AUSTRALIA: NSW: The Children (Detention Centres) Amendment Bill was rushed through Parliament on 25 May 2006. There was no parliamentary debate and no time for public comment on the Bill.

Why this is bad law

The legislation allows for the direct contravention of the human rights of juvenile offenders under a number of human rights treaties to which Australia (and hence NSW) is a signatory.

These treaties include the International Covenant on Civil and Political Rights (ICCPR) and the Convention of the Rights of the Child (CROC) which require that that every child deprived of liberty shall be treated in a manner which takes into account the needs of persons of his or her age.

The Bill also offends the standards contained in United Nations Rules for the Protection of Juveniles Deprived of their Liberty (‘The Beijing Rules’) and the Standard Guidelines for Corrections in Australia. Both of which require that correctional services reflect specific needs of offenders that may arise from their age and cultural backgrounds.

The Bill also goes against the spirit of the Youth Offenders Act, which is considered to be one of the most forward thinking pieces of juvenile justice legislation in Australia.

The Bill also contravenes a number of the recommendations of the Royal Commission into Aboriginal Deaths in Custody.

The bill is contrary to the spirit of Recommendation 25 of the Report on the Inquiry into Juvenile Offenders undertaken by the Legislative Council Select Committee on Juvenile Offenders, namely that “the NSW Government provides a long term commitment to maintaining a separate Department of Juvenile Justice to administer the range of non-custodial services appropriate to the needs of young people in NSW”.

It is of particular concern that the NSW Government is legislating in this manner at a time when the United Nations Human Rights Committee have recently made a finding that the NSW government violated the human rights of a young person while in the custody of NSW Correctional Services.

The UN Committee found that the NSW Government (and Australia as a signatory) contravened the right of Mr Corey Brough to be treated with humanity and with respect for his dignity. It also found that Mr Brough, who is Indigenous and has a mild intellectual disability, had not been treated in a way that was appropriate with his age – he was only 16 when he was put in isolation at Parklea Prison.

We believe that rather than entrenching these violations into law the NSW government should take steps to ensure that similarly inhumane treatment is not inflicted on any person in our prison or juvenile detention systems.

Specific concerns:

Schedule 1[7] increases the length of time juvenile detainees can be held in segregation from 6 hours in a 24 hour period to an indefinite period of time.

Schedule 1[8] significantly increases the time juvenile detainees can be held in isolation as punishment – from 3 hours to 12 hours in a 24 hour period for under 16 year olds and from 12 hours to 24 hours for over 16 year olds.

Both of these increases have serious implications for the well being of young detainees, especially Indigenous detainees. Both directly contravene recommendations 144, 167 and 182 of the Royal Commission into Aboriginal Deaths in Custody which require that that in all cases, unless there are substantial grounds for believing that the well being of the detainee or other persons detained would be prejudiced, an Aboriginal detainee should not be placed alone in a cell.

We have great concerns about any increases in these types of punitive options for young people and question how this will be scrutinised in practice. Of particular concern is the legalization of indefinite segregation at the discretion of the Director General. It is difficult to imagine in what circumstances a person could humanely be held in segregation indefinitely.

The legislation entrenches practices of segregation or confinement of offenders for extended periods of time by removing existing safeguards to prevent prisons officers taking the ‘easy option’ of shutting troublesome youths in isolation for extended periods of time.

This leaves the system open for similar abuses that were inflicted on Corey Brough. Corey was shut in isolation for 72 hours at a time (an allegation that was initially denied by the NSW Department of Corrective Services, however the Human Rights Committee found evidence proving Corey’s allegations). Corey’s confinement was held to be “manifestly incompatible with his condition” by the UN Human Rights Committee.

A previous report from the NSW Ombudsman into the treatment of juvenile detainees has been particularly critical of the use of segregation and isolation in juvenile detention centres. Confining youths in holding cells for extended periods of time may clearly contribute to deterioration in any mental health condition they may have.

We consider these amendments to be a significant step backwards in the treatment of young people in detention. We see no sound policy reason for their inclusion in the Bill.

Schedule 1[10] significantly extends the circumstances under which the control of a juvenile facility may be passed to NSW Corrections. These arrangements subject children and young people to an adult corrections environment in direct contravention of Article 10 (2) ICCPR.

The transformation of juvenile justice into an adult style prison environment is particularly disturbing given the poor record of Corrective Services as regards rehabilitation and recidivism highlighted in the Audit Commissioner Report released this week.

It is important to remember that these amendments apply to children as young as 13 or 14 in juvenile detention centres of all levels of security. We believe that bringing more young people under the control of NSW Corrective Services will serve to further change the culture of the Juvenile Detention Centres to mirror that of adult correctional facilities. At best it is an abrogation of responsibility and at worst it amounts to a denial of children’s rights to appropriate detention in line with international human rights standards.

We acknowledge that there may be a small group of young offenders that are difficult to control – however this group should be able to be dealt with by employees of the Department of Juvenile Justice, who are trained to work with young people.

Under the legislation, once control is assumed by the Department of Corrective Services, correctional officers will have the same functions and immunities as if they were policing an adult correctional centre. This means that the correctional officers may use the same techniques as if they were policing adults prisoners, including the use of attack dogs.

Schedule 1[11] allows Justice Health to impose medical treatment on a juvenile detainee without their consent under certain circumstances. This could include prescription of sedatives, anti-psychotics and other serious medical interventions. Whilst we welcome Justice Health providing medical services to young detainees, we can see no reason why a young person with the capacity to make decisions about their medical care cannot refuse medical treatment just because they are within the juvenile detention system.

Schedule 1 [12] to [15] makes administrative changes to send more detainees currently held in juvenile detention centres to adult jails. In particular it enables transfers of people over 18 to any NSW prison, rather than to specific units for young offenders in adult prisons. It also allows for transfers whenever the young person requests it and automatic transfer for anyone over 21.

NCOSS and the Youth Justice Coalition have made previous representations to the NSW Government in regards to the dangers of young people being seen to self select into the adult prison system.

We note with concern the findings in the NSW Ombudsman’s Discussion Paper: Review of the Children (Criminal Proceedings) Amendment ( Adult Detainees) Act 2001, that young offenders are being encouraged by some Department of Juvenile Justice staff to consider moving to an adult prison earlier than their prescribed Section 19 date. Even more disturbing is the finding that some detainees are deliberately committing offences in order to leapfrog into the adult prison system.

We note that the Ombudsman’s Discussion Paper does not go into any detail as to what is motivating young people to want to enter the adult prison system early. However we note that of the seven people transferred into adult prison early, four were found to having moderate to severe intellectual disabilities.

This phenomenon is even more disturbing when it is recognized that a third of young people in juvenile detention are Indigenous and that there is evidence that Indigenous offenders have higher prison return rates and therefore may be more likely to view going to prison as a way of life. Routinely moving young Aboriginal people into adult prisons could have the effect of cementing them into the adult prison cycle. It should also be noted that Corey Brough was one such detainee transferred to a unit in Parklea prison. His story is a stark reminder of how an adult prison environment is a very dangerous place for a young person to be held.

Schedule 16 allows for a very wide regulation making power in regards to juvenile detention matters. It includes an ability to make significant changes to detainees rights as regards visitors, privacy, complaints, religious and cultural rights, access to medical treatment and participation in education and rehabilitation. It also includes significant regulation making powers in regards to the use of restraints, use of force, body searches etc.

Whilst there is a legitimate role for regulations to cover the administration and management of detention facilities, we are concerned that changes could be made by way of regulation that downgrade fundamental rights of young people in detention without Parliament being given the opportunity to effectively scrutinize them.

In a related matter we are very concerned to note in the second reading speech that the Director General is about to enter into an agreement with the Commissioner for Children and Young People to effectively remove external scrutiny of complaints of unreasonable use of force by Juvenile Justice officer (or corrective services staff at Kariong or any other juvenile detention centre).

The agreement specifically states that legitimate use of force is not reportable conduct for the purposes of the Commission for Children and Young People Act 1998. The agreement also means that a complaint concerning the use of force where the outcome of an investigation is that the allegation is not sustained due to insufficient evidence and the allegation is not of a serious nature will not be reportable. Also, allegations of low-level neglect where no harm occurred to the detainee will no longer be reportable.

We understand that this agreement has arisen out of concerns that Juvenile Justice officers have had negative reports on a “working with children check” following a complaint by a juvenile justice client. We agree that unsubstantiated complaints should not be recorded on a working with children database once they have been finalized. However this does not mean that young people should also be denied the opportunity to have their complaints noted and considered by an independent person. We seek urgent clarification on this point.

We are also concerned that the concept of “low level neglect” is creeping into the culture of juvenile justice as a means of avoiding the clear and absolute duty of care owed by the state of NSW to detainees. Neglect is neglect and the cumulative effects of “low level” neglect should not be forgotten.

Conclusion

It is important to remember that development of a separate Juvenile Justice system was intended to provide a model that was more focused on rehabilitation than the adult correctional system. As with other recent reforms in the area of juvenile justice this legislation is yet another step towards creating a juvenile justice system that is harsh and dehumanizing.
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NSW GOVERNMENT LEGISLATES TO ALLOW HUMAN RIGHTS ABUSES IN JUVENILE DETENTION

A coalition of leading children’s rights, legal services and peak welfare organisations has condemned the Iemma Government’s latest attempt at a quick fix for the NSW juvenile justice system.

The Council of Social Service of NSW, Youth Justice Coalition, Justice Action and the National Children’s and Youth Law Centre have joined forces to in opposition to the Children (Detention Centres) Amendment Act rushed through Parliament yesterday.

“This legislation is a licence to abuse children’s human rights” said Mr Gary Moore, NCOSS Director. “It allows adult corrections officers to use attack dogs in juvenile centres, allows for indefinite segregation of a detainee and extends isolation to 24 hours as a form of punishment.”

“It beggars belief that the NSW Government is legislating in this manner at a time when the United Nations Human Rights Committee has just ruled that they violated the human rights of a young person while in the custody of NSW Correctional Services” he added.

The UN Committee found that the treatment of Mr Corey Brough who is Indigenous and has a mild intellectual disability, was inhumane and did not respect his dignity. Mr Brough was 16 years old when he was transferred from Kariong Detention Centre to adult prison. He was put in isolation at Parklea Prison for up to 72 hours at a time.

“We believe that rather than entrenching these violations into law the NSW government should take steps to ensure that similarly inhumane treatment is not inflicted on any person in our prison or juvenile detention systems.” said Mr Moore.

“NSW used to be a world leader in modern approaches to juvenile justice. This legislation leaves that reputation in tatters. It not only offends several international human rights treaties it also contravenes several recommendations of the Royal Commission into Aboriginal Deaths in Custody” added Mr Moore.

“As the governmentt turns it back on the principles of its own Young Offenders Act which supports diversion, rehabilitation and the involvement of victims and the broader community, it abandons effective crime prevention strategies” said Mr James McDougall, Director, National Children’s and Youth Law Centre.

“We must not legalise human rights abuses in our own backyard” said Mr McDougall. “The Premier needs to show leadership and not let the race to the bottom on law and order dictate how we manage juvenile justice”.

Media Contact
Gary Moore, Director, NCOSS
0407 567 408 (mob)
(02) 9211 2599 (wk)
James McDougall, Director, NCYLC
0419 243 179 (mob)
(02) 9398 7488 (wk)
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The National Children's and Youth Law Centre, together with Justice Action, are leading a campaign for acknowledgement of the mistreatment of Corey Brough, in the NSW prison system, and further, for systemic reform.
Please see attached a press release and coverage by AAP set out below.
Gilbert + Tobin, a Sydney law firm, acts for Corey and on his instructions, made the complaint to the UN Human Rights Committee. Gilbert + Tobin is supporting the campaign and remain Corey's representatives. They are not making public comment.

Here is the Committee's decision:
 http://www.unhchr.ch/tbs/doc.nsf/0/8aeb1fcbc458419ac125716200520f4b?Open
Torture UN/OPCAT: 20 ratifications!!
 http://sydney.indymedia.org/node/37144
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Here is a good example of the Ombudsmans failure

5.2 On the issue of exhaustion of domestic remedies, the author reiterates that administrative (23) and judicial remedies available to him would be ineffective. While complaints within the prison are received by the prison governor, the very person who authorized his conditions of detention, complaints to the Ombudsman could only result in the adoption of a report or recommendation to the Government, without providing any enforceable right or recourse. The travaux préparatoires of article 2, paragraph 3 (b), of the Covenant indicate the drafters' intention that States parties should progressively develop judicial remedies. More than 20 years after ratification of the Covenant in 1980, Australia should have complied with this obligation.

The National Children's and Youth Law Centre, together with Justice Action, are leading a campaign for acknowledgement of the mistreatment of Corey Brough, in the NSW prison system, and further, for systemic reform.
Here is your back up?

The official Visitor who reports to the Commissioner of Corrective Services and the minister about your treatment. Accept all that happens is the Official Visitor passes on the complaint to the political wing so they can draw up a backhander to publicise in the media about a prisoners new plot? So all that happens is more information from the victim to the perpetrators of the torture!
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6.2 The State party submits that all prisoners in New South Wales adult correctional facilities have access to Official Visitors, who are appointed by the Minister for Corrective Services to visit correctional centres at least once per month and to receive complaints from prisoners. The Governor of the correctional centre must notify all inmates of the date and time of such visits and inform them about the possibility to complain to Official Visitors. Under the Crimes (Administration of Sentences) (Correctional Centre Routine) Regulation 1995, the Official Visitor is required to clarify the details of a case and to submit an Official Visitor's record form to the Commissioner of Corrective Services. He is also required to bring the complaint to the attention of the Governor of the correctional facility. The Regulation does not specify a deadline for bringing complaints to Official Visitors.

6.3 Moreover, the author could have requested permission to speak with the Governor of the correctional centre or with the Minister or the Commissioner for Corrective Services. Such requests must be conveyed to the Governor without unreasonable delay; the Governor is required to give the inmate an opportunity to speak on the matter or, respectively, to convey the request to the person with whom the inmate wished to speak during that official's next visit to the correctional facility.

6.4 The State party adds that an inmate may also directly complain, in writing, about his treatment in the correctional centre to the Minister or the Commissioner for Corrective Services. The complaint must be placed in a sealed envelope addressed to the Minister or the Commissioner and must not be opened, or its contents read or inspected. Although the Minister could not intervene personally, all complaints received by him were referred to the appropriate body, e.g. the Commissioner, who had the power to overrule or reverse any previously made decision.

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To the torturer: Will you please stop torturing me? No!
Please sir I don't want anymore!
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Just to ensure the maladministraton the Office of the Inspector General has been taken out of the complaint mechanism!
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6.5 The author also had the possibility of complaining to the Inspector-General of Corrective Services, whose mandate terminated on 30 September 2003. The Inspector-General was appointed by the Governor of New South Wales and was independent from the Department of Corrective Services. He was given full access to offenders held in custody, as well as to the premises and records of the Department, with a view to investigating and resolving complaints about the Department's conduct. This function could be exercised on his own initiative, at the request of the Minister for Corrective Services or in response to a complaint. Although no deadline for filing a complaint was specified, the Inspector-General had discretion to decide not to investigate complaints relating to incidents which had occurred too long ago or for which satisfactory alternative means of redress existed. He could recommend disciplinary action or criminal proceedings against officers of the Department.
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6.6 As regards the author's period of segregation, the State party submits that, under the Crimes (Administration of Sentences) Act 1999, any prisoner whose segregation exceeds fourteen days has the right to appeal to the Serious Offenders Review Council. Prisoners must be informed of their right to appeal and must sign a form stating that they have been so informed. Upon review, the Council may confirm, amend or revoke a segregation order. Pending the final outcome of a case, it may also order the suspension of the segregation or the prisoner's removal to another correctional centre.

6.7 Lastly, regarding judicial remedies, the State party reiterates that Australian courts consider themselves competent to deal with prisoners' challenges to the lawfulness of their confinement, including actions brought against acts in breach of a duty of care causing harm or injury to prisoners. The relevant cause of action was based on the tort of negligence in common law, subject to the Civil Liability Act 2002 (NSW), which provided for exclusion of personal liability for certain persons under certain circumstances. In accordance with the Crown Proceedings Act 1988 (NSW), the respondent party in proceedings commenced in common law tort against a government agency, which was not a separate legal entity, was the State of New South Wales. However, the author had failed to bring a court action in common tort negligence.

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Now can we have a complaint mechanism that actually works?
I mean one with a remedy?
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7.1 On 14 September 2005, the author commented on the State party's additional observations, denying that any of the above administrative or judicial remedies would in practice have been available to him or that they would have provided him with an effective remedy at the relevant time. He had never been advised of possible complaint mechanisms upon being admitted to Parklea Correctional Facility. In addition, the treatment complained of was to a large extent compatible with the relevant Australian laws and regulations.

7.2 The author submits that he was never told whether or when an Official Visitor would visit Parklea during his time of incarceration. This had deprived him of an opportunity to complain to the Official Visitor who was, in any event, required not to "interfere with the management of discipline of the correctional centre, or give any instructions to correctional centre staff or inmates." (24)

7.3 The author contends that the Governor of Parklea Correctional Centre dismissed his repeated complaints about the conditions of his detention by replying: "You are not in a boy's home anymore. This is the way we run the place." Or: "Nothing will be done about it; this is how we run the place and how you will be treated." Given that the decision whether or not to act on a complaint was within the Governor's discretion, (25) such a complaint was not an effective remedy. This was reflected by the fact that the author's file revealed that the Governor had approved of his segregation and confinement on six occasions during the relevant period.

7.4 The author claims that he had not been informed about the possibility of making a complaint to the Minister or Commissioner for Corrective Services, whether through the Governor or whether directly in writing. The fact that the Governor was not required to refer a complaint to the Minister or Commissioner but could dispose of the matter personally, (26) the purely recommendatory powers of the Commissioner, as well as the author's difficulties to read and write and the absence of pens, pencils or paper in his dry cell, showed that such complaints were not an effective remedy.

7.5 Although a lawyer from the Sydney Regional Aboriginal Corporation Legal Service filed a complaint with the Minister for Juvenile Justice on the author's behalf, following his release from segregation, no remedial action was taken on that complaint.

7.6 The author further submits that he was never informed about the possibility of complaining to the Inspector-General. Since the Inspector-General had discretion not to pursue complaints for which alternative means of redress existed, he could have dismissed his application on the ground that the author had already complained about his treatment to the Governor.

7.7 Similarly, he had never been advised that he could appeal his segregation to the Serious Offenders Review Council, nor had he signed a form stating that he had been so informed. Such an appeal would not have been an effective remedy, given that he was not a serious offender at the time of his segregation and that the Council had no competence to deal with issues other than segregation, such as, for example, his physical and medical treatment.

7.8 The author argues that, although he was aware that the Governor had authorized his treatment, as evidenced by his Department of Corrective Services file, he took all reasonable steps within the capacity of a 16 year old Aboriginal child with an intellectual disability to seek a change of his treatment, i.e. by complaining to his Aboriginal Deaths in Custody officer and to the Governor of the correctional centre.

7.9 By reference to the expert advice dated 7 May 2002 , the author reiterates that any court action for breach of duty of care would have been futile.

Who you gonna call? Ghostbusters! Or if you're lucky the UNCCPR
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One more thing if you're a State prisoner

3.10 As regards the complaint procedure under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the author states that this procedure applies only to acts or practices of the Commonwealth and not to acts of the New South Wales prison staff. The author also submits a report dated 7 May 2002 by a specialist on personal injury law, which states that he could not successfully make a claim in negligence, based on his treatment at Parklea.