Implementation of past reports


20.142 Reports from previous inquiries have made recommendations in relation to young people in detention. They include the Royal Commission into Aboriginal Deaths in Custody,[333] the NSW Ombudsman’s Inquiry into Juvenile Detention Centres[334] and the HREOC National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families.[335]

Royal Commission into Aboriginal Deaths in Custody and subsequent reports

20.143 The Royal Commission into Aboriginal Deaths in Custody recommended, among other things, that

  • Indigenous children’s families, communities and specialist Aboriginal organisations be involved in decisions affecting Indigenous young offenders that Indigenous people be employed as youth workers
  • that juveniles should not be detained in police lock-ups
  • that strategies be designed to reduce the rate at which Indigenous juveniles are separated from their families and communities
  • that where possible Indigenous juveniles are to be placed in an institution as close as possible to their families
  • that financial assistance should be given to facilitate visits by family and
  • that shared accommodation for community living be introduced.[336]

Some attempts have been made by States and Territories to implement these recommendations.[337] A number of these recommendations have been taken into account in the Design Guidelines and QOC Standards and in detention centre policies. However, a number of submissions to the Inquiry and subsequent reports indicate that many of these recommendations are yet to be implemented fully by States and Territories.[338] Indeed, a submission from the NSW Ombudsman expressed concern that so many of the Royal Commission recommendations are yet to be implemented.[339]

20.144 A number of submissions pointed to the over-representation in detention as one of the most serious problems facing Indigenous children.[340] Over-representation of Indigenous children in juvenile detention facilities remains a significant and continuing problem in all States and Territories but particularly in Queensland and Western Australia.[341] In some jurisdictions the problem is worse, not better, than when the Royal Commission reported. The 1996 report of the Aboriginal Social Justice Commissioner on Indigenous Deaths in Custody noted that there were 15 juvenile deaths in custody between May 1989, the time of the last death investigated by the Royal Commission, and May 1996. Five of these children were incarcerated in adult prisons.[342] The report pointed out that the average age of death in custody was younger for Indigenous than for non-Indigenous prisoners. This has significant implications for preventing deaths of Indigenous children in custody in the future.

As the Indigenous juvenile population grows proportionately larger than the non-Indigenous juvenile population, deaths of young Aboriginal and Torres Strait Islander people can only be expected to increase if significant measures are not taken to reduce the disproportionately high level of contact young Aboriginal people presently have with the criminal justice system.[343]

20.145 The Royal Commission also recommended that custodial institutions appoint complaints officers to hear and act upon the complaints of prisoners0.[344] South Australia has implemented this recommendation by appointing a Secure Care Visiting Officer to visit centres regularly and be available to speak to Indigenous detainees.[345]

20.146 The National Inquiry into the Separation of Aboriginal and Torres Strait Children From Their Families recommended in Bringing Them Home the enactment of national standards legislation to address the particular circumstances of all Indigenous children.[346] That Inquiry recommended arrangements to permit Indigenous communities to take greater responsibility for their young offenders. This Inquiry endorses those recommendations. Their implementation would result in improvements such as the provision of services to assist family members from rural and remote communities to visit their children, culturally appropriate programs in detention and close involvement of Indigenous organisations in all matters affecting Indigenous detainees.

20.147 Some of the matters raised by the Royal Commission into Aboriginal Deaths in Custody and Bringing Them Home have been addressed to some extent in the AJJA Design Guidelines. One of the guiding principles of the guidelines is

[r]ecognition of some aspects of customary law in the management of offenders by Aboriginal and Torres Strait Islander communities who accept such responsibilities should be examined as a means of emphasising community responsibility for crime.[347]

The Design Guidelines emphasise that all recommendations of the Royal Commission should be observed. Specifically, double bedrooms or interconnected bedrooms should be available and rooms should be designed to minimise risks of self-harm.[348] A number of jurisdictions have provided for this in their juvenile detention centres.[349] The draft QOC Standards also provide that intervention with an Aboriginal Young Person at risk of self-harm should respect a policy of Aboriginal self-determination.[350]

20.148 The Design Guidelines provide that

  •  detainees should be located as closely as possible to their families and communities
  • families and communities should be encouraged to maintain close contact with detainees
  • families and communities should be involved in decision-making relating to placement, controls and programs for detainees
  • when locating Aboriginal detainees, facility management should take account of traditional relationships and interactions
  • specific cultural areas should be provided within the facility and
  • the views of the local Aboriginal community and Aboriginal organisations should be taken into account in the design of facilities.[351]

Because Indigenous children are often detained in centres thousands of kilometres from their local community, the national standards for juvenile justice should also encourage home detention.[352]

NSW Ombudsman’s report

20.149 The NSW Government reports that it has adopted the recommendations of the NSW Ombudsman’s report into juvenile detention centres as the ‘blueprint for reform’ of the juvenile detention system in NSW.[353] Information from the NSW Ombudsman’s Office indicates that an implementation strategy and taskforce has been established. The taskforce deals with issues of staff training, developing a complaints handling policy and procedures for reviewing behaviour management practices for detainees.[354] In Stage One of the process, each juvenile detention centre was provided with a list of recommendations to implement. The list of recommendations focused, among other things, on the level of family contact by Indigenous detainees, involvement of Indigenous organisations and communities within the centres, a review of all detainee handbooks, recruitment of staff from various cultural backgrounds and additional assistance on rules, routines and rights for detainees with intellectual disabilities.[355]

20.150 All centres provided progress reports on these recommendations in May 1997. The Ombudsman found that each of the centres had developed initiatives for implementing the recommendations. These initiatives included development of an admission video explaining rules, rights and responsibilities of detainees at Riverina, provision of an Aboriginal Education Assistant to co-ordinate involvement of Aboriginal organisations in school curriculum, pre and post-release discharge planning at Keelong and encouragement of family contact and visits by various Indigenous organisations at a number of centres.[356]

20.151 Stage Two of implementation of the recommendations is now underway. Each centre nominated its own area of priority for this stage. Implementation will vary widely between centres as a result. Progress reports on Stage Two will be requested by the Ombudman’s Office in October 1997.[357]

Recommendation 286 Implementation of recommendations relevant to young people in detention from previous inquiries including the Royal Commission into Aboriginal Deaths in Custody, the NSW Ombudsman’s Inquiry into Juvenile Detention Centres and the Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families should be accelerated. This may require additional resources from the responsible governments.

Implementation. The Attorney-General through SCAG should encourage State and Territory governments to implement these recommendations.

[333]National Report AGPS Canberra 1991.

[334]Inquiry into Juvenile Detention Centres vols 1-2NSW Ombudsman Sydney 1996.

[335]Bringing Them Home HREOC Sydney 1997.

[336] Royal Commission into Aboriginal Deaths in Custody National Report vol 4 AGPS Canberra 1991 recs 62, 168, 169, 173, 235, 237, 242.

[337] A number of submissions from government agencies stated that they had made progress in implementing the recommendations: WA Ministry of Justice IP Submission 184; NSW Government DRP Submission 86.See also paras 20.121–124.

[338] Aboriginal Youth Support Service IP Submission 57; Aboriginal Justice Council IP Submission 79. See also Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner Indigenous Deaths in Custody 1989–1996 ATSIC Canberra 1996, 199–217; National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC Sydney 1997, 539–40.

[339] NSW Ombudsman DRP Submission 80.

[340] eg P Reberger Public Hearing Submission Sydney 26 April 1996; Aboriginal Legal Service of WA IP Submission 75; Aboriginal Justice Council of WA IP Submission 79; Church Network for Youth Justice IP Submission 212.

[341] See para 2.118.

[342] Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner Indigenous Deaths in Custody 1989 to 1996 ATSIC Canberra 1996, 204.

[343] ibid 200. These matters were also noted by the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC Sydney 1997, 538.

[344] Royal Commission into Aboriginal Deaths in Custody National Report vol 3 AGPS Canberra 1981 rec 176.

[345]Secure Care Standard Procedures SA Dept of Family and Community Services Adelaide procedure 26.

[346] HREOC Sydney 1997 recs 44, 660. See also para 19.111.

[347] Design Guidelines, Guiding Principle 1.34. This is similar to a provision in Standard Guidelines for Corrections in Australia Corrective Services Ministers’ Conference 1994 Guiding Principle 1.8a.

[348] Design Guidelines,Guideline 5.403. See also Draft QOC Standard 5.3.10.

[349] eg New Directions for Juvenile Justice : Melbourne Juvenile Justice Centre Information Sheet Vic Dept of Health and Community Services Melbourne June 1995 Pub No 92/1021.

[350] Draft QOC Standard 5.3.9.

[351] Design Guidelines 5.405–407.

[352] J Gaynor ‘The home detention program for young offenders’ PaperJuvenile Crime and Juvenile Justice: Towards 2000 and Beyond Conference AIC Adelaide 26 – 27 June 1997, 2–12. Home detention for juvenile offenders is currently only provided in SA. It involves use of supervision, curfews and electronic surveillance. Gaynor notes that home detention for Indigenous young offenders is consistent with the recommendations of the report of the Royal Commission into Aboriginal Deaths in Custody. However, consideration must be given to the concerns in para 18.159.

[353] NSW Government DRP Submission 86.

[354] NSW Ombudsman’s Office 1(1) 1997 Ombudsman’s Update 3.

[355] ibid.

[356] id 2.

[357] id 4.