Open Letter to PM Calling for National Royal Commission into Youth Detention

Open Letter to the Prime Minister the Hon Malcolm Turnbull

Re: Extend the Terms of Reference Royal Commission Into Youth Detention to All Australian Jurisdictions

The disturbing issues raised by ABC’s 4Corners Program on the detention of young people are not confined to the Northern Territory. The terms of reference for an effective Royal Commission needs to include all young people in detention across all Australian jurisdictions – for the following reasons.

Over-Representation of Indigenous Youth in Detention is a National Issue

While the NT has the highest number of Indigenous youth in detention, their over-representation   is a chronic feature that adversely affects every Australian jurisdiction. Additionally, over the last five years the rate of over-representation of Indigenous youth in detention has continued to rise. While accounting for around 6% of those aged 10-17, Indigenous youth comprise more than half (54%) of all those detained across Australian jurisdictions (AIHW, 2016:17). This means Indigenous youth are 20-24 times over-represented in juvenile detention compared to non-Indigenous youth. Social and historical inequality underlie the causes of Indigenous inter-generational incarceration. Australia cannot continue to incarcerate its way out of these deeply social, cultural and economic problems. We might “contain” the problem for the briefest moment, but the effects of custody will endure and eventually wreak further havoc – into the next generation.

Use of Detention as a Last Resort is inconsistently upheld by all Australian jurisdictions

Under the United Nations Convention on the Rights to the Child (to which Australia is a signatory),[i] custodial detention of young people is a last resort. Yet youth detention is increasing in Northern Territory and Queensland, and only declining slightly in most states over the last five years  (AIHW, 2016: 13). The provision is routinely flouted in all jurisdictions. If secure care has to be used, it should be used only for violent offences or those which pose extreme and immediate risk to public safety. About 80% of proven offending by juveniles is for non-violent activity (see latest ABS numbers for youth offenders). Around 40% of juveniles sentenced to detention are there for a principal offence which is non-violent (theft or unlawful entry with intent). Hence most of the young people in custody pose no direct threat to the community and would be more suitable candidates for community based corrections.

Youth detention is generally ineffective in rehabilitating young offenders and reducing their rates of recidivism (Carrington & Pereira, 2009; Cunneen, White and Richards, 2015). It is also extremely costly. In 2014-15 $438 million was spent on Australia’s 17 youth detention centres – to detain an average of 885 children per night (Children’s Commissioners, 2016). This costs $1,336 per evening per detainee. The alternatives to custodial sentencing, are not only considerably cheaper, but are less harmful and more effective in rehabilitating young offenders and deterring re-offending (Richards and Renshaw, 2013).

Most young people in Detention are on Remand – for no good reason at great expense

Over half of young people in detention at any one time are on remand (AIHW 2016). This exposes far too many children to short bursts of incarceration by stealth. Richards and Renshaw’s (2013) national study of remand for young people found that a diverse range of factors have influenced rates of remand, including the increasingly complex needs of young offenders, police performance measures, lack of alternatives, and the influence of victims’ rights. Custodial remand is very costly, has harmful effects on children and probably does little to enhance community safety (Richards & Renshaw 2013; Carrington and Pereira 2009, White 2014). The adverse impacts of placing so many  young people on custodial remand, include: separation from family and community; disruption to educational and employment opportunities; lack of access to rehabilitative programs; association with sentenced offenders; and much more (see Richards & Renshaw 2013 for an overview).

Detention without Brutality

If juvenile detention facilities have to exist, they should be run on therapeutic principles. What happened in the NT was not necessarily the product of a few “sadistic” correctional officers doing a few horrific things to vulnerable children. It reflects a toxic culture that put the twisted philosophy of “tough love” above the welfare of incarcerated children.  The abuse is a systemic institutional issue and not a problem created by a few correctional officers.   The use of restraints, isolation and humiliating punishments in detention is strongly discouraged by international research – not least because it so often leads to the re-traumatising of an already vulnerable group (Australian Custodial Australia’s Children Commissioners and Guardians, 2016).  While custodial environments are about control and containment, that does not mean they have to be about brutality. Control can be achieved dynamically through negotiation and through the long hard yards of consistently reinforcing children’s dignity and their right to be heard and taken seriously – even and especially in custody.  Victoria is on the cusp of pushing through widespread changes to the juvenile custodial system with a therapeutic approach to be the desired norm.  Research demonstrates that the “best” custodial spaces (those least likely to perpetrate abuse) are those which pay close attention to  the nature of, and relationship between, organisational climates (the larger forces of partisan politics, budgetary constraints, public demands, etc), organisational structures (the laws, regulations, and administrative arrangements set up to ensure security and safe dealings within correctional settings) and organisational cultures (the informal norms and customs developed by groups within organisations that are oriented towards coping with external and internally driven challenges) (Goldsmith, Halsey, Groves, 2016: 19-27). While many youth workers in the juvenile justice system  strive to support young offenders,  few, if any custodial facilities in Australia can claim to adequately balance these issues. While there is some reasonable scepticism that a Royal Commission will resolve these problems, it will certainly provide the driver needed across Australian jurisdictions to forge an urgently needed new culture in custodial settings. More importantly it could be the driver needed to put in practice the provision of custodial sentencing as a last resort.

Professor Kerry Carrington and Dr Kelly Richards QUT, QLD,  Professor Mark Halsey Flinders University,  SA, Professor Chris Cunneen, UNSW,  NSW, Professor Rob White and Associate Professor Angie Dwyer, University of Tasmania, Tasmania, and Professor Judith Bessant, RMIT, Victoria.

27 July 2016

[i] Article 37 of the Convention on the Rights of the Child which has been ratified by the Commonwealth stipulates that States Parties shall ensure that ‘(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’. These principles are echoed in other international instruments including the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the Standard Minimum Rules for the Treatment of Prisoners.