Building a human rights youth justice system
by Paul Wyles
Youth Studies Australia, v.28, n.3, 2009, pp.4-12.
While the application of human rights is generally understood and accepted in Australian society, it is often difficult to identify ‘human rights’ application in practice. The Australian Capital Territory’s Human Rights Act 2004 and the establishment of an ACT Human Rights Commission have begun to create a human rights culture. In this paper this human rights culture is discussed through the very practical example of the development of a new youth detention centre in the ACT. Highlighted is the influence of human rights on the design and build of the centre, the development of policies and procedures, and legislation reform.
In 2004, the Australian Capital Territory (ACT) enacted Australia’s first jurisdictionally based human rights legislation. This has been a significant factor in the reformation of youth justice in the ACT. It has influenced decisions in building a new youth justice centre and the development of new human rights compliant legislation, policies and procedures in regard to children and young people. This paper will look in some detail at the influence of the ACT’s human rights environment on the design of the detention centre, and also the outcomes of its influence on legislation, policies and procedures. These changes have resulted in improved services, which will in turn contribute to improved outcomes for young people involved in the youth justice system.
To understand the concept of human rights in an Australian context it is important to consider the growing awareness of human rights through the last century and more recently over the development of specific legislation. For many of us involved in youth justice in the ACT over the last four years this has been a journey involving dialogue and awareness raising. A human rights discourse is, by nature, a discourse of hope. It concentrates not only on what is wrong (characteristic of so much social and political analysis), but also articulates a vision (or rather different visions) of what is right, of where we can be heading, of the human ideal (Ife 2008, p.228).
Human rights in the ACT
On 1 July 2004, the ACT’s Human Rights Act 2004 became law in the Australian Capital Territory. The Act sets out broad principles and specific rights or entitlements for citizens. Of particular relevance to those working with young people in the youth justice system is Section 19.
19 Humane treatment when deprived of liberty
1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
2) An accused person must be segregated from convicted people, except in exceptional circumstances.
Note: An accused child must also be segregated from accused adults (see s20(1))
3) An accused person must be treated in a way that is appropriate for a person who has not been convicted. (ACT’s Human Rights Act 2004)
A particular challenge in all Australian jurisdictions, but particularly in a small jurisdiction such as the ACT, is the management in a single detention facility of frequently fluctuating numbers of young people who represent very different cohorts: accused and convicted, male and female, and ages from 10 to 18, with the possibility of adults to 21 years.
A profile of youth justice in the ACT
The ACT’s original youth detention centre was called Quamby. It was established in 1986 as a 26-bed facility and was expanded in 2006 to a 39-bed facility. The Children and Young People Act 1999 allowed for the detention of children and young people aged 10 to 18 on remand or under sentence. In the last couple of years, numbers at Quamby fluctuated between about 10 and 20 at any one time. For the period 2006–2007, there were 287 admissions, consisting of 143 individual children and young people. Thirteen days was the average length of remand, and 88 days was the average length of sentence for young people. During the same period, 33 young women made up 88 admissions. On a daily basis, the number of females in detention in the ACT has fluctuated from zero to a high of 12. Aboriginal-identified children and young people make up between one-third and one-half of all young people in detention at any one time. Aboriginal overrepresentation is a key challenge in all Australian jurisdictions. In the ACT, the Aboriginal population in the community is relatively small, but the number of Indigenous young people in detention remains high as a proportion compared to the number of non-Indigenous young people in detention. The reasons for this situation are complex and may relate to a range of factors including policing and court practices; poverty; peer and community influences; disengagement from education; and homelessness.
In 2007, the average number of young people in detention was 16 and the maximum number was 28. As in most other jurisdictions, many young people who enter detention have a history of abuse and/or neglect. About half of all young people in detention are on care and protection orders and more than half have a history with child protection services.
Youth justice services in the ACT have, since 2005, operated within the Department of Disability, Housing and Community Services (DHCS). Youth justice is comprised of two separate but related areas. The first, community youth justice, provides supervision, reports to court and case management of young people on community-based orders, while the second, custody, is concerned with detention.
The location of the ACT’s youth justice services within the Department of Disability, Housing and Community Services (DHCS), a human services department with diverse portfolio responsibilities, is advantageous for a number of reasons. For example, housing can be negotiated for young people involved in the youth justice system; second, those involved in the management, redevelopment and rebuilding of detention facilities are able to draw on the significant experience in building and asset management available in the Housing and Community Services portfolio; and, finally, a working relationship can be established with Care and Protection Services, particularly in cases where young people are on both youth justice orders and care and protection orders.