Improper practices in youth detention: a national crisis?

In the wake of the Royal Commission into the Protection and Detention of Children in the Northern Territory, we have been heartened to see other State and Territory governments conduct reports into the conditions of their own juvenile detention centres. However, what has emerged from these reports are chilling stories of abuse, self-harm & the abandonment of our vulnerable youth to a system disinterested in their future. 

As a soul-crushing illustration, reports into Western Australia’s Banksia Hill Facility revealed that young detainees have been treated like they were the most dangerous organised criminals in the country. Troublesome detainees were controlled by restraints, flash bombs and shotgun laser sights. In a similar fashion over in NSW, six heavily armed tactical police sat in Parramatta Children’s Court at an appearance for two young co-accused in February this year.  

tactical officers with assault rifles

There is a worrying trend of militarisation in youth justice.

Labelled and treated as our society’s lowest from such a young and formative age, they understandably struggle to see themselves integrating into the community. Shockingly, since opening its business in 2016, the Banksia Hill Facility has seen six attempted suicides and hundreds of self-harm incidents.  

Some may argue that these incidents are the result of poor funding because government resources are better put elsewhere than criminals. The report into the Brisbane Youth Detention Centre (BYDC) concluded that staff were sometimes pushed to extreme solutions granted they were frequently required to work 12-hour shifts for days or nights on end.

Yet this does not explain the deliberate cruelty that a number of youth detention centre staff inflict upon the children in their care. The use of other young detainees as ‘enforcers’ by staff to intimidate other troublesome youth at the BYDC is one example of such a baffling lack of consideration for vulnerable and marginalised people. There is clearly a wider cultural issue of indifference to issues facing at-risk young people that enables heartless actions in youth detention. 

We have taken the first steps to correcting the mistakes of the past by bringing them to the surface. As informed citizens, we all play a very important role in questioning that indifference across the country. There is a compelling reason to act quickly and act now: if children receive no basic respect, as adults they will have none.

If you are needing help with basic human, civil or legal rights, contact O’Brien Solicitors on (02) 9261 4281 24 hours a day, 7 days a week to get help from one of our human rights lawyers in our Sydney office.

Why Access to Justice is Access to a Lawyer

When you think of what ‘justice’ means, your mind may turn to a familiar image of a blindfolded lady holding scales. We trust that, like those scales suggest, a good criminal justice system will afford fairness to those accused of breaking the law, ‘blind’ to a defendant’s wealth, power or status.

lady justice

Lady Justice: she may give a better result to those who can afford a lawyer than those who cannot

We know better than to say that’s reality. Yet, as Fife-Yeoman’s article about Sydney’s local courts earlier this week suggests, it may be one particular element determining whether for the same offence you cop a heavy sentence or walk without a conviction: access to a lawyer.

In a study comparing two Sydney local courts, it was found that the local court in Waverley where the median income is high handed down far more section 10 orders than the local court in Mt Druitt where the median income is lower. A section 10 order is given when the court is satisfied, even when there’s a plea or finding of guilt, that it is appropriate to order the dismissal of charges without proceeding to record a conviction.

This strongly indicates that people with the resources to afford legal representation are far more likely to obtain good outcomes in their cases. On the other hand, people who cannot afford a criminal defence lawyer may turn up to court unprepared. They may choose instead to represent themselves. As reflected in the numbers, this means that they may not have the court and legal know-how to present their case in the best possible light. Consequently, they are treated harshly by judges who do not see all there is to see about their situation. Worse yet, they may be unaware of their right to appeal a court’s decision if it is unjust.

If things are this divided across socioeconomic status in one city, it also raises questions about the slew of other characteristics across different States and Territories that may impact on a person’s access to a lawyer.

For example, it has been found that 94 percent of Indigenous Australian inmates at correctional centres in Darwin and Alice Springs in the Northern Territory tested positive for hearing loss primarily from untreated medical issues. This means that many of these individuals understandably avoided interaction with guards, parole officers and judges where their disability may have been revealed and addressed. Instead, they found themselves in a position where they could only agree with the sentence the magistrate handed down as they didn’t have the means to understand and put up a defence.

Commendably, there were a number of correctional officers who helped interpret the proceedings for the accused. However, this is not enough. Regardless of their background, people accused of crime need a lawyer in their corner who can help them navigate the system and actively represent their interests.

There should never be one law for those with privilege and another for those without.

Everyone is entitled to a strong and respectful defence against criminal charges. If you have been charged with a crime, don’t risk an unfairly harsh outcome by going without legal representation. If you are worried that you might not be able to afford a lawyer, we may be able to arrange legal aid to help fund your case. Contact us on 02 9261 4281 or on the contact form on this website for more information.

Victoria passes new legislation reversing onus of proof for child abuse matters

In recent days the Victorian government passed an Australian-first piece of legislation that signals a huge reform in how child abuse cases are to be prosecuted. Entitled the Wrongs Amendment (Organisational Child Abuse) Act 2017, it has the effect of reversing the onus of proof onto organisations accused of failing to prevent child abuse.

This means that if you are a victim of abuse in Victoria seeking to sue organisations that employed the abusers, you no longer need to prove that the organisation failed to take any precautions in preventing the abuse. Rather, the burden is now on the accused organisation to prove measures were taken to prevent it. ‘Organisations’ includes churches, community groups as well as teachers and government authorities that look after children.

In effect, this law greatly contributes to levelling the legal playing field that ordinarily saw individual victims heavily disadvantaged against larger, more powerful organisations.

A key lesson to take away from the two recent Royal Commissions concerning child abuse is that it is too simple for institutions to deny liability by denying knowledge and forcing the abused to establish knowledge of the abuse or the abuser’s past behaviour that ought to have sent red flags to the organisation. It has also become painfully apparent that many institutions sought to protect their own reputation or that of their membership by concealing the abuser’s behaviour and protecting the abuser whilst simultaneously alienating and ostracising the abused. This loaded the pain and suffering of those survivors of abuse.

Royal Commission into Child Abuse

Royal Commission into Child Abuse. Photographer: Jeremy Piper

It has been notoriously difficult for victims to prove that institutions have broken the duty of care they owed them, if those institutions accept that they owed a duty in the first place. This has lead to many victims settling their proceedings with inadequate and meagre settlements. For the community and particularly for the victims and their families, this new law helps to remedy this clearly unjust state of affairs.

In the future, we hope that other States and Territories also take note of the lessons from the these Royal Commissions and the example that Victoria has set with its new legislation.

The buck must stop with the men and women who have the power to prevent threats to child safety.

  • You can see the Victorian Attorney-General Martin Pakula’s media release here.
  • If you would like more information about the Royal Commissions mentioned above, also see the Royal Commission into Institutional Responses to Child Sexual Abuse here, and the Royal Commission into the Protection and Detention of Children in the Northern Territory here.

The Law Enforcement Conduct Commission: The Good & The Bad

Earlier this year, the Law Enforcement Conduct Commission (‘LECC’) replaced the previous Police Integrity Commission (‘PIC’) and a number of other institutions as the central committee for oversight of police in NSW. However, the benefits for accountability and efficiency are weakened by the government’s lackluster implementation and its failure to reform a key area of public concern.

The LECC is a ‘two steps forward, one step back’ kind of reform. On the plus side, it streamlines the police oversight process by bringing together a number of similar areas of inquiry. It does so by combining the investigative roles of the PIC, the Police Division of the Office of the Ombudsman and the Inspector of the Crime Commission into a single civilian body, all headed by the eminent Supreme Court Justice Michael Adams (pictured below).

Supreme Court Justice Michael Adams

Supreme Court Justice Michael Adams. Photo: Phil Carrick

Promisingly, the capacity to monitor police conduct has greatly improved, backed by the LECC’s royal commission type powers to hold public hearings in some situations. With the LECC, we can expect greater resources and less unnecessary politics between investigative institutions overseeing NSW police operations.

Now, let’s look at the minuses. For all its appearances of straightforwardness, the NSW government has maintained the status quo by only allowing police, not the LECC, to investigate other police in ‘critical incident’ investigations. These investigations concern situations where a member of the public or police suffers serious injury or death in the course of a police operation.

As one can imagine, this remains a big concern. It is not outlandish that police would have both the opportunity and the motivation to cover their mates in the aftermath of a tragedy. The numbers alone speak volumes: of the 62 critical incidents involving police from January 2013 to August 2015, only 2 adverse findings were made and there were no disciplinary actions taken against involved officers. It is the creeping possibility of such a conflict of interest, whether anything comes of it or not, that harms trust in the criminal justice system.

Of course, on paper the LECC can still use its powers of oversight in these investigations, but they have to leap a few hurdles first. To be allowed to physically observe critical incident interviews, for example, the LECC must first gain the consent of the person being interviewed and the senior critical incident investigator. Whether both their consent will always be freely given – well, let’s just say we’re not holding our breath.

Perhaps equally worrisome is the lack of a clear transition. Although given little news about which positions were filled, we were told that the LECC would start accepting complaints in March. That soon turned to May. Now, in June, a click of the LECC ‘Submit a Complaint’ button leads to an evasive statement that complaints will be taken ‘shortly’, and to refer any complaints to the PIC or Ombudsman.

Yet, as the PIC and Ombudsman continue to whittle themselves down to make room for the LECC, the situation gives pause for thought: who’s actually policing the police right now?

We cannot put the blame on police for working within the structures that have been given to them. However, we can say that we believe the NSW government has missed an important opportunity to confidently address the culture of police secrecy that makes the LECC’s practices necessary.

To make a difference, the transition process must be clear for all and ‘critical incident’ investigations must be firmly within the purview of the LECC.

The LECC is coming soon. If you are appearing at a public hearing of the LECC, you will need experts in your corner who have proven experience navigating commissions. Call O’Brien Solicitors on (02) 9261 4281 or contact us via the form on this website.

Peter O’Brien interviewed about Dylan Voller on 60 Minutes

Last night, Dylan Voller was interviewed on Channel Nine’s 60 Minutes program. He spoke bravely about his past, the psychological impact of his detention and his hopes for the future.

Peter O’Brien, Dylan Voller’s lawyer, also appeared on the program. He spoke about Dylan and the toxic environment of the youth detention centre where he was held, saying it “wasn’t the type of system that was going to make a young boy a good man”.

As a firm, we continue to be proud of Dylan’s courage. Going forward, we also hope that his story can help make a positive change to our criminal justice system.

peter o'brien being interviewed by 60 minutes

Image: 60 Minutes/9NEWS.

In case you missed it:

See Dylan’s powerful tell-all story on 60 Minutes here (login required)

Or on 9NEWS:

And read the Sydney Morning Herald article:

Asylum seekers on Manus Island: the new High Court case & why it’s important

In a case that could change immigration policy as we know it and provide fresh hope to refugees trapped in uncertainty, the High Court of Australia is hearing a new challenge to the Australian government’s detention of asylum seekers on Manus Island in Papua New Guinea.barbed wire immigration detention

O’Brien Solicitors‘ client, the plaintiff, is a detainee who fears for his life after becoming an eyewitness to his friend’s murder. He challenges the lawfulness of his detention after the landmark case of Namah v Pato. There, the Supreme Court of Papua New Guinea ruled the regional processing centre at Manus Island was unlawful. As a result, the Australian government’s position that they are perfectly within their power to keep the Manus Island centre going is shaky at best. It is on these grounds that the plaintiff seeks a declaration that he was unlawfully detained from the beginning, and a writ of Habeas Corpus to extract him from the alleged unlawful detention.

The plaintiff also argues that the continuation of Australia’s policy in Papua New Guinea is a clear violation of what is termed ‘international comity’. This is the principle that different countries will recognise each other’s laws and judgments.

Even if the challenge is successful, perhaps the most worrying fact is that it’s unclear exactly what may happen next. Not leaving anything to speculation, Australian Immigration Minister Peter Dutton resolved on the day of the Namah ruling that [n]o one who attempts to travel to Australia illegally by boat will settle in Australia‘. It is more likely than not that, if the Manus Island centre is closed, most refugees would simply be shifted to other locations, such as to Nauru.

We must not lose sight of the bigger picture. This case represents an attempt to ensure that the Australian government provides accountability, procedural fairness and respect for the living conditions and human rights of those seeking asylum. Let us hope that compassion to the world’s most vulnerable peoples can be shown before Australia’s position on the international stage is damaged for generations to come.

For more news on this case as it breaks, stay subscribed to O’Brien Solicitors on Twitter (@OBrienSolicitor) and Facebook