unequivocal truth about power.

In our work, advocating for children and young people, there are many challenging conversations that must be had.

Across Australia, including in South Australia, Aboriginal children and young people continue to be disproportionately represented in youth justice and out-of-home care. In confronting this troubling situation, as well as the intergenerational trauma that brought us here, we must insist on the right of children to know their community and their cultural and spiritual identity. We must listen to, value and share the voices and stories of Aboriginal young people.

Residents of the Adelaide Youth Training Centre have expressed concern about the lack of Aboriginal staff and Aboriginal cultural programming. We will continue to advocate for this, as well as the appropriate placement of young people.

These three things must be key in the lives of Aboriginal children:  culture, connection and community.

Aboriginal children and young people in care and juvenile detention 2017-18

Aboriginal[1] children and young people are vastly over-represented in out-of-home care and the youth justice system. The Productivity Commission’s Report on Government Services 2019 (ROGS 2019) demonstrates that South Australia is no exception.

Aboriginal children and young people in out-of-home care

Aboriginal children make up a third (33 per cent) of children and young people in out-of-home care in South Australia. This is despite constituting less than five per cent of the state’s total population of children and young people.

Aboriginal children and young people represent 34 per cent of those in residential care, with the majority placed in foster and relative-kinship care.

As the number of Aboriginal children and young people entering care has increased, the percentage placed in accordance with the Aboriginal and Torres Strait Islander Child Placement Principle (ATSICPP) has fallen. ATSICPP seeks to place Aboriginal children (in order of priority) with their family or relatives, within their communities, with other Aboriginal people, or near their community. In 2018, 65 per cent were placed in accordance with the ATSICPP, down from 74.4 per cent in 2009.

At 30 June 2018, 31 per cent of Aboriginal children and young people had been in continuous out-of-home care for between two and five years. At the same time, 41 per cent had been in continuous care for five years or more, which is actually lower than the percentage of non-Aboriginal children and young people (46.7 per cent).

Aboriginal children and young people in youth justice

In 2017-18, Aboriginal children and young people comprised two-thirds (66 per cent) of the daily average of 10 to 17 year olds in detention. This is considerably greater than the national average of 57 per cent.

The number of Aboriginal girls and young women in detention is lower than Aboriginal males, but make up a high proportion of all girls and young women detained.

Spending on youth detention

Our analysis of ROGS 2019 finds South Australia’s spending per child on detention-based youth justice services has moved increasingly closer to the national average in recent years. In 2017-18, South Australia’s spending per child was $213.83, compared to the national average of $215.50. South Australia had the third lowest rate of expenditure per child when compared to other states and territories across the country.

Charts, statistics and more analysis in our Snapshot of South Australian Aboriginal Children and Young People in Care and/or Detention from the Report on Government Services 2019, available for download below.


[1] Aboriginal community preference in South Australia is that the term Aboriginal is inclusive of Torres Strait Islander people, a usage we generally adopt in our reports.

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.

SA still spends more on out-of-home care

Each year, the Productivity Commission releases its Report on Government Services (ROGS), which includes data that allows us to examine and compare the state’s delivery of child protection services in a national context.

The ROGS 2019 identifies four program areas within child protection services—protective intervention services, family support services, intensive family support services and out of home care.

The Office of the Guardian’s analysis of the report finds South Australia continues to show a heavy commitment to spending on out-of-home care.

In 2017-18, 77 per cent of all child protection services spending was in out-of-home care. Of this expenditure, 64 per cent was committed to residential care, including very costly emergency care accommodation. This is despite the proportion of young people living in residential care in South Australia decreasing from 15.7 per cent in 2016-17 to 13.5 per cent in 2017-18.  This proportion is still high when compared to the national average, which is just 5.5 per cent.

Expenditure on family support services is also relatively high when compared to other jurisdictions. The national average spending per child on family support services was just 68 per cent of the South Australian average, with the state increasing its total expenditure by 351 per cent since 2013-14.

South Australian expenditure on intensive family support services has moved in a similar direction, having more than doubled since 2013-14. In 2017-18 it was 9.5 per cent higher per child than the national average.

Spending on protective intervention services has reduced from $142 per child in 2013-14 to $120 in 2017-18. This is just below half of the national average and represents the lowest expenditure in protective intervention services across the country.

For further analysis, South Australian child protection expenditure from the Report on Government Services 2019 is available for download below.


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.