Training Centre Visitor’s Annual Report 2018-19

The number of children and young people detained in the Adelaide Youth Training Centre (AYTC) in 2018-19 has decreased, although residents who are Aboriginal or in care continue to be overrepresented, according to the latest Training Centre Visitor’s Annual Report.

Here is a snapshot of the report.

The year by numbers

In 2018-19, there were 608 admissions to the AYTC concerning 299 children and young people. Of these 299 individuals:

  • each resident was detained on average, two times
  • 50.5% were Aboriginal
  • 31.1% were children and young people under guardianship, primarily from residential care
  • 19.3% were females
  • 64 admissions were for children aged 10-12 years (an increase from last year).

Issues of concern

Issues of concern summarised in the 2018-19 annual report had already been identified throughout the year during our visiting and advocacy programs and review of records. The Training Centre Visitor Unit accordingly had made recommendations (based on the voices of the residents) prior to this report, about these concerns, including in relation to:

  • semi-naked searches
  • complaint processes
  • isolation and use of safe rooms
  • inadequacy of Aboriginal programs and cultural support
  • resident right to privacy
  • female hygiene products
  • incidents and use of force
  • room standards
  • unavailability of critical data (e.g. no data is currently available for residents with a physical, psychological or intellectual disability).

Positive changes to enhance wellbeing and safety of residents

The following positive changes have been made by the AYTC staff and management to enhance the wellbeing and safety of residents:

  • a reduction in the frequency, and improvement in recording of semi-naked searches
  • introduction of a ‘Yarning Circle’ (cultural program) for Aboriginal female residents
  • the development of a Medical Locum Attendance Log that tracks each medical incident from point of identification to the attendance of a locum
  • recognition of the need to develop better understanding of the needs of African and Muslim residents through building relationships with their communities.

Advocacy

The TCV Unit received 48 requests for advocacy, with 40 suitable for TCV advocacy on behalf of 31 residents.

The main themes for individual advocacy matters were:

  • use of safe rooms, isolation and lockdowns
  • interactions and access to staff
  • unit transitions and routines
  • placement within the centre and lengthy remand.

The TCV Unit worked with the Guardian’s Advocates (who have a mandate for children in care) to address the needs of nine individuals who required advocacy about their care and treatment within the AYTC and in care.

Looking forward

In the 2019-20 financial year, along with our ongoing visiting program and review of records, we will be:

  • conducting a pilot inspection later this month
  • continuing to address the absence of advocacy protection of the right of children and young people in the justice system while they are outside the walls of the AYTC (currently we are only mandated to advocate and oversee the best interests of this cohort when they are physically within the walls of the centre). We have recommended that the TCV mandate should expand to include these children and young people, ensuring the role meets the requirements of OPCAT (which Australian must put into place in late 2020).

Read the report in full.

TCV Unit prepares for pilot inspection to be held next month

The Training Centre Visitor (TCV) will conduct a pilot inspection of the Adelaide Youth Training Centre (AYTC) in late November. Such inspections, which are independent of government, aim to monitor standards and prevent abuse in places of detention. They are common around the world and elsewhere in Australia.

This pilot inspection is the first since the establishment of the TCV role and has been designed to provide oversight of the management of the training centre and the conditions of residents in the context of the Youth Justice Administration Act 2016, the Aboriginal and Torres Strait Islander Youth Justice Principle and the Charter of Rights for Youths Detained in Training Centres. Ultimately it is about ensuring the rights of the children and young people detained within the centre are being met and that the environment is conducive to meeting the objective of the Youth Justice Administration Act, including rehabilitation.

 What is the Training Centre Visitor Program?

The TCV Program was established in November 2017 to provide oversight of the rights of children and young people sentenced or remanded in custody in the AYTC. The role of Training Centre Visitor is held by Penny Wright (who is also the Guardian for Children and Young People) and she is supported by her staff in the TCV Unit to carry out functions outlined in the Youth Justice Administration Act 2016:

  • conduct visits to training centres
  • conduct inspections of training centres
  • promote the best interests of the residents of a training centre
  • act as an advocate for the residents of a training centre – to promote the resolution of issues to do with their care, treatment and control
  • inquire into and provide advice to the Minister in relation to any systemic reform needed to improve the care, treatment and control of residents or the management of a training centre, and
  • inquire into and investigate any matter referred by the Minister.

When is the pilot inspection?

The pilot inspection will be held over a week at the end of November.

How will the inspection be conducted?

Activities during the inspection week will include scheduled visits, individual interviews with residents, staff and management, focus groups and analysis of TCV and Departmental records from the past 12 months. These activities will be conducted at different times of the day and night, including the weekend, to give core stakeholders (e.g. residents and AYTC staff) the opportunity to be involved and have their say.

Information acquired, and observations made in the inspection process will then be complemented by information obtained through the TCV’s ongoing advocacy, visiting programs and reviews of records over the past 12 months. This will enable us to build a picture of life for children and young people detained at the AYTC during that time, not just those who are detained during the inspection week.

What will the inspection look at?

The inspection will address 10 Standards, and associated indicators, that have been drawn from the Youth Justice Administration Act 2016, the Aboriginal and Torres Strait Islander Youth Justice Principle and the Charter of Rights for Youths Detained in Training Centres.

These standards cover topics such as resident safety, health and access to proper health care, cultural rights (particularly for Aboriginal and Torres Strait Islander children and young people, who are seriously over-represented in detention), respect and dignity, education and training, case planning and access to grievance processes.

The standards and associated inspection methodologies have been developed specifically for this pilot inspection process.

Is the inspection complaint with OPCAT?

The inspection has been developed  to meet the requirements of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). Australia finally ratified this international agreement to prevent mistreatment in places of detention in late 2017 and must put measures in place to implement its requirements by the end of 2020.

These measures include setting up a National Prevention Mechanism (NPM) that must be independent from government and responsive to the needs of those held in various ‘places of detention’, including youth justice facilities. The role and functions of the TCV in the Youth Justice Administration Act 2016 were drafted to complement OPCAT requirement. The pilot inspection has been similarly designed, to the extent that current resources allow.

What will happen after the inspection?

Findings from the pilot inspection will be analysed and documented in a formal report that will be provided to the Minister for Human Services for presentation to Parliament in early 2020.

The inspection is a milestone in the establishment and implementation of the Training Centre Visitor Program. As such, the formal report will detail learning from the inspection and related processes and also make proposals about how best the TCV program and an inspection regime can develop in future years.

More information

If you have any questions about the upcoming inspection please contact the Training Centre Visitor Unit at [email protected] or by phone on 8226 8570.

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

As we approach Reconciliation Week, take this short quiz to find out five important facts about Aboriginal children and young people in care and detention in South Australia.
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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.

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.

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.

7 important facts about young people in youth justice detention in SA

AYTC residents going for a football mark

Each year, hundreds of young South Australians from 10 to 18 years of age pass through the gates into the Adelaide Youth Training Centre.  Each one has a story.  Combined together as statistics, their stories tell us who they are, why they are there and how well our youth detention regime is working

If you have two minutes, and an interest in young people in detention, take this quick educational quiz and learn seven critical facts about them.


What do you know about children in youth justice detention in SA?


 

The Youth Justice Administration Act 2016 – some devils in the detail

YJA Act graphic

The introduction of the Youth Justice Administration Act 2016 sought to consolidate the administration of youth justice and bring up to date with other relevant pieces of legislation to reflect best practice in youth justice.  It also established the role of Training Centre Visitor, now occupied by Guardian for Children and Young People, Penny Wright.

Like much legislation, it is dense and detailed and, as is frequently the case, the devil is in the detail.

In this paper commissioned by the Child Development Council and the Guardian, Miranda Furness examines the legislation from the point of view of how it affects young people’s wellbeing and best interests, respect and dignity, vulnerability, care and cultural identity. She highlights simple inconsistencies, (what is a ‘youth’?) and significant omissions of definition (what is ‘wellbeing’ and what are ‘best interests?)  She considers how the Act relates to other legislation and to international instruments and draws implications for the work of the Child Development Council, the Training Centre Visitor and the Guardian.

You can read this concise and important paper on the Guardian’s website now.