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.

Doli incapax – an odd word with profound significance for South Australian children

The minimum age of criminal responsibility in South Australia is 10 years old. If you are a child under 10 years old in South Australia, you are deemed to be incapable of committing a crime – you are presumed not intellectually and morally developed enough to conceive of the difference between right and wrong.  If you are between 10 and 14 and are charged with an offence, it is up to the prosecution to prove that, at the time of the offence, you understood what you did was seriously wrong, and not just naughty.  If they can’t prove that, you are presumed to be doli incapax (from the Latin ‘incapable of evil’).

Such an obligation on the prosecution is designed to result in a graduated response across an age range where the court can take into account the considerable variation in intellectual and emotional maturity in the young people who appear before it.

Barrister Marie Shaw QC and lawyer Brittany Armstrong presented a paper on doli incapax at the Law Society in January. This was motivated by their experiences representing 10 to 14 year olds in the Youth Court and, in many cases, the protection of doli incapax was not being properly utilised. As young people in care, and particularly those in residential care, are so over-represented in our youth justice system, this particularly affects them.

In a number of cases known to advocates within the Guardian and Training Centre Visitor’s office, doli incapax was not presumed, and in at least one instance the defence was put to the task of proving doli incapax.

If this is to be a safeguard for children charged with criminal offences then it should be considered from the time of police interview, to bail applications, and if a 10 to 14 year-old comes before a court.  It is currently not. The reasons it is not are not entirely clear but could include a lack of knowledge by the child or their advocates of this presumption, the strong desire to ‘plead out’ by a child or their advocate in order to resolve the matter more quickly, or other interactions between the child protection and youth justice systems not yet understood.

By no means is this presumption of doli incapax a ‘get out of jail free card’. Each time a child or young person comes before the youth justice system, they are less likely to be presumed doli incapax.

The implications for children

Research shows that the younger a child is when they come into contact with the justice system, the more likely they are to have sustained contact.

The developmental maturity of children in this age group also means they are often insufficiently capable of engaging in youth justice processes. Children may be more likely to accept a plea offer, give false confessions or not keep up with court proceedings.

Keeping younger people out of the youth justice system would also mitigate the over representation of Aboriginal and Torres Strait islander children in youth justice.

International comparisons

Australia’s age of criminal responsibility is comparatively low compared with other countries around the world. The United Nations has proclaimed that the absolute minimum age should be 12 years old with that recommendation likely to increase to 14. The UN has called on Australia to raise the age of criminal responsibility, bringing it in line with its obligations under the Convention of the Rights of the Child.

In 1998, England and Wales abolished the principle of doli incapax. Like Australia, the age of criminal responsibility is 10 years old. In turn, any child over the age of nine can be arrested, interviewed by police, charged and then convicted of a crime and receive a criminal record. There are calls for both nations to raise the age of criminal responsibility.

In line with the Convention on the Rights of the Child, Canada raised the minimum age from 10 to 12 years, but also removed the presumption of doli incapax. This leaves children aged 12 and 13 vulnerable.

Similarly, Ireland raised the minimum aged from 10 to 12 years old, but it has also maintained the doctrine of doli incapax.

Other countries with the minimum age for criminal responsibility higher than 14 don’t recognise the presumption of doli incapax. For example, Luxembourg, Colombia, Ecuador and Uruguay has set the age of criminal responsibility at 18.

While many have argued that the age of criminal responsibility should be raised to at least 12, children aged 13 to 14 should still be protected by the principles of doli incapax.

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.

 

The Guardian’s Newsletter – February 2019

In this edition:

  • why Parliament needs to take deep breath and start again on Youth Treatment Orders
  • how we can make children feel safe and secure in residential care
  • what the children we spoke to said about their experiences in residential care

…and much more in the February 2019 edition of the Guardian’s Newsletter.


The National Redress Scheme is now in SA

National Redress Scheme - for people who have experienced institutional child sexual abuse

South Australians who experienced institutional child sexual abuse are now able to apply for therapeutic and financial support with the National Redress Scheme fully operational across the state.

People who experienced child sexual abuse in South Australian government institutions, as well as non-government that have declared their participation in the scheme, can now apply for redress.

Included in the Scheme is access to counselling and psychological support, a redress payment of up to $150,000 and the opportunity to receive a direct personal response from the institution responsible. If an offer of redress is received, any or all of these things can be accepted.

This can be a difficult process, as revisiting past events and trauma can be distressing. Support services are available through the national website, as is legal support.

The Scheme will operate for ten years and people who experienced abuse before the Scheme began on 1 July 2018 can access redress. They must also be an Australian citizen or permanent resident, who is aged 18 years or older, or will be by 30 June 2028.

South Australia is the last state to join the scheme, with concerns from the previous government that it may not harmonise with the state’s existing compensation scheme.

Under the previous ex-gratia Children in State Care Scheme in South Australia, people who experienced abuse could receive up to $50,000 in compensation. People who have already received ex-gratia payment under the state scheme may be eligible for further compensation under the National Scheme.

The National Redress Scheme was a key recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse. The Royal Commission heard from thousands of people about the abuse they experienced as children.

Only institutions that have signed up to the redress scheme are able to provide redress payments. So far in South Australia, a wide range of institutions have already signed up to the scheme. More information on the institutions that have already signed up is available on the National Redress Scheme website.

For more information or to connect with a support service visit www.nationalredress.gov.au or call the National Redress Scheme on 1800 737 377.

Interested parties can download a fact sheet that also provides more information about accessing the Scheme in South Australia.

The Guardian’s Office has moved

picture of boxes with Oog

The Guardian’s Office relocated to Level 3, 111 Gawler Place on Tuesday February 5, 2019.

Phone numbers and email addresses have not changed.

All of the Office’s advocacy services for children and young people in state care and youth detention and all of the related programs are operating from the new premises.

We are ensuring that no child or young person is disadvantaged during the transition and working to minimise any inconvenience for our colleagues and contacts.

The resources ordering service has resumed after the move.