Cultural training project gives young people their voice


Martin Hinton and Travis Thomas

Last week our office celebrated the work of two young people who shared their experiences across the courts, child protection and youth justice systems to better educate Judges and Magistrates when dealing with Aboriginal people who appear before the courts.

The video, featuring the young people who were previously detained in the Adelaide Youth Training Centre, is part of a bigger project from the Courts Administration Authority (led by Martin Hinton, Director Public Prosecution, formerly Justice Hinton) to improve existing cultural awareness training for Judges and Magistrates. This video aims to provide an insight into what life is like for these young Aboriginal people and the role the courts can play in ensuring their voices are heard.

While only one young person was able to attend our celebration, we wanted to acknowledge both of the amazing young people who were willing to share their stories for this project and tell the courts what they wanted to see changed.

Training Centre Advocate, Travis Thomas, and Advocate, Aboriginal Children, Conrad Morris, supported the young people in the lead-up to and throughout the project.

Conrad noted the planning and workshop that was held prior to the filming was essential in providing the young people with a safe space where they were confident to share their voice. The footage of the two young people was shot in just one take which is a mighty impressive effort!

At our afternoon tea celebration, Martin said he was impressed by all the work Conrad and Travis had done to help pull this video together. He also said how proud he was of the two young people, and how brave they were in sharing their stories.

“If the young people don’t stand up for themselves, then we [Judges and Magistrates] can’t get better,” Martin said.

“That’s the reason I did it [to change the mindset of the courts],” the young person said. The young person called for Judges to ‘listen to what we have to say’ and ‘give us more opportunity to do the right thing’.

The young person also told us that since the making of the video ‘the judge actually talked to me’ when they were last in court.

For privacy reasons, we are unable to share the video but we expect and hope the flow-on effects of the project will be evident when the voices of young people are more vigorously sought and heard during court processes.

Call to raise the minimum age of criminal responsibility

boy leaping in the air

Across Australia a child as young as 10 can be locked up in detention for breaking the law. Time in detention is meant to ‘teach them a lesson’ and to change their criminal behaviours, but all the evidence tells us detention does nothing to deter the child from committing future crimes. In fact, the younger the child is to have contact with youth justice, the higher the chances they have of further offending and starting on the path to a life-long involvement in the criminal justice system.

Last financial year, 51 individual children and young people aged between 10 and 13 were admitted to the Adelaide Youth Training Centre (AYTC). They were admitted a total of 131 times, meaning that on average, each was detained at the centre more than twice. It is important to note most children held in the AYTC have not even been convicted of committing a crime.

This raises a significant concern that these young children are not getting the right support they need to address their offending behaviours, both in detention and out in the community. Studies show that to help rehabilitate these young children they need access to family, culture, education, support for individual disabilities, and opportunities to promote healing from past trauma that many of this cohort have experienced.

There is a growing momentum in Australia to raise the minimum age of criminal responsibility to at least 14. This is supported by the Australian and New Zealand Children’s Commissioners and Guardians and backed up by the United Nations Committee on the Rights of the Child who late last year called for Australia to raise the minimum age. The just released documentary, In My Blood It Runs, is also calling for change.

The Council of Attorneys General has set up a working group looking into the age of criminal responsibility. Last month our office provided feedback into the review, urging the working group to raise the minimum age to 14 as we believe the current practices do not provide the best outcomes for these vulnerable and disadvantaged young children.

Outlined in our submission we stated that the number of children detained disproportionately affects Aboriginal children (for example, in SA during 2017-18, there were 37 Aboriginal 10-13 year olds detained compared to 17 non-Aboriginal 10-13 year olds).

Children with a disability and those in care also made up a disproportionate number of children detained. We know that in 2017-18, almost a quarter of those detained in the AYTC were in care at the time of their admission. What we don’t know is how many of those young people come from a residential or commercial care environment – this is something we will address in our next dual status paper (to be out in the coming months).

In the meantime, we are urging change to protect the rights of these vulnerable young children and to prevent them from entering the youth justice system in the first place.

You can read our full submission to the working group.

Remembering the promise to our children

picture of Penny Wright

By Guardian Penny Wright

30 years ago, world leaders made a promise to all children. It was a promise that stated that children around the world will not be discriminated against, the decisions that affect them will be in their best interests and they will be provided with opportunities to develop and reach their full potential.

This promise is known as the United Nations Convention on the Rights of the Child (UNCRC).

For the first time, the UNCRC set out 54 rights for all children, and described how adults and governments should work together to ensure these rights are made available to them. This commitment from world leaders changed the way children were viewed and treated. It gave young people a voice and established that they have basic fundamental rights to survival, development, safety, education, to know or have a relationship with their parents and to express their opinion and be listened to.

This is the most widely ratified international human rights treaty in history. Since it was adopted in 1989, 195 countries have signed up. Only two are yet to ratify: South Sudan and the United States.

Since then, the South Australian parliament has established additional rights for children and young people who are in care, away from their parents, and in detention, locked up in the Adelaide Youth Training Centre. These are the children and young people who fall under my mandate as Guardian and Training Centre Visitor.

Unable to be with their parents, these South Australian citizens have special rights above and beyond the rights outlined in the UNCRC. But thirty years on, what does this all mean for them?

Today, in South Australia we are seriously failing many of the children and young people who need our help the most. The world made a promise but 30 years later children continue to be separated from their family and culture, their identity fractured, moved from placement to placement with little say over the conditions of their lives and excluded from school or locked up from as young as ten for behaviour that is a symptom of their own trauma, neglect, abuse and loss.  Many of these young people have undiagnosed disabilities or trauma-related conditions which go untreated. More than a quarter become entrapped in both the child protection and the youth justice system.

Last month, the United Nations Committee on the Rights of the Child called for Australia to raise the minimum age of criminal responsibility.

The Committee critiqued Australia’s child protection systems and its excessive reliance on police and the youth justice system when dealing with children’s behavioural problems, rather than providing the appropriate therapeutic services or intervention. It also highlighted that Aboriginal children and young people continue to be over-represented in both the child protection and youth justice systems.

In September of this year, a 12-year-old Arrernte/Garrwa boy, Dujuan, travelled to Geneva and became one of the youngest people ever to give a speech to the Human Rights Council of the United Nations. The young star of an acclaimed documentary, In My Blood It Runs, he shared his experiences about the youth justice system and his alienation from school to build support for Aboriginal-led education models that would help prevent youth offending and support their crucial connection to culture and language.

Dujuan’s speech gave voice to the young Aboriginal people who are at risk or have already entered the youth justice system. It highlighted that somewhere along the way we have forgotten the promise we made to our children that we would protect them and put their best interests at the forefront of everything we do.

As we mark the 30th anniversary of the UNCRC, I call on the government to remember the promise we made 30 years ago and raise the minimum age of criminal responsibility to 14 years of age so we stop ‘punishing’ young children when their troubled behaviour clearly tells us what they need most is support, nurture and care.

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.

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.

Aboriginal children and young people in care and detention

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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.


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.

The Training Centre Visitor’s Annual Report 2017-18

graphic of annual report

The first Training Centre Visitor was appointed in December 2016 to visit, advocate, inspect, inquire and investigate matters relating to the residents of youth detention facilities in SA and provide advice to the relevant minister.  This first report covers the establishment phase of the scheme and some individual advocacy with visits proper commencing after the period covered by this report.

You can download the Training Centre Visitor’s Annual Report 2017-18 now.

The Adelaide Youth Training Centre – snapshot 2017-18

boy leaping in the airThe Adelaide Youth Training Centre  is housed on two campuses in Cavan, north of the Grand Junction Road.  One campus caters for female residents, younger male residents and young people in overnight remand and the other houses older male residents.

In 2017-18 there were 671 total admissions accounting for 329 individual young people of whom half or more were in remand awaiting trial.

On an average day in 2017-18  there were 44.31 young people residing in the Centre.  Of these:

  • 9.3 % were young women
  • 24.3% were under guardianship orders at the time they were admitted
  • 62.3% were of Aboriginal or Torres Strait Islander descent

This compares with highest daily occupancy (since the Magill and Cavan Centres were amalgamated) of 61.06 in 2012-13 and last year’s average daily occupancy of 49.07.

The age distribution of the young people at the time of admission was:

graph of ages at admission to AYTC 2017-18