Inspections and legal advice

Introduction

20.90 Inspections and legal advice assist children in detention to protect their rights and interests. Official Visitors and Ombudsman’s Offices provide an important external mechanism for review of the treatment and conditions of young people in detention. Access to legal advice is particularly important for providing young people with assistance with appeals and parole applications and advice about their sentences or bail conditions and their rights in detention. It is particularly important for those young people on remand.[200] Article 37(d) of CROC provides that every child in detention should have the right to prompt access to legal and other appropriate assistance.

Inspections

20.91 Inspections by bodies independent of the relevant detention centre and department are carried out by Official Visitors and Ombudsman’s Offices. Although Ombudsman’s Offices are not given a legislative right of entry, most States and Territories provide for access to centres by Official Visitors.[201] Official Visitors are appointed by the relevant minister and may provide a report to that minister in relation to conditions in centres.[202] Some jurisdictions specify that this person should have expertise in some area of juvenile justice and have a demonstrated concern for children in the juvenile justice system.[203] Others provide that one of the visitors must be a legal practitioner.[204] Jurisdictions also differ as to the minimum frequency of visits. In some jurisdictions visits are to be made at least once a month.[205] Others provide for visits every 3 months.[206] Others do not specify any particular periods but provide that Official Visitors may attend centres at any reasonable time.[207] Most jurisdictions also provide that detention centres can also be inspected by the Minister or other authorised at any reasonable time.[208]

20.92 Evidence to the Inquiry indicated that Official Visitors may not be fulfilling their purpose. Concerns raised include that they have no real understanding of issues in detention centres.[209] A report of the Youth Justice Coalition in NSW noted that Official Visitors and the Ombudsman’s Office were insufficiently resourced to fulfil their tasks.[210] However, it appears that the operation of the Official Visitors scheme, at least in NSW, has improved. A submission from the NSW Government indicates that detention centres are usually visited by Official Visitors fortnightly. The NSW Ombudsman is also able to visit centres twice or occasionally three times a year.[211] A submission from the NSW Ombudsman’s Office stated that, in their view, recent changes made in the recruitment, training and resources provided to Official Visitors for juvenile justice centres in NSW has significantly improved their capacity to regularly attend these centres.[212] The NSW Ombudsman’s report also noted some positive developments in relation to the provision of Official Visitors in detention centres.[213] It is unclear, however, as to whether similar improvements have been made to Official Visitor’s schemes in other jurisdictions.

20.93 The draft QOC Standards provide that detainees can use Official Visitors as an advocate and that complaints processes must contain a mechanism for external visitors to report any complaints.[214] However, they do not actually require that Official Visitor’s schemes be established and external inspections permitted.

20.94 In comparison, the Standard Guidelines for Corrections in Australia for adult prisoners provide that a system of accredited community representatives must be established by each jurisdiction to inspect and observe prison facilities and programs, that these representatives must visit prisons regularly and that prisoners and staff must have access to them. This system must also ensure involvement of Indigenous persons in Official Visitor programs.[215] Again, the rights of children in detention should be no less than those of adult prisoners.

20.95 The Inquiry considers that Official Visitors should regularly visit all detention centres in all States and Territories. The Inquiry also considers that the role of the Ombudsman’s Offices in monitoring juvenile detention centres should be strengthened by more regular visits. In view of the high proportion of Indigenous young people in detention, an Indigenous person should be appointed as an investigation officer. In NSW, for instance, the Ombudsman has an Aboriginal Complaints Officer who visits detention centres.[216] Similar recommendations to this have been made by a previous juvenile justice report.[217] The Inquiry notes that a submission from the Northern Territory Government supported our draft recommendation in relation to the strengthening of the role of the Ombudsman’s Offices in monitoring detention centres.[218]

Recommendation 268 The national standards on juvenile justice should provide that an Official Visitors scheme be attached to every juvenile detention centre and visit detention centres regularly, preferably fortnightly.

Implementation. The Attorney-General through SCAG should encourage States and Territories to adopt these measures.

Recommendation 269 The role of Ombudsman’s Offices in monitoring detention centres should be strengthened by more regular visits, provision of specifically designed information material to detainees and the appointment, where appropriate, of an Indigenous investigation officer for detention centres in view of the high proportion of young Indigenous people in detention.

Implementation. The Attorney-General through SCAG should encourage States and Territories to adopt these measures.

Legal advice in detention

20.96 Evidence presented to the Inquiry indicated that young people in detention face significant difficulties in accessing legal advice and representation.[219] Of young people in detention surveyed as part of the Inquiry, 38 (31% of respondents to the question) indicated that they were not able to see or talk to a lawyer while in detention.[220] Access to legal advice in detention is an important issue for children, particularly those on remand[221] and in relation to parole hearings for those serving sentences.[222]

20.97 Policy and procedures manuals in each State and Territory recognise that young people in detention should have access to legal advice in detention.[223] The draft QOC Standards also provide that young persons in detention should have access to legal representation.[224] However, proper implementation of these standards is often thwarted due to insufficient numbers of solicitors available to visit detention centres.

20.98 In January 1996 a one year pilot scheme for visiting solicitors, known as the Juvenile Justice Visiting Legal Service, was established in NSW. It allowed a solicitor from the NSW Legal Aid Commission to visit 7 out of 9 juvenile justice detention centres. It was funded by an allocation from project money under the NSW Juvenile Justice White Paper.[225] The NSW Ombudsman’s report emphasised the need for this pilot service to continue.

A 12 month trial legal service provided by the Legal Aid Commission…is to end in early 1997… Considering the difficulties many detainees have understanding their rights or the legal process…the Inquiry believes this service is highly needed.[226]

An evaluation of the service was undertaken by the NSW Legal Aid Commission in December 1996. The evaluation report recommended that the pilot scheme be expanded to provide a regular visiting legal service for all young people in detention.[227] The NSW Department of Juvenile Justice has allocated $100,000 to the service in 1997/98 and has established a working party to examine ways in which legal advice and representation of young people in detention can be improved.[228]

20.99 The Inquiry considers that a national visiting solicitors scheme should be established in each State and Territory to provide legal advice to young people in detention. The Inquiry notes that its proposal in DRP 3 for a visiting solicitors scheme for all juvenile detention centres was supported by a submission from the Legal Aid and Family Services section of the federal Attorney-General’s Department.[229]

Recommendation 270 A visiting solicitors scheme similar to that recently piloted in NSW should be established to service all juvenile detention centres. The scheme should involve a solicitor visiting each detention centre regularly and at least once a month. These visits should be publicised in advance to all detainees. Legal advice and advocacy should be provided to detainees for bail applications and appeals, complaints, reviews, disciplinary procedures and broader legal and advocacy needs.

Implementation. The Attorney-General through SCAG should seek the agreement of the States and Territories for the joint funding of this scheme. The scheme should be co-ordinated by the relevant legal aid commission.

[200] See para 18.172.

[201] eg Children (Detention Centres) Act 1987 (NSW) s 8A; Juvenile Justice Act 1992 (NT) ss 71-72; Young Offenders Act 1994 (WA) ss 166-167; Juvenile Justice Act 1992 (Qld) ss 204-205.

[202] eg Juvenile Justice Act 1992 (NT) s 72; Children (Detention Centres) Act 1987 (NSW) s 8A(4); Children’s Services Act 1986 (ACT) s 19A; Young Offenders Act 1994 (WA) s 167.

[203] eg Children (Detention Centres) Act 1987 (NSW) s 8A.

[204] Juvenile Justice Act 1992 (Qld) s 204.

[205] Juvenile Justice Act 1992 (Qld) s 205(2); Juvenile Justice Act 1992 (NT) s 73.

[206] Young Offenders Act 1994 (WA) s 167.

[207] eg Children (Detention Centres) Act 1987 (NSW) s 8A; Young Offenders Act 1994 (WA) s 169.

[208] eg Juvenile Justice Act 1992 (NT) s 70; Children (Detention Centres) Act 1987 (NSW) s 7.

[209] Northern Australia Aboriginal Legal Service Minutes of Meeting Darwin 16 July 1996.

[210] NSW Youth Justice Coalition Kids in Justice: a Blueprint for the 90s Youth Justice Coalition Sydney 1990, 185.

[211] NSW Government DRP Submission 86.

[212] NSW Ombudsman DRP Submission 80.

[213] NSW Ombudsman Inquiry into Juvenile Detention Centres vol 1 NSW Ombudsman Sydney 1996, xiv.

[214] Draft QOC Standards 1.4.2, 1.4.6.

[215] Standard Guidelines for Corrections in Australia Corrective Services Ministers’ Conference 1994 Guidelines 3.2, 3.3.

[216] NSW Ombudsman DRP Submission 80.

[217] NSW Youth Justice Coalition Kids in Justice: A Blueprint for the 90s Youth Justice Coalition Sydney 1990 recs 203, 216.

[218] NT Government DRP Submission 71. See draft rec 11.15.

[219] eg D Reberger Public Hearing Submission Sydney 26 April 1996; Oz Child Legal Service IP Submission 195.

[220] Survey Question 67. 208 young people in detention were asked this question. 121 of those young people responded to this question.

[221] See para 18.172. See also Don Dale Centre Minutes of Meeting Darwin 16 July 1996: the Inquiry was told that young people are frequently held on remand in police cells for one to two days before they have access to a solicitor and that this access is usually only given just prior to their court hearing.

[222] See paras 19.35–38. This point was emphasised by D Sandor DRP Submission 30.

[223] eg Secure Care Standard Procedures SADept Family and Community Services Adelaide 1997 procedure 24; Quamby Youth Detention Centre Policy and Procedures Manual ACT Youth Justice Services Canberra Pt 5.6.

[224] Draft QOC Standards 3.1.5, 3.4.2.

[225] NSW Legal Aid Commission Juvenile Justice Visiting Legal Service: Evaluation NSW Legal Aid Commission Sydney 1996, 1.

[226] NSW Ombudsman Inquiry into Juvenile Detention Centres vol 1 NSW Ombudsman Sydney 1996, xiv.

[227] NSW Legal Aid Commission Juvenile Justice Visiting Legal Service Evaluation NSW Legal Aid Commission Sydney 1996, 2.

[228] J Egan, Central Support Office NSW Dept of Juvenile Justice Letter 27 August 1997. The working party includes officers from the NSW Dept of Juvenile Justice, the NSW Attorney-General’s Dept, the NSW Legal Aid Commission and the Juvenile Justice Advisory Council of NSW.

[229] Legal Aid & Family Services, Attorney-General’s Dept DRP Submission 83. Provision of a Detention Centres Legal Service in NSW was also recommended by NSW Youth Justice Coalition Kids in Justice: A Blueprint for the 90s Youth Justice Coalition Sydney 1990 rec 181.