Children (Detention Centres) Amendment Bill 2006
Reverend the Hon. Dr GORDON MOYES: On behalf or the Christian Democratic Party I speak to the Children (Detention Centres) Amendment Bill 2006. As the two previous members who spoke in this debate said, the bill deals with a very complex and emotive issue. The object of the bill is to amend the Children (Detention Centres) Act 1987, the Children (Criminal Proceedings) Act 1987 and the Crimes (Administration of Sentences) Act 1999 to improve the administration of detention centres and the management of detainees within the juvenile justice system. All juvenile justice systems in New South Wales were established by the Children (Detention Centres) Act 1987. The Act governs under what circumstances juvenile offenders may be confined to a detention centre, the treatment of detainees, the granting to a detainee of leave from a juvenile justice centre and discharge from a centre. Currently there are eight juvenile justice centres in New South Wales and one emergency short-term accommodation unit at Broken Hill. Three centres are located within the Sydney metropolitan area and one is located on the Central Coast. The other centres are located at Unanderra near Wollongong, Wagga Wagga, Dubbo and Grafton.
The principles that guide and influence the work of the Department of Juvenile Justice are aimed at prevention first, then rehabilitation, then reintegration of juvenile offenders into our communities. It is quite clear that there will be times when upholding each of these philosophies concurrently will be commensurably difficult and, in fact, in some cases impossible, because at times the nature of these principles or philosophies will be mutually exclusive. Producing an outcome that strikes an appropriate balance between prevention of further criminal acts and rehabilitation of offenders and release back into the community is an extremely hard task. It is similar to upholding justice with one hand and the values of mercy and compassion with the other.
The reforms contained in the bill seek to improve the safety and security of the juvenile justice system. However, whether they strike the right balance between the aforementioned goals is yet to be seen. The two previous speakers hold the same grave misgivings that I do.
We are yet to know whether the legislation that was introduced in 2004 dealing with juvenile justice has been effective. However, what may be said is that larger scope exists for improvement. Honourable members will be aware that last year I chaired the Select Committee on Juvenile Offenders, which comprised Government, Opposition and crossbench members. The committee made a total of 26 recommendations on issues relating to juvenile justice. In releasing the report on the inquiry into juvenile offenders—set up by the Parliament after disturbances at the Kariong Detention Centre that led the Government to transfer management of the centre from the Department of Juvenile Justice to the Department of Corrective Services—I highlighted a number of inadequacies in the Department of Juvenile Justice.
I trust that the Government lent its ear to the concerns that we expressed at the time, although I have grave doubts about the effectiveness of the changes. In relation to the instant bill, the Legislation Review Committee indicated its view in Legislation Review Digest No. 8 that there are a number of concerns that the Parliament ought to heed. Some of the concerns are warranted in my view; however, some provisions of the bill warrant our support.
This bill introduces new powers concerning drug and alcohol testing not only of Department of Juvenile Justice staff, but also of detainees within the juvenile justice system. This is a very sensible move. The objective of this testing will be to not only allow for the detection of illicit drug or alcohol abuse, but also to indicate whether there is any trafficking by staff in such contraband. This has been a problem at various places at various times. Obviously there are privacy implications in relation to this new head of power. However, given the circumstances, it is clear that such measures are warranted. The Legislation Review Committee noted:
… mandatory drug and alcohol testing are an invasion of a person’s privacy. The Committee also notes that the Bill provides for the collection and testing of urine, which involves a significant breach of a person’s privacy … The Committee also notes the public interest in ensuring that juvenile justice officers are not under the influence of alcohol and prohibited drugs while working.
I have proposed similar testing for the security industry. It is my firm opinion that is in the public interest that those who are commonly referred to as bouncers should be drug and alcohol tested. In my second reading speech on a private member’s bill I introduced on 11 May 2006 and I referred to what must be given up in terms of the privilege of privacy for the sake of the public good. Though it is true that with regard to such testing a person’s privacy is compromised to a degree, it is also true that it is in the public interest to ensure that juvenile justice officers are not aiding or abetting the smuggling of contraband into our correctional centres. Their position of responsibility demands that they be held accountable and that, in delivering a service, they remain transparent. Likewise it is trite to mention that there is much merit in ensuring that juvenile offenders in detention are not abusing drugs and alcohol.
I find quite interesting that it is not known who will administer the drug and alcohol testing. The proposed legislation merely states that an “authorised person” will be allowed to administer such tests. The provisions should be much tighter than that, and the authorised persons should be identified. It will be interesting to hear which department is given the responsibility of administering these tests and whether further impositions will be placed on the police force. Regulations will provide for such other things as the conduct of testing and the taking of samples of blood or non-invasive samples. Further, the principal Act provides that medical practitioners will not incur any civil or criminal liability in respect of these tests, so it is assumed that medical practitioners will somehow or other be involved in taking the tests.
Urinalysis testing of detainees who appear to be drug affected at a juvenile justice centre or upon returning from leave will assist in targeting detainees who should have their telephone calls monitored by telephone monitoring systems. It will also assist in the casework management function of detainees generally. The bill will allow specially trained officers of the Department of Corrective Services to enter juvenile justice centres at the request of the Department of Juvenile Justice to quell serious disturbances. This rings alarm bells with many people, as outlined by a previous speaker. A memorandum of understanding between both departments will be entered into to provide a framework of how serious disturbances will be handled by both departments. I personally do not believe we go beyond the pale involving two departments when serious disturbances will be dealt with. In the second reading speech in the other place it was pointed out:
This new strategy of utilising the resources and expertise of the Department of Corrective Services will free up police resources for their main law enforcement functions.
There are a couple of issues to note with respect to these provisions. First it can be said that some detainees within the juvenile justice system are better suited, because of their behaviour or the seriousness of their offence, to the environment of the Department of Corrective Services than they are to a juvenile justice centre. This very fact was the main reason for the decision to transfer the administration of the Kariong Juvenile Justice Centre to the Department of Corrective Services. The Government recognised that older, more serious offenders are best managed in the secure disciplined environment of Corrective Services. However, not all detainees may be suited to the techniques used by the Department of Corrective Services to bring order to an environment of chaos. In particular, proposed section 26 (4) states:
… dogs may be used to assist in the maintenance of good order and security in a detention centre in the same way as dogs may be used to assist in the maintenance of good order and security in a correctional centre.
The use of dogs to quell serious disturbances is a very serious development. It is one that most would naturally turn from, but I am quite confident that dogs and the use of horses by mounted police may at different times help a situation. I am concerned whether such use will be justified on every occasion in which the use of dogs is regarded as being fit for them to be engaged.
Reference must be made to the assurances given in the Minister’s second reading speech that, if deployed to a juvenile detention centre subject to a disturbance, Department of Corrective Services officers will free up police resources for their main law enforcement functions. However, although the intent of the legislation might be admirable, it is not entirely certain whether the outcome of the legislation will be appropriate or suitable in a juvenile justice centre. I foreshadow that at some time in the future we will have to revisit this legislation in the light of some most unfortunate responses at a time of considerable chaos or great distress in one of these centres.
It may be said that a Department of Corrective Services officer may use force in accordance with clause 50 of the Children (Detention Centre) Regulation for the purposes of preventing or quelling a serious disturbance or imminent serious disturbance in a detention centre. It is worthy of note that there are always issues with defining how much force is reasonable force in the circumstances, especially in the context of the provision of corrective services. I really feel that the time will come when we will have to review this legislation in the light of the excessive use of force. It is relevant to point out in this context that an agreement will exist under section 33 (1) of the Commission for Young People Act 1998 to recognise the particular challenges faced by Department of Juvenile Justice staff in exercising the legitimate use of force.
The agreement recognises that the legitimate use of force is not reportable conduct for the purposes of the Commission for Children and Young People Act 1998. Allegations of low-level neglect when no harm occurs to the detainee will no longer be reportable. The proposed legislation does not define what is meant by a riot or a disturbance at a detention centre. It may save us a great deal of future trouble if legislation provided better definitions for “riot” and “disturbance”. Obviously when detainees are on the roof of a centre, when they have set fire to facilities and when they have broken down walls and thrown bricks at guards, a riot or disturbance has taken place and things are out of control. The terms should be defined. Although it is clear that recourse may be had to common law notions of the terms, there is no specific notion prescribed in the legislation about what these terms are meant to convey.
Although it might be presumed that there have not been many occasions when a disturbance has occurred, from memory I would say that perhaps every three or four years there is a serious outbreak of violence that might be described as either a serious disturbance or a riot within a detention centre. It would be helpful to us if we knew how many times in the past such serious disturbances have eventuated. In the second reading speech in the other place the Minister said:
The Department of Juvenile Justice is well equipped, and has trained staff who are able to properly manage and control most incidents that may arise in juvenile detention centres.
I do not have that confidence. Most of the people who work as staff within the Department of Juvenile Justice are not trained to control riots or quell serious public disturbances. They are trained toward other aspects of keeping people in rehabilitation mode.
The proposed legislation will provide for juvenile justice centre staff to search visitors and staff to detect contraband. Contraband generally includes items that they should not have in their possession, such as drugs, alcohol, cigarettes, weapons, mobile phones and the like. As has been pointed out, the presence of contraband in juvenile justice centres obviously undermines the department’s efforts to maximise the rehabilitation of juvenile offenders and presents an occupational health and safety risk to all staff and some detainees.
Visitors will be searched in a non-intrusive way. I have been through these searches as I have gone in and out of various detention centres for more than 40 years. The searches usually involve a non-physical touch similar to the searches that are conducted at airports. For example, visitors walk through metal detector screenings, pass, if necessary, under wands and are subjected to a request to search their bags. The term “visitors” includes everyone who visits these centres, including families and representatives of government and non-government agencies. It is not entirely clear from the legislation what consequences will ensue if contraband is detected.
Earlier another honourable member said that the bill provided for an increase in the use of confinement as a punishment for misbehaviour, which is a controversial area. Currently section 19 of the Act enables detainees to be segregated for their own protection for up to six hours in any one period of 24 hours. The bill provides that such segregation may be for an indefinite period if the director-general is in approval. Further, section 21 (d) provides that detainees may be excluded from, or confined to, a place for up to three hours in the case of detainees under 16 years or 12 hours in the case of detainees 16 years and over by way of punishment for misbehaviour. “Misbehaviour” is defined as breach of the regulations, for instance, breaching conditions of leave such as a failure to return when requested. As rightly pointed out by the Legislation Review Committee, articles 66 and 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty provide:
66. Any disciplinary measures and procedures should maintain the interest of safety and an ordered community life and should be consistent with the upholding of the inherent dignity of the juvenile and the fundamental objective of institutional care, namely, instilling a sense of justice, self-respect and respect for the basic rights of every person.67. All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned.
Enough evidence was given at the royal commission that inquired into Aboriginal deaths in custody to indicate how serious such breaches could be in the welfare and life of juveniles in detention. The review committee referred also to a 2006 report by Lord Carlile, QC, which looked into the use of physical restraints, strip-searching and the segregation of children in detention in the United Kingdom. The report recommended, inter alia:
Prison segregation units should not be used for children and solitary confinement should never be used as a punishment.
The Legislation Review Committee referred as an issue to Parliament whether the increase of the time to which young offenders might be subject to isolation trespasses unduly on the rights of young offenders in detention. In my opinion we need thoroughly to consider the ramifications of such a measure and to analyse any evidence for behavioural studies that indicate this is the best form of punishment for misbehaviour. This bill will allow the Department of Juvenile Justice to apply to the Children’s Court to transfer a detainee aged 18 years or over to an adult correctional centre.
Honourable members might remember this was an important part of the evidence given to the Select Committee into Juvenile Justice that I chaired, which was included in various recommendations made by the committee. Even if the court had originally sentenced persons to serve their term in a juvenile detention centre and also to allow an administrative transfer of detainees aged 18 years and over to an adult correctional centre, it is important to realise that there is a distinction between when young persons are originally sentenced and when they might still be carrying out their sentence. They might be well into their middle twenties and an adult in every sense of the word.
In many situations the reality is that juvenile correctional centres were created to address the current lack of effectiveness for juvenile justice centres in managing hard young offenders, as seen in the case of Kariong. In my experience over the years as a parole and probation officer, I have seen that many juvenile offenders are too old and too violent to serve their sentences in a juvenile justice centre. Unfortunately, the adult prison model is the best option for those juvenile offenders who are too old or too violent for the juvenile justice system. Therefore, I support these provisions. The bill allows for the Chief Executive Officer, Justice Health, to order life-preserving medical treatment to detainees in certain situations. In particular, proposed section 27 states:
A medical practitioner … may carry out medical treatment on a detainee without the detainee’s consent if the Chief Executive Officer, Justice Health is of the opinion, having taken into account the cultural background—
an important comment—
and religious views of the detainee, that it is necessary to do so in order to save the detainee’s life and to prevent serious damage to the detainee’s health.
I agree with that entirely and believe it is quite ethical and proper to do that. Serious implications arise from this provision, given that the treatment violates a person’s consent. However, it is noted that the medical treatment in question may be given only when it is necessary for the purpose of saving life or preventing serious damage to health. It is incumbent on the Chief Executive Officer, Justice Health, to make the decision and that person is to take into account the cultural background and religious views of the detainees. If that is done properly it should avoid many of the serious issues such as occurred during the time of the inquiry into Aboriginal deaths in custody.
Nevertheless, one might envisage circumstances when a detainee’s will to undertake medical treatment is violated. For example, the term “health” includes not only physical but mental health. A person who is suffering from a mental problem might be placed in psychiatric care without reasonable grounds existing for such a placement. Arrangements will be set up to ensure that the Department of Juvenile Justice liaises with the Minister for Health about the care and management of detainees who are also forensic patients. I ask the Government to consider the issues that I have highlighted. The Christian Democratic Party supports this bill.
