Youth Justice Reform
It is clear that an independent review of the youth justice system in WA is urgently required.
The unlawful detention of children in Western Australia must cease and the Government must ensure that it complies with its obligations under the United Nations Convention on the Rights of the Child and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The treatment of children while in State care is of great public interest and concern. Youth detention should be an environment for supervision and rehabilitation, not punishment and neglect. The Government has a responsibility to ensure that children in detention are treated in a trauma-informed and culturally safe way. The Law Society also advocates for enhanced funding and service levels for early intervention strategies, which are proven to decrease rates of youth incarceration and recidivism.
Three Priorities:
We are advocating for change in four key areas of law reform:
- A Well-Functioning Legal System
- Youth Justice Reform
- Criminal Justice Reform
- Civil Justice Reform
Youth Justice Reform
Overview
The Law Society has been advocating for action on this issue for more than 20 years.
The youth justice system is highly complex, with intersecting historical, environmental, institutional, and system factors contributing to children and young people becoming involved in the youth justice system. To address the problems in the youth justice system, the incoming government also needs to consider the intersecting issues in early childhood education, health services, mental health servicing, child protection interventions, the education system, and diversion and rehabilitation services.
In the meantime, Unit 18 at Casuarina Prison should be closed. Children are dying in youth detention. This cannot continue. This is why the Law Society calls for an independent review of the youth justice system, as well as reform of early intervention services and strategies, and youth detention system policy.
“Tragically, by not addressing their human rights early on, and instead taking a punitive approach to their offending, we are essentially criminalising some of the most vulnerable children in Australia. Many are First Nations children dealing with intergenerational trauma and disadvantage, and children with disabilities, mental health issues and learning problems. Many of these children and their families are living with poverty, marginalisation and systemic racism. For some, their most basic needs are not being met, such as a safe home to live in. The systems that are meant to help them, including health, education and social services, are not fit-for-purpose and these children are falling through the gaps”
National Children’s Commissioner Anne Hollonds, ‘Help way earlier!’ How Australia can transform child justice to improve safety and wellbeing Report, 2024.
Endnotes
Recommendation
Undertake an independent review of the youth justice system in WA.
Benefits
- Developing a holistic approach to youth justice to address the underlying causes of offending and reoffending by young people;
- Improved outcomes for children that intersect with the youth justice system;
- Ensuring reasonable steps are taken to prevent future deaths of young people in youth detention;
- Ensuring decision making is informed by expert opinion and evidence-based practice;
- Strengthening relationships with the community through a commitment to transparency and accountability; and
- Complying with Australia’s international human rights obligations.
Early Intervention Strategies
Address the underlying causes and social determinants of criminal offending behaviour amongst children and young people by implementing reforms which support early intervention.
The Law Society is asking the incoming government to build on and expand programmes to support early intervention for children at risk of entering the criminal justice system.
Community infant and child nursing programmes and assessments, Department of Communities family support programmes and primary and secondary teachers all serve a vital role in identifying young people at risk of falling behind, whether because of a developmental disability or because of inadequate foundational education. These services should be well funded to ensure that children who present with any developmental ‘red flags’ can be immediately assessed and given access to early intervention services.
A failure to identify, diagnose and treat developmental issues is linked to future educational and social disadvantage.9 Early interventions for physical issues such as hearing, eyesight, speech and physical strength and dexterity will result in positive educational and vocational outcomes.
Primary and secondary teachers serve a key role in identifying young people at risk of falling behind, whether because of a developmental disability or because of inadequate foundational education. Disengagement from education is an early indicator of a young person’s risk of entry into the youth justice system. Therefore, identifying and responding to signs of disengagement early is crucial to diverting children away from the youth justice system.
The incoming government must also address the overrepresentation of Aboriginal and Torres Strait Islander children and young people in the youth justice system.
WA has the highest rate of Aboriginal and Torres Strait Islander young people in youth detention in the nation.10 Aboriginal and Torres Strait Islander children between the ages of 10 and 17 years old are over 27 times more likely to be incarcerated compared to other children in the same age group. Historical injustices such as Stolen Generations, wage theft and other colonial policies continue to impact Aboriginal and Torres Strait Islander families and children financially and socially. Services aimed at early intervention for Aboriginal and Torres Strait Islander children must be developed in partnership with key community stakeholders and Aboriginal Community Controlled Organisations (ACCOs). As a partner of the National Agreement on Closing the Gap, the WA Government has committed to decreasing the rate of Aboriginal and Torres Strait Islander young people (10-17 years old) in detention by at least 30 per cent before 2031.11 However, progress towards this target is negligible.
Endnotes
9. Commissioner for Children and Young People, Youth Justice (Issues paper, June 2020) 7 ; ‘Nine out of ten young people in detention found to have severe neuro-disability’, Telethon Kids Institute (web page, 13 February 2018).
11. National Agreement on Closing the Gap (July 2020), Target 11.
Recommendations
- Fund community infant and child nursing programs and assessments, and expand Department of Communities family support programs to provide frontline monitoring prior to compulsory formal education;
- Ensure all children have access to health services that provide early intervention for issues related to physical and intellectual development;
- Make school reports (including education attendance, in-school behaviours and developmental assessments) available in the Children’s Court jurisdiction and embed education officers in all Children’s Courts; and
- Work in partnership and consultation with Aboriginal and Torres Strait Islander community stakeholders and Aboriginal Community Controlled Organisations (ACCOs) to develop culturally appropriate and trauma informed services for intervention and rehabilitation before and after a child enters the youth justice system.
Benefits
- Decreasing the rate of youth incarceration and recidivism by providing children with appropriate support for rehabilitation and reintegration outside of the criminal justice system and by addressing the root causes of criminal offending behaviour;
- Ensuring young people have a pathway out of the criminal justice system before they become entrenched in a cycle of reoffending and disadvantage; and
- Demonstrating the incoming government’s commitment to addressing the disadvantage and overrepresentation experienced by Aboriginal and Torres Strait Islander people at every level of the criminal justice system.
Youth Detention Facilities
The youth justice system is complex, and true reform will inevitably take time. However, without a transparent roadmap to reform, which acknowledges existing contributions from legal and policy experts and people with lived experience, the public cannot be confident in the incoming government’s commitment to protecting children in its custody from harm.
In June 2024, the Corruption and Crime Commission (the Commission) released a report on its investigation into allegations of serious misconduct following the death of a juvenile detainee in Unit 18 in October 2023; Cleveland Dodd, a 16-year-old Aboriginal boy, who was the first child to die in custody in WA.12 Although the Commission ultimately found no serious misconduct on the part of Youth Custody Officers (YCOs) on duty, the Commission uncovered deeply concerning details about the experience of young people in youth detention. The Commission’s report was consistent with reports from community stakeholders who have consistently raised concerns about conditions in youth detention facilities and the functioning of the youth justice system.
Youth detention should be an environment for supervision and rehabilitation, not cruel punishment and neglect. YCO’s are clearly not equipped with the skills or experience to adequately care for children with complex needs. The incoming government has a responsibility to ensure that children in detention are treated in a trauma-informed and culturally safe way. We note the Law Council of Australia does not support the incarceration of children below the age of 14.
The Coroner’s Court has commenced an investigation into Cleveland’s death which is ongoing as at October 2024. However, the initial cause of death appears to be self-inflicted hanging. It is deeply distressing that the Royal Commission into Aboriginal Deaths in Custody’s recommendation to minimise ligature points in prisons has not been implemented as the highest priority in Unit 18.13 If a facility cannot be made safe for children, it is not fit for purpose.
The WA Government has repeatedly made and broken promises in relation to its plans for closing Unit 18. When children were first relocated from Banksia Hill Youth Detention Centre to Casuarina Prison in July 2022 the WA Government initially claimed the move was temporary and the group of 17 teenagers would be returned to Banksia Hill ‘as soon as practicable’.
On 26 September 2024, the State Government announced the allocation of funding for the design planning of a proposed new youth detention facility. The facility is to be located at Banksia Hill and will provide access to the same facilities currently available, which have proven inadequate to date. No timeline for the closure of Unit 18 was indicated.
Unit 18’s closure and plans for potential replacement facilities are matters of great public interest and concern. The incoming government must ensure the transition to closing Unit 18 is managed transparently and there are mechanisms to hold the WA Government accountable to community expectations.
There are many leading experts advocating for reform of the youth justice system. The incoming Government has a responsibility to consult with these experts, as well as people with lived experience of youth detention and advocacy groups representing children in detention such as the Aboriginal Legal Service of Western Australia. However, consultation is only meaningful if it is followed by action. There are already recommendations related to children in youth detention developed through consultation with various leading bodies that the incoming government can progress now.14
Endnotes
13. Royal Commission into Aboriginal Deaths in Custody (Final Report, March 1991).
14. These include recommendations from the Royal Commission into Aboriginal Deaths in Custody published in 1991;14 recommendations from the Australian Law Reform Commission’s inquiry into the Incarceration rate of Aboriginal and Torres Strait Islander peoples published in 2018;14 and recommendations from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability published in 2023 to name only a few.
Recommendations
- Commit to a deadline for the closure of Unit 18 at Casuarina Prison in the short term; and
- Publicise a road map to youth justice reforms, informed by existing and ongoing consultation with youth justice experts, people with lived experience and advocacy groups representing children in detention.
Benefits
- Reduced harm to young people in youth detention;
- Enhanced public confidence in the youth justice system; and
- Demonstrating a commitment to addressing the disadvantage experienced by Aboriginal and Torres Strait Islander people at every level of the criminal justice system.
