Separation of adults and juveniles in detention

Introduction

20.100 Generally young offenders under 18 are detained in a juvenile detention centre. However, provisions governing this issue vary across jurisdictions. In some jurisdictions, detainees may remain in these centres past age 18 and, in some, to age 21. In other jurisdictions, young people in detention can be transferred to an adult prison before they reach 18.[230] Procedures relating to transfers to adult prisons are largely unregulated. Separation of adults from juveniles is also of serious concern in this context. The Design Guidelines provide that detainees should be categorised for accommodation and programs according to their age.[231] However, they do not specifically provide for the separation of juveniles from adults. The QOC Standards also do not deal with this issue. National standards governing these areas are therefore required.

Separation from adults: international standards

20.101 Article 37(c) of CROC requires that

[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person...In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so...

Australia has made a reservation to article 37(c). That reservation states

Australia accepts the general principles of Article 37. In relation to the second sentence of paragraph (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by Article 37(c).[232]

20.102 Australia's size and population distribution create significant difficulties in simultaneously ensuring separation of juvenile and adult offenders and enabling young offenders to maintain contact with their families. A number of States and Territories, in particular, Victoria and Western Australia emphasise that the small number of children in adult prisons means that separation from adult prisoners would amount to solitary confinement.[233] This difficulty is real. It strengthens the case for alternative sentencing options such as recognisance orders and community service orders. However, the reservation is unnecessary. Separation is not required where it is in the child's best interests not to be separated. In its own terms and generally, article 37(c) is subject to the paramountcy of the best interests of the child. If the child's best interests require separation then he or she should be moved to a separate place of detention. If the child's best interests require greater priority for family contact than for separation then he or she should be detained close to home, even if detention is in a facility shared with adults, provided that the child's safety is assured. Recommendation 229 proposes minimum standards for remand of children in rural and remote areas. The implementation of that recommendation will assist to ensure that the standards for young people in that context are suitable.

Recommendation 271 The Commonwealth should withdraw its reservation to article 37(c) of CROC.

Separation from adults in juvenile detention centres and prisons

20.103 Children have particular needs that are very different from those of adult offenders. For instance, they tend to have a reduced fear of danger and display 'acting out' behaviours. They may have volatile behavioural patterns and emotional states, self-harming behaviour, different perceptions of time and shorter concentration spans.[234] They are also more vulnerable to contamination from criminal influences they encounter.[235] Their different behavioural and emotional characteristics require different approaches than those for adult offenders. This has been recognised in other reports.[236]

20.104 The differing maturity levels and needs of children has been recognised to some extent by States and Territories. Some jurisdictions recognise that the welfare of young offenders over 18 is best served by keeping them at juvenile detention centres, where possible. For instance, in Victoria and NSW it is possible for young offenders up to 21 years of age to remain in juvenile detention centres.[237] There is provision for separation of children and young adults in some of these centres. For instance, in Parkville Detention Centre in Victoria there is provision for separation of the young female detainees according to age categories. However, commentators have noted that low numbers and staff demands work against separation in practice.[238]

20.105 Separating juveniles from adult offenders is important in preventing criminalisation of children through contact with adult offenders. It recognises that children have developmental needs that require different programs and services than those for adults. It protects the well-being and safety of children. In recognition of this, separate units in juvenile detention centres should be established for young adults assessed as suitable for the programs.

Recommendation 272 The national standards for juvenile justice should provide that each State and Territory establish separate sub-units within some centres for detainees aged 18 years and over. These units should be managed using rules and routines more appropriate to young adults.

Transfers to adult prisons

20.106 Children usually serve their sentence in juvenile detention centres until they reach 18. However, young offenders under 18 can be transferred to prison if their behaviour is deemed to warrant such action[239] or, in the Northern Territory, once a young person sentenced as a 'repeat offender' reaches 17.[240] Some juris-dictions, such as Queensland, provide that those aged 17 can be transferred to an adult prison in certain circumstances.[241] Others, such as NSW, Victoria and Western Australia, provide that children as young as 16 can be placed in an adult prison in certain circumstances.[242]

20.107 Jurisdictions differ as to what action will justify transfer to an adult prison. Children are usually transferred if they commit a detention offence, that is an assault, escape or attempted escape, or where it is deemed that they cannot be controlled in a detention centre.[243] However, in some jurisdictions, children can be transferred for less serious reasons, for instance, if they have persistently incited others in the centre to cause a disturbance.[244] Children over a certain age may also request to be transferred to prison.[245] There are currently 58 children serving their sentences in adult prisons.[246]

20.108 A number of jurisdictions provide that child and adult offenders should be separated in adult prisons.[247] Others provide for separation of different classes of prisoners, but not for separation of children and adults.[248] Evidence to the Inquiry from a variety of sources, including legal practitioners, youth workers and young people themselves, indicates that placement of children with adult prisoners is quite a widespread practice.

It is not uncommon for children to be detained side by side with hardened adult criminals.[249]

The Inquiry heard that children on remand are often placed in police cells alongside adults or placed in adult prisons.[250] The Inquiry was also told that young people with a mental illness are placed alongside adults in some psychiatric institutions.[251] One particularly serious problem was the detention of children in watch houses where they are not separated from adults and are exposed to sexual taunts and harassment and dehumanising treatment.[252]

20.109 In the Northern Territory, correctional officers confirmed that there is no separate accommodation for young people transferred to prison. Furthermore, they confirmed that there are no specific education programs in prisons to cater for the particular needs of young people. The correctional officers noted that the new prison in Alice Springs has facilities to enable young offenders to be accommodated separately from older prisoners, but that there is no requirement that they be kept separate.[253]

20.110 The absence of separate juvenile units in adult prisons presents serious problems. Evidence presented to the Inquiry from a young person who had been in detention indicated that use of the protection unit in prison to separate children from adults can stigmatise young offenders.[254] One submission pointed out that, in areas where there are no juvenile facilities in adult prisons, such as Alice Springs, children are held on remand in isolation cells. There have been approximately 26 children detained at the prison at Alice Springs this year, one of whom was a 12 year old girl. Although children are supposed to be separated from adult offenders, the submission stated that this is enforced inconsistently.[255]

20.111 The Inquiry has serious concerns about the placement of 16 and 17 year old children in adult prisons. CROC defines children as persons under the age of 18 years. It also stresses the importance of young people who come into conflict with the law being afforded treatment appropriate to their age and legal status.

20.112 Placing a young offender in an adult prison does little to advance the rehabilitative aims of juvenile justice, particularly as contact with adult offenders has a tendency to further criminalise young offenders.[256] This is particularly so if there are not adequate facilities to accommodate and deal with young people separately within the adult prison and appropriate educational and other programs necessary for that age group. The Inquiry would regard as preferable a system whereby young offenders could remain in the juvenile detention centre where possible. Implementation of Recommendation 272 would advance this result.

20.113 There are also no agreed national standards that provide natural justice mechanisms for young people in relation to the decision to transfer. In NSW, an order to place a child in an adult prison must be reviewed at least once a month by the relevant minister and there is provision for the child to apply to court to have the order varied or revoked.[257] The NSW legislation also provides that the child is entitled to be heard and to be legally represented in the proceedings. However, in other jurisdictions, such as Victoria and South Australia, the decision is made by a parole board or court, without giving the young person the opportunity to be heard or the right of review.[258]

20.114 The Inquiry heard evidence from one boy who had been transferred to an adult prison when he was 16 after he had absconded from a juvenile detention centre. He was transferred as a result of ministerial approval and there was no opportunity for review or appeal from that decision. That particular boy spent two and a half years in the adult system.[259] Given that children are not generally separated from adults in prison, the implications for young offenders of a transfer to prison is serious. Most jurisdictions do not oblige decision-makers to consider whether suitable accommodation is available in prison before approving a transfer.[260] The provision of natural justice processes in relation to transfer to an adult prison is essential.[261]

Recommendation 273 No child under the age of 18 should be placed in an adult prison unless a court decides that it is in the best interests of the child to do so.

Implementation. State and Territory Parliaments should amend laws that permit or require the detention of children in adult prisons for any other reason or on any other basis.

Recommendation 274 The national standards for juvenile justice should include a list of general principles and factors to be considered in the determination of all prison transfer decisions, including

  • that the safety and interests of the young person should be respected

  • the capacity of the prison system to protect the young person

  • the most suitable environment for the young person and his or her future and

  • the right of the young person to be consulted and represented.

Recommendation 275 The national standards for juvenile justice should provide that transfer policies and procedures in each jurisdiction recognise that young people for whom a transfer is being considered should

  • have the assistance of an advocate in making any written or oral submissions concerning the transfer application

  • be provided with accurate information about the operation of the adult system

  • be given reasons for the decision and a right of review of the decision.

Recommendation 276 The national standards for juvenile justice should provide that the departments in each State and Territory dealing with juvenile justice and adult corrections centres should establish greater links so that any young person transferred to an adult institution may continue the programs commenced in the juvenile justice system. Long term case plans should be developed for those detainees likely to be transferred to the adult system.

[230] See para 20.106.

[231] Design Guideline 5.508.

[232] Cited in Australia's Report under the Convention on the Rights of the Child Attorney-General's Dept Canberra 1995, 345.

[233] Australia's Report under the Convention on the Rights of the Child Attorney-General's Dept Canberra 1995, 356–378.

[234] This is recognised in The Integrated Approach: The Philosophy and Directions of Juvenile Detention Qld Corrective Services Commission Brisbane 1997, 16.

[235] See D Sandor DRP Submission 30. See also para 19.47.

[236] eg H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995 rec 22.

[237] Children (Criminal Proceedings) Act 1987 (NSW) s 19 provides for young people up to 21 years to serve their sentence at a detention centre. In Vic, Malmsbury Youth Training Centre caters for young men aged between 17 and 21 and Parkville Detention Centre holds 10 to 20 year old females and 10 to 14 year old males: Malmsbury Training Centre Minutes of Meeting Bendigo 31 May 1996; L Atkinson 'Juvenile corrective institutions' in A Borowski & I O'Connor (eds) Juvenile Crime, Justice and Corrections Longman Melbourne 1997, 408–9.

[238] L Atkinson 'Juvenile correctional institutions' in A Borowski & I O'Connor (eds) Juvenile Crime, Justice & Corrections Longman Melbourne 1997, 408–9.

[239] eg Young Offenders Act 1993 (SA) s 36.

[240] Juvenile Justice Amendment Act (No 2) 1996 (NT) s 53AG. For other young offenders, the Juvenile Justice Act 1992 (NT) s 53 provides that they can continue to be in a detention centre after age 17, but not past the age of 18.

[241] Juvenile Justice Act 1992 (Qld) s 211: a juvenile aged 17 or more can be transferred to an adult prison if they have previously been held in custody in prison on sentence, remand or 'otherwise' or have been sentenced to serve a term of imprisonment.

[242] Children (Detention Centres) Act 1987 (NSW) s 28B; Children and Young Persons Act 1989 (Vic) s 240; Young Offenders Act 1994(WA) s 7. The WA legislation qualifies this by stating that those 16 years and over are not to share living quarters with an adult prisoner: Young Offenders Act (WA) s 7.

[243] Children (Detention Centres) Act 1987 (NSW) ss 28B–E; Children and Young Persons Act 1989 (Vic) s 240; Young Offenders Act 1993 (SA) s 63.

[244] Young Offenders Act 1993 (SA) s 63.

[245] In some jurisdictions this is legislatively based eg Children and Young Persons Act 1989 (Vic) s 241.

[246] In 1995 there were 58 children serving sentences in adult prisons in Australia: Prisoners in Australia 1995: Results of the 1995 National Prison Census AIC Canberra 1997 table 1.

[247] Corrective Services Act 1980 (Qld) s 38; Young Offenders Act (WA) s 7.

[248] Prisons Act 1952 (NSW) s 15.

[249] Newcastle Practitioners' Forum 13 May 1996.

[250] Bendigo Practitioners' Forum 31 May 1996. Several residents of Malmsbury Youth Training Centre stated that they had been detained in police cells for up to two weeks, often side by side with adult offenders: Malmsbury Youth Training Centre Minutes of Meeting Bendigo 31 May 1996.

[251] Newcastle Practitioners' Forum 13 May 1996. The legal practitioners at this forum noted that young people with a mental illness are placed alongside adults at the James Fletcher Institute.

[252] Church Network for Youth Justice IP Submission 212.

[253] Dept of Correctional Services Minutes of Meeting Alice Springs 18 July 1996. This decision is left to the discretion of the magistrate.

[254] Confidential Public Hearing Submission Sydney 26 April 1996.

[255] Alice Springs Youth Accommodation and Support Services DRP Submission 92. Although children are only supposed to be held in the prison for seven days, the submission notes that children have been known to be held longer than this.

[256] See para 20.103.

[257] Children (Detention Centres) Act 1987 (NSW) s 28D.

[258] Children and Young Persons Act 1989 (Vic) s 240; Young Offenders Act (SA) s 63.

[259] Confidential Public Hearing Submission Sydney 26 April 1996.

[260] The only jurisdiction to explicitly oblige the decision maker to take this into account is NSW: Children (Detention Centres) Act 1987(NSW) s 28E.

[261] Previous reports have made similar recommendations to provide natural justice processes in relation to transfers to adult prisons eg NSW Youth Justice Coalition Kids in Justice: A Blueprint for the 90s Youth Justice Coalition Sydney 1990 rec 232; NSW Ombudsman Inquiry into Juvenile Detention Centres vol 1 NSW Ombudsman Sydney 1996 recs 16.4–16.11.