Children (Detention Centres) Amendment Bill 2008
Objectives:
I speak on the Children (Detention Centres) Amendment Bill 2008. The stated objective of the bill is to amend the Children (Detention Centres Act) 1987, first, to ensure that certain persons who are the subject of arrest warrant are not to be detained in detention centres; secondly, to clarify the provisions of that Act with respect to the separate detention of different classes of detainees; thirdly, to clarify the provisions of that Act with respect to the transfer of detainees from detention centres to correctional centres; and, finally, to make other minor, consequential and ancillary amendments.
Comments:
My colleague Reverend the Hon. Fred Nile has just spoken to the Courts and Crimes Legislation Amendment Bill 2008, the Children (Criminal Proceedings) Amendment Bill 2008 and the Children (Detention Centres) Amendment Bill 2008. I do not seek to go over the same areas covered by him.
In general, I support what the Minister for Juvenile Justice and the department are doing, but I wish to raise a couple of issues in passing. According to the agreement in principle speech, the Minister proposed changes which will allow for greater certainty in the transfer of detainees into adult facilities and the granting of additional powers that will allow the director general to maintain good order in juvenile facilities across New South Wales with particular regard to segregation and the separation of detainees in circumstances where the security of staff, visitors or other detainees might otherwise be placed at risk.
The bill inserts provisions into section 16 of the Act to empower the Director General of the Department of Juvenile Justice to direct that different detainees or groups of detainees be separately accommodated and to ensure that their separate accommodation is not prevented by any section of the Anti-Discrimination Act 1977. Along with various members of Parliament, I have visited many Department of Juvenile Justice detention centres and I realise the significance of the provision to empower the director general to direct that different detainees or groups of detainees be separately accommodated. I mention that because I have noticed groups of people from different ethnic, cultural and religious backgrounds form strong pressure groups within the detention centres. The department faces very real problems in managing facilities in the light of some of the activities of the groups.
Moreover, the bill amends section 16 of the Act to provide the director general with the power to enable the segregation of a particular detainee or group of detainees from another detainee or group of detainees for the reasons of good order, discipline and/or security of the detention centre. Sometimes in juvenile detention centres there are gangs of youths who in open society have been viciously attacking each other. If they are all contained within the pressure cooker environment of a detention centre the Government and the director general must have the power to enable the segregation of different groups of detainees for the good order of the institution.
The changes proposed in the bill recognise the differing maturity levels and developmental stages of young people, especially where issues of disability and mental health are involved. While taking into account the recommendations of the court in assessing a young person over 18 years or over, the director general would be advised by expert staff of the Department of Juvenile Justice with direct and ongoing experience of young offenders’ behaviour and demeanour while in detention.
The bill also provides that a person over 18 years can be transferred to an adult correctional centre where the detainee is, or has previously been, detained as an inmate in an adult correctional centre for a period of, or periods totalling, no more than four weeks. Many people in the community would be upset with this proposal but they do not realise that there are special facilities within adult correctional centres for the provision of younger detainees that have within them job and vocational training programs and specialised programs to help the needs that brought the detainees to detention.
The bill proposes amendments to section 9A of the Act to provide that persons who are 21 years or over are not to be detained in a detention centre if they are subject to an arrest warrant of any kind, and that persons who are between 18 and 21 years are not to be detained in a detention centre if they are subject to an arrest warrant issued in relation to an alleged breach of a good behaviour bond, probation or community service order, or an alleged escape from custody.
From my visits to the juvenile detention centres, I am aware that sometimes when the detainee’s release is imminent it is better to retain a juvenile in that area, even beyond the age of 21 years, rather than to shift the detainee to an adult correctional facility where the detainee may be exposed to other situations when positive progress may have been made at the juvenile detention centre. Currently young offenders are admitted to detention centres on outstanding juvenile matters, pending transfer to an adult correctional centre.
The bill aims to clarify that older offenders who have breached bond, community service orders, suspended sentence parole or who have escaped from a detention centre do not need to be admitted to a detention centre in order to be transferred to a correctional centre. We do not need to upset ourselves about this because largely it is a process of administration that enables the smoother transition of older offenders who do not have to enter a juvenile centre being transferred to a correctional centre. The provisions proposed in section 9A (2) (e) in the bill would mean that this category of young offender would be transferred to an adult correctional facility without delay. This means that an offender who has previously served a period of custody in an adult correctional facility cannot be returned directly to a juvenile detention centre to serve a further period of custody.
The bill also amends section 21 (1) (b) of the Act to enable detainees who are being punished for misbehaviour to be restricted from participation in sport or leisure activities for a period of time greater than four days, as is currently the case. I do not consider that is an unacceptable punishment. There must be some form of discipline for those who abuse privileges. The removal of privileges will impose discipline within the correctional centre.
The bill provides that any such restriction cannot be for more than seven days at a time, except with the prior approval of the director general. Small children who misbehave—for example, kicking other young soccer players from another team—may have privileges suspended by their parents to improve their behaviour. We are talking here about a correctional facility, which needs some form of discipline. To remove a privilege, such as sport, is a good disciplinary measure. Accordingly, this legislation has the capacity to adversely influence a significant proportion of detainees in the juvenile justice system. However, I place on record the response of the Law Society of New South Wales to the Children (Detention Centres) Amendment Bill 2008. In part, the Law Society stated:
The Law Society’s Criminal Law and Juvenile Justice Committees are opposed to the proposed amendments which provide a wider set of circumstances for making a transfer order with respect to a detainee who is between 18 and 21 years old.
The bill has been introduced to address the problem of overcrowding in juvenile detention centres. There has been a significant increase in the number of children held on remand since the commencement of the highly problematic s22A of the Bail Act 1978 in December 2007.
The Committees are disappointed that the Government’s solution to overcrowding is to make it easier to transfer young detainees into adult correctional centres. This approach completely ignores the need to promote rehabilitation and reintegration of juveniles back into society.
The comments by the Minister for Juvenile Justice in the Agreement in Principle speech are an implicit acknowledgement that the adult correctional custodial system does not deliver the type of rehabilitation services that the juvenile justice system provides. Young detainees are vulnerable within adult correctional centres and they are likely to be contaminated by older offenders.
The Committees agree with the Shadow Attorney General’s comments that the introduction of this bill indicates that the Government is “calling it quits” on the rehabilitation of young offenders.
While I note the Law Society’s comments, I also note the Minister’s response in a memorandum that was circulated among crossbench members. The Government relies on Article 37© of the United Nations Convention on the Rights of the Child—that children in custody should be separated from adults—to justify the transfer of young people from juvenile detention centres to adult correctional centres. This is a cynical and selective application of the Convention on the Rights of the Child. The full text of Article 37© provides:
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.
Article 40 has been completely ignored. Article 40.1 provides:
1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of child’s sense of dignity and worth, which reinforces the child’s respect for the human right and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
Article 40.4 provides:
4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation, foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well being and proportionate both to their circumstances and the offence.
This is a motherhood statement, which we agree with entirely. It is very difficult, however, to provide such services in a situation where there is a seeming lack of resources. Every election the leaders of political parties seek general public support by declaring that if elected to government they will get tough on crime. This is always popular because most people can give instances of judges delivering lenient sentences, prisoners continuing to commit crimes upon release and threats to our security and safety.
Consequently, we put more and more people in prison. The number of prisons in New South Wales is increasing. We have 29 correctional centres and one privately operated jail at Junee. Currently 10,000 prisoners are behind bars in New South Wales. Two out of three have been in prison previously; they have reoffended and been sentenced again to prison. The total annual cost of adult inmates is capital expenditure $91 million and recurrent expenditure $726 million—a total of $817 million per year. Each prisoner costs the State close to $190 every day of incarceration.
In 2002-03 New South Wales recorded the highest rate of offenders returning to prison of all the prisons throughout Australia. Prison overcrowding also remains a critical issue in the New South Wales prison utilisation rate. In 2002-03 prisoner-on-prisoner assault rates in New South Wales were the highest of any jurisdiction in Australia and 59 per cent above the Australian average. That is particularly concerning if juvenile offenders are to be placed in adult prisons.
Levels of overcrowding and the prevalence of sexual assault and other forms of abuse within the adult prison system are matters of serious concern. Overwhelming evidence shows that sending young offenders to adult jails—except special adult jails with rehabilitation and vocational training programs in place—is jeopardising their rehabilitation. In 2004 about 300 adult prisoners between 18 and 25 years of age were interviewed in a study that showed that 25 per cent had been sexually assaulted and 50 per cent had been physically assaulted while imprisoned in an adult correctional centre.
As honourable members would know, I worked for years as a probation and parole officer. Every year I have been in and out of most of Her Majesty’s prisons. I have established pre-release work training programs in our major prisons and post-release programs to get inmates jobs after they have been released. As well, I have set up programs to provide support for wives and families as a priority.
My concerns go back a long way. I was first appointed a parole officer when I was 21 years of age and I have been involved ever since in this area. This bill by no means presents a good picture of what the prison system can do for young people who are too old for the juvenile justice system and too violent. The provisions in this bill are not the way to penalise and rehabilitate young offenders. We have other options.
Conclusion:
There is overwhelming evidence to show that sending young offenders to adult jails is jeopardising their rehabilitation across the board. Sending juvenile offenders into adult prisons where they will be raped and continually sexually abused by older inmates will traumatise them for life. They will continue the cycle of offending, imprisonment and release. Exposing young offenders to hardened criminals will result in them being physically harmed and prevent them from becoming good, law-abiding citizens.
In some sense, that is a utopian view but I continue to work towards that end. Having said that, with all the budgetary limitations and physical constraints, the Children (Detention Centres) Amendment Bill has some excellent points. However, I will support the Opposition’s amendments to certain sections of the bill, and I will speak to those at the Committee stage.
