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.

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

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

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

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

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

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

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

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

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

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

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

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

Training centre report reveals residents’ concerns

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

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

Unclothed searches

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

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

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

Cultural programs

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

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

 

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

Download the Training Centre Visitor’s Report.


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.

Security and stability of placement dominates requests for advocacy

picture of suitcase

The Guardian’s Office received a record 96 in-mandate[1] requests for advocacy in the first quarter of the new year, representing 127 children and young people.

This was an increase of 35 per cent in inquiries and a 24 percent increase in the number of children represented compared to the preceding quarter.

Last year the Office averaged 64 in-mandate requests per quarter.  This follows the trend of an increase in the number of requests for advocacy and in the complexity of the issues raised.

The top five people who initiated in-mandate requests in July-September 2018 were:

Adults in the child’s life                                  42

Children and young people themselves      33

Department for Child Protection staff          10

Health, education and youth justice              5

Non-government organisations                     3

The top five presenting issues (by inquiry)[2] were:

Stability and security of placement              29

Safety                                                                21

Participation in decision making                   18

Contact with significant others                      15

Appropriate care                                               24

These are also the top five issues identified in the Guardian’s 2017-18 Annual Report and substantially the same as those reported in previous years.

The 33 children and young people who requested advocacy directly were in the following care arrangements:

Residential care                                             16

Adelaide Youth Training Centre                     5

Relative care                                                    4

Foster care                                                       2

Commercial (emergency) care                       2

Unknown                                                          4

 

[1] The Guardian is mandated by legislation to promote the interests of children and young people below the age of 18 years who are living in out-of-home care.  Another 17 inquiries were determined to be not within the Guardian’s mandate and those callers were assisted to make contact with a more appropriate organisation.

[2] Young people often present with multiple, interrelated issues.  Presenting issues are counted as primary and secondary and these are added to achieve the numbers reported.

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

 

 

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?


 

What Youth Training Centre residents want from their community visitor

AYTC residents going for a football mark

Young footballers in the AYTC going for a mark at the Reconciliation Week game.

Community visits to the Adelaide Youth Training Centre will start this month.  Back in April we asked groups of residents about what they would like from the visits and what they hoped might result.

These are some of the things they said:

‘Why don’t you have a day when you are here each week – like a program?’

 ‘Speak to us as a group.  We might all have the same problem.’

‘Two weeks between visits is too long – you’ll miss all the lovely stories!’

 ‘There’s always stuff going on in the centre that we need more support on.’

‘[We need weekly visits because] anything could be happening in here.’

 ‘We ask the staff to contact you but then we have to wait a few days.’

‘Everyone should have your [phone] number as a pre-set when they come in.’

 ‘If I’m going through a rough patch or I’m not feeling confident, I won’t talk to you.’

‘Advocacy is making time easier.’

 ‘After you talk to the bosses, they treat us better.’

 

Community visitor programs – what we can learn from Oakden

[Oakden residents] lacked any voice themselves. They were entirely dependent upon others for their care and their safety”. – Commissioner Lander, p190 1

There are many lessons to be learned from the report by Commissioner Bruce Lander QC on the events at the Oakden nursing home, many of which can be applied to other facilities in our state.

Residents of the Oakden facility should have been protected from abuse and mistreatment by layers of overlapping protections which were the the domains of many different people at different levels of government, administration and service provision.

They, their families and the community, would have expected government and senior departmental officers to provide adequate resourcing and oversight and to have policies and procedures in place to ensure suitable levels of care, management and supervision. The training and professional standards of the staff working there should have provided another level of protection. Effective complaints procedures for residents and concerned others should have provided additional safeguards as should have accreditation inspections by external bodies.

Finally, the residents of Oakden relied on community visitors to bring an independent and critical eye to the conditions they experienced.

Commissioner Lander set out in forensic detail how each of these layers of protection failed and his report sounds a warning for any organisation that provides care for vulnerable people in a closed or secure environment.  Regarding the operation of the relevant community visitor scheme (CVS) –

…consideration needs to be given as to whether the CVS in its current form is an appropriate safeguard for those suffering mental illness who are housed or treated in treatment centres, limited treatment centres, or authorised community mental health facilities. [p307]

Commissioner Lander’s critique of aspects of community visiting at Oakden raised questions for all such schemes, not just those visiting mental health services. The Guardian’s Office is currently in the process of establishing two separate community visitor schemes, so the issues he described are instructive as we attempt to craft models for the protection and wellbeing of young people in residential care and in youth detention. These are some of the issues.

Should schemes use volunteers or paid visitors?

Volunteers are assumed to bring into the institution expectations and standards reflecting those of the broader community. Because volunteers are not paid, that could potentially mean larger numbers of visitors within a given budget allowing more frequent visits.  But is it reasonable to expect volunteers to accept the rigorous selection process, training and complex tasks required of a visitor? Commissioner Lander noted that some visitors to Oakden may not have had the necessary skills and support to identify problems, report them and intervene on behalf of residents. He favours a model in which visitors are paid, comprehensively trained, and operate within a rigorous model that has sound documentation and effective accountability mechanisms…


This is the first part of a longer paper which goes on to consider the use of volunteers as visitors, the concept of visiting versus inspection, unannounced visits, visitor independence and the place and value of visitor programs. For the full version, download Community visitor programs – what we can learn from Oakden.

1 Oakden: A shameful chapter in South Australia’s history.

Aboriginal children and young people in care and juvenile detention 2016-17

The proportion of Aboriginal children not placed according to the Aboriginal Child Placement Principle has continued to rise.

South Australia’s Aboriginal1 children and young people are vastly over-represented in in state care and in detention centres, according to the Productivity Commission’s Report on Government Services 2018 (ROGS 2018) and the trends are not positive.

The ROGS 2018 data on child protection showed that at 30 June 2017, Aboriginal children and young people comprised 33 per cent of all of those on care and protection orders and were 7.3 times as likely to be in out-of-home care as non-Aboriginal young people. In 2010-11 Aboriginal children and young people were 6.1 times as likely to be in care.

The proportion of Aboriginal young people placed according to the Aboriginal Child Placement Principle (i.e. with kin, within their community or with Aboriginal families), has been declining in recent years from 76.4 per cent in 2009 to 62.5 per cent in 2017, below the national average of 67.6 per cent. (See the chart at the head of this story.)

Though comprising 33 per cent of children and young people in care, Aboriginal children and young people comprised 38 percent of the population in residential care.

The ROGS 2018 data on youth justice services showed that in 2015-16, 58 per cent of the population of 10-17 year olds in youth detention were Aboriginal and that proportion has been growing in recent years. South Australia had significantly higher rates of detention of Aboriginal children and young people than the Australian average.

We present more data and charts about this subject from ROGS 2017 in the Guardian’s Snapshot of South Australian Aboriginal and Torres Strait Islander Children and Young People in Care and/or Youth Detention from the Report on Government Services 2016-17.

Download the Snapshot of South Australian Aboriginal and Torres Strait Islander Children and Young People in Care and/or Youth Detention from the Report on Government Services 2016-17 now.

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