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.

Juvenile Justice Done Wrong, and How to Do It Right

Screengrab obtained Tuesday, July 26, 2016 of the Don Dale Youth Detention Centre in Berrimah, NT. Prime Minister Malcolm Turnbull has called for a royal commission into the NT's youth justice system after ABC's Four Corners exposed abuse of teen inmates at the centre. (AAP Image/Four Corners) NO ARCHIVING, EDITORIAL USE ONLY

(AAP Image/Four Corners)

Before the Northern Territory Royal Commission begins in October, let’s take a short breather to remind ourselves what it is we’re examining. Don Dale showed us the worst of what juvenile detention can be. Four Corners broadcast footage of children as young as thirteen being abused, assaulted and belittled. These children – denied opportunities and demonised by politicians and society – became trapped in the revolving door of prison, to be re-abused by another set of guards with inadequate training. Don Dale was like a version of the Stanford prison experiment: make-believe criminals being beaten up by make-believe guards.

If the Don Dale Youth Detention Centre ever had a justification to exist, it lost it a long while ago. When the Royal Commission looks at Don Dale it will be examining the model of an unsuccessful juvenile justice system. So today, let’s look at some successful systems, and see what can be learnt for the future of youth justice in Australia.

The Scandinavian Model

In Norway, Sweden, Denmark and Finland, the age of criminal responsibility is 15. This means that in those countries it would be legally impossible to incarcerate a thirteen-year-old for theft (this is what happened to Dylan Voller). Rather than a penal system, these Scandinavian countries address the crimes of the very young with intensive social welfare systems. It’s been called a “cross-professional” approach, and it sees schools, social welfare officers, child psychologists, health professionals and police sharing information about any at-risk children, so that a comprehensive, individualized approach can be taken to ensuring their welfare. It is exactly the way a caring parent would try and divert their child from further errant behaviour.

So Scandinavian countries don’t treat offending children like the bane of society? How do their politicians make small talk? In the words of The Atlantic:

“[T]throughout Scandinavia, criminal justice policy rarely enters political debate. Decisions about best practices are left to professionals in the field, who are often published criminologists and consult closely with academics. Sustaining the barrier between populist politics and results-based prison policy are media that don’t sensationalize crime—if they report it at all.”

We can already hear the Hadley acolytes tapping out their objections: how do you expect to stop crime if you don’t adequately punish people? The thing is, Scandinavian countries do stop crime – it’s just that they stop it before it happens. This proactive approach results in vastly better outcomes for all parties: the victim doesn’t suffer the trauma of crime, society doesn’t have to pay to for lawyers and jailers, and the child doesn’t have their future compromised by criminal charges.

Sure, the acolytes protest, but does a softer system actually work? And would it work in New South Wales? In 2014 the Australian Children’s Commissioner, Megan Mitchell, stated that “evidence has shown that policies and preventative interventions which help to address vulnerability in children will ultimately reduce rates of juvenile offending.” On the contrary, she said, contact with the penal system actually increases the rate of reoffending, and makes it more likely that kids will commit crimes into adulthood. Mitchell’s evidence is here.

The full title of the upcoming royal commission is the Royal Commission into the Protection and Detention of Children in the Northern Territory. They’ve done one thing right already: Protection comes before Detention. Let’s make that a reality.

(Apologies for the lack of blogging. We’re going to follow the example of the Northern Territory government and blame everything on Four Corners.)

Media, Misinformation and Punitiveness: The Unholy Trinity

Take a group, and split it into two. Each half is asked to comment on a case. The first group gets their information about the case from a newspaper. The second reads a summary of the court documents.

You won’t find a better metaphor of the divide between the informed and the misinformed than this 1988 study by Roberts and Doob. More than half of the people in the court documents group thought that the sentence imposed was too harsh. Of those who learnt about the case from the media, 63% thought that the sentence was too lenient.

The study provides two key lessons. The first is correlative: it demonstrates the connection between the media and misperceptions of criminal justice. The obvious explanation of this phenomenon comes from Gelb, who writes that “[the media tend to focus on unusual, dramatic and violent crime stories, in the process painting a picture of crime for the community that overestimates the prevalence of crime in general and of violent crime in particular.” Likewise, the only sentences that excite the press are the unusually lenient ones.

Lesson two again reveals a correlation; specifically, the bond between misinformation and punitiveness. The further a person is from the criminal justice system, the more bloodthirsty they become. (To illustrate: Kate Warner conducted a study in 2011 that asked jurors what they thought of the sentence imposed in their cases: 90% answered that it was either very or fairly appropriate.) There’s another obvious explanation here: the misinformed public is more keen on punishment, because the media makes crime rates seem worse than they actually are. The Doob and Roberts study pierces right to the core of the problem: the unholy trinity between media, misinformation and punitiveness.

The widespread diffusion of this blind belligerence made it inevitable that it would be adapted into public policy. The policy has been accurately termed “penal populism”. Populism is the mot juste: a policy is populist when it is designed to win votes, without any concern for its actual effectiveness. Punitiveness plays to the baser instincts of the uninformed electorate. As for its effectiveness, multiple studies have shown that rehabilitation is miles ahead when it comes to reducing recidivism. Rather than taking the reader through these multiple studies, one gets a much more powerful image by seeing just how ineffective harsher punishment is. In America – where the illness of penal populism is at a more advanced stage than in Australia – 1 in every 14 African-American children has a parent behind bars. If you’re black, male, and in the prime of your life (25-29 years old), on any given day you have a 1 in 8 chance of being incarcerated.

Unless the penal impulses of the public can be bested, this dystopia is the telos of the Australian criminal justice system. Smarter media coverage of crime is one way to resist punitiveness, and at the same time politicians need to resist the basic instinct to capitalise on populist policy. The central player, the legal system, needs to find a better way to communicate its work to the public. Misinformation doesn’t correct itself; not to oppose penal populism will be enough for it to rot our criminal system from the outside in.

New Police Powers Create New Scope for Abuse

The expansion of police powers should concern us all

Photo: Cameron Richardson

New South Wales has never had full individual freedom – full freedom doesn’t exist anywhere, in any society. The trick of governance has always been to find the right balance between security and freedom. That balance is not something I can achieve in one short blog post; what I can do, though, is point the fact that – like any balancing act – too much on one side and the whole exercise topples over. Too much security and too little freedom, and security disappears.

This truism is particularly relevant given the gross expansion of police powers in NSW. My concern is that – if we didn’t already tip the balance last month – we’re coming terrifyingly close. Last Wednesday, the Crimes (Serious Crime Prevention Orders) Bill 2016 passed through parliament, and is currently awaiting assent. Without going into specifics, this bill is really bad. When you do go into specifics it gets even worse – but before I do that, it’s instructive to look at the expansion of police powers that has led us up to this point.

In 2006, the Crimes (Serious Sex Offenders) Act introduced continued detention orders; court orders that would allow the government to keep high-risk sex offenders locked up after their original sentences had expired. Thankfully, there were protections; a judge had to be presented with psychiatric evidence that satisfied the court of a likelihood of reoffending. The importance of this Act, however, is that it was a clear separation of criminal punishment from criminal guilt.

Once you uncouple criminal punishment from criminal guilt, the infliction of criminal punishment becomes more and more arbitrary. The 2006 law has proved to be the thin end of the wedge. The thicker end started to appear in 2013, when continued detention orders were expanded from serious sex offenders to serious violent offenders.

And now, in 2016, the powers of detention have expanded again. The Crimes (Serious Crime Prevention Orders) Bill 2016 allows police the ability to easily impose heavy punitive restrictions on individuals. A Serious Crime Prevention Order can stop a person from associating with others, from working in certain jobs, from visiting nominated places and from doing everyday activities, such as using a mobile phone or the Internet.

And, as a scathing submission by the NSW Bar Association points out, all of these draconian conditions can be imposed whether or not a person has been charged with an offence, and even if they have been charged and acquitted. Not only are these powers unprecedented in their reach, they are basically carried out by a parallel system of police judgement. If a court had imposed these powers, they could be reviewed. The “gut feeling” of a police officer cannot.

Police powers have and will always be abused – in fact, that’s one of the growing areas of our practice. But the police powers that have been abused in the past have been the minimum powers required to run a society – the powers of arrest and search, for example. If basic police powers have been egregiously abused in the past, it doesn’t take much understand that with these inflated, unnecessary police powers, the potential for abuse of power expands exponentially. The greater the powers, the greater the potential abuse.

The Politics of Fear (Part II: All Extremists are the Same)

With further counter-terrorism arrests carried out in Sydney this morning, I expect the same tired tensions bubble to the surface. Hiding behind the thin rhetoric of ‘national security’ and ‘Western values’, anti-Muslim campaigners will crawl out of their caves, blink a bit, projectile vomit some casual racism and then scurry away before the light of rational argument hurts their maladjusted ideas.

If you think that I’m exaggerating, consider the recent comments from Tony Abbott, Donald Trump and this clever individual. All of the anti-Muslim rhetoric is easily refuted idiocy, of course, but that’s not the problem. Even without a capacity to persuade, these anti-Muslim comments have the capacity to divide and infuriate. The division they attempt to create is between “us and them”, between the West and Islam. Funnily enough, this is exactly the same division that ISIS is trying to create (as pointed out by Waleed Aly). What the extremists on both sides realise is that fear and hatred are the best ways to conscript a larger population to your cause. The politics of fear is cynical and cheap.

However, the spectacle of counter-terrorism arrests brings out not only the worst parts of public debate, but also the worst parts of media reporting. The media relies on narratives, and one of the key devices of storytelling is conflict. Unfortunately, the “us and them” narrative inherently contains conflict, and hence provides a neat and easy way to report on terrorism-related events. What this lazy storytelling does, though, is entrench the fear that lies at the heart of the “us and them” narrative.

This piece does not have the answers. What I want to establish here is that as soon as we slip into the “us and them” mentality, we exacerbate the problem of terrorism. As soon as we start to witch-hunt individuals, we intensify the acrimony that leads to violence. When we impose arbitrary rules on individuals (such as forcing individuals who have been charged with terrorism and are in custody to speak only English), we are taking a step backwards. As a society, we lose when we allow our empathy to be cut off by our anger or our fear. Fear and anger are destructive emotions, and destruction is exactly what extremists want to achieve.

Note on the Criminal Procedure Amendment (Domestic Violence Complaints) Act 2014

  • On 1 June 2015 the Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (also known as the Domestic Violence Evidence in Chief Act) came into force. The new Act amended the Criminal Procedure Act 1986; the amendments can be found in Part 4B of the 1986 Act.
  • The amendments allow police to take an audio or video statement from a domestic violence victim in the aftermath of a domestic violence incident. This recording can be used as all or part of the witnesses’ evidence in chief in court, replacing the use of a written statement. This is a significant change to the process of domestic violence proceedings.
  • The recorded statement must be made with the informed consent of the complainant, and questioning by police must occur as soon as practicable after the commission of the offence (s289D, Criminal Procedure Act).
  • As Brad Hazzard stated in his Second Reading Speech, the introduction of video or audio recordings effectively removes the hearsay rule of evidence that previously applied to domestic violence complaints in criminal proceedings (see s289I).
  • Procedural fairness is preserved by the fact that the complainant is still required to attend court and to be available for cross-examination and re-examination (s289F(5)).
  • It is important to note that the recording will not be tendered as part of the prosecution case, but rather as a witnesses’ oral evidence.

Application of Practice Directions to Crimes (Domestic and Personal Violence) Act 2007

  • Section 289H of the amended Criminal Procedure Act 1986 provides that a recorded statement given in evidence in a domestic violence proceeding can be used in applications for an Apprehended Domestic Violence Order under the Crimes (Domestic and Personal Violence) Act 2007 where the matters are connected.
  • The purpose of s289H (according to the Niall Blair’s Second Reading Speech) is to ensure the “efficient disposal” of ADVO proceedings. Moreover, it means that a complainant only has to give evidence once for a set of related proceedings.
  • Section 289Q(3) empowers the court to adjourn any proceedings relating to a domestic violence offence for up to two weeks to enable the defendant to view or listen to a recorded statement where they have not had a reasonable opportunity to do so before the meeting.

Objects of Part 4B

  • The option for a complainant to provide a recorded statement was introduced by the NSW government as a way of reducing trauma for victims of domestic violence.
  • Andrew Scipione, NSW Police Commissioner, stated that the amendments will “ensure victims and police spend less time in court, [will reduce the] risk of a victim being intimidated to change or withdraw evidence, and most importantly, saves a victim and their family having to relive the violence.”

Service of and Access to Recorded Statements

  • Where the accused is represented by a practitioner, the prosecutor must cause a copy of the recorded statement to be served on the practitioner as soon as the prosecutor determines that evidence is to be given in recorded form or as soon as practicable after the proceedings are commenced, whichever is later (s289L).
  • Where the accused is unrepresented, service of the audio copy only is required. In these circumstances, the prosecutor must provide the defendant with an opportunity to view the video recording at a police station (s289M).

Analysis: Concerns for the Defendant

  • There is a concern that the adjournment period of a maximum two weeks available under s289Q(3) to enable a defendant to view or listen to a recorded statement is an unsatisfactory length of time. In circumstances where a defendant has been unable to view a recorded statement within that length of time, the Court should be able to grant a longer adjournment period. Since the recorded statement will no doubt form a crucial part of the evidence, the Court should ensure that the defendant has had an opportunity to view or listen to this statement. If a client were legally aided, there may also be extra costs to be taken into consideration (including travel costs to view the material).
  • While the aims of the new legislation are understandable, there is cause for concern with regards to its effects on the evidentiary process. If a recorded statement is to be admitted as the evidence in chief it effectively means that the hearsay and opinion rules of admissibility found in the Evidence Act 1995 no longer apply (as made clear in s289I of the Criminal Procedure Act). This could be seen as unfairly prejudicial to a defendant. There would be no opportunity to cross-examine on any inconsistencies made between a written statement and the evidence in chief given in court. This could negatively impact upon a defendant’s right to a fair trial.
  • Relying on a statement taken so soon after a domestic violence incident as evidence in chief may contain a threat to the presumption of innocence that is the cornerstone of our criminal justice system. The new measures rest on an assumption that a recorded statement taken so soon after an alleged offence is a true statement that should be accepted. This assumption is prejudicial. It must be kept in mind that not all those charged with domestic violence offences are guilty, and not all statements given by a complainant are reliable or accurate. Furthermore, the emotional impact of a recorded statement, especially a video recording, could severely and unfairly disadvantage a defendant’s case. The rhetoric surrounding these new laws suggest that, rather than providing a thought-out preventative strategy, the new measures are a knee-jerk reaction to the issue of domestic violence. Interfering so intrusively with the process of a defended hearing can only do more harm than good.

This note was prepared by Rachel Gregory, solicitor at O’Brien Solicitors.

A Survey of Prison Conditions and Post-Prison Options

An astounding 40.3% of prisoners in Australia are back in prison within two years of release. We’ve been following The Conversation’s Beyond Prison’ series on issues relating to prison conditions and post-prison release – this blog post summarises the best insights from across the articles.

Andrew Day advocates a smarter, evidence-based approach to rehabilitation in prisons. After tracing the history of rehabilitation from the 18th century to today, Day identifies the most important steps that need to be taken. Of these, it is crucial that low-risk offenders have minimal contact with higher-risk offenders. In order to achieve this, courts must use their diversionary powers to keep low-risk offenders out of prison. For maximum effectiveness of these diversionary tactics, community-based rehabilitation options need to be improved.

James Ogloff’s article elucidates the link between mental illness and prison. According to Ogloff, “[p]prisoners are two to three times as likely as those in the community to have a mental illness and are ten to 15 times more likely to have a psychotic disorder.” Even more disturbingly, research from Victoria (with similar research in other states) shows that “72% of male Aboriginal prisoners and 92% of female Aboriginal prisoners met the criteria for a diagnosis of a major mental illness.” Ogloff advocates screening for mental illness at all entry points into the criminal justice system (and well before the individual enters prison). He also highlights the need for better coordination of follow up care, including what would seem like a basic requirement: ensuring that all prisoners have the necessary psychiatric medication upon release.

Bronwyn Naylor strongly disputes the idea that the recent increase in incarceration rates is driven by an increase in crime. The fact is that crime rates are not uniformly rising. On the other hand, there is a much clearer connection between increased rates of imprisonment and increased levels of social inequality.

Kathryn Snow and Lynn Gillam expose the philosophical inconsistency underlying the current approach to incarceration. For example: they ask why, if prison is for the protection of the community, Aboriginal youths are locked up for unpaid driving fines? Their article opens up a bigger question: if incarceration isn’t keeping the community safe from recidivism, then how can we justify a prison system that is causing so much harm to individuals?

Save Redfern Legal Centre

Cash injections into the legal system are very welcome. The Federal Budget 2015 announced $1.3 billion for courts to improve their services, including refurbishments. There was also the promise of $12 million for community legal services and $11.5 million for Aboriginal legal assistance.

We just hope that these funds are going to the right places. Last week Redfern Legal Centre announced that it might have to cut its services in half due to gaps in government funding. The Centre estimates that it would have to turn away 500 clients each year due to the shortfall.

Perhaps the government has not considered the real costs of the Redfern Legal Centre’s reduced capacity. The costs to individuals alone are enough to justify greater investment. As Jo Shulman, CEO of the RLC said in an interview with the ABC: “We prevent people – particularly vulnerable people and people who’ve had histories of abuse, or significant disabilities that keep them from working – we prevent them from falling on that cycle of disadvantage and cycle of poverty.”

The costs to the community will be equally egregious. The cycle of disadvantage that Shulman mentions leads to crime, public order issues and greater strain on court systems. Those controlling the funds need to realise that it is much more economical to prevent this cycle, rather than being burdened with the cost of spiralling consequences. Put simply, short-term investment in community justice represents a long-term saving.

After all, smart justice is the only justice.

Peter O’Brien

Principal Solicitor


Accredited Specialist in Criminal Law

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