COMMITTEE MEMBERS

PP 207
REPORT
OF THE
SELECT COMMITTEE ON THE
YOUTH JUSTICE SYSTEM
As laid on the table of the House of Assembly and ordered to be published
4 July 2005
Fourth Session, Fiftieth Parliament
Background
1. Appointment of Committee
On 4 December 2003 the House of Assembly passed a resolution, on the motion of the
Hon M J Atkinson, Attorney General to establish a Select Committee to examine:
(a)
the Juvenile Justice system and, in particular i.
the Youth Court and the Youth Court Act 1993;
ii.
the Young Offenders Act 1993;
iii.
the Education Act 1972 as amended and, in particular, as it relates to truancy;
iv. any other relevant Acts;
(b)
the appropriateness and effectiveness of custodial programmes and non-custodial
practices and processes for Juvenile offenders;
(c)
psychological and psychiatric dimensions of Youth offending;
(d)
the need for early intervention policies and, in particular, the role of parents and
family;
(e)
the effectiveness of interaction between departments and agencies in Juvenile
Justice;
(f)
innovative approaches that could be used in the Juvenile Justice system;
(g)
student behaviour management policies and practices as they relate to the Juvenile
Justice system;
(h)
any special circumstances that may apply to children or youth from a non-English
speaking or Aboriginal background;
(i)
the adequacy of resources provided for the operation of Juvenile Justice; and
(j)
any other relevant matter.
2. Membership of the Committee
Hon Bob Such MP (Chairman)
Ms Vickie Chapman MP
Mr Michael O’Brien MP
Mrs Isobel Redmond MP
Mr Joe Scalzi MP
Mr Jack Snelling MP
Ms Gay Thompson MP
Mr David Pegram (Parliamentary Officer) was assigned as Secretary to the Committee.
At its first meeting held on 19 December 2003, the Hon R B Such was appointed
Chairman.
On 5 March 2004, the Select Committee appointed Dr Kylie O’Connell as Research
Officer to the Committee.
The Committee places on record its thanks to these officers.
The motion called on the Select Committee to report on 8 July 2004. However, due to the
complexity of the terms of reference this date was extended to 4 July 2005.
1
3. Committee Powers
Pursuant to Standing Orders 335 and 339 the House ordered that the Committee have
power to send for persons, papers and records; to adjourn from place to place and to
authorise the disclosure or publication, as it thinks fit, of any evidence presented to the
Committee prior to such evidence being reported to the House.
4. Conduct of Inquiry
Following its appointment, the Committee inserted advertisements, inviting submissions,
in several newspapers as indicated in Appendix 4.
The Committee received 48 written submissions from individuals and organisations. A list
of organisations and individuals providing written submissions is attached as Appendix 1.
The Committee also considered information contained in a number of papers as listed as
Appendix 2.
Oral evidence was heard from 54 witnesses. A list of those who appeared before the
Committee is attached as Appendix 3.
The Committee met on 28 occasions for the taking of oral evidence, the consideration of
written submissions and/or deliberation on the Committee’s report. The Committee also
attended Family Conferences, and visited the Magill and Cavan Training Centres and the
Flexible Learning Centre.
5. Summary of Recommendations
The Committee commends to the Parliament the findings of this report.
Hon. R. B. Such
Chairman
2
TABLE OF CONTENTS
FOREWORD ............................................................................................................................ 7
RECOMMENDATIONS OF THE SELECT COMMITTEE ........................................................ 9
1
HISTORICAL PERSPECTIVES ON YOUTH JUSTICE................................................... 15
1.1
Welfare and Justice Models.................................................................................. 15
1.2
Changes in Criminal Legislation and their Impact on Youth Justice Crime
Statistics ............................................................................................................... 17
1.3
Social Inclusion Initiatives..................................................................................... 18
THE SOUTH AUSTRALIAN YOUTH JUSTICE SYSTEM TODAY
1.4
1.5
1.6
1.7
The Objects and Statutory Policies of the Young Offenders Act 1993 ................. 19
Youth Justice Advisory Committee ....................................................................... 19
Intra-Governmental Youth Justice Advisory Committee ....................................... 20
Youth Justice Statistical Information..................................................................... 21
2
THE STRUCTURE OF THE SOUTH AUSTRALIAN YOUTH JUSTICE SYSTEM ......... 26
2.1
Police .................................................................................................................... 26
2.1.1 Informal Cautions......................................................................................26
2.1.2 Formal Cautions........................................................................................28
2.2
Family Conference................................................................................................ 29
2.3
Youth Court........................................................................................................... 31
2.4
Children, Youth and Family Services.................................................................... 31
2.4.1 Secure Care..............................................................................................32
2.4.2 Home Detention ........................................................................................33
2.5
Child and Youth Health......................................................................................... 33
2.6
Child and Adolescent Mental Health Services...................................................... 33
2.7
Care and Protection Unit ...................................................................................... 34
2.8
Department of Education and Children’s Services ............................................... 34
2.9
Where the Youth Justice System is Situated........................................................ 34
3
TERM OF REFERENCE A............................................................................................... 37
3.1
Early Intervention.................................................................................................. 37
3.2
Legislative Amendments....................................................................................... 37
3.3
Objects of the Young Offenders Act 1993 ............................................................ 37
3.4
Court Facilities and Resources............................................................................. 40
3.5
‘Minor Offence’ Definition...................................................................................... 41
3.6
Written Apologies.................................................................................................. 42
3.7
Formal Caution and Family Conference Sentencing ............................................ 42
3.8
Victim Impact Meetings......................................................................................... 43
3.9
Community Service Placement............................................................................. 43
3.10 Appointment of Youth Justice Coordinators ......................................................... 43
3.11 Specific Deterrence and General Deterrence....................................................... 44
3.12 Age of Criminal Responsibility and Doli in Capax................................................. 45
3.13 Diversion from Court............................................................................................. 45
3.14 Youth Courts in Rural Areas ................................................................................. 51
3.15 Peer Court ............................................................................................................ 52
3.16 Aboriginal Sentencing Court (Nunga Court) ......................................................... 53
3.17 Drug Court ............................................................................................................ 57
4
TERMS OF REFERENCE B ............................................................................................ 59
4.1
Bail/Remand ......................................................................................................... 59
4.2
Detention Centres................................................................................................. 65
4.3
Home Detention.................................................................................................... 71
4.4
Intensive Supervision and Surveillance Programme (ISSP)................................. 72
4.5
Youth Offending Teams (UK) ............................................................................... 73
3
4.6
4.7
4.8
4.9
4.10
4.11
4.12
Young Offenders – Breaking the Cycle: An Intensive Community-Based Case
Management Programme ..................................................................................... 74
Programmes Delivered in Secure Care Facilities ................................................. 74
Custodial Leave .................................................................................................... 75
Transitional Planning ............................................................................................ 76
Community Based Specialist Programmes For Young People Who Have
Offended ............................................................................................................... 77
Youth Health in Secure Care ................................................................................ 78
Use of Video Conferencing................................................................................... 79
5
TERM OF REFERENCE C............................................................................................... 80
5.1
Mental Health........................................................................................................ 80
5.2
Section 269A of the Criminal Law Consolidation Act............................................ 83
6
TERM OF REFERENCE D............................................................................................... 84
6.1
Parenting .............................................................................................................. 84
6.2
Parental Responsibility ......................................................................................... 87
6.3
Parental Responsibility Orders and Gender ......................................................... 93
6.4
Child Protection and Youth Justice / The Layton Report ...................................... 93
6.5
Guardian for Children and Young People............................................................. 94
6.6
Care and Protection Issues/Children ‘At Risk’ ...................................................... 96
6.7
Children ‘at risk’ aged 6-9 years ......................................................................... 103
6.8
Therapeutic Safe Keeping Orders ...................................................................... 104
6.9
Mentoring............................................................................................................ 104
6.10 Adventure Programmes...................................................................................... 108
6.11 Volunteers........................................................................................................... 109
6.12 Gambling Machine Taxation Revenue................................................................ 110
6.13 Intervention Programmes ................................................................................... 110
6.14 Intervention Models ............................................................................................ 111
6.15 What Works in Reducing Young People’s Involvement in Crime? ..................... 112
6.16 Multi-Systemic Therapy ...................................................................................... 113
7
TERM OF REFERENCE E............................................................................................. 116
7.1
The Layton Report and Inter-Agency Cooperation ............................................. 116
7.2
Collaboration and Coordination .......................................................................... 117
7.3
Communication Systems .................................................................................... 119
7.4
Client Relationship Information System (CRIS), Department of Human Services,
Victoria................................................................................................................ 120
7.5
Recording Informal Cautions .............................................................................. 121
7.6
The Structure of the Youth Justice System ........................................................ 121
7.7
The Interface Between Child Protection and Youth Offending ........................... 121
8
TERM OF REFERENCE F ............................................................................................. 123
8.1
Regional Supervised Bail Programme................................................................ 123
8.2
Youth Workers placed at Major Police Stations.................................................. 123
8.3
Police Officers to be placed at Schools .............................................................. 123
8.4
Police Boys Clubs............................................................................................... 124
9
TERM OF REFERENCE G ............................................................................................ 125
9.1
Behaviour Management Practices...................................................................... 125
9.2
Truancy............................................................................................................... 127
9.3
Youth Education Centre...................................................................................... 128
10 TERM OF REFERENCE H............................................................................................. 131
10.1 Use of Interpreters in the Court System ............................................................. 131
10.2 Petrol Sniffing Inquest Recommendations – Anangu Pitjantjatatjara
Yankunytjatjara Lands. ....................................................................................... 132
11 TERM OF REFERENCE I .............................................................................................. 133
11.1 CYFS Staffing ..................................................................................................... 133
4
11.2
11.3
11.4
11.5
Alternative Care .................................................................................................. 134
Lack of Accommodation Options Post Secure Care........................................... 135
Lack of Accommodation Options for those Young People on Bail ..................... 135
Alternative Care Placements .............................................................................. 136
12 TERM OF REFERENCE J ............................................................................................. 138
12.1 Timelines ............................................................................................................ 138
12.2 Broad Community Understanding of the Youth Justice System ......................... 138
12.3 Sexual Assault Counselling Services ................................................................. 139
APPENDIX 1 ........................................................................................................................ 140
APPENDIX 2 ........................................................................................................................ 142
APPENDIX 3 ........................................................................................................................ 145
APPENDIX 4 ........................................................................................................................ 147
ABBREVIATIONS................................................................................................................ 148
List of Figures
Figure 1:
Number of police apprehension reports Involving Youth, 1994 to 2004 ..............21
Figure 2:
Police Apprehension Reports: Major Offence Alleged, 2004...............................21
Figure 3:
Police Apprehensions: Type of action Taken, 2000 to 2004* ..............................22
Figure 4:
Type of Action Taken by Indigenous Status, 2004 ..............................................22
Figure 5:
Formal Police Cautions: Proportion Involving Apologies, Compensation,
Community Work or 'Other' Conditions, 2000 to 2004.........................................23
Figure 6:
Cases for Which a Family Conference was Held, 1995 to 2004..........................23
Figure 7:
Cases Dealt with at a Family Conference which Resulted in an Undertaking:
Proportion Involving an Apology/Compensation/Community Work/Other
Condition, 2000 to 2004.......................................................................................24
Figure 8:
Youth Court Appearances Where at Least One Charge is Proved: Major Penalty
Imposed Per Case by Sex, 2004 .........................................................................25
Figure 9:
Family Conference Process Flowchart ................................................................30
Figure 10: The Justice Processes of the South Australian Youth Justice System as Outlined
in the YOA, 1993 .................................................................................................36
Figure 11: Australian Youth Detention Rates 1994 - 2003 ...................................................47
Figure 12: Number of Admissions into Secure Care, 1993 to 2003* ....................................66
Figure 13: Average Daily Occupancy by Custodial Status, 1996 to 2004 ............................67
Figure 14: Average Daily Occupancy by Racial Identity, 1994 to 2004 ................................67
Figure 15: Youth Court Appearances Where at Least One Charge is Proved: Length of the
Longest Secure Detention Order Imposed per Case, 2004.................................68
Figure 16: Tiered Case Management Model ......................................................................114
5
List of Tables
Table 1:
Case Referrals Received by the Family Conference Team: Finalised Outcome
Taking into Account Levels of Undertaking Compliance, 2004 ...........................24
Table 2:
Indigenous Sentencing Courts in Australia...........................................................54
Table 3:
Number of Children (Aboriginal Cultural Group) Admitted to Secure Care for the
First Time During 2002-03 Showing How Many Had Prior Involvements in Other
Programme Areas (Child Protection Data Since 1981, 1992 for Other Areas)....97
Table 4:
Number of Children (Non-Aboriginal Cultural Group) Admitted to Secure Care for
the First Time During 2002-03 Showing How Many Had Prior Involvements in
Other Programme Areas (CP data since 1981, 1992 for other areas) ................98
Table 5:
Number of Children (Not Known Cultural Group) Admitted to Secure Care for the
First Time During 2002-03 Showing How Many had Prior Involvements in Other
Programme Areas (CP Data Since 1981, 1992 for Other Areas) ........................99
Table 6:
Number of Children (Total Cultural Group) Admitted to Secure Care for the First
Time During 2002-03 Showing How Many had Prior Involvements in Other
Programme Areas (CP Data Since 1981, 1992 for Other Areas) ......................100
6
FOREWORD
The Select Committee has spent over eighteen months looking at the Youth Justice System
in South Australia. The major theme to arise from the evidence has been the need for
intervention.
While many young people will re-engage positively in the community following criminal
activity, some young people require education and support in order to take on responsibility
for their criminal behaviour. The Committee also noted that intervention, at an early age, into
the lives of those youths at risk of becoming involved in the Youth Justice System could steer
potential offenders away from criminal activity.
Equally, the Committee recognized that although most parents have the support and skills to
help their children to behave and engage positively with their community, some parents
require intervention and support to enable them to parent well.
The Committee believes that intervention, if provided in a timely and appropriate manner,
would provide benefits to offending youths or those at risk of offending, their families and
ultimately to the whole South Australian Community. The question has been how, at what
age and in what context should intervention take place?
This Report, among other things, considers the role of current intervention strategies, their
resources and availability and also seeks to address the need for cooperative and innovative
practices in the detection, management and treatment of young offenders.
While the Select Committee found that the Young Offenders Act 1993, provides effective
processes to deal with criminal offences, it noted that there could be better use of the
diversion components of the system, particularly for Indigenous young people.
The 43 Recommendations contained in this Report create a solid platform for ensuring early
intervention with ‘at risk’ youth, structured and intensive intervention in family contexts where
poor parenting is an issue and solid improvements to Youth Justice programmes.
This Report’s Recommendations detail ten major themes:
•
The need to provide appropriate custodial and residential facilities for young
offenders.
•
Making parents and children accountable for their offending behaviours through the
introduction of Parental Responsibility Orders.
•
Providing targeted and therapeutic support to assist children and young people to
make change.
•
Creating safe communities by ensuring early intervention through targeted care and
protection strategies.
•
Placing significant focus on reducing the over-representation of Indigenous young
people by increasing their access to diversion and increasing and supporting family
and community participation in finding sustainable solutions to youth offending.
•
Better and timelier intervention with young people who offend.
7
•
Ensuring young people’s connection to community by preventing truancy and
enabling engagement in constructive education and training options.
•
Ensuring the system works better by emphasizing collaboration, good information
exchange and joint ways of working across all part of the Youth Justice System.
•
Aiding Court processes by ensuring the understanding of everyone engaged in the
system.
•
Providing appropriate and sufficient post-release support.
During the inquiry, the Committee heard from many dedicated people who have been
working hard to improve the lives of young people who through circumstance and/or their
own actions have found themselves within the Youth Justice System. The Committee also
noted the success the System has achieved since its inception in 1993. The work presently
being done and the foresight shown in 1993 should be recognized and applauded. However,
there are things which still need to be considered and improved. Some of these
improvements will require significant funding such as the closure of the Magill Training
Centre and the provision of welfare intervention services, others will require only minor
legislative amendment.
An appropriate Youth Justice System is a priority for South Australia. The financial and
political commitment to ensuring its success will have benefits for all South Australians. We
will maintain our democratic, civil society by supporting children and young people who are at
risk of offending or who have offended so that they grow into productive adult citizens.
I commend the Report of the Select Committee on the Youth Justice System to you.
Hon. R. B. Such
Chairman
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RECOMMENDATIONS OF THE SELECT COMMITTEE
Recommendation 1
That the current objects of the Young Offenders Act 1993 be retained, but that Part 1,
Section 3 of the Act, (Objects and Statutory Policies) be amended by inserting the
following statutory policies into the Act at Section 3(2)(b):
(a) That the victim of the offence is to be given the opportunity to participate in the
process of dealing with the youth as allowed by the Act.
(b) That children and young people are to be kept separate from the adult offender
population.
(c) The intention of the Young Offenders Act 1993 is to address, reduce and prevent
youth offending behaviours.
(d) That youth detention is only to be utilised as a last resort.
(Page 40)
Recommendation 2
That the term ‘minor offence’ be amended to ‘divertible offence’ in the Young Offenders
Act 1993.
That Section 4 (a) of the Young Offenders Act 1993 be amended by the removal of the
word ‘limited’, so as to read, ‘the extent of harm caused through the commission of the
offence’.
(Page 42)
Recommendation 3
That Section 12(1)(d) and 12(7) of the Young Offenders Act 1993 be amended to allow for
either written or verbal apologies.
(Page 42)
Recommendation 4
That a monitoring system/database be established to allow Police Officers and Family
Conferences to fulfil Section 8(4)(a) and 12(2) of the Young Offenders Act 1993
respectively.
(Page 43)
Recommendation 5
That Section 22 of the Young Offenders Act 1993 be amended to provide for the Youth
Court to refer a matter to the Family Conference Team to conduct a Victim Impact
Meeting prior to sentencing.
(Page 43)
Recommendation 6
That Section 49A (b)(i) of the Young Offenders Act 1993 be amended to remove the lower
limit restriction upon the number of community service hours that can be worked. (Page 43)
Recommendation 7
That provision of Section 9(2) of the Young Offenders Act 1993 restricting the
appointment of Youth Justice Coordinators to three years be removed to facilitate
permanent employment in these roles.
(Page 44)
9
Recommendation 8
That the current provision for ‘deterrence’ in Section 3 (2a)(a) and (b) of the Young
Offenders Act 1993 be retained.
That the Courts Administration Authority produce an annual report detailing nonidentifying case studies that would provide a fair indication of the outcomes of cases
which appear before Family Conference or the Youth Court. Without diminishing the
importance of confidentiality for young offenders, appropriate details of offences and their
typical punishment be conveyed to the public at large.
(Page 45)
Recommendation 9
That the age of criminal responsibility be retained at ten years. That the notion of doli in
capax be retained, however not withstanding the power of Police to refer a child under 10
years to Children Youth and Family Services.
(Page 45)
Recommendation 10
That Section 7 of the Young Offenders Act 1993 be amended to provide for the referral of
a young offender deemed not suitable for informal or formal caution to a Family
Conference. That a condition of the referral be the admission of involvement in an offence
rather than pleading guilty to an offence.
(Page 50)
Recommendation 11
That children and young people have access to a 24 hour legal information phone service
(Page 51)
upon apprehension, but prior to making a statement to the Police.
Recommendation 12
That the Youth Court circuit in rural areas be extended to the Yorke Peninsula and Mount
Gambier.
That the Young Offenders Act 1993 be amended to allow for a Youth Court Judge to
empower a Magistrate in rural areas to hear and determine major indictable offences.
(Page 52)
Recommendation 13
That Aboriginal Youth Justice Officers be appointed to assist and educate participants
about the Court process and offender’s rights and obligations regarding their sentence
orders.
(Page 57)
Recommendation 14
That further evaluation be conducted as to the effectiveness of the Adult Aboriginal
Sentencing Court and the piloted Aboriginal Youth Sentencing Court. That the productive
aspects of these Sentencing Courts be identified and integrated into the Youth Court
sentencing process.
(Page 57)
Recommendation 15
That a Youth Court Drug Programme be developed. That the Programme involve
comprehensive drug rehabilitation and allied health components.
(Page 58)
10
Recommendation 16
That the Magill Training Centre be closed as soon as possible.
That an analysis of the projected needs for the required levels of Secure Care for South
Australia be undertaken. That this analysis take into account the rehabilitative benefits of
offenders developing and maintaining constructive links with family and community during
periods of detention.
That Secure Care facilities with tiered security status be established in South Australia.
That Community Based Sentence Orders be expanded and that 10 to 14 year old male
and female offenders be placed in Community Based Secure Residential Care to serve
their Detention Orders.
(Page 71)
Recommendation 17
That the Home Detention Programme be immediately expanded to meet the identified
needs of the Youth Court.
That Home Detention and other Intensive Supervision and Surveillance Programmes be
offered in South Australia, including Regional Centres and Remote Communities. (Page 73)
Recommendation 18
That a comprehensive framework of targeted therapeutic programmes be developed and
(Page 75)
delivered as part of all Custodial and Community Sentence Order Plans.
Recommendation 19
That Custodial Leave be introduced to facilitate more effective rehabilitation.
That Transition Plans be provided for all children and young people and transition
planning to be a key concept in the case management of all children and young people in
the Youth Justice System.
That a tiered structure of Sentence Orders be established.
(Page 77)
Recommendation 20
That the provision of Health Services in Secure Care be enhanced.
(Page 79)
Recommendation 21
That video link/conferencing technology be incorporated (where suitable) in all current and
future Youth Justice facilities.
(Page 79)
11
Recommendation 22
That an increase in the provision of psychological and psychiatric services for children and
young people in the Youth Justice System be made.
That an increase in the provision of psychological and psychiatric services for children and
young people ‘at risk’ be made (including those children under 10 years of age).
A review and decrease in the waiting times for psychiatric assessments for the purposes
of s269A of the Criminal Law Consolidation Act.
(Page 83)
Recommendation 23
That Family Care Meetings administered by the Care and Protection Unit be used to
reunite a family and to assist in the clarification of the roles, rights and responsibilities of
each participant.
That an ‘adolescent at risk’ review process be established within the Care and Protection
Unit with oversight from the Courts Administration Authority.
(Page 87)
Recommendation 24
That a referral to a parenting programme be offered to parents by Police Officers when
they administer a formal caution to a child.
(Page 91)
Recommendation 25
That Parental Responsibility Legislation, which clarifies the rights and responsibilities of
parents and children, be introduced.
(Page 93)
Recommendation 26
That the powers of the Guardian for Children and Young People be extended to allow for
the monitoring of children and young people determined to be ‘at risk’ of offending or have
offended.
(Page 95)
Recommendation 27
That Family Care Meetings conducted by the Care and Protection Unit be utilised earlier
in the case management of families ‘at risk’ and Parental Responsibility Orders be utilised
during these meetings.
(Page 103)
Recommendation 28
That Therapeutic Safe Keeping Orders be introduced in South Australia. That an
expansion of children’s services, including psychiatric services be made to South
Australian hospitals and welfare services.
(Page 104)
Recommendation 29
That Panyappi’s funding be extended and increased to enable it to lower its eligibility age
(Page 108)
from 10 to 6 years and expand its services to rural areas.
12
Recommendation 30
That children and young people who have offended or are considered to be ‘at risk’ and
who have completed either an Operation Flinders Foundation Incorporated camp or
programme or a One and All Youth Development Sail training programme be assigned a
mentor from either the Panyappi or Children Youth and Family Services mentor
programme.
(Page 109)
Recommendation 31
That a range of mentor, recreational and employment programmes for children and young
people who are at risk of offending or who have offended, be developed.
That funding for these programmes to be identified from the Community Development
Fund of the Gambling Machine Taxation Revenue.
(Page 110)
Recommendation 32
That a ‘What Works’ approach to young offenders to be adopted in South Australia
including the use of Multi-Systemic Therapy for serious and/or repeat offenders. (Page 115)
Recommendation 33
That Memoranda of Understanding be developed between service agencies and the
Family Conference Team and an identified resource allocation be made to these agencies
to enable service provision to young offenders who have undergone a Family Conference
and who have identified obligations.
(Page 119)
Recommendation 34
That informal cautions be officially recorded.
(Page 121)
Recommendation 35
That a Regional Supervised Bail Programme, based on the Western Australian model, be
piloted to assess its suitability in South Australia.
(Page 123)
Recommendation 36
That Youth Workers be situated at major Police stations in metropolitan and rural areas.
That secondary schools be able to invite Police Officers to be permanently located at their
school.
That SAPOL and the Blue Light organisation consider establishing Police Boys and Girls
Clubs in South Australia to provide sport and fitness activities to local youth.
(Page 124)
Recommendation 37
That Parenting Responsibility Orders be issued to those parents whose children are
truanting.
That the Positive Attendance Strategy for Secondary Students (PASS) Project be piloted
in South Australia.
(Page 128)
13
Recommendation 38
That oral literacy testing be conducted in South Australian schools and that programmes
be developed and delivered to those children and young people identified through the
testing process.
(Page 130)
Recommendation 39
That there be an increase in the provision of interpreters in the Youth Justice System.
That information and resources be made available to enhance new arrival migrant and
(Page 132)
refugees’ knowledge of the Youth Justice System.
Recommendation 40
That Children Youth and Family Services appoint a diversity of staff, including specialist
(Page 134)
staff to work in the area of Youth Justice.
Recommendation 41
That a range of accommodation options for children and young people who are either ‘at
risk’, on remand or on bail, be made available.
(Page 137)
Recommendation 42
That Education Packages regarding the Youth Justice System be developed and made
available to Community Legal Centres, Police Stations and the Youth Court.
That Information Packages on the Youth Justice System be developed for migrant and
new arrival communities.
(Page 139)
Recommendation 43
That the eligible age for Yarrow Place Services be lowered.
(Page 139)
14
1
1.1
HISTORICAL PERSPECTIVES ON YOUTH JUSTICE
Welfare and Justice Models
Historically South Australia has always been at the forefront of Youth Justice reform. In
Australia, children historically had been treated the same as adults within the justice system
until the establishment of separate legislation that recognized the difference of children. This
first came into effect in South Australia in 1895 when the State Children’s Act was
proclaimed.1
The ‘welfare model’ characterized the way that young people and crime were dealt with in
the first three quarters of the last century.2 The welfare model’s underlying assumption was
that youth’s offending behaviour was the result of moral or social developmental issues. With
the development of the field of psychology, offending by children and young people was
viewed as an expression of internal psychological problems. Crime was not simply the result
of conscious decision making or an ‘inherent criminal nature’. Consequently a range of
psycho-social theories and therapeutic responses were directed at offending behaviour.
Intervention by the State was required in order to address the underlying issues in those
offending young people and those ‘whose behaviour or lifestyle indicated that they were at
risk of offending.’3
It has been argued however, that the welfare model is:
associated with paternalistic and protectionist policies, with treatment rather than punishment
being the key goal. From this perspective, because of their immaturity, children cannot be
regarded as rational or self-determining agents, but rather are subject to and are the product of
the environment within which they live. Any criminal action on their part can therefore be
attributed to dysfunctional elements in that environment. The task of the justice system then is to
identify, treat and cure the underlying social causes of offending, rather than inflicting
punishment of the offence itself.4
The welfare model has been criticised for its failure to fully appreciate young offenders’
personal accountability for the crimes they commit. The justice model relies on a model of
the young person as a reasoning agent who is, and should be, accountable for his/her
actions. The role of the justice system is, therefore, to determine the level of culpability and
the seriousness of the offence and punish accordingly. The Justice model relies on due legal
process to protect the rights of the young person.5
Joy Wundersitz, Director of the Office of Crime Statistics Research and former Research
Officer with the 1992 Select Committee on the South Australian Youth Justice, gave
evidence to the Select Committee that provided some background to the South Australian
Youth Justice system. She stated:
under the welfare approach, young people under the age of 16 were not charged with a criminal
offence. They were deemed to be in need of care and protection, and how they were dealt with
was then handed over to the Department of Community Welfare. There was indeterminate
sentencing; that is, young people could be under departmental control for an indefinite time until
the department decided that they were rehabilitated. That welfare approach came in for some
major criticism because it denied young people due process. At the same time, there was a
1
2
3
4
5
Interim Report of the Select Committee on the Youth Justice System, November 1992, p. 1.
Ian O’Conner and Margaret Cameron, ‘Youth Justice in Australia’ in A Graycar and P Grabosky (eds.) The Cambridge
Handbook of Australian Criminology , Cambridge University Press, Cambridge, 2002
ibid. 213
Alder, C. and Wundersitz, J. ‘New Directions in Youth Justice Reform in Australia in Alder, C. and Wundersitz, J. (eds.)
Family Conferencing and Youth Justice: The Way Forward or Misplaced Optimism?, Australian Institute of Criminology,
Canberra, p. 3
ibid.
15
sense that the system was not holding them accountable for their behaviours, and so from
1979 onwards there was a move back to a much stronger focus to the justice concepts; that is,
holding the young person accountable by also protecting their due process rights by giving them
the right to legal representation, formally charging them with an offence and dealing with them in
an open and fixed manner.6
The 1992 Select Committee on the Youth Justice System acknowledged that the welfare
model was reflected in the South Australian Youth Courts Act 1971 including the introduction
of the Youth Aid Panels which provided an alternative to formal court proceedings. The
Committee recommended significant legislative reform and separated the legislation relating
to offending from the child protection legislation. The Children’s Protection and Young
Offenders Act 1979 was repealed and three new pieces of legislation were introduced: the
Young Offenders Act 1993, the Youth Court Act 1993 and the Children’s Protection Act
1993.7
The 1992 Select Committee acknowledged that young people’s engagement with the Youth
Justice System should be minimised. A three tiered diversionary system was introduced
involving informal and formal cautioning and family conferencing. The Select Committee
decided to adopt family conferencing after viewing the New Zealand model and researching
other restorative justice conferencing models.
The Young Offenders Act 1993 (YOA), came into operation on 1 January 1994 and provides
the legislative framework for how a young person aged 10 to 17, who is alleged to have
committed a crime, is to be dealt with in South Australia. The legislation provided for the
Juvenile Justice Advisory Committee (JJAC) to monitor and evaluate the administration and
operation of the YOA.
In 1996, the South Australian Youth Justice Advisory Committee requested Joy Wundersitz
review the operation of the Youth Justice System.8 The aim of the review was to provide:
•
•
•
A quantitative overview of the system, in order to identify the number and personal
characteristics of young people being dealt with, the types of offences involved, the methods
of processing used and the outcomes recorded;
A descriptive account of how the processes and procedures within the system are
operating; and
A preliminary assessment of whether the system is achieving at least some of its aims and
objectives.9
Wundersitz noted that whilst overall findings regarding the operation of the Youth Justice
system and the rate of offending were ‘encouraging’, there were some issues which required
attention at that time. In particular:
•
•
6
7
8
9
10
The anticipated ratio of 60:30:10 between cautions, conferencing and court had not
eventuated. The number of offences dealt with by caution and conferencing were
significantly lower than expected which meant the Youth Court still processed
approximately 30% of cases. Wundersitz argued that further investigation was required to
determine whether the original ratio was either ‘optimistic’ or as a result of the system ‘not
being implemented as intended.’10
Aboriginal young people were still over-represented within the System and were less
likely than non-Aboriginal young people to be diverted to caution or conference.
Wundersitz acknowledged the complexity of issues regarding this over-representation but
Joy Wundersitz, Hansard, 3
Joy Wundersitz, Hansard, 4
Joy Wundersitz, The South Australian Youth Justice System: A Review of its Operation, A Report Prepared for the South
Australian Youth Justice Advisory Committee, June 1996
ibid., p. xvi
ibid., xvii
16
•
•
indicated that ‘broad social justice strategies’ were required to address the significant
levels of disadvantage for Aboriginal communities. The need to develop culturally
sensitive responses to youth offending was also cited as being required although her
review did not indicate the specific areas of the Justice System that operated in ‘culturally
inappropriate ways’.
Inconsistencies in the ways in which youth were dealt with were evident between regions
and/or locations.
The provision of community services was found to be inadequate at all levels of the
Youth Justice System. The supervision of orders issued at all three tiers was inadequate.
Wundersitz also noted that there was a lack of resources within the South Australia
Police (SAPOL) and Family and Community Services (now Children, Youth and Family
Services (CYFS) to facilitate a required level of partnership between the agencies in
order to ensure a level of adequacy regarding the supervision of orders.11
Regarding the provision of community service, the 1996 Review recommended increased
resources for more Police Youth Officers and Youth Justice Coordinators, the need for a
public education programme to be developed and for more adequate data collection
processes.12 The Youth Justice Advisory Committee stated in its submission to the Select
Committee that as a result of the recommendations contained in the 1996 report some
procedural and operational changes took place although it did not detail what those changes
were or whether they addressed the issues identified by the Review.13
1.2
Changes in Criminal Legislation and their Impact on Youth Justice
Crime Statistics
The 2002 Crime and Justice in South Australia: Youth Justice statistical report notes that
‘[t]here have been some major changes in criminal legislation and justice administration in
recent years that are likely to have impacted on’ ‘youth crime statistics’.14 These changes
include:
•
•
The Criminal Law Consolidation (Serious Criminal Trespass) Amendment Act which came
into effect on 25 December 1999. In this legislation, break and enter offences were replaced
with a range of serious criminal trespass offences, including the major indictable offence of
aggravated serious criminal trespass. Because some offences have now become ‘major
indictable offences’ young persons committing them may not be diverted to a family
conference and the time taken to finalise these matters may be extended.
In September 2001 the Police Drug Diversion Initiative was introduced to target illicit drug
users who have offended and divert them into assessment, treatment and education
programmes. Young people who commit these offences will therefore be so diverted. There
is also an expectation that this diversion programme will impact on the rates of
apprehension for drug offences.15
In addition to these legislative changes, the Youth Justice Report notes a range of internal
changes introduced by SAPOL in 1999 as a result of its organisation review, Focus 21,
including Intelligence Led Policing and Problem Solving Policing models. These changes
have resulted in different system responses to youth crime and have required alterations to
statistical figures. The Report states that ‘anecdotal evidence suggests that this approach
involves increased use of arrest for some categories of offence, greater targeting of
recidivists, more stringent checking for compliance with bail conditions and more opposition
to bail at both the point of arrest and in court.’16 While the Office of Crime Statistics and
Research acknowledges these changes, and the potential impact that they may have had on
11
12
13
14
15
16
ibid.
ibid., p 214
Youth Justice Advisory Committee Submission 34, p. 4
Office of Crime Statistics and Research, Crime and Justice in South Australia 2002 Youth Justice Statistical Report,
Attorney General’s Department, Series A No 39(2) November 2003, p.17.
ibid., p. 17
ibid., p. 18
17
apprehension rates etc, there is, unfortunately, little further evidence-based analysis of these
issues.
1.3
Social Inclusion Initiatives
The South Australian Government established the Social Inclusion Initiative and appointed
the Social Inclusion Board in March 2002 with the aim of addressing various social issues.
The Board advises the Government on new and innovative ways of linking social and
economic policy and works across the Government, non-Government and community
sectors to gain better outcomes for the most disadvantaged people in the community.
The Select Committee was made aware of two Social Inclusion Initiatives relevant to the
topic of Youth Justice: the School Retention initiative ‘Making the Connections’ targeting six
key areas relevant to school retention and the Youth Justice initiative Young Offenders –
Breaking the Cycle programme which aims to prevent and reduce criminal activities by young
people. The first stage of the Breaking the Cycle programme aims to work with young people
between the ages of sixteen and twenty who have offended repeatedly, and for whom the
risk of further recidivist behaviour is high.
Details of these initiatives can be accessed via the Social Inclusion website at:
www.socialinclusion.sa.gov.au
18
THE SOUTH AUSTRALIAN YOUTH JUSTICE SYSTEM TODAY
1.4
The Objects and Statutory Policies of the Young Offenders Act 1993
Part 1, Section 3, of the YOA provides the Objects and Statutory policies of the legislation as
follows:
3. (1)
The object of this Act is to secure for youths who offend against the criminal law the
care, correction and guidance necessary for their development into responsible and
useful members of the community and the proper realisation of their potential.
(2) The powers conferred by this Act are to be directed towards that object with proper
regard to the following statutory policies:
(a) a youth should be made aware of his or her obligations under the law and of the
consequences of breach of the law;
(c) the community, and individual members of it, must be adequately protected
against violent or wrongful acts.
(2a) In imposing sanctions on a youth for illegal conduct –
(a) regard should be had to the deterrent effect any proposed sanction may have on
the youth; and
(b) if the sanctions are imposed by a court on a youth who is being dealt with as an
adult, regard should also be had to the deterrent effect any proposed sanction
may have on other youths.
(3) Effect is to be given to the following statutory policies so far as the circumstances of
the individual case allow:
(a) compensation and restitution should be provided, where appropriate, for victims of
offences committed by youths;
(b) family relationships between a youth, the youth’s parents and other members of
the youth’s family should be preserved and strengthened;
(c) a youth should not be withdrawn unnecessarily from the youth’s family
environment;
(d) there should be no unnecessary interruption of a youth’s education or
employment;
(e) a youth’s sense of racial, ethnic or cultural identity should not be impaired.
1.5
Youth Justice Advisory Committee
Part 7 of the YOA established the Youth Justice Advisory Committee (JJAC) as follows:
52. (1)
(2)
(3)
The Youth Justice Advisory Committee is established.
The Advisory Committee consists of six members appointed by the Governor, of
whom –
(a) one (who will be designated by the instrument of appointment as the presiding
member of the Committee and is to preside at all meetings of the Committee at
which he or she is present) will be a person with recognised expertise in the field
of Youth Justice; and
(b) one will be a Judge of the Supreme Court or of the District Court who is not a
Judge of the Youth Court; and
(c) one will be a person who, in the opinion of the Attorney-General, has wide
knowledge of and experience in law enforcement, and who is nominated by the
Attorney-General; and
(d) one will be a person who, in the opinion of the Minister, has wide knowledge of
and experience in youth affairs, and who is nominated by the Minister; and
(e) one will be a person who is, in the opinion of the Minister, a suitable
representative of the interests of the public; and
(f) one will be an Aboriginal person who is, in the opinion of the Minister for
Aboriginal Affairs, a suitable representative of the interest of the Aboriginal
community, and who is nominated by the Minister for Aboriginal Affairs.
At least one member of the Advisory Committee must be a man and at least one must
be a woman.
19
(4)
(5)
(6)
A member of the Advisory Committee holds office for such term, and on such
conditions, as the Governor determines and specifies in the instrument of
appointment.
A member of the Advisory Committee is, on the expiration of a term of office, eligible
for reappointment.
The Governor may appoint a suitable person to be a deputy of a member of the
Advisory Committee and such a person may act as a member of the Advisory
Committee in the absence of that member.
The primary function of the JJAC was to monitor and evaluate the administration and
operation of the YOA and to ensure data and statistics in relation to the administration of
Youth Justice, or as the Attorney-General may direct, is collected. The Committee was
required to report each year on the administration and operation of the YOA, through the
Attorney-General, to the South Australian Parliament.
The Select Committee received a submission from the former presiding member of the
former JJAC, GL. Muecke regarding the role, function, history and the current workings of the
JJAC.17 The submission explained that the JJAC had met with the Attorney-General in March
2003 and discussed its role and whether it was able to fulfil its role given it was an underresourced, part-time committee. At that time the JJAC also advised the Chief Executive of
the Justice Department that it was not confident that it was the appropriate vehicle to perform
the statutory role given to it.
In 2003, former JJAC members were advised that the Justice Cabinet Committee had
agreed to transfer the role of monitoring the administration and operation of the YOA from
JJAC to the newly established Intra-Governmental Youth Justice Advisory Committee
(IGYJAC). IGYJAC reports to the Justice Cabinet Committee and focuses on the
development and operation of the South Australian Youth Justice Action Plan.
On 1 April 2004 a Bill repealing Part 7 of the YOA was passed by Parliament.18
1.6
Intra-Governmental Youth Justice Advisory Committee
The Intra-Governmental Youth Justice Advisory Committee (IGYJAC) was established by the
Justice Cabinet Committee (JCC) in August 2003 and reports to the JCC on a quarterly
basis. IGYJAC provides for an across government approach to Youth Justice and comprises
senior officers from a range of agencies, including:
•
•
•
•
•
•
•
•
•
•
•
Department for Families and Communities
Department of Correctional Services
Attorney-General's Department, Justice Strategy Division
Courts Administration Authority
South Australia Police
Aboriginal and Torres Strait Islander Services
Office for Youth
Department of Education & Children’s Services
Department of Aboriginal Affairs & Reconciliation
Department of Further Education Employment Science and Technology
Department of Health
The aim of the IGYJAC is to prevent crime and to address offending and re-offending by
children and young people. It focuses primarily on the system in which children and young
people who have committed, or are suspected of committing, offences are dealt with in South
Australia. The key functions of the IGYJAC are to develop a statewide Youth Justice Action
17
18
Youth Justice Advisory Committee Submission 34, op. cit., pp. 1-8
ibid.
20
Plan, to facilitate cross system collaboration and to monitor and make recommendations
about strategic system review to the Justice Cabinet Committee.19
1.7
Youth Justice Statistical Information
Joy Wundersitz, Director of The Office of Crime Statistic and Research provided the following
figures to the Select Committee detailing the number and type of offence and the types of
actions taken.
Figure 1:
Number of police apprehension reports Involving Youth, 1994 to 2004
Total
10,000
9,661
Number
8,136
Females
10,118
9,044
8,000
Males
8,810
8,689
8,753
8,992
8,157
7,831
7,145
8,377
7,571
6,000
6,482
7,305
6,971
7,033
7,398
6,658
6,242
5,772
4,000
2,000
1,525
1,741
1994
1995
5,225
1,473
1,505
1,718
1,720
1,594
1,499
1,589
1,373
1,257
1996
1997
1998
1999
2000
2001
2002
2003
2004
0
The Select Committee acknowledged the significant decrease in the number of Police
Apprehension Reports involving Youth from 9,661 in 1994 to 6,482 in 2004.
Figure 2:
Police Apprehension Reports: Major Offence Alleged, 2004
Driving offences
9%
Drug offences
2%
Other
2%
Against the person
excl. sexual
13%
Sexual offences
2%
Robbery & extortion
1%
Criminal Trespass
11%
Against good order
21%
Damage property &
environmental
11%
19
Fraud &
misappropriation
1%
Larceny & receiving
27%
CYFS, email communication, 17 June 2004
21
Figure 3:
Police Apprehensions: Type of action Taken, 2000 to 2004*
2000
2001
2002
2003
2004
46.9
48.9
46.5
43.8
33
32.0
34.3
32.1
40
35.9
18.8
20.1
17.7
20
19.3
30
18.4
Percentage
50
44.9
60
1.4
1.3
1.3
1.9
1.5
10
0
Formal Caution
Referral to Family
Conference
Referral to Youth Court
Withdrawn
* In calculating the percentages, apprehensions for which the type of action taken was not recorded have been excluded.
Figure 4:
Type of Action Taken by Indigenous Status, 2004
70
Non-Indigenous
Indigenous
63.0
60
46.7
Percentage
50
40
31.0
30
20
19.0
20.8
17.2
10
1.4
0.9
0
Formal Caution
Referral to family
conference
Referral to youth court
Withdrawn
In relation to the above table, the Select Committee noted the disproportionate statistics in
each category for Indigenous Youth. The Committee considered the complex issues
associated with Indigenous Youth and that they were not being deferred to either formal
caution or family conference at the same levels as non-Indigenous Youth. For a detailed
discussion of the diversion of Indigenous Youth see Terms of Reference A.
22
Figure 5:
Formal Police Cautions: Proportion Involving Apologies, Compensation,
Community Work or 'Other' Conditions, 2000 to 2004
2004
5.7
4.6
5.8
7.3
10
4.7
14.2
14.1
14.7
14.2
20
11.9
26.1
27.0
30.6
26.7
30
24.8
Percentage
40
41.2
2003
42.0
2002
40.9
2001
38.4
2000
40.9
50
0
Apology
Figure 6:
Compensation
Community Work
Other
Cases for Which a Family Conference was Held, 1995 to 2004
2,000
1,800
1,646
1,618
1,633
1,512
1,600
1,613
1,502
1,487
1,539
1,398
1,437
2003
2004
Number
1,400
1,200
1,000
800
600
400
200
0
1995
1996
1997
1998
1999
2000
2001
2002
The Select Committee noted there had been a slight decrease in the number of Family
Conference held since 1995.
23
68.4
2004
67.3
63.7
2003
25.5
18.9
20
27.0
32.4
25.0
22.9
24.4
30
23.1
28.4
40
20.8
50
2002
43.2
Percentage
60
61.9
70
60.8
80
2001
69.6
2000
77.3
90
78.6
Cases Dealt with at a Family Conference which Resulted in an
Undertaking: Proportion Involving an
Apology/Compensation/Community Work/Other Condition, 2000 to 2004
70.0
Figure 7:
10
0
Apology/letter of regret
Table 1:
Compensation
Community work
Case Referrals Received by the Family Conference Team: Finalised
Outcome Taking into Account Levels of Undertaking Compliance, 2004
Case Outcome
Cases positively finalised
conference held, undertaking complied with
conference held, undertaking waived
conference held, formal caution
conference held, no further action
case not proceeded with
Sub-total
Not yet classified
conference held, undertaking compliance data not
available
Cases not positively finalised
conference held, undertaking not complied with - referred
back to police
conference held, not finalised*
conference not held, not resolved**
Sub-total
Total
Other
No.
%
857
4
181
0
10
1,052
53.3
0.2
11.3
0
0.6
65.5
202
12.6
154
9.6
37
162
353
2.3
10.1
22.0
1,607
100.0
24
Figure 8:
Youth Court Appearances Where at Least One Charge is Proved: Major
Penalty Imposed Per Case by Sex, 2004
35.7
40
Male
Female
Total
35
12.8
16.8
13.4
14.1
0.9
0.0
0.7
Dismissed
without penalty
Compensation
Fine
Licence
disqualification
Obligation
Community
service order
Suspended
detention
Detention
0
Other
2.3
2.5
2.3
9.3
13.8
10.0
13.2
10.5
7.5
5.0
5
5.7
10
11.0
15
14.9
20
18.0
17.1
17.9
22.8
20.6
25
1.1
Percentage
30
The Select Committee noted the significant difference (15.1) between males and
females receiving an obligation issued from the Youth Court.
25
2
THE STRUCTURE OF THE SOUTH AUSTRALIAN YOUTH
JUSTICE SYSTEM
This chapter outlines the current structure of the South Australian Youth Justice System.
There are three diversionary processes identified in the Young Offenders Act, 1993 (YOA):
Informal Cautions, Formal Cautions and Family Conferencing.20
2.1
Police
Police are the primary ‘gate keepers of the Youth Justice System’ in that it is either individual
officers (informal caution) or specialist officers with the Community Programmes Support
Branch who direct offenders either through the tiered diversionary structure or to the Youth
Court. The Youth Court has the power to refer a matter back to either informal caution or
formal caution or family conference.
The seriousness of an offence, as well as patterns of repeat offending may affect the
decision police make regarding the issuing of an informal or formal caution or forwarding the
matter to a family conference.
In addition to the YOA an internal SAPOL General Order, which is an internal procedures
document (number 8980) governs the way in which the South Australia Police work within
the Youth Justice System. The Community Programmes Support Branch administers Youth
Justice procedures within the organisation. 21
2.1.1
Informal Cautions
Section 6 of the YOA outlines the general powers given to police officers regarding informal
cautions. Informal cautions are issued ‘on the spot’ by police officers for ‘minor offences’. The
young person has to admit to committing the offence. These cautions are not formally
recorded, however, SAPOL does unofficially record informal cautions for the purpose of
intelligence gathering and business activity monitoring.22
According to General Order 8980, police officers should consider the circumstances in which
the offence took place and whether or not it was a minor offence. With regard to determining
minor offences, the General Order states:
The Young Offenders Act 1993 does not specify which offences are to be considered as minor
offences. Ordinarily diversion should only be seen as appropriate when dealing with summary
and minor indictable offences as defined under Sections 5(2) and 5(3) of the Summary
Procedures Act 1921.
Major indictable offences are generally not considered suitable to be dealt with as minor
offences and, unless mitigating circumstances exist, should be dealt with before the Youth
Court.
When you determine if an offence is a minor offence, assess each case on its merits,
considering the:
•
•
20
21
22
nature and gravity of the offence
circumstances under which the offence was committed, including the degree of involvement
or participation by the youth
Table provided by Community Programs Support Branch, SAPOL, 2004
SAPOL, General Order 8980
Office of Crime Statistics and Research, Crime and Justice in South Australia, 2002 Youth Justice Statistical Report,
Attorney-General’s Department, Series A No. 39 (2) November 2003, p. 2.
26
•
•
•
•
•
•
attitude of the youth to the offence
personal circumstances of the youth (including character, age, mental or physical condition,
and cultural identity)
extent to which the victim (if any) has been inconvenienced, or has suffered emotionally,
psychologically, physically, or financially as a result of the offence.
victim’s view on the suggested methods of dealing with the matter
nature and extent of the youth’s previous offending (if any), including previous cautions and
Family Conference appearances
public interest.
Matters outside of this guideline must not be diverted in the first instance without prior
authorisation from the Community Programmes Section Manager or Youth Justice Coordinator.
When you suspect more than one youth of committing an offence, consider the minor offence
criteria and deal with each youth according to their involvement. It may be appropriate to
discriminate between youths and deal with them by different methods.
If you believe that, due to:
•
•
The circumstances of the offence
The level of involvement of the youth or; the personal situation of the youth
A matter outside of these guidelines should be dealt with by diversion from court, liaise with your
Community Programmes Section Manger for a direction before dealing with the matter.
Before a Community Programmes Manager authorizes the diversion of any offence which is:
•
•
•
A major indictable offence
A complex or contentious matter or;
Involves a large number of offences (irrespective of the nature of individual counts)
This course of action must be authorized by the Youth Justice Coordinator, Community
Programmes Support Branch to ensure the proposed method of disposition adheres to current
guidelines and policy.
Major indictable offences before the Youth Court can be considered for diversion. These
matters, however, will not be diverted without the prior approval of the Officer in Charge,
Adelaide Criminal Justice Section.23
The General Order then states the circumstances in which an informal caution will not be
issued. These circumstances are:
•
•
•
•
•
•
when the matter is an Indictable Offence
to secure an outcome or finalise an inquiry in circumstances where there is insufficient
evidence to proceed to more formal processes
when there is evidence that the offence was premeditated
when there is evidence of aggravation
when there is any possibility that damages or compensation may be sought by any party as
a result of the offending or;
you require the youth to enter into an undertaking to prevent re-offending.
You may only informally caution a youth where:
•
•
23
the offence is admitted by the youth
there is no specific victim of the offence or person who suffered any indirect injury or loss as
a consequence of that offending or;
SAPOL, General Order 8980, op cit., p. 7-8
27
•
the offence is non-aggravated dishonesty offence where the total value of property involved
is $50 or less and is recovered.
Minor offences falling outside of these criteria should be dealt with by the more formal
diversionary processes.24
Although the General Order makes reference to informally cautioning young people in the
presence of their parents or guardians, it advises that police officers need to ‘[m]ake sure the
youth and any parents or guardians understand that any discipline of the youth by the
parents or guardians, is not regarded as a part of the caution process.’ Police officers do not
have to contact parents or guardians when issuing an informal caution. 25
2.1.2
Formal Cautions
Section 7 of the YOA outlines the general powers given to police officers regarding Formal
Caution proceedings. A Formal Caution is issued by a cautioning Police Officer or a Youth
and Community Officer to a young person who has committed an offence and where the
police have determined the offence to be more serious than one warranting an informal
caution. The young person has to admit to committing the offence. A Formal Caution should
(where possible) be given to a young person in the presence of their parent or guardian. If it
is not possible give a Formal Caution in the presence of a parent or guardian, a form
(PD366, Advice to Parent/Guardian of Formal Police Caution) is posted or delivered to the
parent or guardian.26 A Formal Caution may involve an undertaking of community service, an
apology and/or compensation. The undertaking determined is based on the nature of the
offence and the needs of the victim. Refusal to do the assigned undertaking may mean the
case is forwarded to a family conference. Police and the Office of Crime Statistics and
Research keep records of Formal Cautions.27
Section 5.3 of SAPOL General Order 8980 states the following with regard to Formal
Cautions:
Formal Cautions may be administered to resolve a youth’s offending behaviour where the
offence is more than trivial but can still adequately be dealt with by meeting with the youth and
the youth’s guardians, and:
•
•
•
the youth has limited or no previous offending history
there is no victim and the offence is behavioural in nature and;
there is a victim and loss or damage to them or their property does not exceed $5000
…Formal Cautions should be administered on the same day as the behaviour is detected and
within 14 days.28
Regarding the delivery of Formal Cautions, the General Order states that:
When you are dealing with an Aboriginal youth or a youth from a non-English speaking
background, consider the benefits of inviting acceptable people from the youth’s community to
assist and contribute. To prevent any embarrassment within the youth’s community, check with
the youth’s guardians before any arrangements are made.29
24
25
26
27
28
29
ibid., p. 9-10
ibid., p. 10
ibid., p. 11
ibid., p. 10
ibid.
ibid., p. 11
28
This approach is consistent with other sections of the General Order which state:
To be of benefit to the youth, any ‘other appropriate undertaking’ must be relevant to the youth’s
circumstances and the offending behaviour, and should be imposed only to assist in achieving
the outcomes of the Act.30
2.2
Family Conference
The YOA (Part 2, Division 3) provides for the Family Conference process and the
appointment of Youth Justice Coordinators. For those offences considered too serious for an
informal/formal caution, a young person may be directed to attend a family conference. The
young person has to admit to the commission of the offence(s). If the charge is denied then
the matter is referred to the Youth Court.
The Family Conference Team is situated in the Courts Administration Authority within the
Justice Portfolio. A Youth Justice Coordinator convenes a Family Conference which may
include key people affected by an offence: offender, victim (or victim’s advocate), police
personnel and people providing support to either the offender or to the victim. The Youth
Justice Coordinator facilitates the conference, allowing all parties to discuss the offence and
the harm caused. An outcome of the conference is decided by consensus and it may include
a range of different undertakings. If an agreement cannot be reached, the matter may be
referred to the Youth Court. If the agreed undertaking is not fulfilled the case may also be
referred to the Youth Court.31
Section 5.5 of SAPOL General Order 8980 states the following with regard to Family
Conferences:
A matter may be referred to a Youth Justice Coordinator for a Family Conference when the
offence is aggravated, but not to such an extent that a prosecution is warranted.
Without limiting the range of offences that may be referred for a Family Conference, referral may
occur for any offence:
•
•
•
where the youth has previously been given formal police cautions for the same or a similar
offence
when you consider it desirable for a victim to participate in a Family Conference outcome
or series of offences which result in loss of or damage to property, the value of which is in
excess of $5000 but less than $30000.
The fact that a youth has previously been charged before the Youth Court should not, in itself,
determine that a referral for a Family Conference is no longer appropriate. You should
objectively assess all factors before deciding, taking particular note of the type of offence
committed on that occasion and those committed previously.32
30
31
32
ibid., p. 12
ibid., p. 3, see also the Family Conference Submission 23, p. 6
ibid., p. 13
29
Figure 9:
Family Conference Process Flowchart
File is received from SAPOL or the
Youth Court
File created and allocated to a Youth
Justice Coordinator
Family Conference is arranged.
Case Management by Youth Justice
Coordinator
Is youth located?
NO
YES
Pre-conference work (contact with
parties, venue, etc)
Invitations generated and sent
Family Conference
Does the youth appear?
NO
YES
Does the youth admit the offence?
NO
Case adjourned for legal advice
NO
File referred to the Youth Court. Youth
Justice Coordinator attends hearing
YES
Is an undertaking agreed?
YES
Follow up
Post Conference File Management
Did the Youth comply with the
undertaking?
NO
YES
FILE CLOSED
File or information regarding
compliance referred back to SAPOL
30
2.3
Youth Court
The composition and function of the Youth Court is determined by the Youth Court Act 1993.
The Youth Court is presided over by a Judge of the District Court. If the charges are proved,
the Court may convict a young offender for a period of detention of up to 3 years in a secure
care facility. The provision of Home Detention is provided for by Part 5, Division 2A of the
YOA. A number of other orders may also be given by the Court, such as a Community
Service Order. Responsibility for the supervision of these orders is held by Children, Youth
and Family Services (CYFS).33
Section 5.6 of SAPOL General Order 8980 states the following with regard to the Youth
Court:
Matters are forwarded for prosecution before the youth court where:
•
•
•
•
the aggravated circumstances of the offence or the repeated offending by the youth are
such that it cannot be adequately dealt with by a Formal Caution of Family Conference
a minor offence is not admitted
the facts surrounding the offence are not admitted
the youth elects to have the matter heard and determined by the Youth Court.34
Young offenders may be referred to a higher court depending on the seriousness of the
offence or the pattern of repeated behaviour. The Supreme Court deals with all charges of
homicide regardless of the age of the offender.
Part 1, s3(2a)(a) and (b) of the YOA provides for the interpretation of ‘deterrence’ when
sentencing. The Youth Court operates under the principle of ‘specific deterrence’ (where an
order or sentence is specifically directed at an individual to deter them from re-offending).
Because the Youth Court is a closed court, a general deterrence (messages the court may
seek to give to the community, through the sentencing process, to deter other members of
the community from committing similar offences) is not given. General deterrence applies if
the youth is being dealt with as an adult.
2.4
Children, Youth and Family Services
Historically, Children, Youth and Family Services (CYFS) was the Department of Community
Welfare from 1978 to 1987, and the Department of Family and Community Services from
1987 to 1997. From 1997 to 2004 it has been within the Department of Human Services
(DHS) and from since July 2004 CYFS was positioned within the Department for Families
and Communities.
CYFS has the statutory responsibility to provide a range of Youth Justice services in SA.
CYFS’ service delivery responsibilities include:
•
Sentence Management:
This involves the management of youth justice sentences ordered by the court. Sentence
management involves allocation, assessment and sentence planning, implementation and
review, and discharge planning. It involves elements of supervision and intervention.
Orders include:
- Secure detention
- Home detention
- Conditional release
33
34
Office of Crime Statistics and Research, loc cit., p. 2.
SAPOL, General Order 8980, p. 14
31
•
Suspended detention
Supervised obligation
Community Service Order
Fines/community service order
Remand Management:
The management of young people on custody remand and community bail. Remand
Management aims to ensure the young persons’ return to court and compliance with
conditions of the order. It involves elements of supervision.
Orders include:
- Custodial remand
- Home detention bail
- Conditional bail
•
Programmes:
Programmes and activities form part of a case management response aimed at impacting
on offending, the building of skills and the development of the young person’s capacity to
integrate into the community. The types of programmes currently provided include:
- A limited range of cognitive behaviour, skill based programmes to reduce offending
- Delivery and/or linkage to specific focused programmes such as victim awareness,
substance abuse intervention etc
- Linkage to general interventions to aid community reintegration (education,
accommodation, health services, leisure activities etc).
•
Other System responses:
- Pre-court and court advocacy functions, including court reports
- Post release transition and support services
- Work with families and communities.35
CYFS also has a mandated responsibility to administer parts of the following legislation:
•
•
•
Family and Community Services Act 1972
Criminal Law (Sentencing Act) 1988
Bail Act 1985
District Centres are direct service providers who provide a range of Youth Justice services
and other allied services. CYFS has 19 District Centres located throughout the State in the
following locations: Adelaide, Woodville, Aberfoyle Park, Noarlunga, Marion, Enfield,
Elizabeth, Modbury, Salisbury, Gawler, Murray Bridge, South East, Coober Pedy, Pt
Augusta, Whyalla, Riverland, Pt Pirie, Ceduna and Port Lincoln.36 Additionally CYFS provide
social welfare services including poverty prevention and intervention services, family and
child support and alternative care responses.
2.4.1
Secure Care
There are two youth secure care facilities in South Australia, both of which are managed by
CYFS. Magill Training Centre opened in 1967 and is the admission centre for all young
people in South Australia. It has a 60 bed capacity. The Centre is made up of 1 unit for
young women aged 10-18 years, on remand and detention; 1 unit for young males aged 1014 years, on remand and detention; and 2 units for young males aged 15-18 years on
remand only.
35
36
CYFS, Submission 42, pp. 9-10
ibid., p. 10, appendix 2
32
The Cavan Training Centre opened in 1993 and has a 36 bed capacity and consists of 3
residential units for young men 15-18 years who are on detention or on longer periods of
remand which is likely to culminate in detention.37
2.4.2
Home Detention
Part 5, Division 2A of the YOA provides for the home detention of young people. Home
Detention is a programme whereby young people can be detained at home and attend a
selection of specific locations, eg doctors appointments, school while being electronically and
physically monitored. It is offered as an alternative to custodial detention in the interests of
family preservation (where appropriate), continued community engagement and the
maintenance of familial support and cultural and religious practices. Home Detention is also
provided to enable continuity in education and employment participation or the ability to
reengage with these activities. The programme restricts the liberty of the young person,
seeks to ensure community safety and aims to address offending behaviour through
intensive supervision.
A Home Detention Order (HDO) may be utilised for bail, detention or blended sentences
where a HDO may be instituted post a Detention Order. A HDO can be made up to a
maximum duration of six months. A HDO can be made consecutive to a Detention Order. If a
HDO is being used for the purposes of bail there is no minimum or maximum period.
The Home Detention Programme is currently managed by CYFS. CYFS provided information
to the Select Committee detailing the provision of Home Detention and the administration of
the Programme including its staffing allocation of 4 FTE home detention youth workers (of
the 4, 1 FTE has been assigned from another programme to assist service demand).38
Each Home Detention Officer has a caseload of five, which reflects the intensiveness of the
management regime. Their duties include working with the young person and their carer
around day to day management issues, addressing offending issues including the provision
of counselling and linkages to community based programmes and activities, and liaison with
other agencies. Home Detention Officers attend Court, conduct assessments and write all
relevant Court Reports.39
2.5
Child and Youth Health
Child and Youth Health (CYH) have provided health and counselling services to children and
young people in secure care since 1998. The Second Story Health service (TSS) is the youth
division of CYH and it provides assessment and health care to young people in secure care
and in the community. TSS also provides counselling services to youth who may present to
their service as a result of a family conference obligation. However, there is no formal
agreement between the Courts Administration Authority (Family Conference Team) and TSS.
2.6
Child and Adolescent Mental Health Services
Child and Adolescent Mental Health Services (CAMHS) is administered between two
Regional Hospital Divisions. The Women’s and Children’s Hospital Division of Mental Health
has responsibility for the provision of mental health services to children and adolescents in
the Northern geographical region of South Australia (including Northern Metropolitan and
Country Services). The Flinders Medical Centre has responsibility for the Southern
geographical region of South Australia (including the Southern Metropolitan and Country
Services). Each region has community services situated in a range of areas and community
settings.
37
38
39
Information taken from Comparative Information on Secure Care Facilities, CYFS, emailed communication, 24 May 2004
Minister for Families and Communities, Home Detention Submission 40
ibid.
33
The Women’s and Children’s Hospital Division of Mental Health has responsibility for the
provision of mental health services for children and young people in secure care.40 South
Australia does not have a secure therapeutic mental health facility for young offenders who
are mentally unwell.
2.7
Care and Protection Unit
The Care and Protection Unit (CPU) is located in the Courts Administration Authority within
the Justice Portfolio. Part 5, Division 1, Section 28 of the Child Protection Act 1993 provides
for family care meetings which are organised and facilitated by the CPU. The purpose of the
family care meeting is to provide an opportunity to make arrangements for the care and
protection of a child due to child protection issues, and the review of those arrangements.
The CPU receives referrals primarily from CYFS and less often from the Youth Court where
there is an opinion that a child is ‘at risk’ and arrangements need to be made to ensure the
care and protection of the child. This may include making decisions about where and with
whom the child is to live, the identification of support services for the child, any actions that
parents or carers may be instructed to undertake. Additionally the CPU identifies any
undertakings to be made by CYFS, the length of time the arrangements are to be in place, or
if a Care and Protection Order is to be sought, and a review framework.41
Family Care Meetings take place prior to a Care and Protection Order being sought. Having
been referred to the CPU, Care and Protection Coordinators arrange and prepare
participants for the meeting, including the provision of a child advocate and a cultural advisor
(where required). The CPU submission to the Select Committee explained that ‘[m]eetings
usually include an information sharing phase, private time for family deliberations without
professionals present, and finally negotiations about the suitability of any plans put forward
by the family for the future care of the child.’42
Although not a formal part of the Youth Justice System, the CPU sits in a particular position
to provide comment on the relationship between care and protection issues, CYFS and the
relationship to youth offending. The Select Committee acknowledged that a significant
number of children and young people in the Youth Justice System have been the subject of
child protection notifications and/or family care meetings and Care and Protection Orders.
The Select Committee acknowledged the valuable insights CPU had about the Youth Justice
System especially with regard to the nexus between child protection and youth offending.
2.8
Department of Education and Children’s Services
Although not a formal part of the Youth Justice System, the Select Committee wished to
acknowledge the important role that the Department of Education and Children’s Services
plays with regard to the education and development of young people in South Australia.
Please refer to the Education Section for a full discussion on the role of DECS and their
relationship to the Youth Justice System.
2.9
Where the Youth Justice System is Situated
Several Government departments are responsible for the delivery of various parts of the
Youth Justice System. Some parts of the system are situated in the Justice Portfolio: Police,
the Youth Court and the Family Conference Team. CYFS, which is responsible for sentence
management, including secure care facilities, Community Service Orders and Home
40
41
42
See the Division of Mental Health, Women’s and Children’s Hospital Hansard 1403-1412
Care and Protection Unit Submission 33, p. 3
ibid.
34
Detention, is located in the Department for Families and Communities. Child and Youth
Health, who are responsible for the provision of health services for youth in secure care and
for the provision of support services to ‘at risk’ children and young people in the community,
is located in the Department of Health. Child and Adolescent Mental Health Services which
provides mental health services to young people in secure care and youth in the wider
community is also located in the Department of Health. The Intra-Governmental Youth
Justice Advisory Committee (IGYJAG) acts as the coordinating body of the Youth Justice
System.
35
Figure 10:
The Justice Processes of the South Australian Youth Justice System as Outlined in the YOA, 1993
Offending
Behaviour
Non Minor
Offence
Minor
Offences
Notification of
Legal Rights
Discussion/
Notification
No Admission
Admission
Investigating
Officer
Informal
Caution
Youth/
Caution
Formal
Caution
Youth Justice
Court
(Disclosure)
Guilty Plea
Not Guilty
Plea
Discussion/
Notification
Family
Conference
Sanctions
No further
Action
Trial
Acquitted
Completed
Not
Completed
Penalty
Family
Conference
Formal
Caution
36
3
TERM OF REFERENCE A
To examine the Juvenile Justice System and, in particular –
I.
The Youth Court and the Youth Court Act 1993;
II. The Young Offenders Act 1993;
III. The Education Act 1972 as amended and, in particular, as it relates to
truancy;
IV. Any other relevant Acts
3.1
Early Intervention
The Select Committee wished to emphasis the need to minimise young people’s
engagement with the Youth Justice System and for intervention to be targeted as early as
possible to aid this end. The Committee noted that the 1996 review conducted by Joy
Wundersitz on behalf of the South Australian Youth Justice Advisory Committee, found that
the anticipated ratio of 60:30:10 between cautions, conferencing and court orders had not
eventuated.43 The Select Committee has not developed a ratio of cautioning, conferencing
and court orders that the Youth Justice System should now use as a bench mark. Instead it
feels that the principles of minimal involvement of young people and early intervention should
govern the structure of the Youth Justice System. It believes that all parts of the system
should aspire to these principles. The Select Committee acknowledges that there needs to
be a balance of resources in all parts of the Youth Justice System including that which is
delivered by Statutory Welfare and Justice Services.
3.2
Legislative Amendments
A significant level of confidence was expressed in the current legislative framework for the
South Australian Youth Justice System. The Youth Court submitted that the ‘model
established under the Youth Court Act 1993 and the YOA works satisfactorily. The judicial
officers of the Court consider that the Objects of the YOA are appropriate and that they
support the essentially rehabilitative model that the objects establish’.44 The Legal Services
Commission concurred with this view noting that ‘[t]he current legislative framework provides
sufficient flexibility to achieve the Objects of the Act’.45 CYFS also submitted that the YOA
‘continues to provide a sound policy context for administration of the System’.46 There were
however, a number of issues identified that warranted consideration by the Select
Committee. A number of issues relating to the legislation relevant to the Youth Justice
System are discussed in this chapter of the report.
3.3
Objects of the Young Offenders Act 1993
The Select Committee heard much evidence in support of the inclusion of Restorative Justice
Principles in the Objects of the YOA. The ‘Objects and Statutory Policies’ of the YOA are
provided for in Part 1, Section 3. They are:
3. (1)
(2)
43
44
45
46
The object of this Act is to secure for youths who offend against the criminal law the
care, correction and guidance necessary for their development into responsible and
useful members of the community and the proper realisation of their potential.
The powers conferred by this Act are to be directed towards that object with proper
regard to the following statutory policies:
Joy Wundersitz, The South Australian Youth Justice System: A Review of its Operation, A Report Prepared for the South
Australian Youth Justice Advisory Committee, June 1996
Youth Court Submission 14, p. 1
Legal Services Commission Submission 15, p. 3
CYFS Submission 42, p. 2
37
(a)
(c)
a youth should be made aware of his or her obligations under the law and of
the consequences of breach of the law;
the community, and individual members of it, must be adequately protected
against violent or wrongful acts.
(2a) In imposing sanctions of a youth for illegal conduct –
(a) regard should be had to the deterrent effect any proposed sanction may have
on the youth; and
(b) if the sanctions are imposed by a court on a youth who is being dealt with as
an adult, regard should also be had to the deterrent effect any proposed
sanction may have on other youths.
(3)
Effect is to be given to the following statutory policies so far as the circumstances of
the individual case allow:
(a) compensation and restitution should be provided, where appropriate, for
victims of offences committed by youths;
(b) family relationships between a youth, the youth’s parents and other members
of the youth’s family should be reserved and strengthened;
(c) a youth should not be withdrawn unnecessarily from the youth’s family
environment;
(d) there should be no unnecessary interruption of a youth’s education or
employment;
(e) a youth’s sense of racial, ethnic or cultural identity should not be impaired.
Ms Carolyn Doherty, Senior Youth Justice Coordinator with the Family Conference Team,
pointed out to the Select Committee that:
one of the dilemmas has been the tension that sometimes exists between the aims of diversion
from a Youth Court and the notions of reconciliation between victim and offenders. The SA
legislation arguably does not clearly articulate where the priority should lie, particularly where
these issues are in competition.47
Clearly articulating the principle of restorative justice within the legislation would, according to
the Family Conference Team, resolve this. Ms Doherty cited the recently amended
Queensland Youth Justice legislation (2002) which, while it does not specifically make
reference to the term ‘restorative justice’, does give due regard to the notion of restorative
justice principles when deciding the suitability for referral to a family conference.48
The New Zealand Sentencing Act 2002 was also cited by Ms Doherty as an example of
incorporating restorative justice principles into legislation. The Family Conference submission
states that the New Zealand Sentencing Act ‘contains clear restorative provisions, which
oblige sentencing judges to take into account restorative processes. The Court ‘must’, not
‘may’, take into account restorative processes or proposals.’49
The Youth Affairs Council of South Australia (YACSA) undertook a consultation process with
their membership and found that although there was widespread support for the YOA,
agencies wanted restorative justice principles reflected in the objects of the YOA.50 The
Family Conference Team recommended that restorative justice principles be included in the
Objects and Statutory policies in the YOA.51
47
48
49
50
51
Carolyn Doherty Hansard, Family Conference Team, 437
Carolyn Doherty Hansard, Family Conference Team, 414
Family Conference Team Submission 23, p. 34
YACSA Hansard, 519
Family Conference Team Submission 23, p. 19, Carolyn Doherty, Family Conference Team, Hansard, 437, 439
38
The Select Committee acknowledged that there was difficulty in including the term
‘restorative justice’ into the YOA because there were conflicting views as to its definition. The
Committee considered the definitions provided by the researchers Kathleen Daly and
Hennessey Haynes in a paper released in 2001 who argue that there is disagreement among
researchers and practitioners about the definition of restorative justice. These researchers
noted the following definitions for restorative justice:
•
•
•
those with a stake in a crime (or dispute) come together to discuss it with the aim of
repairing the harm.
any action that repairs the harm caused by crime.
restorative justice places greater emphasis on the role and experience of the victim and
gives lay and legal actors decision-making authority and permits more of a free play of
discussion between all parties than traditional legal/court processes52.
Additionally, legal agencies such as the Legal Services Commission stated that the current
legislative framework enabled the Objects of the Act to be achieved.53 The Youth Court
submitted that the ‘Objects of the Young Offenders Act are appropriate and they support the
essentially rehabilitative model that the Objects establish.54 Neither agency cited the need to
include restorative justice principles into the Objects of the Act.
The Select Committee reviewed the ‘object and statutory policies’ section of the YOA in the
light of the Family Conference Team and YACSA’s submissions. As part of this analysis the
Committee also referred to Youth Justice legislation in other Australian jurisdictions to
consider how the principles or objects that guide interstate Youth Justice legislation were
articulated. The Select Committee felt that Part 2, Division 3 of the YOA adequately provided
for the operation of a Family Conference process and that there would appear no need to
specifically refer to restorative justice principles or processes in the ‘objects’ of the YOA.
However, the Select Committee did acknowledge the issue raised by the Family Conference
Team regarding the provision of information provided to victims about the referral to a family
conference. Ms Carolyn Doherty explained to the Committee that ‘current practice in relation
to informing victims about a referral [to] a family conference is addressed in the legislation
under Section 8 (9) (a) (b). It needs to be noted however that SAPOL repeatedly are unable
to inform victims about the referral to a Family Conference. Most often a victim learns about
the status of the file from contact with a Youth Justice Coordinator’.55
Section 8 is as follows:
(9)
If a police officer deals with an offence under this Division, the officer must –
(a) ask the victim of the offence whether he or she wishes to be informed of the identity
of the offender and how the offence has been dealt with; and
(b) if the victim indicates that he or she does wish to have that information – give the
victim that information.
The Select Committee considered the suggestion that victims were not adequately kept
informed about the way their case was being proceeded with as to be a significant issue. The
Select Committee also noted that the ability to allow victims of crime to participate (to the
extent possible) in their case was an important part of the value of a restorative process. The
Select Committee noted specific reference is made in the objects or principles sections of
legislation in other jurisdictions to the rights of victims of youth crimes to be kept informed of
information related to their case wherever possible.56 The Select Committee did
52
53
54
55
56
Daly, K., and Haynes, H., (2001) Restorative Justice and Conferencing in Australia, Australian Institute of Criminology:
Trends and Issues, No. 186, p. 2
Legal Services Commission Submission 15, p. 3
Youth Court Submission 14, p. 1
Carolyn Doherty, Family Conference Team, written correspondence, dated 7 February 2005.
See NSW, Young Offenders Act 1997, Principles 7 (g) (b); Queensland, Youth Justice Act 1992, Schedule 1 (9); Western
Australia, Young Offenders Act 1994, 7 (e); and Tasmania Youth Justice Act 1997, 5 (d)
39
acknowledge that there may be circumstances whereby it may be deemed unacceptable to
have a victim participate in a Family Conference, for example, where a young offender may
be in ongoing conflict with the victim such as in a family dispute. While the Select Committee
believe that emphasis should always be placed on the rights of victims to participate in a
Family Conference; participation need not necessarily involve contact between victim and
offender. The Committee acknowledged that if the Family Conference was assessed as not
being of benefit to the achieving restorative aims, for whatever reason, the Family
Conference had the power to stop the conference and refer the matter back to the Police.
3.4
Court Facilities and Resources
The Youth Court identified limitations in cell design and a lack of sheriff resources resulting in
difficulties in keeping young people and children separate from the adult offender population
in both metropolitan and country courts (although this was not an identified problem in the
Adelaide Youth Court because it is a separate facility).57 The Court submitted that ‘although
all court officers understand the principle that children should be kept separate from adults
this is unfortunately often given only lip service.’ The Youth Court has argued that it is
because the YOA is not explicit enough with regard to the separation of youth from the adult
population and that it needs to be amended to reflect this.58
The Select Committee felt this issue was a significant one and that Part 1, Section 3 ’Objects
and Statutory Policies’ of the YOA should be amended to reflect the principle of separating
youth from the adult population. The Select Committee also felt that a greater emphasis
should be placed on the intention of the YOA to address, reduce and prevent offending
behaviours.
The Select Committee also acknowledged that detention and the loss of liberty should only
occur as a last resort and that this principle should be reflected in the Part 1, Section 3 of the
YOA. The Select Committee acknowledged Ms Pam Simmons’, Guardian for Children and
Young People, comments regarding the need to reflect the notion of detention as a last
resort in the YOA Objects.59 This, in turn, would be consistent with Rules 19 (least possible
use of institutionalisation) and 19.1 (the placement of a youth in an institution shall always be
a disposition of last resort and for the minimum necessary period) of the United Nations
Standard Minimum Rules for the Administration of Youth Justice (The Beijing Rules).60
In view of the evidence heard, the Committee made the following recommendation:
Recommendation 1
That the current objects of the Young Offenders Act 1993 be retained, but that Part 1, Section
3 of the Act, (Objects and Statutory Policies) be amended by inserting the following statutory
policies into the Act at Section 3(2)(b):
(a) That the victim of the offence is to be given the opportunity to participate in the
process of dealing with the youth as allowed by the Act.
(b) That children and young people are to be kept separate from the adult offender
population.
(c) The intention of the Young Offenders Act 1993 is to address, reduce and prevent
youth offending behaviours.
(d) That youth detention is only to be utilised as a last resort.
57
58
59
60
Snr Judge Moss Hansard, 319
Youth Court, Submission 14, p. 2
Ms Pam Simmons, Guardian for Children and Young People, Hansard 1528
See the United Nations Standard Minimum Rules for the Administration of Youth Justice (the Beijing Rules),
http://www.unhchr.ch/html/menu3/b/h_comp48.htm accessed on 16 October 2004
40
3.5
‘Minor Offence’ Definition
Part 1, Section 4 of the YOA provides an interpretation of ‘minor offence’ as follows:
‘minor offence’ means an offence to which this Act applies that should, in the opinion of the police
officer in charge of the investigation of the offence, be dealt with as a minor offence because of (a)
(b)
(c)
(d)
the limited extent of the harm caused through the commission of the offence; and
the character and antecedents of the alleged offender; and
the improbability of the youth re-offending; and
where relevant – the attitude of the youth’s parents or guardians.
The Family Conference Team and SAPOL argued that the term ‘minor offence’ was
problematic as there were serious offences such as arson and sexual assault being referred
to a Family Conference as this had been determined to be the most suitable and productive
way to respond to the individual offence and offender.
The Select Committee took evidence from various agencies in the Youth Justice System who
gave support to the Family Conference process. Select Committee Members visited family
conferences at the invitation of the Family Conference Team and members were impressed
with how the conferences were conducted. They also consulted a wide body of research into
Family Conferencing in Australia and New Zealand and were again reassured that Family
Conferencing continued to be an acceptable and productive legal response to some
offences/offenders. Ms Carolyn Doherty, Senior Youth Justice Coordinator, Family
Conference Team, expressed great confidence in family conferences’ ability to deal with
serious cases. She stated: ‘[w]e get referrals from the Youth Court and from SAPOL and,
since inception, serious offences have been referred to the team with positive results. This is
consistent with research around the world and it confirms that conferencing has the capacity
to deal with serious offences.’61
The Mary Street Adolescent Programme gave evidence in support of serious sexual assault
coming to family conference. Mary Street provide therapeutic and counselling services to
young sexual offenders. Mr Rob Hall, a counsellor with the programme spoke positively
about working with the Family Conference Team on particular cases.
We have found that by working closely with the family conferencing team, the police and our
programme that our therapeutic goals are enhanced by the whole process. I guess part of that is
that, first, if a young person is aware that a matter can go to family conference there is an
encouragement to take responsibility, to actually acknowledge what they have done.
We have found that, when matter go to the Youth Court, what tends to happen is that parents
panic (which is understandable), and employ a lawyer, who usually takes the stance, ‘Don’t
acknowledge anything. It’s up to the police to prove that you’re guilty.’ So, the young person
then has a sort of shutdown at home and in terms of the Youth Justice System. We have found
that, if young people come to us even initially, and we know that they are facing decisions about
whether or not they tell the truth about what they have done, we can set a whole context where
the acknowledgment of what they have done will help them in the court process.62
Mr Michael Dawson, CEO of the Victim Support Service also gave evidence to the Select
Committee expressing a commitment to restorative justice principles and their practice.
The Select Committee acknowledged that the Act allowed for ‘minor offences’ to be diverted
to Family Conference, however, there were other cases which may not be ‘minor’ that may
benefit from undertaking family conferencing. To allow for a greater degree of flexibility with
regard to the individual assessment of an offence and its suitability for a family conference,
61
62
Carolyn Doherty, Hansard 437
Rob Hall, Mary Street Adolescent Programme, Hansard 1107
41
the Select committee decided to recommend amending the YOA to provide for ‘divertible
offences’ being referred to family conference instead of ‘minor offences’.
Recommendation 2
That the term ‘minor offence’ be amended to ‘divertible offence’ in the Young Offenders Act
1993.
That Section 4(a) of the Young Offenders Act 1993 be amended by the removal of the word
‘limited’, so as to read, ‘the extent of harm caused through the commission of the offence’.
3.6
Written Apologies
Section 12 (1) (d) of the YOA states that:
The conference may require the youth to enter into an undertaking to apologise to the victim of
the offence or to do anything else that may be appropriate in the circumstance of the case.
Section 12 (7) states:
If a youth enters into an undertaking under this section to apologise to the victim of the offence,
the apology must be made in the presence of an adult person approved by the family
conference or a Youth Justice Coordinator.
Regarding the status of a written apology in a family conference or formal caution, the Family
Conference Team pointed out to the Select Committee that in Police V BJW([2002]Mr G
Clark SM), the Youth Court found that written apologies were not allowed for in the
legislation. The Family Conference Team pointed out that some victims do not wish to be
present at a conference but do wish to receive a written apology as an outcome. The Family
Conference Team have recorded these written apologies as ‘letters of regret’. They
therefore, requested that the legislation be amended to allow for written apologies to be
made, and ‘that the reference to adult supervision be clarified to apply only to cases where a
personal verbal apology is deemed suitable’.63
Recommendation 3
That Section 12(1)(d) and 12(7) of the Young Offenders Act 1993 be amended to allow for
either written or verbal apologies.
3.7
Formal Caution and Family Conference Sentencing
The Family Conference Team submitted to the Select Committee that Section 8(4)(a) and
12(2) of the YOA states that police officers and family conferences should have regard for
‘sentences imposed for comparable offences by the Court’. This is so that the obligations
imposed by either the Police or family conferences will be as consistent as possible and
proportionate to the nature and/or frequency of the offence. Yet there does not exist a
mechanism to do this. The Select Committee appreciated that a monitoring system/database
should be established to allow police officers to fulfil section 8(4)(a) and Family Conferences
to fulfil section 12(2) of the YOA.
63
ibid., p. 31
42
Recommendation 4
That a monitoring system/database be established to allow Police Officers and Family
Conferences to fulfil Section 8(4)(a) and 12(2) of the Young Offenders Act 1993 respectively.
3.8
Victim Impact Meetings
The Family Conference Team explained that the Youth Court has referred matters to the
Family Conference Team to conduct ‘Victim Impact Meetings’ whereby restorative processes
such as meeting with a victim and discussing the impact of the offence on the victim, and
possibly apologising, are conducted. Mr Tony McCarthy, Youth Court Solicitor, Aboriginal
Legal Rights Movement (ALRM) explained that there was a benefit in expanding family
conferencing in that it brought the victim and the harm or effect of the offending behaviour
‘home’ to the offender. He said that ‘one of the big problems with motor vehicle theft [is that]
they do not see it as attached to a person; they just see it as a way of getting around.’64
Victim Impact Meetings are currently conducted under the Criminal Law (Sentencing) Act
and the general powers of the Youth Court to gather information upon sentencing. These
meetings are not provided for in the YOA nor is the Family Conference Team resourced to
carry out this additional function. The Select Committee saw the importance of these
meetings in an effort to facilitate insight, understanding and accountability on behalf of the
young offender. To that end the Committee requested that Section 22 of the YOA be
amended to allow for the Family Conference Team to conduct Victim Impact Meetings as
part of a pre-sentence process.
Recommendation 5
That Section 22 of the Young Offenders Act 1993 be amended to provide for the Youth Court
to refer a matter to the Family Conference Team to conduct a Victim Impact Meeting prior to
sentencing.
3.9
Community Service Placement
Section 49A (b)(i) of the YOA stipulates that the minimum hours of community service work
allowable in a week is 4 hours. The Family Conference Team requested that this lower limit
restriction be removed as a Community Service Obligation should be set within the context of
the offence, the victim’s wishes and the level of usefulness deemed relevant to the offender.
The Select Committee agreed that the lower limit restriction should be removed.
Recommendation 6
That Section 49A(b)(i) of the Young Offenders Act 1993 be amended to remove the lower
limit restriction upon the number of community service hours that can be worked.
3.10
Appointment of Youth Justice Coordinators
Section 9 (2) of the YOA, states:
A person appointed as a Youth Justice Coordinator will be appointed for a term not exceeding
three years specified in the instrument of appointment and is, on the expiration of a term of
appointment, eligible for re-appointment.
The Select Committee felt there was a need to amend this section of the YOA to facilitate
permanent employment in these roles.
64
ibid., 918
43
Recommendation 7
That provision of Section 9(2) of the Young Offenders Act 1993 restricting the appointment of
Youth Justice Coordinators to three years be removed to facilitate permanent employment in
these roles.
3.11
Specific Deterrence and General Deterrence
The 1996 review of the Youth Justice System made reference to the ambiguity regarding the
term ‘deterrence’.65 Wundersitz noted that:
The wording used in s3 of the Young Offenders Act has been interpreted to mean specific
deterrence when, in fact, the Select Committee Inquiry into the Youth Justice System intended it
to be general deterrence. An amendment to that section has now been drafted which will ensure
that the District or Supreme Court, when sentencing a youth as an adult, must have regard to
general deterrence, while the Youth Court may do so where it considers it appropriate. Because
of the working of these amendments, general deterrence will not apply at the pre-court level to
either cautioning or conferencing.66
Section 3 (2a) (a) and (b) reads:
3
(2a) In imposing sanctions on a youth for illegal conduct –
(a) regard should be had to the deterrent effect any proposed sanction may have on
the youth; and
(b) if the sanctions are imposed by a court on a youth who is being dealt with as an
adult, regard should also be had to the deterrent effect any proposed sanction
may have on other youths.
The Select Committee considered whether a ‘specific deterrence’ should still apply within the
Youth Court. Although there were benefits in being able to advise the community of the
actions taken to address offending behaviour, these advantages were not outweighed by the
possible harm it may cause a young person. The operation of the principle of specific
deterrence did not therefore, enhance the wider communities’ appreciation of the
seriousness of which offending behaviour was dealt with by the courts. Nor did it provide
young people with an opportunity to develop a deeper understanding of how society did not
sanction their behaviour. However, the principle of general deterrence may act as a form of
public shaming which may in turn be counter-productive to deterring the individual youth.
CYFS advised that there is significant debate within the Youth Justice field both nationally
and internationally regarding the efficacy of either general or specific deterrence. In particular
there is significant debate about how much a young offender has insight into their offending
and whether they can fully appreciate the consequences of their offending.
Limited or impaired moral and cognitive development may mean that a policy of general
deterrence may have a limited impact on a young person’s decision to offend. CYFS
expressed the view that ‘the most likely outcome would be an increase in the severity of
penalties (and associated costs) with little reduction in criminal behaviour.67
The Select Committee were conscious of the importance of the South Australian public
maintaining confidence in the Youth Justice System and therefore, recommended that
65
66
67
Joy Wundersitz, The South Australian Youth Justice System: A Review of its Operation, A Report Prepared for the South
Australian Youth Justice Advisory Committee, June 1996, p. xxvi
ibid.
CYFS, email communication, July 2, 2004
44
without diminishing the importance of confidentiality for young offenders, appropriate details
of offences and their typical punishment be conveyed to the public at large.
Recommendation 8
That the current provision for ‘deterrence’ in Section 3(2a)(a) and (b) of the Young Offenders
Act 1993 be retained.
That the Courts Administration Authority produce an annual report detailing non-identifying
case studies that would provide a fair indication of the outcomes of cases which appear
before Family Conference or the Youth Court. Without diminishing the importance of
confidentiality for young offenders, appropriate details of offences and their typical
punishment be conveyed to the public at large.
3.12
Age of Criminal Responsibility and Doli in Capax
Section 5 of the YOA provides for the Age of Criminal Responsibility. Several agencies
expressed concern about the suggestion that reducing the age of criminal responsibility was
periodically raised in the community. Agencies such as CYFS argued that the current age of
criminal responsibility of ten years of age should be retained. Ten years of age was
consistent with the practice of other states in Australia and with current understandings of
child development.68 SAPOL supported the current criminal age of responsibility within the
YOA and the use of intervention programmes to address offending behaviours for those
under ten years of age.69 The Select Committee agreed that the age of criminal responsibility
should be retained at ten years of age.
The notion of ‘doli in capax’ refers to the presumption that a child from ten to thirteen years of
age is not capable of understanding his/her actions and therefore is not capable of
committing a crime. A court has to prove that the child was fully capable of understanding
their actions.
The Select Committee did not take evidence from any agency or individual who was critical
of the operation of this notion in the South Australian Youth Justice system. The notion of doli
in capax was abolished in the United Kingdom with the introduction of the Crime and
Disorder Act 1998. The Select Committee was unaware of any major criticism of the UK
system because of this change. However, the Select Committee did not feel that the notion
should be withdrawn from South Australian legislation in the absence of any major criticism.
Recommendation 9
That the age of criminal responsibility be retained at ten years. That the notion of doli in
capax be retained, however not withstanding the power of Police to refer a child under 10
years to Children Youth and Family Services.
3.13
Diversion from Court
In its submission, ALRM argued that the YOA should be ‘amended to clarify the power of
courts to divert charges before the court to diversionary options (i.e. cautions or family
conferences).’ The submission explained that traditionally the court has strictly interpreted
Section 17 (2) of the YOA which reads: ‘The Court may, even though a charge has been laid,
refer the subject matter of the charge (after the youth’s guilt has been established either by
admission or by the Court’s findings) to be dealt with by a police officer or by a family
68
69
CYFS Submission 42, p. 30
SAPOL Submission 25, p. 8
45
conference.’70 ALRM cite R V Police – No. SCC1V-02-1261 [2002] SASC 403 [20-12-02],
Gray, where the Supreme Court stated that courts have a broader power to divert matters
from court where it was in ‘the interests of young offenders and the community that the
advantages of the diversionary process…are given their full effect by the courts.’71 ALRM
asked that the Court be given greater diversionary power than police and suggested an
amendment to the YOA to further clarify the courts’ discretionary powers.72
ALRM highlighted that ‘the rate of Aboriginal young offenders who are diverted to cautioning
and family conferencing is substantially lower than for non-Aboriginal youths’.73 ALRM
implied that police were not diverting Indigenous offenders, and recommended that the
court’s ability to divert should be made clearer to the courts so that diversion could still take
place. This would circumvent the ‘gate keeping’ role of Police. However, the Family
Conference Team submission referred to the ARLM practice of advising ‘young people to not
admit to an offence until they have spoken with a lawyer’. This practice prevented Indigenous
youth being able to be diverted to a family conference because the youths had not admitted
to the offence and without this admission the police are unable to divert the matter.74 The
Select Committee noted that some young people may be advised to enter a plea of not guilty
on a first occasion, become ‘trapped in a defendant list’ and then enter a subsequent plea of
guilty some months later and then get access to a family conference several months after the
offence took place.
ALRM acknowledged it had a ‘resourcing problem’. ALRM advised the Committee that its
budget had remained at approximately $3.5 million since 1996 (without indexation) which
had resulted in staff cut backs. However, it appeared to the Committee that the practice of
field officers advising Aboriginal youths not to answer questions upon arrest, was adversely
effecting the ability of young people to be diverted to a family conference. Mr Paul Bennett,
Lawyer and Manager of the Criminal Section of ALRM acknowledged:
When Aboriginal youths are arrested they have a right to speak to a field officer… Historically, a
field officer will advise them not to answer questions and if that happens, as it almost always
does, that means that there is no information for the Youth Justice Police Officer to divert the
matter to a caution or a family conference. Therefore, they get sent to court, rather than diverted
before the matter gets to court.75
Mr Bennett explained that ALRM and SAPOL had conducted a pilot programme in 2004 in
the Elizabeth Local Service Area to enhance the ways in which ALRM and the Police worked
together to improve outcomes for Indigenous young people. He said: ‘a set of protocols
agreed between us [ALRM and SAPOL] that if the client wished to admit the offence, we
would advise them to do so and, in return, the police, upon arrest, would give us certain
information which we would then be able to put [to] the client and the family.’76
When Mr Bennett and ALRM representatives were recalled to give evidence, Mr Bennett
provided an update to the outcome of this pilot programme. He stated:
The end result is that there has been very little increase in the number of Aboriginal Youths in
the northern suburbs going to family conferencing since our change in approach in November
last year….The reasons behind that are more diverse.77
70
71
72
73
74
75
76
77
YOA, 1993, Section 17(2)
ALRM, Submission 20, p. 1
ibid.
ibid.
Family Conference Team Submission 23, p. 16
Mr Paul Bennett, ALRM, Hansard, 895
ibid.
ibid., Hansard, 1030
46
Mr Bennett referred to ALRM’s call for a change to Section 17 (2) of the YOA as indicated in
their submission and discussed previously. He stated that this legislative change was
required:
to make it absolutely clear that the judiciary has a wide discretion to send matters back to family
conferencing even when they have been taken before the court. The purpose of that is that, at
the moment, family conferencing tends to be limited at what I would term the front end of the
system; that is, young Youths who have not been in much trouble, who are often very young.
They have one or two family conferences and, after that, the view is often that they do not get
any more family conferences – no more diversion. Our view is that it is a very useful tool, even
when the person has been in considerable trouble and been to court [a] number of times. At
least one judicial officer in the Youth Court has used it as well as other penalties; in other words,
the person might be dealt with by way of an obligation and community service but also sent to
family conferences – sometimes called the victim impact conference in the court. So we
consider that they should be used much more broadly and not just as a tool or method to deal
with young offenders when at their first or second time of contact with the Police and the
System.
The Select Committee were acutely aware of the continued over-representation of Aboriginal
youths in the Youth Justice System. It noted the recently released study by the Australian
Institute of Criminology (AIC) regarding Youth Detention rates from 1994 to 2003. The data
collected by the AIC from each Youth Justice agency over the identified decade:
indicates there has been a general decline in the number of persons aged 10-17 in Youth
Detention over this period. At 30 June 1981, 1352 young people were detained in Youth
Detention facilities, whereas at 30 June 2003 only 640 Youths were recorded as detained…the
rate of Indigenous persons aged 10 to 17 in Youth detention has decreased [nationally] from
413.9 to 320.9 per 100,000 relevant population. However, the ration of over-representation has
remained relatively stable; with Indigenous persons aged 10 to 17 years still almost 20 times
more likely to be in detention than non-Indigenous persons of the same age group.78
Figure 11:
*
**
78
Australian Youth Detention Rates 1994 - 2003
Rate per 100,000 relevant population as at 30 June each year. Rates exclude Tasmanian
figures between 30 Sep 1996 and 31 Dec 2002 as data are unavailable.
The over-representation ratio is the Indigenous rate of detention divided by the nonIndigenous rate of detention For example in 2003, Indigenous youths were 19.9 times more
Australian Institute of Criminology, Crime Facts Info No. 87, 14 December 2004
47
likely than non-Indigenous Youths to be detained in a Youth justice centre
(320.9/16.1=19.9).
The census count is taken on the last day of March, June, September and December,
therefore reflects only the number of youths in each jurisdiction at that time and is not
necessarily representative of the actual daily average of youth detainees. 79
The Select Committee took evidence from representatives from several Indigenous and nonIndigenous organisations and individuals who highlighted the continued over-representation
of Indigenous youth in the Youth Justice System. While the causes of this are broad and
complex, the Select Committee did acknowledge that the Youth Justice System must attempt
to pro-actively address this over-representation. The Select Committee was particularly
disturbed by data produced by Joy Wundersitz and Grace Skryzypiec, Director and Senior
Research and Statistical Officer, Office of Crime Statistics and Research, South Australia.80
A recent study undertaken in South Australia (OCSAR, 2004), for example, assessed the extent
of contact with the Youth Justice System amongst a cohort of young people born in 1984 – the
first birth cohort who, for the duration of their youth years, was subject to South Australia’s
revamped Youth justice system, with its multi-tired structure of diversion and its attempt to
merge restorative justice principles with the more conventional approaches of rehabilitation and
retribution.
The Study found that, of the estimated 540 Aboriginal youths born in SA in 1984 and still
resident in that state in the 1990s, over four in ten (44.4%) experienced at least one contact with
the Youth Justice System between the ages of 10 and 17 inclusive, with contact defined as a
formal police apprehension. This level of contact was significantly higher than that recorded for
non-Aboriginal youths, only 15.9% of whom were apprehended at least once as a youth.
When gender is taken into account, the differences between the two groups become even more
stark. Of the Aboriginal cohort born in 1984, almost two thirds (63.1%) had at least one contact
with the system compared with less than one quarter (24.2%) of the non-Aboriginal male cohort.
Although the figures were generally lower for females, over one quarter (26.8%) of Aboriginal
females were apprehended at least once as Youths compared with only 7.4% of non-Aboriginal
females. In fact, the level of contact amongst Aboriginal females was actually higher than that
recorded for non-Aboriginal males.81
Wundersitz and Skryzpiec also indicate that Indigenous youth have come into contact with
the Youth Justice System at an earlier age than the non-Indigenous cohort.82 Significantly the
authors conclude that ‘despite South Australia’s introduction in 1994 of an extended range of
diversionary processes, the level of Indigenous involvement remains disproportionately high,
with first contact occurring at a much younger age than for their non-Indigenous
counterparts’.83 Additionally, another cohort study undertaken in 2004 by the Office of Crime
Statistics and Research found that Indigenous youth who had been apprehended as a youth
‘were more likely than their non-Aboriginal counterparts to go on to offend as adults.’84
Wundersitz and Skryzpiec pose the question: ‘Is the multi-tiered diversionary process
‘working’ for Indigenous youth?’ to which they answer NO. They reiterate the point made by
the Family Conference Team that Indigenous youth:
are more reluctant to admit guilt at the point of apprehension which, in most jurisdictions, is a
pre-requisite for referral to a caution on conference. In South Australia, the Aboriginal Legal
Rights Movement makes no secret of the fact that it encourages its young clients to avoid
79
80
81
82
83
84
ibid.
Joy Wundersitz and Grace Skrzypiec, ‘Youth Justice in Australia: Old Challenges in a New Millennium’, unpublished paper,
2004
ibid., p. 11-12
ibid, p. 12
ibid., p. 13
ibid.
48
admitting the allegations when initially questioned by police. However, it is also clear that once
young Aborigines do get to court, they generally admit the allegation anyway, often at a very
early age which, in turn, means that if they enter the system again (as many do), they have even
less chance of being diverted on these subsequent occasions.85
The Select Committee was mindful of the need to ensure due legal process and it
appreciated the complexity of issues related to Indigenous youth not gaining access to or
benefiting from diversionary processes. The Select Committee noted the analysis provided in
the National Crime Prevention publication ‘Early Intervention: Diversion and Youth
Conferencing: A National Profile and Review of Current Approaches to Diverting Youths from
the Criminal Justice System.’86 This text found that:
more consideration need[s] to be given to issues relating to the major forms of diversion in
Australia – that is, police cautioning and conferencing. Regarding police cautioning, the
fragmentary data…suggests that there is under-representation of Indigenous young people at
this earliest stage of diversion…The importance of action at the cautioning stage is, of course,
that this is the stage at which by far the most youths are diverted out of the system, and any
change here theoretically could have a very large ‘follow-on’ effect in terms of offenders who
would thereby not flow deeper into the System.87
The report does however, sound a caution regarding the ‘dangers of net-widening’. The
report states:
The Social Justice Report (2001) produced by the Aboriginal and Torres Strait Islander Social
Justice Commissioner reviewed findings that showed that for Indigenous youths there was a
significant increase in overall contact with the police, while the rate of arrest had been relatively
stable…The Commissioner concluded that:
This means that cautioning has occurred on top of, rather than instead of, arresting young
Aboriginal people. While some Aboriginal youths clearly are being given another chance by the
police, it is of concern that many Aboriginal youths who would have been arrested prior to the
introduction of cautioning are still being arrested, but, in addition, the cautioning system seems
to be netting them and some other, younger, less delinquent young people on other occasions
for trivial offences that may have been ignored – or just verbally warned – under the previous
regime….
There must be vigilance to ensure that well-intentioned forms of diversion whose explicit aim is
to divert young people from the Youth justice system do not have the opposite effect and result
in a net increase in the number of young people being brought under the control of the Criminal
Justice System.88
It is with this caution regarding net-widening and the attendant need for enhanced review,
evaluation and robust and consistent data collection (as discussed in this report at Term of
Reference E) that the Select Committee recommends the expansion of the family conference
process to provide for all matters (except serious or repeat offenders) which are not either
informally or formally cautioned to proceed to a family conference rather than being referred
to court. That the family conference process be made available to all young people who are
not in/formally cautioned. An admission of the offence would no longer be required to gain
access to a family conference; instead the accused would have to acknowledge involvement
in an offence (without prejudice). Thereby enabling a greater percentage of Indigenous
young people to access this diversionary legal process.
85
86
87
88
ibid., p. 14-15
National Crime Prevention, ‘Early Intervention: Diversion and Youth Conferencing: A National Profile and review of current
approaches to diverting Youths from the criminal justice system’, Australian Capital Territory, December 2003
ibid., p. 84
ibid., p. 85
49
Section 7 of the YOA would require amendment to allow for the referral of a young offender
deemed not suitable for either an informal or formal caution. Section 7 states that:
If a youth does not comply with a requirement of a police officer under this section, or an
undertaking under this section, the officer or some other police officer may –
(a) refer the matter to a Youth Justice Coordinator so that a family conference may be
convened to deal with the offence; or
(b) if the youth requires the matter to be dealt with by the Court – lay a charge for the offence
before the Court.
Young people would therefore be provided with an opportunity to address and acknowledge
their involvement in an offence and have obligations imposed upon them relevant to the
particular offence. If a matter could not be resolved at a Family Conference to the satisfaction
of the Police and the Youth Justice Coordinator, the matter may then be referred on to the
Youth Court as per Section 11 (5) of the YOA: ‘If a family conference fails to reach a
decision, the Youth Justice Coordinator must refer the matter to the Court and the Court may
decide any question, and exercise any power, that could have been decided or exercised by
the family conference.’.
Recommendation 10
That Section 7 of the Young Offenders Act 1993 be amended to provide for the referral of a
young offender deemed not suitable for informal or formal caution to a Family Conference.
That a condition of the referral be the admission of involvement in an offence rather than
pleading guilty to an offence.
The subject of the diversion of Aboriginal youth from court, however, raises the question
about the ‘gate keeping’ role of the Police and more broadly, the role of the Magistracy in the
operation of the Youth Justice System. Currently Police are responsible for identifying
diversionary options within the system. Police receive training regarding the YOA and the
Youth Justice System as part of the Constable Development Programme run by the Police
Academy within SAPOL. The ‘policing’ of youth is oversighted and facilitated by specialist
police officers within the Community Programmes Support Branch.
The Select Committee considered whether maintaining police as a diversionary ‘gate keeper’
was adequate. Ms Pam Simmons, Guardian for Children and Young People, expressed the
view that the current Youth Justice System ‘depends too much on them’.89 She explained
that it has been reported to her that some young people had not been given access to
diversionary procedures.90 To assist in ensuring young people had access to these
processes, she cited the practice in New South Wales where young people have access to a
youth legal officer at apprehension, prior to making a statement. Ms Simmons also reinstated
the call made by ALRM requesting the clarification of Section 17 of the YOA which provides
for the Youth Court to refer matters back to family conferencing.91
The Select Committee believed the New South Wales Sentencing Circle’s (on which a
Magistrate sits) ability to review a sentence plan was a beneficial element, similar to the UK
model where Youth Offender Team workers are able to review a assessment plan (ASSET)
with a young offender. The Committee also noted the 2004 UK Audit Commission Report
which indicated that the Court process should be reserved for the most persistent and
serious offenders but that the Court should have a role in the ongoing review of a sentence
plan. The UK Report suggested the:
89
90
91
Pam Simmons, Guardian for Children and Young People, Hansard, 1521
ibid., 1522
ibid.,
50
Crown Prosecution Service should refer young offenders who commit minor offences, but may
have been reprimanded and warned and have admitted their guilt, to a Youth Offender Panel.
Referrals would be for a fixed three-month period. Courts would then have the time and
resources to review specific cases regularly, altering sentences to meet changing circumstances
and affirming good progress.92
The Select Committee did not consider implementing a Youth Offender Panel but did
consider expanding the role of the Magistracy within the Youth Justice system specifically to
oversee and review the referral of cases to family conference or other conferencing
processes such as Victim Impact Conferences. The Select Committee felt that Section 17 (2)
did not require clarification as to the powers of the Court to refer matters back to cautioning
or conferencing although it did acknowledge ALRM’s comments regarding Section 17, and it
expressed its support for the Youth Court to more fully embrace its already defined powers
under Section 17 to divert cases to family conference.
Following from Ms Simmons’ comments, the Select Committee also noted YACSA’s
comments regarding improvements in the provision of legal information. YACSA submitted
that:
Members emphasised the importance of having a youth lawyer or legal worker to talk through
the issues with a young person before the young person makes a statement to police. Members
noted that such a process is mandated in New South Wales, whereby police must place a
phone call to the Law Hotline on the young person’s behalf and put the young person on the
phone with the advisor before a young person gives a police statement.93
The Select Committee agreed that general legal information should be made available to
young people and that a 24 hour phone hotline would make this service accessible to youth
both in the metropolitan, country and remote areas.
Recommendation 11
That children and young people have access to a 24 hour legal information phone service
upon apprehension, but prior to making a statement to the Police.
3.14
Youth Courts in Rural Areas
The Committee received evidence from Magistrate Greg Clark who is the current Magistrate
based in Mount Gambier. Magistrate Clark explained to the Committee that there have been
specialist Youth Courts operating at :
Adelaide, Holden Hill, Christies Beach, Port Adelaide and Elizabeth and at some country
locations such as Whyalla and Port Augusta. There is a need to extend the services to other
county areas, such as Kadina (Yorke Peninsula) and the South East.94
Additionally there is a need for a ‘domestic violence court to ensure the better protection of
victims and children.’95 The Select Committee acknowledged Magistrate Clark’s views with
regard to the availability of specialist courts and also noted the need to adequately provide
for Youth Court provisions in rural areas. Magistrate Clark pointed out to the Committee that
for youths charged with Major Indictable Offences the YOA requires:
Major indictable offences to be heard by a Youth Court Judge. Young offenders and their
families are required to attend a the Adelaide Youth Court for major indictable offences and
92
93
94
95
Criminal Justice National Report, Audit Commission Youth Justice 2004: A Review of the Reformed Youth Justice System,
London, 2004, p. 5
YACSA Submission 29, p. 16
Magistrate Greg Clark, Submission 48, pp. 1-2
ibid.
51
youths and family are required to travel to Adelaide. This is a particularly harsh financial burden
on families who can ill afford the cost of frequent travel to Adelaide. In addition, there are youths
from Portland and other Victorian towns that are required to go to Adelaide for their major
indictable offences to be heard.
Whilst Youth Court Judges can travel to Mount Gambier, that can be a waste of resources. In
Western Australia the Youth Court Judge can empower a Magistrate in country areas to hear
and determine major indictable offences.96
The Committee noted Magistrate Clark’s view about the need to avoid a ‘blanket delegation
from the Youth Court to the Magistrates’ so that ‘each case can be dealt with on its merits’. It
agreed with Magistrate Clark’s view regarding the extension of the Youth Court Circuit and
Magistrates in country areas hearing major indictable offences.
Recommendation 12
That the Youth Court circuit in rural areas be extended to the Yorke Peninsula and Mount
Gambier.
That the Young Offenders Act 1993 be amended to allow for a Youth Court Judge to
empower a Magistrate in rural areas to hear and determine major indictable offences.
3.15
Peer Court
The Select Committee analysed research that had been undertaken by the Court
Improvement Unit (CIU), Justice Department, in South Australia, regarding the establishment
and operation of peer youth courts and to assess if peer courts would be beneficial to the
South Australian Youth Justice System. The study conducted by the CIU analysed the
feasibility of ‘establishing a peer court as a diversionary programme in Port Augusta’97 The
Select Committee did not take evidence that reflected any concern about the operation of the
Youth Court.
Peer or ‘teen’ courts are courts facilitated by youth to hear evidence and determine
appropriate sanctions for young people who have committed an offence. The aim of a peer
court is to make the court process open to youth participation through all levels of its
operation including the issuing of sanctions. The CIU report states that ‘[t]here is little doubt
that teen courts have been very successful and popular in the US. One of the main reasons
for their success is that teen courts are seen as a cost-effective alternative to the traditional
Youth Court for some offenders.’98
The report identifies a number of positive features of Peer Courts including their ability to:
•
•
•
•
•
•
•
96
97
98
serve as prevention and early intervention programmes;
promote restorative justice principles;
provide an alternative option on the continuum of services available to youth;
build good character traits in young people and promote self-esteem and the desire for selfimprovement;
educate both offender and volunteers about the legal system;
provide an opportunity to positively connect youths with adults and other young people from
their community; and
empower young people to be active participants in community problem solving.
ibid., p. 2
Court Improvement Unit, ‘Peer Court Discussion Paper’, June 2002, p. 6
ibid., p 18
52
In practical terms, the main advantages of teen courts over traditional Youth courts are that teen
courts are usually faster and cheaper because of the involvement of volunteers.99
The Select Committee also considered information regarding the Red Hook Community
Justice Centre which is a project of the New York State Unified Court System and the Centre
for Court Innovation. The Red Hook Community Justice Centre opened in 2000 and is a
community Court. The Centre ‘seeks to solve neighbourhood problems like drug
disputes…and [there is] a Youth Court where teenagers resolve actual cases involving their
peers. The idea is to engage the community in aggressive crime prevention, solving local
problems before they even come to court’.100
The Select Committee broadly considered the merits of peer courts for youth. While it
appreciated all attempts to educate young people about the operation of the legal system,
there was little evidence presented to the Select Committee that suggested peer courts
should be introduced in South Australia. The work that the CIU undertook regarding a
proposal to establish a peer youth court in Port Augusta had not been actioned by the
Attorney-General since the completion of the report. Additionally there was little evidence to
suggest the effectiveness of peer courts beyond the suggestion that young people who are
brought before them, experience the process better than if they attend a traditional Youth
Court.
Involving youth in the governance of their communities and thereby encouraging civic
involvement and responsibility may be a more beneficial youth participation strategy. Youth
participation initiatives may be better placed, with other education initiatives like the ‘youth
parliament’, that is, having ‘one-off’ events aimed at facilitating the education of the young
people with them taking leadership roles within a system. It should also be noted that youth
participation in itself, is not always a valuable thing, particularly when trying to impress upon
young offenders that their community, not only their peers, do not sanction their behaviour.
While the research identified several positive aspects to the peer court system, the Select
Committee did not think that they were required in South Australia at this time.
3.16
Aboriginal Sentencing Court (Nunga Court)
ALRM called for the development of Aboriginal Sentencing Courts (Nunga Courts) to be
established in the Youth Jurisdiction, based on the Adult Nunga Courts in operation at Port
Adelaide, Ceduna, Murray Bridge and Port Augusta.101 ALRM stressed that culturally
appropriate programmes need to be made available to allow the court to impose culturally
appropriate and productive penalties that aid rehabilitation.102 The Legal Services
Commission also suggested that the Adult Nunga Court should be expanded to the Adelaide
Youth Court.103
A number of Aboriginal Sentencing Courts were established in Australia during the late
1990s as detailed in the following table :
99
100
101
102
103
ibid.
Email communication, Red Hook Community Justice Centre, provided by Select Committee Member, p. 1
Richard Coates, ALRM Hansard, 951; ALRM Submission 20, p. 2
ALRM Submission 20, p. 3
Legal Services Commission, Submission 15, p. 8
53
Table 2:
Jurisdiction
Indigenous Sentencing Courts in Australia104
Locality
Name of court
Date
est.
No. of elders or
respected
persons sitting
with magistrate
Four, selected
from the
community
Four, selected
from the
community
Layout of the courtroom
Held in South Coast Aboriginal
Cultural Centre; sit in a circle
(no desk); closed court
Nowra
Circle Court
Feb
2002
Dubbo
Circle Court
Aug
2003
Brisbane
Murri Court
Aug
2002
One, selected
from a pool of 15
Normal magistrates' courtroom
decorated with Indigenous
paintings
Rockhampton
As yet unnamed;
includes three
groups
(Aboriginal
people, Torres
Strait Islanders
and South Sea
Islanders)
Jun
2003
One, selected
from a pool of 810, but as many
elders as
possible turn up
and observe
Normal magistrates' courtroom
decorated with a painting and
other insignia that reflects the
participation of the three
groups
New South
Wales
Queensland
Port Adelaide
Nunga Court
Jun
1999
Murray Bridge
Nunga Court
Jan
2001
Port Augusta
Special
Aboriginal Court
Jul
2001
Port Augusta
Youth Aboriginal
Court
May
2003
Ceduna
Aboriginal Court
Jul
2003
South
Australia
Shepparton
Koori Court
Oct
2002
Victoria
Broadmeadows
Koori Court
Mar
2003
Three, selected
from community
(in 2003);
previously one
elder sat with the
magistrate
One, selected
from the
community
One, selected
from the
community
One, selected
from the
community
One, selected
from the
community
Two, selected
from a pool of 7;
legislation
permits just one
to assist in the
hearing
Two, selected
from a pool of 4;
legislation
permits just one
to assist in the
hearing
Sit in a circle (no desk); closed
court
Normal magistrates' courtroom
with separate entrance
decorated with Indigenous
paintings
Normal magistrates' courtroom
Normal magistrates' courtroom
Normal magistrates' courtroom
Normal magistrates' courtroom
Remodelled courtroom with an
oval table, 3 flags (Australian,
Aboriginal and Torres Strait
Islander), Indigenous paintings
and noticeboard
Remodelled courtroom with an
oval table, 3 flags (Australian,
Aboriginal and Torres Strait
Islander) and Indigenous
paintings
The Select Committee considered the merits of establishing a Nunga Youth Court by
analysing a recent Information Bulletin on Aboriginal Courts released by the Office of Crime
Statistics and Research and the Justice Strategy Division of the Attorney-General’s
Department. Its author, John Tomaino details the development of the Adult Aboriginal
(sentencing) Court in South Australia which was initiated by Magistrate Chris Vass in June
1999 and aims to provide:
104
Elena Marchetti and Kathleen Daly, ‘Indigenous Courts and Justice Practices in Australia’, Trends and Issues in Crime and
Criminal Justice, Australian Institute of Criminology, May 2004, p. 3
54
•
•
•
•
•
•
•
a more culturally appropriate setting than mainstream courts
to reduce the number of Aboriginal deaths in custody
to improve court participation rates of Aboriginal people
to break the cycle of Aboriginal offending
to recognise the importance of combining punishment with help so that courts are used as a
gateway to treatment
to involve victims and the community as far as possible in the ownership of the court
process
to ensure that the court process is open and transparent to victims and the community at
large.105
The Nunga Court operates within existing court and legal frameworks, yet has the following
features:
•
•
•
•
•
•
•
all parties, including the magistrate, are seated at the same level and in close proximity to
facilitate direct communication.
the Magistrate sits with a member of the Aboriginal community who has a sound knowledge
of Aboriginal culture and can advise the court on certain issues.
…undertakings and promises made by Aboriginal defendants in front of their relatives and
support group are far more consequential, meaningful and enduring than statements made
by their legal representatives in impersonal mainstream courts.
the Courts are largely offender focused.
extensive use is made of pre-sentence information, including Bail Enquiry Reports, to shape
sentencing decisions…
Government and non-government agencies…can attend to support and provide information
to potential new clients.
Magistrates who preside over the courts develop a rapport with Aboriginal communities
which in turn builds trust and knowledge of local issues106
Aboriginal Justice Officer (AJOs) positions have been created to assist and educate
participants about the Court process and about offenders rights and obligations regarding
their sentencing orders.
Tomanio’s analysis indicates that there is anecdotal evidence to suggest that the Aboriginal
Court has achieved high attendance levels, yet there is a lack of comparative data available
to adequately assess this view. Tomanio explains that it is not ‘currently possible to extract
information on cases dealt with by the Aboriginal Courts directly from CAA’s [Court’s
Administration Authority] mainframe data base’ and that a separate data base had been
established by some forward thinking staff to collect Aboriginal Court data separately.107
However, Tomanio recommends caution with the interpretation of any findings as a result of
this data analysis since there is no comparative data currently available concerning
Aboriginal attendance levels or matters finalised in mainstream court services. The lack of
rigorous statistical collection and comparative analysis prevents the identification of an
evidence based assessment of the successful elements of the Nunga Court.
A comparative analysis of Aboriginal Courts and justice practices in Australia was recently
undertaken by researchers Elena Marchetti and Kathleen Daly, in a paper produced by the
Australian Institute of Criminology.108 Marchetti and Daly outline both the South Australian
model and the New South Wales Sentencing Circles which were established in Nowra in
2002 and are aimed at serious and repeat offenders. Unlike the South Australian model, in
New South Wales, offenders have to be assessed as suitable in order to participate in the
105
106
107
108
John Tomaino, ‘Aboriginal (Nunga) Courts’, Information Bulletin, The Office of Crime Statistics and Research, pp. 3-4
ibid., pp. 4-5
ibid., p. 6
Elena Marchetti and Kathleen Daly, op cit. May 2004
55
court process. In South Australia ‘[t]here is no process for vetting offenders at high risk of
incarceration, and no pre-court deliberations on a sentence plan or written report.’109
The New South Wales sentencing circle participants include the offender, the magistrate,
four community members, the offender’s support people, an Aboriginal project officer, the
defence counsel, the police prosecutor and the victim and their supporters who sit in a circle
and develop a sentence plan. The Circle reconvenes after a few months to review and
assess the offender’s progress with the plan.110
Marchetti and Daly are supportive of Indigenous Sentencing Courts. They point out that:
‘[g]reater attention to the reasons for, and contexts of, the offending behaviour, coupled with
‘Indigenous-friendly’ procedures and Aboriginal Justice Workers, make the urban court
experience more meaningful and less alienating.’111 They also refer to the view that these
alternative sentencing courts create an ‘apartheid justice’ where one cultural group receives
a different form of justice than another. While perhaps no less lenient, nor without objectivity
and independence, the establishment of alternative justice responses for different cultural
groups may be a problematic aim for our Justice System. It may be both productive and
pragmatic to expand the Aboriginal ‘Nunga’ Court to the Youth Court, especially in an effort
to address the significant over-representation of Aboriginal youth in the Justice system.
However, the Select Committee noted the views of Marchetti and Daly who said:
[t]he core elements animating these courts – improved communication, citizen
knowledge/control and appropriate penalties – could be applied to all court processes and all
defendants.112
They also considered the statement made by Magistrate Vass regarding the establishment of
the Aboriginal court day and the lack of consultation with Government regarding approval to
do so: ‘we just did it within the framework of the legislation that existed.’113 The existing
legislation did not prevent the establishment of the Aboriginal Court day as there was scope
to allow for alternative and innovative practices to take place that were viewed as beneficial
to Indigenous people. Marchetti and Daly’s point is that they may be beneficial to all people,
including non-Indigenous youth. Indeed, Ms Pam Simmons, Guardian for Children and
Young People, called for a greater level of integration ‘ as used in the Nunga courts, and
some of the Youth Court processes used in Nunga courts themselves’.114
The Select Committee understood that there is currently an Aboriginal Sentencing Youth
Court being trialled in Port Augusta. They were unable to consider the evaluation of this
piloted programme as it had not been completed at the time they convened. Consideration of
an evaluation of this pilot would need to be undertaken regarding the effectiveness of the
Sentencing Court. However, at this stage, the Select Committee does not recommend the
expansion of the adult Aboriginal Court sentencing court to the Youth Court because it
believes that, however useful, formalising these practices into ‘Indigenous’ courts at the
exclusion of others, may actually erode the wider Youth Justice System’s responsibility to
Indigenous people and other members of society. This is not to ignore the overrepresentation of Indigenous youth in the Youth Justice System, which is a complex and
multi-faceted issue. Nor is it to prevent innovative and alternative approaches to sentencing
courts and the way Indigenous youth are dealt within the system. Indeed it notes the call for
Aboriginal Justice Officers (that operate in the adult jurisdiction) to be appointed in the Youth
Court. It does not, however, feel that separate legal systems should be established until
there is clear evidence of the effectiveness of the practices.
109
110
111
112
113
114
ibid., p. 3
ibid., p. 3
ibid., p. 5
ibid., p. 6
John Tomaino, op cit., p. 12
Ms Pam Simmons, Guardian for Children and Young People, Hansard, 1510
56
Aboriginal Justice Officers (AJOs) who act as field officers and provide general information
regarding the legal system should be appointed to assist and educate participants about the
Court process and offender’s rights and obligations regarding their sentence orders.
Aboriginal Justice Officers should not be legal officers who provide legal advice.
Recommendation 13
That Aboriginal Youth Justice Officers be appointed to assist and educate participants about
the Court process and offender’s rights and obligations regarding their sentence orders.
Recommendation 14
That further evaluation be conducted as to the effectiveness of the Adult Aboriginal
Sentencing Court and the piloted Aboriginal Youth Sentencing Court. That the productive
aspects of these Sentencing Courts be identified and integrated into the Youth Court
sentencing process.
3.17
Drug Court
The Youth Court submitted to the Select Committee that a drug court for youths should be
established in South Australia. The Youth Court stated:
The Drug Court in the adult jurisdiction in South Australia has been established for a number of
years. Given the difficulty of its task the Court understands that the Drug Court works very well
and more than a third of its participants graduate from the course and hopefully, do not reoffend. Given that the adult Drug Court takes only the most serious drug addicted offenders that
is a very good result. The officers of this Court believe that a drug court should be established in
the Youth Court. Early intervention in relation to children who have begun taking drugs has, the
court believes, proven to be particularly effective. It is curious that adults, who often have long
term and deeply ingrained drug habits should have the advantage of a Drug Court and its
associated treatment, while children who are in the very early stages of drug abuse do not. The
officers of the South Australian Youth Court recently inspected the New South Wales Youth
Drug Court. Evaluation of the pilot programme is not yet completed but all the personnel
involved with the court and the officers of the Attorney General’s Department overseeing the
court agreed that the signs are very good. Like the New South Wales Adult Drug Court, the New
South Wales Youth Drug Court is expensive. It is extremely well resourced and staffed and has
the benefit of a purposely established induction centre with accommodation facilities and twentyfour hour staff. The South Australian experience in the diversion courts established in the South
Australian Magistrates Court has shown that very good results can be achieved much more
cheaply than in the larger states. The New South Wales experience suggests that the numbers
of children eligible for the Youth Drug Court will be relatively small and this experience would
align with the South Australian Youth Court’s own experience with drug addicted offenders. The
Youth Court has noted over a number of years that although the number of seriously addicted
youths are quite small they are responsible for a disproportionately large amount of crime.
These are the children who commit large numbers of larcenies, house break-ins and robberies,
for the purpose of sustaining expensive drug habits.115
The Legal Services Commission also asked the Select Committee to give consideration to
expanding the adult Drug Court Programme.116
New South Wales introduced a trial of a Youth Drug Court in some parts of metropolitan
Sydney. The Youth Court Drug Programme developed as a result of Recommendation 6.11
of the NSW Drug Summit 1999 Government Plan of Action. The programme aims to reduce
115
116
Youth Court Submission 14, pp. 4-5
Legal Services Commission Submission 15, p. 6
57
the incidence and severity of drug related offending. The programme is based on an
integrated, holistic assessment, and intensive case management including supervision and
intervention.117
The Committee believed that a similar programme should be trialled and evaluated in South
Australia.
Recommendation 15
That a Youth Court Drug Programme be developed. That the programme involve
comprehensive drug rehabilitation and allied health components.
117
Roger Dive, Martin Killen, Debra Cole, Anton Poder, ‘NSW Youth Drug Court Trial’, unpublished paper, presented at the
Youth Justice: From Lessons of the Past to a Road Map for the Future conference, Sydney, 1-2 December 2003,
www.aic.gov.au/conferences/2003-Youth/dive.pdf accessed 6 April 2005.
58
4
TERMS OF REFERENCE B
The Appropriateness and Effectiveness of Custodial Programmes and
Non-Custodial Practices and Processes for Juvenile Offenders.
4.1
Bail/Remand
The Select Committee received a range of evidence which highlighted that supervised bail
conditions and remand management are required where there is a lack of adequate welfare
supports and services both outside and within the Youth Justice System. The Select
Committee also took evidence from CYFS who advised that the granting of bail and the type
and number of bail conditions imposed on the youth was a significant issue requiring the
Select Committee’s consideration.
The Youth Court advised the Select Committee that:
The number of bail placements available for children before the Youth Court is drastically
inadequate. It is a daily occurrence for the court to be told that there is no bail placement for a
child. Often these children will have committed only minor offences, but they come from a
background of homelessness, or dysfunction. In these circumstances the Court has no choice
but to remand a child in custody simply because there is no placement. Disturbingly this is often
the situation with children who are under the guardianship of the Minister. This, in the Court’s
opinion, is an intolerable situation and the Court will often take forceful steps to ensure that
these guardianship children are not placed in detention unnecessarily. The rationale for this is
that the Minister, being the guardian of the child, is legally required [to] adequately support
children under ministerial wardship. Lack of bail placements is particularly a problem in the
country and is particularly a problem for aboriginal children, many of whom come from
environments of violence and dysfunction, or who do not have any obvious carer.118
The Select Committee noted the significant increase in the average daily occupancy for
youth on remand from 21.84% in 1996 to 27.21% in 2004 (see figure 13).
The Youth Court advocated for the establishment of bail hostels and alternative
accommodation options to address the accommodation shortage for youth (see Term of
Reference I).
CYFS advised the Select Committee that the number of new supervised bail orders had
increased substantially in the last 10 year period.
In the 10 year period between 1993/94 and 2002/03 the number of new supervised bail orders
for all young people increased from 144 to 635. This represents a growth rate of approximately
340 per cent. When this information is broken down by Indigenous status, it becomes clear that
the growth has been most significant for Aboriginal young people. The number of supervised
bail orders made for non-Aboriginal young people during this period increased by 220 per cent
(118 to 377). In contrast the number of supervised bail orders for Aboriginal young people
increased from 26 to 258, representing an approximate increase of almost 900 per cent.
In the period up to 2003/04 the number of new supervised bail orders involving Aboriginal young
people has increased by 600 per cent, whilst those involving non-Aboriginal young people have
increase by 165 per cent. During this period supervised bail orders involving Aboriginal young
people have approximately doubled from almost 20 per cent of all supervised bail orders to 40
percent of all supervised bail orders….
Supervised bail is only one element of the remand management system, in discussing bail
figures it is therefore important to present this in the broader context of custodial remand
118
Youth Court Submission 14, p. 3
59
options. These options collectively referred to as non-sentenced include police custody, court
remand and some warrants. The number of non-sentenced custodial authorities for Secure Care
involving Aboriginal young people has increased by almost 90 per cent in the period from
1994/95 to 2002/03 (285 to 535). By comparison the number [of] non-sentenced custodial
authorities involving non-Aboriginal young people have decreased by 14 per cent (947 to 819).
In the total 10 year period up to 2003/04 the number of non-sentence custodial authorities
involving Aboriginal young people has increased by 35 per cent, whilst those involving nonAboriginal young people have decreased by 30 per cent.
When these figures for Secure Care are broken down further by custodial authority it can be
seen that the most significant increases in ‘custodial authority reason for’, Aboriginal young
people have been [in] police custody (refusal of bail by police bail authority) with an increase of
almost 70 per cent from 92 in 1994/95 to 154 in 20023/04. By comparison the number of police
custody authorities involving non-Aboriginal young people has dropped by almost 30 per cent,
from 414 in 1994/95 to 296 in 2003/04.119
CYFS suggested that this application of bail conditions may have become disproportionate in
type and severity in part to assist the Youth Court to secure a young person’s access to
appropriate social services.120 Additionally, CYFS stressed that:
There is indication that the due process rights of youths may not be fully being met as bail
conditions are skewed toward addressing welfare needs rather [than] ensuring the legislative
intent of the return to court of the accused.
Therefore a key issue in the current operation of bail in this state is the preponderance of orders
and conditions that are seeking to provide a welfare response to individual young people and
the criminalising consequences this has for the young people concerned.121
The need for a balance between a welfare and a justice response to the issue of Youth
offending is a source of ongoing tensions. The Select Committee received submissions
highlighting the range of dilemmas that result from these tensions. The Youth Court and
CYFS comments, for example, indicate that bail conditions may be being used in order to
address general rather than offending-related behaviour of young people. This may mean
that the Youth Court is moving from having a justice focus, to being the primary agency
making decisions about the welfare needs of ‘at risk’ young people. This practice could
potentially be undermining the separation of child protection/welfare needs from legal
processes that were articulated through the previous Select Committee legislative reforms.
CYFS noted that there are flow on effects from the use of bail and remand:
•
•
•
CYFS’ capacity to manage higher orders (for example obligations and home detention)
…has been impacted by the necessary shift to meet bail requirements.
The principle of proportionality (that is, the seriousness of the order) is being lost as lower
order offences are being dealt with through intensive supervision requirement, while higher
order offences (eg obligations) [are] being reduced.
Potentially many low profile children and young people are being exposed and involved in
the Justice System (including through secure incarceration) for longer than may be
necessary. This is placing them at significant risk of contamination in the System.
The reason why bail is being refused and higher supervision requirements are being placed on
bail orders is complex. Intelligence Led Policing is resulting in some recidivist youth re-entering
the system. 122
119
120
121
122
CYFS, Briefing paper 39b, pp. 2-3
CYFS Submission 43, p. 34
CYFS, Briefing paper 39b, p. 1
CYFS Submission 42, p. 34
60
CYFS provided examples of the types of supervised bail orders made by the Youth Court in
the last 18 months. In doing so CYFS noted that any or all conditions might be appropriate in
a given circumstance, but that the types of conditions imposed could be counter productive in
some circumstances. These conditions include:
A young person aged 12 years old charged with failing to comply with a bail order was placed on
bail with a total of eight conditions including supervision, reside where direct and obey house
rules, curfew attend programmes as directed and to attend primary school.
Other young people had conditions that required them:
• to attend Trace-A-Place… and comply with all requirements in relation to accommodation
and appointments.
• to participate in programmes…in particular anger management and family reunification
counselling.
• not to assault…or use insulting, threatening or abusive language to any staff member (at a
residential unit).
• to attend school on every day.
• to attend school, obey house rules, CYFS supervision (as part of police bail).
• to maintain contact with CAMHS for present and on-going treatment (in matters apparently
unrelated to the alleged offence).
• not to be within 5 metres of a parked motor vehicle.
While it may have been a suitable decision to make regarding this particular individual, the
Select Committee did question the rationale for imposing the condition ‘not to be within 5
metres of a parked motor vehicle’ with the condition to ‘attend school on every day’.
A young person charged with failing to comply with bail order (on a substantive charge of
criminal damage) was placed on bail with a total of ten conditions including;
• not to leave the State
• agree to forfeiture of $100
• reside where direct and obey house rules
• CYFS supervision
• attend educational programmes or activities as directed
• not leave home address without parental approval
• if wish to visit a friend, must supply parent with name and address
• curfew of 6pm to 7am
• non association with a named individual
• report to CYFS office within 7 days.
The young person who received the above bail order was aged 12 years and had being
diagnosed with:
• Attention Deficit Disorder
• Obsessive Compulsive Disorder
• Dyslexia
• Schizophrenia
• Central Auditory Processing Disorder
CYFS pointed out that
A young person charged with attempted murder (downgraded to wounding with intent to do
Grievous Bodily Harm) was placed on supervised bail with nine conditions, which in addition to
supervision and residency clauses was required to participate in programmes including health
programmes. Whilst a young person charged with rape of a child was placed on supervised bail
which did not include any requirement to obey house rules, curfew or participation in
programmes.
61
While on the face of it, it may be difficult to discern what the application of such conditions is on
the life of a child, when specific cases are looked at the results are disturbing. The following
case studies illustrate what can be in practice [the] result for a child.
Child A
• Young Person has an extensive care and protection history and was placed under the
Guardianship of the Minister prior to any involvement in the Youth justice system.
• Since 2001 this young person has spent approximately 81 days in custody, of which
approximately 74 have been on police custody and court ordered remand authorities.
• The majority of the custodial admissions have been because of failure to comply with their
conditions of bail, most notably those that relate to residency and placement.
• Critically, because the young person was already involved with the department on care and
protection matters and was under the Guardianship of the Minster there was no requirement
for any additional mandate for placement.
CYFS argued that:
•
The utilisation of bail as a means to manage this young person’s behaviour has resulted in
an acceleration of their contact with the Justice System, in particular custody. Through this
contact the young person had developed both a profile and status as an offender. A
consequence of this is that focus and resources have shifted to managing the justice system
processes and away from the underlying care and protection matter which was the original
grounds for involvement.
Child B
• First contact with the Department was as a 12 year old who had run away from home and
required accommodation. After this there is evidence of ongoing contact with the
department regarding family conflict and issues about the parenting the child was receiving.
• Almost simultaneously the young person began to become more involved in the Justice
System receiving a number of court sentences and supervised bail orders/
• Despite indications concerning significant family difficulties at home the child was repeatedly
placed on supervised bail orders directing residence at home. Almost immediately the child
began to breach these bail conditions and as a consequence was repeatedly remanded in
Secure Care.
• The use of the supervised bail in this case was primarily aimed at resolving adolescent at
risk and child protection issues. This is evidenced in the recorded observation that the
issues relating to the child’s well-being and parenting ‘will be addressed through their
involvement in Youth justice matters’. Ultimately though neither the justice matters nor the
well being matters were effectively addressed.
CYFS argued that:
•
A child who is in a disrupted, unstable and chaotic state of mind is highly unlikely to respond
to being coerced to do something they do not wish to do, even if this is considered to be in
their best interests. What is likely to happen (as in this case) is that the child’s failure to
comply with directions will require greater and greater sanctions, ultimately being counter
productive and resulting in a cycle of re-entry into the Justice System, but with very little
positive change occurring.123
The case studies and evidence stated above which were provided to the Select Committee
about bail and remand management therefore highlighted that many at risk youth are being
processed through the Youth Court for minor (and in some circumstances serious) offences
which appear to result from anti-social behaviour arising in part as a result of poor or
inadequate parental (or carer) supervision and support. Many ‘at risk’ are not receiving timely
or adequate early intervention to access accommodation, counselling and social support;
and there is a lack of case management to support ‘at risk’ youth. In lieu of welfare case
management and early intervention services many ‘at risk’ youth may be only receiving
123
CYFS, Briefing paper 39b, pp.5 - 8
62
welfare support through the Youth Justice System, primarily in the context of bail and remand
processes.
The Select Committee received several submission and evidence from a range of agencies
and individuals (including CYFS) which argued CYFS has an insufficient level of resources
with which to address the social welfare needs of either young offenders or those ‘at risk’ of
offending. The Youth Court gave evidence stating it was unlikely that young people would
receive an adequate level of supervision on a community order. Supervision provided by
CYFS may consist of one visit to a CYFS district centre per month or per fortnight, therefore
suggesting that there was inadequate case-management of individual young people due to a
lack of staff.124 The Youth Court submission stated that ‘[p]erhaps the most important tool in
the Youth Court judicial officer’s tool bag is the power to place children under an obligation’,
yet the effectiveness of this tool was undermined by the lack of supervision.125 Similarly, the
Legal Services submitted to the Committee that there was inadequate CYFS supervision of
bail agreements, again due to staff shortages.
CYFS acknowledged that:
•
•
•
•
•
•
•
•
•
The CYFS resource base in Youth Justice has historically been inadequate staffing, and a
limited mix of staff skills (including psychologists, social workers). Currently most staff are
youth workers.
There is inconsistency in the standard of supervision provided to young people, and
confusion about the role of supervision in the management of orders.
There is inconsistent focus on offending, reducing re-offending or engagement of young
people in addressing their behaviour and their dislocation from their community; currently
focus is weighted towards welfare intervention.
The System has an inadequate continuum of custodial services, and is skewed towards
maximum security options.
The System has an inadequate number of community based specialist programmes (anger
management, victim empathy, sex offender and other programmes) especially programmes
staffed by specialist multi-disciplinary teams (for example psychology, social work and youth
work).
There is a lack of comprehensive ‘front-end’ management of young people entering
custodial services. Better coordination is required at arrest, entry to custodial services and
appearance at court.
There is need for CYFS to play a stronger role at the Court interface in relation to provision
of information and instigation of case management processes.
Data management and monitoring is poor, and is currently not adequately used as part of
driving system outcomes.
There are inadequate services available in the broader community and government sectors
to which CYFS can link children and young people. This is especially the case in relation to
alternative care and accommodation/placement.126.
CYFS highlighted a range of identified areas/programmes that they are undertaking internally
& with other partners at the tertiary end of the Youth Justice System including:
•
•
•
•
124
125
126
127
DECS educational programmes being delivered in secure care;
positive working relationship with Child and Youth Health for those in secure care;
a pilot programme with the Drug & Alcohol Service Council for those young people
transitioning from secure care; and
the establishment of protocols in CYFS (secure care) and CAMHS including a nurse
attached to the Metropolitan Aboriginal Youth Team.127
Youth Court, Submission 14, pp. 6-7. This view was also expressed by YACSA Submission 29
ibid., p. 6
CYFS Submission 42, op cit., pp.18-19
ibid., p. 19.
63
Nonetheless the Committee noted that CYFS appears to be operating with an inadequate
resource base.
The 1992 Select Committee recommendations resulted in the introduction of diversion and
restorative justice processes to the Youth Justice System. In the movement away from a
welfare approach to a justice response, minimum standards in welfare services were
assumed. Changes in community welfare systems, with services increasingly being provided
by discreet, external agencies have resulted in fractured, uncoordinated, temporary or nonexistent provision of services for young people within or ‘at risk’ of being in the Youth Justice
System. Additionally, competitive tendering systems, or short ‘term’ piloted programmes
have limited sustained, long-term programme development in the community welfare system.
The 1996 Review of the SA Youth Justice System Report noted that:
Under the new system, it was anticipated that FACS’s (now CYFS) role would diminish and as a
result, prior to the introduction of the new legislation, its resources in the Youth Justice arena
were substantially reduced, particularly at the District Centre level (which had previously been
the key providers of young offender programmes, bail supervision, court reports and good
behaviour bond supervision). However, while its involvement at the pre-court level has certainly
diminished, this does not seem to have been the case at the Youth Court level where FACS
remains the key service provider. This discrepancy between FACS’s anticipated role and its
actual role has, it seems, created problems in its service delivery to the Court.128
CYFS acknowledged that is has delegated responsibility for the supervision and
management of Youth Justice orders in a system which ‘[t]here is approximately four times
the amount of young people being referred to the Youth Court than was predicted…[and
v]ery few community organisations have taken on the role of supervising community service
orders.129 CYFS expressed the view that it struggles to find adequate accommodation,
health, mental health and welfare services for young people, just as those involved in the
diversionary end of the system (SAPOL, Family Conference Team and the Youth Court) do.
Yet, there is a continuing expectation from other parts of the System that CYFS would or
should be able to provide these services either through direct service provision or through
broad welfare programme development. Therefore, there appears to be a discrepancy
between stakeholder expectations and CYFS’ ability to meet those expectations. This gap
between service provision and case management throughout the entire System gives rise to
frustration and hinders the Systems’ ability to operate effectively.
With CYFS admitting that it has not dedicated agency focus or resources to ‘adolescents at
risk’ in the last decade, the use of bail conditions to enforce some activities is potentially
skewing the Youth Justice System to be a quasi-‘welfare with authority’ system. This is not to
suggest that the Youth Court should not be able to make stringent conditions and to have
increased oversight on a young person and their management. The Select Committee noted
that the Youth Court cannot and should not be placed in the position of trying to address the
welfare needs of young people and yet have no coordination or oversight authority.
The significant rise in the number of children and young people being placed on supervised
bail orders is a complex issue. The Select Committee noted that the value of supervised bail
conditions was potentially being lost as there are inadequate services to assist young people
to meet those bail conditions, and address some of the issues which underlie the reasons for
offending, for example, mental health, drug and alcohol misuse and homelessness.
The National Crime Prevention document ‘Early Intervention: Diversion and Youth
Conferencing’ noted that in Victoria:
128
129
Joy Wundersitz, ‘The South Australian Youth Justice System: A Review of Its Operation’, A Report Prepared for the South
Australian Youth Justice Advisory Committee, Office of Crime Statistics, Attorney-General’s Department, June 1996, p. xxvi
CYFS Submission 42, p.17
64
In the late 1980s and early 1990s, those involved with the Youth Justice System…became
concerned about what were seen as exceptionally and unjustifiably large numbers of young
offenders held on remand. Key stakeholders were consulted and the following bail facilitation
strategies were implemented to ensure that the legislation was adhered to and that young
people were diverted from remand in custody wherever appropriate:
• A protocol was developed with the Police [that] require[ed] them to notify Youth Justice
whenever a young person was charged with offences and likely to be remanded in custody.
• Youth Justice staff took a pro-active role in facilitating bail by carrying our assessments of
young people, providing bail advice to police, bail justices and courts and making
appropriate referrals to legal representatives for bail advocacy and to service providers for
accommodation.
• A state-wide after hours bail facilitation service was developed through the Central After
Hours Assessment and Bail Placement Service.
The Youth Justice Programme now promotes bail for young people charged with offences,
except when those offences are of a very serious nature, or the young person is assessed as
unsuitable for bail.130
The Select Committee noted that Victoria has a discreet Youth Justice Programme to
facilitate this process and to restrict the number of children and young people that are
detained on remand. This level of intervention with the specific aim of facilitating accurate
bail assessments and accommodation supports is not reflected in the South Australian Youth
Justice System.
4.2
Detention Centres
South Australia has two youth detention centres, both of which are managed by CYFS. They
are:
• The Magill Training Centre
• The Cavan Training Centre
The Magill Training Centre opened in 1967 and is the admission centre for all young people
in South Australia and has a 60 bed capacity. The Centre is made up of
• 1 unit for young women aged 10-18 years, on remand and detention orders,
• 1 unit for young males aged 10-14 years on remand and detention orders, and
• 2 units for young males aged 15-18 years on remand only.
The Magill Training Centre has a total budget of $5,927,000, and:
• FTE staff level is 89.4, and
• The daily average of children and young people on remand or detention orders is 30.1
The Cavan Training Centre opened in 1993 and has a 36 bed capacity consisting of:
• 3 residential units for young men aged 15 to 18 years who are on detention orders or
longer periods of remand which is likely to culminate in detention.131
The Cavan Training Centre has a total budget of $4, 603,200 and
• the FTE staff level is 70, and
• The daily average of children and young people on a detention orders is 31.3
Both the Training Centres are 24 hour sites, operating 7 days a week.132
130
131
132
National Crime Prevention, ‘Early Intervention: Diversion and Youth Conferencing: A national profile and review of current
approaches to diverting Youths from the criminal justice system’, Australian Capital Territory, December 2003, pp. 64-65
Information taken from Comparative Information on Secure Care Facilities, CYFS, emailed communication, 24 May 2004
CYFS, email communication, 28 October 2004
65
Figure 12 indicated that there has been a significant decrease in the number of admissions
into secure care from 1,532 in 1993 to 1,184 in 2003.
Number of Admissions into Secure Care, 1993 to 2003*133
Figure 12:
1,800
1,600
1,506
1,532
1,400
1,492
1,433
1,398
Number
1,200
1,242
1,342
1,222
1,184
2002
2003
1,201
1,000
1,099
800
600
400
200
0
1993
1994
1995
1996
1997
1998
1999
2000
2001
* 2004 data are not currently available.
Figures 13-15 contain data relevant to detention orders and secure care admissions.
133
Figures 12 to 15 include data provided by the Office of Crime Statistics and Research, June 2005.
66
Figure 13:
Average Daily Occupancy by Custodial Status, 1996 to 2004
Daily average in custody
100
89.90
Daily average on detention
Daily average on remand
91.85
90
70
66.75
61.05
50
41.10
39.35
40
30
33.42
20
10
66.16
65.90
62.09
61.04
32.84
31.11
30.12
31.72
30.25
27.87
27.21
2001
2002
2003
2004
52.01
60
Number
73.99
72.46
80
25.68
21.84
22.10
33.80
28.25
36.60
0
1996
1998
1999
Average Daily Occupancy by Racial Identity, 1994 to 2004
Non-Aboriginal daily average
70
60
65.04
53.60
Aborignals as % of total daily average
54.80
Number
45.99
42.39
33.0
21.6
28.0
21.3
60
52.91
40
20
70
48.15
28.7
Aboriginal daily average
67.75
50
30
2000
25.3
22.04
29.3
23.73
50
40.01
40.32
40
36.2
25.2
22.79
41.22
27.6
37.4
33.9
24.61
24.05
19.05
35.5
20.15
22.02
20.72
10
30
Percentage
Figure 14:
1997
20
10
0
0
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
67
Figure 15:
Youth Court Appearances Where at Least One Charge is Proved: Length
of the Longest Secure Detention Order Imposed per Case, 2004
53.0
55
50
45
40
Percentage
35
30
24.7
25
20
17.7
15
10
4.7
5
0
Less than 8 weeks
2 to less than 6 months 6 to less than 12 months
12 months and over
The Select Committee toured the two secure care facilities and it was evident that the Magill
Training Centre does not meet current identified best practice standards in the detention and
rehabilitation of young people in secure care. Though Magill youth workers and educational
staff make use of the resources at Magill, the surroundings are not conducive to the
rehabilitation of young offenders. Magill (CYFS) staff informed the Select Committee that the
building design and the reduced number of young people in the facility because of the
diversionary changes introduced in 1993, gave rise to a number of security issues. This in
turn restricted what young people were permitted to do when detained. Due to the reduced
number of children and young people in the facility, many of the resources at Magill such as
trade workshops, are currently not being fully utilised.
Staff argued that the Magill facility no longer met the needs of the young people in their care.
The Select Committee were aware that the 1992 Select Committee into the South Australian
Youth Justice System recommended ‘[t]hat SAYTC (The South Australian Youth Training
Centre/now known as the Magill Training Centre) be closed (following the full disposal of the
Magill site) resources be diverted to developing alternative facilities and programmes’.134
Given this recommendation was made over ten years ago and has not been acted upon by
Government, the Select Committee strongly recommends that the closure of the Magill
Training Centre be an immediate priority.
CYFS submitted to the Select Committee that the Youth Justice System in South Australia
has an ‘inadequate continuum of custodial services, and is skewed towards maximum
security options.’135 The Select Committee also consulted the recently released ‘Protecting
Vulnerable Children: A National Challenge’ published by the Senate Community Affairs
References Committee which indicated that there has been a ‘general decline nationally in
the number of young people aged 10 to 17 years in youth detention facilities’. The NSW
Commission for Children and Young People noted that ‘a greater awareness of the limited
rehabilitative power of detention for children and youth and great legal protections for them
are reflected in the declining numbers detained.’136 The Select Committee noted that
134
135
136
Recommendation 10.5(2), Interim Report of the Select Committee on the Youth Justice System, 1992, p. 220
CYFS Submission 42, p. 19
The Senate Community Affairs References Committee, ‘Protecting Vulnerable Children: A National Challenge’,
www.aph.gov.au/senate/committee/clac_ctte/inst_care/report2/index.htm, accessed 29 March 2005.
68
changes in legislation and differences in classification of ‘adolescent at risk placement
orders’ and ‘justice orders’ may also, in part, account for this reduction.
The Select Committee was also aware that many other western countries had moved away
from the use of residential custody for young offenders in recent years. For example, since
the 1980s there has been a significant decline in the use of residential custody in New
Zealand. Like Australia, New Zealand has historically combined its child protection/welfare
responses with Youth Justice. The introduction of the Children Young Persons and Their
Families Act, 1989 saw the separation of child welfare and Youth Justice responses. It also
saw a significant change in policy regarding the use of residential custody. Researchers
Gabrielle Maxwell and Allison Morris have noted this reduction and they point out that:
[t]he total number of beds had…[dropped] to 83 of which 71 were for youth justice cases. Length
of stay in residencies were limited to a maximum of three months for those sentenced to
‘supervision with residence’ although remand cases sometimes stayed for longer periods.’137
Foster care and other community residential settings have been used instead of residential
custody and there were substantial budget savings, commensurate with these reductions.
The change in policy direction regarding the use of residential custody appears to have
resulted from a significant reduction in the provision of social services across New Zealand. It
should also be noted, however, that most of these protective orders did not relate to
offending, but at risk behaviour. Nonetheless, there appears to be a recognition in New
Zealand and elsewhere that residential custody may not be the most productive or effective
way to deal with either young offenders or those at risk of offending.
The United Kingdom’s 1996 Audit Commission report Misspent Youth: Young People and
Crime found that the use of custodial sentences and the average length of sentences for
youth had declined since the 1980s. The report noted that recidivism rates were highest for
those who had been given a custodial order than for any other order (caution, conditional
discharge, fine, supervision order or attendance centre). It also identified that the UK system
did not monitor or assess the ‘effectiveness of different kinds of sentences on re-offending by
youth’, thus the system had no way of assessing what sentence orders were effective for
particular groups.
The United Kingdom’s Youth Justice Board was established in 1998 with the aim of
introducing a number of justice reforms, including the introduction of a number of noncustodial sentences. The UK have identified issues including the limited capacity within the
‘custodial estate’, i.e. the limited bed numbers for the current rate of youths who receive a
custodial sentence.138 Significantly, custodial sentences absorb the majority of the youth
justice budget allocation. The report found that:
One of the Board’s key aims is to reduce the numbers of young people in custody. Over twothirds of the Board’s £394 million budget for 2003-2004 is for secure accommodation for the 7
per cent of young offenders dealt with by courts who are sentenced to custody and those on
remand. The Board believes that any reduction in custodial numbers could therefore release
significant resources for prevention and earlier interventions to help deter young people from
becoming involved in serious crime…[a] study found that 84 per cent of male young offenders
discharged in 1997 were reconvicted within two years.139
137
138
139
Gabrielle Maxwell and Allison Morris, ‘Youth Crime and Justice in New Zealand’, in Nicholas Bala, Joseph P Hornick,
Howard N. Snyder and Joanne J. Paetsch (eds.) Youth Justice Systems: An International Comparison of Problems and
Solutions, Thompson Educational Publishing Inc, Toronto, 2002, p. 212
National Audit Office, ‘Youth Offending: the Delivery of Community and Custodial Sentences’, Report by the Comptroller
and Auditor General HC 190 Session 2003-2004, 21 January 2004, p. 2
ibid.
69
The UK post-1996 Misspent Youth reforms included a range of Community and Custodial
Orders including Intensive Supervision and Surveillance Programmes (ISSPs) which were
introduced in July 2001 to provide an alternative to custody for the most active repeat
offenders.140
In light of the UK report the Select Committee noted the significant budget allocation
dedicated to the maintenance of the two secure care facilities in South Australia. The
Committee believed that some of the resources currently being dedicated to these high
security, secure care facilities in South Australia could be diverted into other activities, such
as the Intensive Supervision and Surveillance or home detention programmes, then more
beneficial outcomes for young offenders and the community may be gained.141
The Select Committee took evidence from Ms Bernie McGinnes, Principle Programme
Manager, CYFS, who visited secure care facilities in Queensland, New South Wales, Victoria
and Western Australia in 2004. Ms McGinnes made particular reference to Victoria which
had a range of secure care options for young people as follows:
We will always need some secure facilities – but minimum sorts of levels of security in others,
which allow that community integration and the practicing of being in the community again,
which requires risk management and commitment to the risk, because you will have some
young people who do not do the right thing.142
The Select Committee appreciated that the current level of high security for all young people
in secure care hindered the ability of centres to facilitate programmes and activities that
aided rehabilitation.
The Select Committee held the view that a well coordinated Sentence Order Plan for the
South Australian Youth Justice System needed to be developed and that residential facilities
needed to be matched with a range of detention/custodial offers.
CYFS advised the Select Committee that there is a ‘lack of comprehensive ‘front-end’
management of young people entering custodial services. Better coordination is required at
arrest, entry to custodial services and appearance at court.’143 Tiered sentencing options
from community based options to low, medium and maximum secure care sentence, would
aid the management of security risk and may better enable young people to access
rehabilitative activities. The Select Committee acknowledged the importance of reviewing the
South Australian projected Youth secure care needs and of having a tiering of security status
in any new custodial facility proposal.
The Select Committee also wished to maximise the use of secure community based
residential settings for offenders aged 10 to 14 years (depending on the seriousness or
repetition of their offending), thereby attempting to match their developmental needs with
their rehabilitative needs. Additionally, a range of community based sentence options
(including the use of curfews and Intensive Supervision and Surveillance Programmes)
needs to be made available so that detention in a high-security facility is not the primary
response of the Youth Justice System.
The Select Committee recognised that with regard to bail and remand management it was
difficult to make a recommendation that would adequately address the complex issues
involved. There is a clear lack of service provision being provided by CYFS to either those
140
141
142
143
Audit Commission Youth Justice 2004: A Review of the reformed Youth Justice System, Criminal Justice National Report
London, 2004, p. 42
The UK’s ISSP programme is 6 months in length and costs £8,500 compared with £25,000 for a 6 month custodial order in
a secure care facility. See ibid., p. 43
Ms Bernie McGinnes, CYFS Hansard 1385
CYFS Submission 42, p. 19
70
children and young people at risk, and to those on justice orders. This topic will be discussed
further in Term of Reference I: The Adequacy of Resources provided for the Operation of
Youth Justice.
The Select Committee’s analysis of the appropriateness and effectiveness of custodial
programmes and non-custodial practices and processes for young offenders has found that
this is an area requiring significant attention. The closure of Magill Training Centre requires
urgent attention and a refocusing of attention away from a reliance on high security
residential care detention to a range of custodial and non-custodial sentences supported with
intervention opportunities and programmes.
Recommendation 16
That the Magill Training Centre be closed as soon as possible.
That an analysis of the projected needs for the required levels of Secure Care for South
Australia be undertaken. That this analysis take into account the rehabilitative benefits of
offenders developing and maintaining constructive links with family and community during
periods of detention.
That Secure Care facilities with tiered security status be established in South Australia.
That Community Based Sentence Orders be expanded and that 10 to 14 year old male and
female offenders be placed in Community Based Secure Residential Care to serve their
Detention Orders.
The Select Committee identified the need to extend and adequately resource CYFS in order
for Sentence Orders (obligation, suspended detention, community service orders) to be a
viable alternative to detention orders. Home Detention was commented on frequently by a
range of agencies and individuals as the current level of Home Detention places available at
any one time is inadequate.
4.3
Home Detention
Senior Judge Moss from the Youth Court stated in evidence that while the YOA and the Bail
Act have provisions for home detention, there are only 15 electronic bracelets available at
anyone time. It is clear that the Home Detention Programme managed by CYFS is
inadequate in meeting the identified needs of the Youth Court, either for Home Detention Bail
or for sentencing. The Youth Court stated:
The Court continually finds, however, that there [is] an inadequate number of electronic
bracelets for youths who would otherwise be suitable candidates for home detention…as a
result, these children are very often placed into detention.144
The request for an increase in Home Detention resources was also expressed by
representatives of the ALRM, the Legal Services Commission and the Law Society.145 The
Law Society submission notes that Home Detention provides an alternative to custodial care
and can assist in addressing the over representation of Indigenous Youth in custodial care.146
144
145
146
Youth Court Submission 14, p. 3
ALRM, Submission 20, pp. 1-2, Legal Services Commission, Submission 15, p. 5 and the Law Society, Submission 32, pp.
1-2
The Law Society Submission 32, p. 2
71
Representatives from the Youth Court gave evidence that there was a need for another 3035 Home Detention bracelets and subsequent support staff to monitor the young people and
facilitate the Home Detention Programme.147
Ms Bernie McGinnes, CYFS, stressed to the Committee that the value of the Home
Detention Programme did not lie in the use of technology but in the intensity of the
supervision. She said, ‘it is the engagement in the activity that is the critical part of it.’148 The
Committee understood that Victoria’s Home Detention Programme does not rely on
technological monitoring. The Committee therefore questioned whether an increased of
home detention positions required an expansion of the technology.
Several agencies, including the Youth Court pointed out that the Home Detention
Programme is only available to those youth in metropolitan areas.149 Those living in rural
areas do not have the Home Detention Programme as an option which means that they may
not be able to remain in their communities while on bail or as a result of a sentence. This
situation further disadvantages young people in rural and remote communities.
The Select Committee were mindful that not all family situations are suitable for home
detention and that individual assessments need to be made. The Select Committee did
consider the research undertaken by Anita Gibbs and Denise King in which it was stated that
Home Detention was a less expensive alternative to a custodial sentence, however, these
cost savings have to include the social and financial costs imposed on families by having
someone at home.150 Gibbs’ and King’s research dealt with the adult Home Detention
programme in New Zealand, although the issue they raise concerning the impact Home
Detention has on other family members in the home is relevant to the Youth Justice System.
They found that:
One important issue was that of the impact on sponsors who were mainly women, and the extra
responsibilities placed on sponsors who were family members as they looked after the
detainees in their homes. In many ways sponsors were serving the sentence alongside the
detainees.151
The Select Committee were reminded that Home Detention was not a suitable option for all
youth for example, where the home is not a suitable environment in which to be detained.
Also, such detention could be too much of an imposition on other members of the youth’s
family. But with these considerations aside, several individuals and agencies repeatedly cited
the value and demand for an increase in the Home Detention Programme.
4.4
Intensive Supervision and Surveillance Programme (ISSP)
The UK’s Youth Justice Board has introduced the Intensive Supervision and Surveillance
Programme (ISSP) specifically aimed at the population of persistent young offenders and
those who have committed serious offences. The Surveillance element of the programme is
similar to the Home Detention Programme that is facilitated in South Australia by CYFS.
ISSP uses tracking, tagging and voice verification. Intelligence led policing is used to monitor
the movements of young people on the programme and to assist the ISSP and Youth
Offending Teams (YOTs) staff to ‘keep track’ of the young offenders. The minimum
requirement is two surveillance checks per day. The programme consists of a risk
147
148
149
150
151
Senior Judge Moss, Hansard 321-327
Ms Bernie McGinnes, Hansard 1385
Youth Court Submission 14, p. 3, Magistrate Clark Submission 48, p. 1
Anita Gibbs and Denise King, ‘The Electronic Ball and Chain? The Operation and Impact of Home Detention with Electronic
Monitoring in New Zealand, The Australian and New Zealand Journal of Criminology, Vol. 36. No. 1, 2003.
ibid., p. 13
72
assessment, and a minimum of 25 hours per week, supervision including evening and
weekend contact.152
Given the finding of the UK Audit Commission in 2004 that detention is less effective in
addressing persistent offenders, and that Intensive Support and Supervision Programmes
offer better ‘value for money’, consideration should be given to the effectiveness of the Youth
Justice Systems emphasis on secure care facilities.153 The Youth Court gave evidence to the
Select Committee that the Home Detention Programme should be made larger in order to
provide a greater alternative to secure care.
A comprehensive analysis of the delivery of community and custodial sentences has recently
been conducted by the UK Comptroller and Auditor General. This report argued that while a
secure care sentence can be an opportunity to leave a chaotic life of offending, and to gain a
more structured life with opportunities to reengage with education and training, intensive
supervision in a non-custodial setting may be a more productive option for many young
offenders. The Report noted that magistrates were pleased that the recently introduced ISSP
had 25 hours per week of supervision rather than 2 hours per week that supervision orders
attract, however, they noted that since its introduction there had been a number of breaches
to the Programme with some young people being transferred to secure care facilities.154
Recommendation 17
That the Home Detention Programme be immediately expanded to meet the identified needs
of the Youth Court.
That Home Detention and other Intensive Supervision and Surveillance Programmes be
offered in South Australia, including Regional Centres and Remote Communities.
4.5
Youth Offending Teams (UK)
The Youth Justice Board of England and Wales provides oversight of the operation of Youth
Offending Teams (YOTS). YOTS are coordinated multi-agency teams located locally and use
a consistent assessment tool to devise assessment plans for young offenders. These plans
are revised quarterly. The teams help facilitate across agency support and the coordination
of specific services aimed at addressing identified risk factors.
The Intervention Programmes that the YOTS’ offer include Restorative Justice,
Cognitive/behaviour skills, mentoring, parenting programmes, drug/alcohol programmes,
work experience, educational projects and specialist mental health programmes. Each YOT
identifies the risk factors for offending and the needs of each young offender by accessing
them with a national assessment tool.155
This information, including a re-offending risk assessment, forms the basis of a pre-sentence
report for the Youth Court and an intervention plan (3 months duration). Asset also includes
an Intervention Review which charts what identified areas/tasks have been undertaken and
what further actions are required.156
The Select Committee considered the role of YOTs, particularly in relation to the intensive
case management that the young person received and the emphasis on addressing the risk
factors for offending behaviours – such as homelessness, education and employment issues.
152
See www.youth-justice-board.gov.uk accessed on 29 September 2004.
Audit Commission, 2004, op cit., p. 5
154
National Audit Office, ‘Youth Offending: The Delivery of Community and Custodial Sentences’, Report by the Comptroller
and Auditor General, HC 190 Session 2003-2004: 21 January 2004.
155
See www.youth-justice-board.gov.uk accessed on 15 September 2004.
156
ibid.,
153
73
The Committee also acknowledged the screening assessments that CYFS conduct in Secure
Care and Community Youth Justice Programmes. The Committee also noted the intensive
community-based case management programme that the Social Inclusion Board has
initiated.
4.6
Young Offenders – Breaking the Cycle: An Intensive Community-Based
Case Management Programme
The Select Committee were aware of the Social Inclusion Board Initiative Young Offenders –
Breaking the Cycle: An Intensive Community-Based Case Management Programme that is
being developed. The programme will work with young offenders aged 16 to 20 who have
appeared in either the Youth or the Magistrate District Court who may be suitable for the
programme. The young offender can be ordered to participate on the programme as part of
either a pre-sentence or post–plea agreement or sentencing arrangement. The programme
then will work intensely with the young person to provide case management supervision and
assist in obtaining various accommodation, education, employment and health services with
an aim to reduce factors in offending behaviours. The engagement of Indigenous young
offenders in the programme has been identified by the Social Inclusion Board as a priority.157
The Select Committee acknowledged that a significant level of offending is conducted by
young people aged 16 to 20. It wished to stress that the principle of keeping separate young
offenders from adult offenders had been recommended by the Youth Court and further
endorsed by the Select Committee who have recommended it be included in the Objects of
the YOA (see Recommendation 1).
The Committee appreciates the Social Inclusion programme aims to reduce re-offending in
young people and therefore, has no strong opinion as to whether Young Offenders –
Breaking the Cycle: An Intensive Community-Based Case Management Programme should
be amended. However, it wishes to stress that the proposed individualised case
management of the young people will need to be mindful that the programme may bring
repeat youth and repeat adult offenders together and that this may be counterproductive to
the programme’s aims.
The Select Committee applauded the proposed intensive community-based case
management programme which will target those with a history of repeat offending, yet did not
want to see 16 to 18 year old youth being treated the same as adult offenders. Strict
adherence to principles that underpin interventions with young people, should not impede the
development of potentially productive programmes, however, those principles should not be
ignored either. The Committee believed that the programme should be carefully monitored
and evaluated so that improvements in the care and treatment of young offenders can be
made.
4.7
Programmes Delivered in Secure Care Facilities
Ms Bernie McGinnes, detailed the limited range of cognitive behavioural programmes such
as Challenging Offending Behaviour, Anger Management, and Drug and Alcohol Awareness
etc that are delivered in secure care facilities.158 The Division of Mental Health at the
Women’s and Children’s Hospital submitted that these interventionist programmes which are
delivered to young people in secure care and are designed to specifically confront their
offending behaviour, occur in isolation from each other. ‘They get crossed off a ‘shopping list’
of interventions with sometimes little consideration of their impact on the young person.’ 159
Young people complete these programmes, however, there is little evaluation as to how
157
Social Inclusion Board, ‘Young Offenders – Breaking the Cycle – Phase One Action Plan’, May 2005, pp 4-5.
Ms Bernie McGinnes, Hansard 229
159
Division of Mental Health, Women’s and Children’s Hospital, Submission 10, p. 1
158
74
these programmes actually aid the development of individual insight or skill enhancement.160
It was also submitted that a consistent quality evaluation regime is required for these
programmes.
The Select Committee received evidence from CYFS stating that focused sentence
management based on a ‘What Works’ model was required.161 This model was also cited by
Dr Andrew Day from the Forensic and Applied Psychology Research Group from the School
of Psychology at the University of South Australia. Dr Day referred the Select Committee to
several pieces of research and review findings specifically related to rehabilitation
programmes for Youth offenders. In particular, Dr Day and his team at the Forensic
Psychology Research Group (and Debra Rickwood of the Australian Institute of Criminology)
developed a rehabilitation framework for Youth offenders for the Department of Youth
Justice, Victoria. The Research Group ‘reviewed the published literature on the effectiveness
of rehabilitation programmes, finding that programmes which target the right individuals
(those at the higher risk of further offending) and those needs that cause young people to
commit crime (such as anger and substance use) are likely to significantly reduce rates of
further offending.’162
What was evident to the Select Committee was that ‘best practice’ rehabilitative programmes
for Youth offenders are currently not being delivered within secure care facilities in South
Australia. Additionally, there is a limited capacity to do so, given current resource levels.
CYFS acknowledges that is has established protocols with CAMHS regarding the provision
of psychiatric and mental health nursing services to young people in secure care. Yet there
are few other services or programmes available which directly target offending behaviours of
young people.
While CYFS is aware of the ‘What Works’ and other interventionist models and research, it
appears to have a limited capacity to conduct these types of targeted programmes not only in
secure care but also as part of community based orders. Thus, there appears to be no
continuity of specialised, targeted, therapeutic intervention for young people of the type and
extent identified by researchers such as Dr Andrew Day. Therefore, it would appear that
opportunities to intervene and address risk factors for recidivism in South Australia are
lessened. For an analysis of crime prevention, early intervention and therapeutic
interventions such as the ‘What Works’ model please see Term of Reference D of this
Report.
Recommendation 18
That a comprehensive framework of targeted therapeutic programmes be developed and
delivered as part of all Custodial and Community Sentence Order Plans.
4.8
Custodial Leave
The Committee believes that an effective transition plan from secure care into the community
should also be facilitated through the introduction of custodial leave, which is currently
provided for in Victoria. CYFS states that this ‘allows the custodial client a range of escorted
and unescorted leave to assist the client to re-establish or maintain community or family
links.’163 The Select Committee felt that custodial leave may be of benefit to young people
coming to the completion of a detention order to assist them in either transitioning directly
back into their community or into another community based order. Custodial leave may also
aid in continuity of intervention support both within and outside of secure care.
160
161
162
163
ibid.
CYFS Submission 42, pp. 27-30
Dr Andrew Day Submission 4, p. 1
CYFS Submission 42, p. 27
75
4.9
Transitional Planning
Several submissions referred to the lack of transitional planning and case management given
to young people post their release from secure care.164 For example, the Drug and Alcohol
Services Council agreed that there was:
very little support during the transition process back into the community, in relation to alcohol
and other drug use. …An investment in drug services in youth justice centres should be coupled
with an investment in drug services in the community upon release. A young person’s resolve
and skills to cease or reduce drug use, or to use drugs more safely, is tested upon release.
…DASC currently has no link with the transition process back into the community and there are
currently no resources for this.165
Similarly, YACSA stated:
Once released from detention, young people need to move into a period of greater
independence, where they are required to organise themselves to make appointments to
continue to see their worker etc. This is particularly crucial for young people with mental health
issues.166
The Youth Education Centre (YEC), which is based at the Magill Training Centre,
recommended that a community based transition unit be established to transition young
people who have been in secure care, back into the community. YEC also requested that this
transition unit also facilitate the matching of young people with mentors and mentor groups to
assist them develop life skills, (such as gaining a drivers licence) and add to their support
system.167
The Select Committee recognised that a comprehensive case management model of
children and young people in the Youth Justice System was required and that transitional
planning and ‘through-care’ was essential to that case management model. A tiering of
security statuses within secure residential care may assist the management and level of
support given to children and young people as they move through secure care or community
based orders to reunification with families or supported accommodation/independent living.
The Select Committee noted that for several children and young people, secure care can, in
relation to their familial settings, be an ordered environment where some of their primary
needs such as nutrition, education and health care are addressed.
CYFS did, however, point out that the issues of confidentiality and the sharing of information
about a person in secure care between agencies such as health and mental health services
can affect the care and protection of that young person when in secure care and upon their
release.168 Again a comprehensive case management model and agency memorandum of
understandings may assist such matters. For a further discussion on confidentiality, please
see Term of Reference E of this Report.
The Select Committee thought that transition planning should not, however, only be confined
to a transition from a detention order, but should be integrated into the case management of
all children and young people in the Youth Justice system through an effective case
management model. In the UK there has been a call for a move from a ‘vertical sentencing’
to a ‘horizontal sentencing’ system so that youth can transition from detention to less
164
165
166
167
168
YACSA, Submission 29, p. 10; Youth Education Centre, Submission 19, p. 8, DACS Submission 11
DASC Submission 11, p. 4
YACSA Submission 29, p. 11
YEC Submission 19, p. 8
Ms Bernie McGinnes, Hansard 1342 - 1348
76
interventionist sentences.169 The Select Committee also finds that a tiered approach to
sentencing and a subsequent case management model is required in South Australia.
Recommendation 19
That Custodial Leave be introduced to facilitate more effective rehabilitation.
That transition plans be provided for all children and young people and transition planning to
be a key concept in the case management of all children and young people in the Youth
Justice System.
That a tiered structure of Sentence Orders be established.
4.10
Community Based Specialist Programmes For Young People Who Have
Offended
CYFS submitted that ‘the system has an inadequate number of community based specialist
programmes (anger management, victim empathy, sex offender and other programmes)
especially programmes staffed by specialist multi disciplinary teams (for example
psychology, social work and youth work).’170 Both SAPOL and the Family Conference Team
concurred with this view, noting the limited number of community based providers in the
youth service system to deliver programmes to those young people diverted from the Youth
Court process.
It was not clear to the Select Committee; what youth resources are available in South
Australia; where they are situated; what their referral pathways are (voluntary/non-voluntary
status) or protocols to access the programmes. Fundamentally, what was difficult to
determine was how those working in the Youth Justice System could access these or broker
community based services in a timely and responsive manner. Ms Carolyn Doherty, Senior
Youth Justice Coordinator, with the Family Conference Team explained that
Interface relationships have become increasingly complex in recent times and it is clear that the
realities of infrastructual support that the family conference process would require to ensure
provision of its service to the community were not addressed at the time of the legislation,
outcomes from the conferencing process attempt to address the needs of both the victim and
the offender. This approach requires individual relationships to be established with programme
providing agencies. Sometimes that approach has been to the detriment of clients, especially
young people. A better service delivery model would be to recognise the importance of early
intervention to ensure an integrated approach to young people and their relationship with the
Youth Justice System…
I feel that we should have priority access to programme providers. If we identify an issue at a
conference, then it should not just be referred out as a normal referral process to a normal
agency. …If we refer to Second Storey, a young person goes along to their meeting and the first
thing they say to the Second Storey person is, ‘I am here because I was told to come’. The
Second Storey person therefore says, ‘You are not a voluntary client. You do not need to come.’
We have spent many times talking to key agencies about the consensus process, that the young
persons as agreed at the conference and they are committed to it.171
The Select Committee asked representatives from CYH (who manage The Second Story
Youth Service (TSS)) about this issue. Ms Dorian Marsland-Smith explained that:
169
170
171
Audit Commission Youth Justice 2004, op cit., p.5
CYFS, Submission 42, p. 19
Ms Carolyn Doherty, Family Conference Team Hansard 439
77
there is no formal arrangement between other bodies such as the Family Conferencing Unit.
When the young people are referred we meet with the young person and seek to look at how we
can shift that focus to being a voluntary commitment. There is no formal structure or process to
do that: it is more of a referral or a sort of goodwill…That is the value of young people going to
an intervention where they see that it is of value to them. It if is court ordered, those
programmes don’t work; young people don’t engage; they may come along once or twice, but
they don’t come back. So, the challenge is to shift the focus from being sent there to it being
voluntary and their seeing benefit in it for themselves. It is how we engage the young person
and work with them.172
What was evident to the Select Committee was that there was an inadequate level of youth
justice referral pathways to community based and CYFS administered Youth intervention
programmes and an inadequate number of these programmes available. It was not clear how
these programmes, both Government and non-Government were strategically coordinated to
address particular youth population groups. Thus, there appeared to be constant difficulties
in trying to access services for young offenders or waiting lists for services were so long that
their ability to intervene productively was lessened. Additionally, there is no systematic way
to bring these issues to the attention of the Department or Agency Executive in order to alter
this apart from the Intra-Governmental Youth Justice Advisory Committee. Thus the ability to
intervene in offending behaviour, support young people and their families to enhance
protective factors is compromised.
4.11
Youth Health in Secure Care
Child and Youth Health (CYH) are the primary provider of health care services to young
people in the Youth Justice System. The Second Story Health Service (TSS) is the youth
division of CYH which provides assessment and health care to young people in secure care
and link young people to TSS services in the community.
CYH emphasised to the Select Committee that the range of health and welfare ‘predisposing
factors for young people who offend’ included: ‘domestic violence, child abuse,
homelessness, drug and alcohol abuse, unemployment and mental health problems’173 CYH
noted that the secure care population does not access primary health services in the
community and therefore they may present to secure care with ‘serious acute and chronic
health issues including:
•
•
•
•
•
•
•
•
•
Drug/other substance abuse/addiction
Mental health
Sexual heath
Hearing
Vision
Immunisation
Dental
Disability
Suicidal behaviour.174
CYH cited a 2001 review of health services to young people in secure care which noted that
there was a
•
•
172
173
174
very high turnover of youth in custody;
high incidence of drug and alcohol use and poor general understanding of their health
status;
Ms Dorian Marsland-Smith, Child and Youth Health, Hansard 1792
Child and Youth Health, Submission 45, p. 1
ibid., p. 2
78
•
•
•
•
significant gaps in health service comprehensiveness and capacity (ie no specific or
ongoing programmes address issues such as substance abuse/dependency, sexually
transmitted disease, mental health management, or after-hours services);
inability to ensure a timely or comprehensive admission assessment;
poor or ad hoc communication and/or coordination of activity with no effective formal
linkages between FAYS (CYFS), physical health, mental health, social services and
community support agencies in providing assessments, treatments and/or post discharge
supports, [and]
…additional specialist services are funded on a case by case basis by individual operational
units with an additional budget which includes pharmaceutical costs.175
CYH pointed out that there was an inadequate resource level to address these needs and
therefore, they still remain. The 2001 review, ‘Health Services for Young People in Cavan
and Magill Training Centres’ noted that because:
this client group and their families do not engage with community health services, for various
reasons, including transient lifestyles …secure care presents a real opportunity to assess the
health needs of this group of young people and connect them with appropriate community based
services.176
CYH impressed upon the Select Committee the need for a seven day health service in
secure care to address these issues.177
Recommendation 20
That the provision of Health Services in Secure Care be enhanced.
4.12
Use of Video Conferencing
The need to increase the use of video link technology was also raised by SAPOL and the
Youth Court in their submissions to the Select Committee.178 The Select Committee
acknowledged the importance of separating children and young people from adult offender
populations. Video link technology could be incorporated into current and future Court and
Secure Care facility designs.
Recommendation 21
That video link/conferencing technology be incorporated (where suitable) in all current and
future Youth Justice facilities.
175
176
177
178
ibid.
Viv Hazel, ‘Health Services for Young People in Cavan and Magill Training Centres’, Department of Human Services
Prisoner and Offender Coordination Council, October 2001 cited in Child and Youth Health Submission 45
Child and Youth Health Submission 45, p. 3
SAPOL, Submission 25, p. 12 and Youth Court Submission 14, p. 5
79
5
TERM OF REFERENCE C
Psychological and Psychiatric Dimensions of Juvenile Offending
5.1
Mental Health
The Select Committee was informed that there is a high incidence of young people with
mental illness in the Youth Justice System. The Division of Mental Health, Women’s and
Children’s Hospital explained that this was due to a range of factors including:
•
•
•
factors within the family and their childhood including family disruption and breakdown which
impacts on attachment patterns.
learning difficulties impacting on their success in school, education and vocational potential.
behavioural difficulties arising from family factors, learning capabilities and other mental
health presentations.179
Ms Pauline McEntee, Manager, Divisional Operations with the Division of Mental Health,
Women’s and Children’s Hospital explained to the Select Committee that approximately 14
per cent of children and young people in Australia have mental health problems180 She also
stated that there was a ‘high prevalence of mental health problems in young people in youth
training centres. They had four times higher levels of mental health problems than those
reported by adolescents in the community.’181
Mr Phillip Robinson, Chief of Mental Health at the Women’s and Children’s Hospital provided
evidence on the current structure of mental health services for young people in South
Australia and the specific provision of services for young people in secure care. He explained
that the Women’s and Children’s Hospital has responsibility for a range of state-wide
services. Additionally there are community services in the metropolitan and in some major
country areas. The majority of services are delivered by Child and Adolescent Mental Health
Services (CAMHS) in the community whilst children are living with their families. There are
12 inpatient beds in Boylan Ward at that Royal Adelaide Hospital for young people. Boylan
Ward is not, however, a secure care facility. CAMHS operate from 9am to 5pm with an after
hours emergency nurse based at the Women’s and Children’s Hospital. CAMHS does not
have a mobile service but does link in with the adult acute crisis intervention service. There is
also a hospital/home transition unit in Enfield.182
Individual children and young people are assessed and categorised into one of five
categories. Category one would mean a young person would gain an immediate service,
category five may mean they wait up to a year for a service.183 This priority system means
that those with the most acute and immediate needs receive a service whereas those
requiring early intervention may wait an extended period of time thus not receiving an ‘early
intervention’.
The Select Committee considered the benefits of screening young people for mental health
services, as happens in other physical primary health screens. However, Mr Robinson
explained that any screening programme would have to have an adequate service provision
model attached to it to ensure that those who were identified could be given a service.
Further, he suggested, that South Australia has not invested in mental health services as
other States have. For example, in New South Wales there has been ‘a $6 million investment
in child and adolescent mental health services… in schools. In our state we have two people
179
180
181
182
183
Division of Mental Health, Women’s and Children’s Hospital Submission 10, Addendum, p. 6
Ms Pauline McEntee, WCH Hansard 1445
ibid.
Mr Phillip Robinson, WCH Hansard 1403-1412
ibid, 1415
80
for South Australia working as school support people’.184 He explained that current
resourcing levels do not adequately match identified needs in some areas. For example:
In places like Elizabeth we have 12 clinicians for the whole area including Elizabeth, Salisbury
and so forth, and probably as a comparison – I could not tell you the exact number, but
somewhere in the order of - FAYS [CYFS] would probably have 70 workers in that area referring
all their most complex cases onto us and so, that is an example of the difficulties that we have in
terms of being able to deal with that… common sense would probably tell you that the more
F[ull] T[ime] E[mployer] you have, the quicker that you are going to be able to see [clients].185
Regarding the provision of services to young people in the Youth Justice System the division
of Mental Health, Women’s and Children’s Hospital stated that psychiatric and psychological
assessments for young offenders were not done in a systematic way. The Division pointed
out that:
•
•
•
Some young people have multiple assessments by different professionals prior to coming
into …the Youth Justice System.
Some young offenders have never been engaged with a therapeutic process.
Individual psychiatric assessments do not aid diagnostic clarification; instead it is more
productive to assess the environment and disabilities of the young person.186
Additionally the Youth Court submitted that:
The Court is very concerned at the lack of mental health treatment resources for children who
appear before the court. There is apparently a dearth of specialist child psychiatrists in Adelaide
and the Department of Forensic Psychiatry will not examine children, as it considers that such
examinations fall outside its expertise. The court struggles to find psychiatrists willing to
undertake examination of children. This is particularly so where three psychiatrists may be
required for the purposes of considerations under section 269a of the Criminal Law
Consolidation Act. The court frequently makes orders by way of conditions in obligations
imposed under the Young Offenders Act that children should undertake psychiatric or
psychological counselling or treatment, as directed by a supervising officer. The court is aware
of the difficulties that face the supervisors in this area, but the judicial officers note that very
often these children return, having committed other offences and find that no action has been
taken in relation to this condition of the previous obligation. Although the numbers of children
before the court with overt mental health problems is not enormous, those that do fall into this
category are often extremely damaged as a result of years of neglect and abuse. These children
are often responsible for numerous serious offences. The judicial officers can think of a number
of children in this category for whom there is no choice other than sentences of detention.
Usually these children re-offend within days of release and find themselves back in custody.
Unless determined efforts are made to increase the facilities afforded to the court and the
Department of Family and Youth Services [CYFS], the court will be hampered in its assessment
of these young offenders and the Department will fail to meet the court’s expectations in the
care and treatment of these children.187
CYFS submitted that there were significant issues relating to the provision of physical and
mental health services for young people in the Youth Justice System. With regard to physical
and mental health services for the secure care population, a recent ‘workload analysis’
conducted by an external consultancy firm found that:
The Department of Health (formerly DHS) funding levels for physical and mental services for the
secure detention population are inadequate, as a consequence:
• not all detainees receive health screening;
• medical services are only available during work hours (9 - 5);
184
185
186
187
ibid., 1435
ibid., 1415
Division of Mental Health, Women’s and Children’s Hospital Submission 10, p. 2
Youth Court Submission 14, pp. 3-4
81
•
•
CYFS pays for locum services at other times; and
there are inadequate mental health services available.188
The Select Committee heard that there was an inadequate drug and alcohol and counselling
services available especially services provided in culturally accountable ways for young
people with severe alcohol and other drug (AOD) issues serving community based justice
orders. Steps have been taken to begin to redress these shortfalls including the allocation of
$300,000 to CYFS through the Social Inclusion Drugs Summit Initiative. CYFS has focused
this allocation on young people in secure detention with severe AOD issues and associated
offending patterns, and on intensively supporting their transition back into the community.189
The Select Committee took evidence from Mr Garry Johnston, a Mental Health Link nurse at
the Magill and Cavan Training Centres. He explained that there are two Aboriginal mental
health consultants and the Aboriginal Youth Mental Health Partnership project which is
based in the Western Metropolitan Region. Ms McEntee explained that this project:
works with young Aboriginal people who are at social and emotional risk, and also at risk of
entering the Youth justice area. Their focus is on the developing mental health skills of staff in
Aboriginal agencies in the western area, and on developing the cultural knowledge of the mental
health staff in our service.190
Mr Johnston explained that CAMHS work collaboratively with secure care staff and Second
Storey (CYH). He said ‘there also has to be a fair bit of education for secure care staff about
issues to highlight that it is not only behavioural but that it is [a] mental health concern.’191
Several agencies expressed concern to the Select Committee about the lack of a secure
care therapeutic environment for young offenders. Unlike the adult jurisdiction which has
James Nash House for adult offenders with psychiatric disorders, the Youth Justice System
does not have access to a secure psychiatric facility apart from the Brentwood Ward at the
Glenside Campus which is an adult secure care facility. Young people who are in need of
therapeutic mental health care often remain within secure care and do not obtain an
adequate level of health care.192
Ms McEntee explained that if there is a young person in the training centre who needs to be
in Boylan Ward, CAMHS has an agreement with CYFS to provide security staff in ensure that
the young person does not escape during their time in the ward. She said:
The numbers are very small. The occasions when a hospital would be preferred over being in a
detention centre are probably very small. For instance, it someone is suicidal the amount of
monitoring and support that they can give is probably comparable to what the hospital can give they can do 5 minute checks, and things like that. So, in terms of the benefits of them being in
hospital as opposed to staying in the detention centre – I mean, there is no greater benefit than
being in hospital and getting the appropriate mental health care anyway, so it is probably only
where someone is very unwell that they might need to come into hospital. That is fairly rare.193
In terms of resourcing priorities, a secure care psychiatric facility was not fully endorsed by
CAMHS representatives. Representatives felt that resourcing priorities should be placed
elsewhere within the broader area of children and adolescent mental health services.
188
189
190
191
192
193
CYFS Submission 42, p. 19
ibid.
Ms Pauline McEntee, WCH Hansard 1451
Mr Garry Johnston, WCH Hansard 1452
Ms Lana Chester, Legal Services Commission Hansard, 1013
Ms Pauline McEntee, WCH Hansard 1478
82
5.2
Section 269A of the Criminal Law Consolidation Act
A number of legal agencies and practitioners, including the Youth Court expressed a concern
about the lack of mental health treatment for young people within the Youth Justice System.
As discussed previously, the Court finds it difficult to obtain psychiatric assessment of
children who appear before them and especially when those examinations are sought
because of an application under section 269a of the Criminal Law Consolidation Act. Paul
Bennett from the ALRM explained that it takes a significant amount of time to have a Section
269A (mental impairment) application processed because of the need to have a number of
assessments and that in some cases young people can spend more time in secure care
awaiting this than they would if they had plead guilty to the criminal offence.194
Recommendation 22
That an increase in the provision of psychological and psychiatric services for children and
young people in the Youth Justice System be made.
That an increase in the provision of psychological and psychiatric services for children and
young people ‘at risk’ be made (including those children under 10 years of age).
A review and decrease in the waiting times for psychiatric assessments for the purposes of
s269A of the Criminal Law Consolidation Act.
194
Paul Bennett, ALRM Hansard 954
83
6
Term of Reference D
The Need for Early Intervention Policies and, in particular, the Role of
Parents and Family
6.1
Parenting
Parents and familial supports are one of the most essential protective factors in the lives of
children and young people. The role of parents and the family in the care of their children
should be recognised and supported by the State. CYFS submitted that:
Most offending is minor, episodic, opportunistic and transitory. The involvement of young people
in the justice system tends to decline with age. As yet unpublished research by the Office of
Crime Statistics (a 1994 cohort study) indicated that for Aboriginal children and young people
this trajectory is less evident, with a disproportionate number moving from the youth to the adult
corrections system. Nonetheless, the majority of young people who come to the attention of the
system do so only once.195
For most children who commit offences as youth, their engagement with the Youth Justice
System is short lived. For others, their behaviour is more entrenched and born of sometimes
complex familial environments, and a range of social and economic factors. However, all of
these children have parents or carers who are or should be responsible for them. The Select
Committee were keen to ensure that there was due emphasis given to the rights of parents
to support, guide and protect their children.
The Select Committee believed that there was a misconception in the community that
parents’ rights had been taken away from them. The Committee wished to point out that
parents’ rights are the same now as they were historically. Parental rights have not been
removed or altered by governments. However, the Committee did acknowledge that some
government agencies and processes are perceived to undermine parental authority by not
working with parents and their children but by working primarily with the young person or by
presuming a young person had the same degree of autonomy as an adult.
The Select Committee wished to stress that the State should do all it can to assist parents in
their efforts to raise their children. State agencies’ efforts to support children and young
people who are at risk of, or are, offending should, where possible, be implemented in
conjunction with parents.
The Select Committee acknowledged that some familial settings were not productive and
some parents may in fact be abusive and threaten the well being of their children. For these
families the established child protection legislation and processes are in place to identify and
remove children (when required) from their family settings. CYFS, the Care and Protection
Unit and the Children’s Court are responsible for this process.
The Committee also notes that some young people have parents with limited parental skills
such that they may not be able to address their child’s ‘at risk’ or offending behaviour. For
example, a parent who ignores a child’s truancy or does not insist on their child being at
home at a reasonable hour, may actually be contributing to their child’s anti-social behaviour.
Some parents may not feel they can control their children as they do not have the required
skills to enact their authority as parents.
Adolescence is a particular transition point that can bring conflict over authority and parental
control. It can be a difficult time for both parents and their children. Parenting programmes
195
CYFS submission 42, p. 11
84
should be available and accessible for these people to assist them to develop those skills
and support them in their relationships with their children.
The Committee consulted the United Nations Convention on the Rights of the Child whose
preamble in part states:
Considering that, in accordance with the principles proclaimed in the Charter of the United
Nations, recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world.196
In line with this, the Select Committee acknowledged the importance of all members of the
family unit and in particular referred to Article 5 of the Convention which further emphasises
the rights and responsibilities of parents, extended family and the community. Article 5 reads:
States Parties shall respect the responsibilities, rights and duties of parents or, where
applicable, the members of the extended family or community as provided for by local custom,
legal guardians or other persons legally responsible for the child, to provide, in a manner
consistent with the evolving capabilities of the child, appropriate direction and guidance in the
exercise of the child of the rights recognized in the present Convention.197
The Committee also acknowledged Article 10, paragraph 1 of the Convention which states:
In accordance with the obligation of States Parties under article 9, paragraph 1, applications by
a child or his or her parents to enter or leave a State Party for the purpose of family reunification
shall be dealt with by States parties in a positive, humane and expeditious manner. States
Parties shall further ensure that the submission of such a request shall entail no adverse
consequences for the applicants and for the members of their family.198
Accordingly, the Committee felt that services directed towards families should aim to facilitate
the rights of children within their familial contexts. Therefore, emphasis should be given to
parental rights, responsibilities, family reunification and safety of all members of a family,
including children and young people.
The Committee felt that in the absence of abuse and neglect, children and young people
should be encouraged to remain in their family settings and the State should not assist
children or young people to live away from the family home. The State has a responsibility to
support parents to maintain the integrity of the family unit and should assist young people to
modify their ‘at risk’ behaviour enough to remain in their parental home.
Family Care meetings which are run by the Care and Protection Unit are currently used to
alert parents to the issues they need to address in order to prevent their children being
removed from their care or to advise parents of the reasons why their children are to be
removed. The Select Committee felt that the use of Family Care Meetings should be
extended to remind children and young people of their responsibilities and the fact that they
are and should be under the care and control of their parents. The Family Care Unit may
assist parents to have their authority recognised and legitimised. The Select Committee felt
that the State should not aid children and young people moving away from under their
parents’ authority or protective control until they become adults, unless there is evidence of
neglect or abuse.
The Select Committee acknowledged the complexity involved in our society when the age of
majority is 18 years, the age that a young person can leave school is 16 years and where
196
197
198
Office of the High Commissioner for Human Rights, Convention on the Rights of the Child, www.unhchr, ch/html, accessed
18 June, 2005
bid.
ibid.
85
Centrelink income support may be linked to parents’ incomes until children are 24 years of
age. The Select Committee acknowledges the frustration of parents who want to provide a
good home for their children and may perceive the State is aiding and abetting their child to
remain outside of the family home.
The Select Committee heard evidence from a woman whose 15 year old daughter had
broken a home detention device and was living with her 19 year old boyfriend. The Police
had not acted to return the child to the family while CYFS were trying to determine if they
would continue to work with the young woman. The young woman’s mother was eager to
stress that she and her family wanted what was best for her daughter and that the Home
Detention Unit of CYFS had worked productively with the entire family to try and achieve this.
Yet her daughter had cut off her Home Detention bracelet and had left the family home and
was thought to be residing with a 19 year old male who was suspected of being a drug user.
This was clearly not in her best interest. The young woman’s mother wanted help from
government services to reassert and enact her parental authority.
In considering the broad systems issues that fall from the experience of this woman and her
family, the Select Committee understood that if the young woman wanted to resist her
mother’s authority, and had not offended, there was little that could actually be done to help
facilitate her return to the family home, apart from general youth work interventions that relied
on the young woman volunteering to engage in that work. The Select Committee noted
however that Police action should be taken when a young person is thought to be engaged in
unlawful sexual activity with an adult. While it was acknowledged that currently the young
person could not be coerced to either engage in youth or therapeutic services (without a
Youth Court Order), it was felt that CYFS services should be delivered with an emphasis on
family reunion and safety.
The Select Committee referred to the Review of Child Protection Services in South Australia
that Robyn Layton QC undertook in 2003. The Select Committee concurred with the
suggestion made in the ‘Layton Report’ that:
With regard to relationships between parents and adolescents there is also an urgent need for a
variety of service responses including a crisis response service to assist parents and young
people requiring intervention during situations such as:
• Family disputes and/or violence
• Running away
• Serious drug and alcohol abuse
• When in police lock-up
• When in particularly risky or dangerous situations such as living on the streets, with
inappropriate persons, at risk of prostitution or committing criminal acts and
homelessness.199
The Select Committee did consider the introduction of Therapeutic Protection Orders (see
further discussion in this Term of Reference) however, it noted that these orders may only be
used in specific circumstances. In addition to these orders, there needs to be a change in
ethos whereby State services work with the whole family and not just the individual young
person and that this work aim at reunification and family cohesion so that familial
relationships were maintained. The Select Committee noted that Commonwealth agencies,
such as Centrelink, also needed to recognise the needs of the entire family and not only
those of the young person. Parental authority should not be asserted at the expense of harm
to children or young people, however, it should not be ignored.
Current child protection provisions do not appear to work with enough of an emphasis on
reuniting these young people with their family and yet this may be exactly what they should
199
Robyn Layton, Our Best Investment: A State Plan: To Protect and Advance the Interests of Children, March 2003, p. 13.4
86
be doing. Youth work interventions should work from the premise that unless a parent has
done something to compromise their authority, their parental authority should be respected,
otherwise the State runs the risk of preventing parents from being able to support their
children, especially at such crucial times.
The Select Committee recognised that if a parent believed the State was aiding and abetting
their child to remain outside the home then there should be a mechanism for parents to
appeal in order to have their concerns heard. The Committee therefore, recommends that an
‘adolescent at risk’ review process be developed and that the Care and Protection Unit
administer the process. It is essential that this process be easily accessed and timely.
Additionally, the Select Committee felt that not all parents were sufficiently skilled to parent
effectively and some young children did not receive adequate levels of support or care. While
the Child Protection Act 1993 addressed specific issues to do with parental neglect and
abuse, the Committee also recognise that some parents lacked parental skills and that this
contributes to their children’s anti-social behaviour. In an effort to provide support for these
parents and enhance their parenting skills, the Committee considered the issue of Parental
Responsibility.
Recommendation 23
That Family Care Meetings administered by the Care and Protection Unit be used to reunite a
family and to assist in the clarification of the roles, rights and responsibilities of each
participant.
That an ‘adolescent at risk’ review process be established within the Care and Protection Unit
with oversight from the Courts Administration Authority.
6.2
Parental Responsibility
The Select Committee conducted a lengthy analysis of Parental Responsibility and Parental
Orders. The Select Committee considered a range of proposals, such as the Hon. Graham
Gunn’s proposed Parental Responsibility Bill 2001 and also legislation that other States and
countries have introduced regarding parental responsibility contracts or orders or those who
hold parents financially liable for the criminal damage caused by their children.200
The Select Committee was aware that parental responsibility and the separate subject of
liability can be controversial and contentious issues. While a lack of parenting skills and/or
neglect may give rise to ‘at risk’ behaviours in children, there remain some children and
young people who, despite the best efforts of their parents, engage in anti-social and illegal
activities. Other parents can struggle with a range of socio-economic factors that limit their
opportunities to engage fully in society. This can result in them having limited parental skills
or supports to assist them in the rearing of their children. The Select Committee was mindful
that some parents themselves have anti-social behaviours, and display little insight into the
requirements of parenting.
The Select Committee considered the United Kingdom’s introduction and operation of
Parental Orders, Canada’s adoption of parenting principles in its Youth Criminal Justice Act,
the underlying theme of parental responsibility in the Irish Children’s Act 2001, New South
Wales’ Children (Protection and Parental Responsibility) Act 1997 and West Australian’s
consideration of Parental Contracts or Orders.201
200
201
G. Gunn, Submission 5
See (insert reference to the UK parental orders and the West Australian discussion paper and submission.
87
The UK’s Crime and Disorder Act 1998 introduced Parenting Orders and s6.5 of the National
Standards for Youth Justice deal with parenting orders.202 A Parenting Order can be made by
a Magistrate’s Court, when a child aged 10 to 17 years is convicted of an offence or is
subject to an Anti-Social Behaviour Order or Sex Offender Order, if a child is the subject of a
Child Safety Order (for those under 10 years), or if a parent has been convicted under the
Education Act for the unexplained non-attendance of their child at school.203 It is a criminal
offence not to comply with a Parenting Order and one can be fined up to a maximum of
₤1000. Parenting orders consist of a:
requirement on the parent or guardian to attend counselling or guidance sessions where they
will receive help and support in dealing with their child….They will be able to learn, for example,
how to set and enforce consistent standards of behaviour, and how to respond more effectively
to challenging adolescent demands.204
The Court has discretion to impose a range of sanctions on parents including a requirement
on a parent or guardian to ensure control over the child’s behaviour by school attendance
and/or curfew adherence. The conditions and length of the order can be linked to the court
order the young person receives.205 2194 orders were made in the UK between April 2000
and April 2002 which included:
•
•
•
•
1536 in criminal (Youth Court)
374 in Education Act proceedings (in relation to truancy); and
284 in other proceedings (such as civil orders like the Child Safety Order).
Parenting orders and parenting contracts [were made available in] February 2004, under the
Anti-Social Behaviour Act 2003, and the Criminal Justice Act 2003, to allow intervention at
an earlier stage, before a criminal offence has been committed.206
The Select Committee analysed the role of parents in the Canadian Youth Criminal Justice
Act (YCJA) which came into effect on April 1, 2003. It found that the important role of parents
is contained within the declaration of principles, and that s26 of the Act allows a youth court
to order a parent/s to attend court if it determines their presence to be in the best interest of
the child.207 Professor Nicolas Bala has argued that this provision reflects research which
indicates that:
parents relatively seldom attend youth court proceedings, especially if youths are older or have
a history of offending. Research in Quebec has demonstrated that the absence of collaboration
with parents of young offenders has a negative impact on the success rate of probation
orders.208
Bala also argues that when parents/family members are involved in the treatment of young
offenders, the rate of recidivism is lowered, however, he adds that ‘orders to compel parental
attendance, however, are rarely made, as coercing parents to become involved in the court
process is rarely likely to help their children’.209 The YCJA does not hold parents accountable
for crimes committed by their children. At civil law the Ontario Parental Responsibility Act,
202
203
204
205
206
207
208
209
See Section 8-10 of the Crime and Disorder Act 1998, see http://www.hmso.gov.uk/acts/acts1998/98037--b.htm#8, and
‘The Crime and Disorder Act: Guidance Document: Parenting Order’ document, www.homeoffice.gov.uk/docs/parent.html,
p2, both websites accessed on 4 October, 2004
See Section 8 of http://www.hmso.gov.uk/acts/acts1998/98037--b.htm#8, ibid.
See ‘The Crime and Disorder Act: Guidance Document: Parenting Order’ document,
www.homeoffice.gov.uk/docs/parent.html p. 2, ibid. p. 4
ibid.
West Australia, Office of Crime Prevention, Department of Premier and Cabinet ‘Discussion Paper on the Parental
Responsibility Order’, January 2004, Appendix Two.
Nicolas Bala, ‘The YCJA After One Year: Context, Impact and Interpretation’, Ontario Court of Appeal Education Seminar,
Niagara On the Lake, Ontario, May 28 2004, p. 11
ibid.
ibid.
88
2002 holds parents responsible for the damage or destruction of property that their children
cause however, negligent supervision has to be established.210
In Ireland, the Children’s Court may find parents in contempt of court if they do not attend
proceedings and they may be examined in relation to the adequacy and level of supervision
they provide for their children. Parents and guardians have an opportunity to give evidence to
the court prior to their child’s sentencing. Kieran O’Dwyer has argued that while the
underlying theme of parental responsibility in the Irish Children’s Act 2001 was supported,
some people were concerned about the introduction of the legislation, particularly given that:
Parental responsibility as an ethos cannot be forced on parents by fining them or by placing
them in contempt of court because they are unable to control their children. It can, however, be
built up if families feel they are being listened to and feel accepted, and if [care] workers are in a
position to offer time, support and therapeutic skills to families. The key distinction is that
between working with families and working on them.211
The issue of parental responsibility and state intervention contain significant ethical issues,
for example, should absent parents or carers be issued with parenting orders to compel them
to have relationships with their children? The ‘best interests of parents and children’ may not
always be recognised by either group, and the need to maintain due legal process and
human rights must be balanced with the need to engage parents in the care and supervision
of their own children. Concerns were expressed to the Select Committee from a variety of
groups regarding parental responsibility orders, for example, the Children’s Interest Bureau
indicated their concern ‘with the push to make parents responsible for the misdemeanours of
their children. It does not feel that this helps with relationships within families and is contrary
to family reunification principles and keeping families together.’212 Ms Pam Simmons,
Guardian for Children and Young People also cited her concern and a lack of support for
parental orders. In her view ‘that would lead to heightened conflict and tension within the
family potentially. I think offering family conferencing…provides that service anyway. I would
not like to see parents becoming liable.’213
Ms Simmons and the Children’s Interest Bureau’s comments further highlight the range of
issues involved with strategies that aim to positively engage parents, albeit with statutory
authority to facilitate parents’ compliance, and the limitation of a strategy which holds
parent’s liable for the actions of their children. The Committee wished to stress that Parental
Responsibility was different to parental liability.
In 1997, the New South Wales Children (Protection and Parental Responsibility) Act was
introduced to increase the responsibility of parents and guardians for the behaviour of their
children, to ensure the safety of young people in public areas who are under the age of 16
and to reduce or prevent youth crime.214 Part 2 of the Act makes provision for the actions that
a court may make with regard to family counselling or the fining of a parent, should the child
of that parent/parents be found to guilty of an offence.215
Western Australia is currently considering the implementation of Parenting Orders and have
produced a discussion paper which considers both the UK Parenting Orders and the New
210
211
212
213
214
215
See Ontario: Parental Responsibility Act, 2000, S.O. 2000, c.4 which allows for liability to be imposed. Nicolas Bala points
out that in British Columbia and Newfoundland, legislation imposes strict liability on parents whose children cause damage
in school. See Nicholas Bala, ibid. ft. 37
T. Walsh, The Children’s Bill: A Social Work Perspective, Children’s Legal Centre, Dublin, 1996 cited in Kieran O’Dwyer
‘Youth Crime and Justice in Ireland’ in Nicholas Bala, Joseph Hornick, Howard Snyder and Joanne Paetsch, Youth Justice
Systems: An International Comparison of Problems and Solutions, Thompson Educational publishing, Toronto, 2002, p. 185
Children’s Interest Bureau, Submission 36, p.1
Pam Simmons, Guardian for Children and Young People, Hansard 1525
See Review of the Children (Protection and Parental Responsibility) Act 1997 – Final Report (part 1). Report of the
Coordination and Evaluation Committee, July 2001, http://www.lawlink.nsw.gov.au/cpd.nsf/pages/srep_cppract1 accessed
on 5 October 2004
ibid.
89
South Wales Children (Protection and Parental Responsibility) Act 1997. The discussion
paper asks:
When parents and families are faced with serious and complex issues like family violence,
poverty, discrimination, social exclusion, mental health problems, drug or alcohol abuse, they
need help. If families will not accept or access the support that is available, even when it is in the
best interest of the child, should they be legally required to do so.216
The 2004 UK Audit Commission Report analysed the issuing of Parenting Orders and noted
that Youth Offending Teams (YOTs) can find it difficult to access parenting programmes.
In some YOTs, voluntary programmes and Parenting Orders are little used; in others, staff
prefer to offer voluntary programmes rather than proposing an order. The criteria for
recommending an order appear to lack consistency both within and between YOT areas and in
some cases they are not supported by adequate resources….some YOTS have developed
innovative approaches, such as parenting mentoring.217
The Select Committee also consulted a significant body of research regarding parental
support and programmes, including crime prevention models that posited the role of parents
as central to minimising offending behaviours and attempting to ensure that they did not
become entrenched. One of the most significant documents the Committee looked at was
the work that the National Crime Prevention initiative and Professor Ross Homel led; called
Pathways to Prevention: Development and Early Intervention Approaches to Crime in
Australia that noted that:
interventions can occur at many points in the life course, but most fruitfully at key transition
points; that problems can arise at any stage in a developmental pathway and need not be
manifest in the preschool years; that experiences or choices at one point can influence what
happens at later transition points; that ‘booster shots’ might be needed to reinforce the effects of
earlier interventions…218
The literature review that the CYH prepared in 2001 regarding the effectiveness of parenting
strategies failed to find any studies of a planned, and evaluated, statewide approach to
parenting.219 Many projects run in different parts of the nation often lack an evaluation
framework and do not have the security of ongoing funding. Ms Pam Simmons, Guardian for
Children and Young People called for a range of ‘potential early intervention services, some
of which will focus on the family as a whole and some of which will focus more centrally on
the child.’220 These may include services that assist with drug and alcohol issues, health
care, including mental health, parenting skills and access to community centres and linkages
to the local community.
Though it appears that those working in the fields of child protection and parental services
know what is required as part of a comprehensive strategy for parental (and community
based) programmes, there are significant gaps in services delivery.221 The availability of
generic parenting programmes is required in order to facilitate familial resilience. The Select
Committee heard that this is currently being addressed by a ‘whole of government’ emphasis
216
217
218
219
220
221
ibid., Premier’s Introduction.
Audit Commission Youth Justice 2004: A Review of the reformed Youth Justice System, Criminal Justice National Report
London, 2004, p. 79
National Crime Prevention Pathways to Prevention: Development and Early Intervention Approaches to Crime in Australia,
Canberra, 1999, p. 12
Child and Youth Health, ‘What Works? A Literature Review of the Evidence For the Effectiveness of Parenting Strategies’,
2001, p. 24
Pam Simmons, Guardian for Children and Young People, Hansard, 1498
Child and Youth Health, ‘What Works?, op cit., p. 24
90
on ‘keeping children safe’ that recognises that family supports are the most productive and
cost-effective model to achieve that end.222
If one considers the different stages in the Youth Justice process, informal cautioning is
provided to young people who commit minor offences (parents do not have to be present
when informal cautions are given). Formal cautions rely on the cautioning process itself and
the ability of parents to address the behaviour of their children as an intervention strategy.
Formal cautions are given in the presence of parents or carers and where this is not
possible, they are formally notified in writing. Family conferences attempt to engage parents
in the conferencing and obligation process, however, there is no compulsion for parents to
attend or participate. There is a commitment to engage parents or carers in any of the
resultant decisions, and although family conference staff can assist with information and
referrals to parenting supports that specifically address offending behaviour, they are often
not available or have such long waiting lists that intervention is delayed. Division 5, s34 of the
YOA provides for the attendance at court of the guardian of the youth charged with an
offence. Section 34 states:
(1) Where a youth is before a court in proceedings under this Part, the court may order a
guardian or guardians to attend at the court until the proceedings are completed, unless
sooner excused by the court.
(2) When the court makes an order under subsection (1), it may adjoin the hearing of the case
and have the order served on the guardian named in the order.
(3) Any person who, having been served with an order under this section, fails to attend the
court in compliance with the order is guilty of an offence.
Maximum penalty: $750
Apart from a compulsion to attend proceedings the Court has no other powers to have
parents address their children’s anti-social or illegal activity. The Select Committee believed
that the point at which a formal caution is given by a Police Officer is a key intervention point
in a family’s life and where parents need support and therefore assistance in the form of a
referral to a parenting programme. For some parents, their child’s offending behaviour,
however minor, may reflect their concern that the child is becoming increasingly rebellious.
The Committee therefore makes the following Recommendation.
Recommendation 24
That a referral to a parenting programme be offered to parents by Police Officers when they
administer a formal caution to a child.
As already discussed in this report, due to the changes in resourcing levels that took place in
1994, CYFS shifted its management of Youth Justice to the tertiary end of the system to the
management of sentencing orders.223 At the same time the document Our Best Investment:
A State Plan: To Protect and Advance the Interests of Children (the ‘Layton Report’) released
in March 2003 identified that CYFS has, in recent years struggled to respond adequately to
child protection issues in South Australia, let alone been able to address the area of children
‘at risk’. Therefore, there are several families who are not receiving formal support and who
may benefit from such arrangements. The Select Committee understood that parenting is a
rewarding yet difficult and complex role and that parents should be, wherever possible, given
assistance and support. It was acknowledged that adequate parental supervision assisted in
enhancing protective factors in children and young people. The Committee considered the
evidence received and believes that there is a need to engage some parents in more
formalised programmes.
222
223
Government of South Australia, Keeping Them Safe: The South Australian Government’s Child Protection Reform
Program, May 2004
CYFS, Submission 42, p. 2
91
There are other parents who may require a level of compulsion to undertake various
activities or to cease some activities and hence there requires a higher level of engagement.
Parenting Responsibility should not replace generalist parenting supports, however, there is
recognition that in some cases an additional statutory option may be required. This may be
suitable for those parents who are reluctant to or initially fail to see the benefit in engaging in
a programme.
The Select Committee is aware of the need to have good quality, generic parenting
programmes available for parents, and for them to be available at all stages of their child’s
life. The Committee thought that provision should be made for those parents who, through a
lack of knowledge and skills required a supportive programme to enhance their parenting
skills. Hence the Select Committee did see the value in introducing Parental Responsibility
Orders.
The Committee noted that, the Youth Justice System requires different levels of engagement
for parents at different incremental stages within the system. The issuing of a Parental
Responsibility Order would need to be tied to a professional analysis of the level of function
of a family unit. While the services utilised by a Parental Responsibility Order may well be
offered to parents whose children are first time offenders. The Committee felt that the
compulsion of the order should be linked to the severity and/or frequency of the offending
behaviour.
Parents may be required to comply with a range of obligations which would be tailored to
address the issues that led to the issuing of a Parental Responsibility Order. For example,
the Select Committee acknowledged that truancy was often an indication of ‘at risk’
behaviour in children and young people and that engagement with formal and consistent
education was a protective factor. For this reason, the Committee felt that student nonattendance/truancy should also be linked to Parental Responsibility Orders. For further
discussion of student non attendance/truancy and Parental Responsibility Orders please see
Term of Reference G.
The Select Committee acknowledged the views of Senior Judge Moss and Judge Jennings
who discussed those children who are ‘beyond parental control’ or whose families have such
significant levels of dysfunction that there are limited opportunities to engage in formal
parenting programmes or services.224 For these families, a more comprehensive supported
programme may be required, as part of a Care and Protection Family Meeting process.
The Select Committee acknowledged that the issuing of Parental Responsibility Orders are
only as good as the case management model utilised, the resources available and the skills,
leadership and accountability displayed by staff in assisting families to make productive use
of services. The issuing of Parental Responsibility Orders may give rise to more frustration
and disappointment if programmes are not available. Parenting Responsibility Orders also
required adequate supervision and a system to monitor compliance in order for them to be
effective.
The Select Committee acknowledged the views expressed by some agencies and individuals
regarding parental supervision and role models, particularly for young men. The Committee
noted the concerns of some agencies and individuals regarding parenting orders, and
thought that parents should not be held ‘liable’ for the damage that their children cause
through offending. However, the Committee could not ignore the value in having parents
enhance their parenting skills in order to assist their child/children in all well being outcomes
and in turn potentially reduce the likelihood of re-offending.
224
Senior Judge Moss and Judge Jennings, Youth Court, Hansard, 332
92
Recommendation 25
That Parental Responsibility Legislation, which clarifies the rights and responsibilities of
parents and children, be introduced.
6.3
Parental Responsibility Orders and Gender
An evaluation of Parenting Orders in the UK showed that fathers were less often held
responsible for their parenting, through the issuing of a Parenting Responsibility Order, than
mothers were. There, are of course a number of issues related to parental responsibility and
gender. In principle it would be hypocritical to advocate the engagement and responsibility of
one parent and not another. However, consideration needs to be given to the suitability of
placing an order on a parent, for example, if there has been a history of violence between a
(non-custodial) parent and their child. In the UK, the Courts and YOTS have been directed to
place greater effort into engaging fathers in their role as parents and there are efforts to
establish parenting courses specifically for fathers.225
The role of parents and carers is vital to enhancing general protective behaviours in children,
crime prevention, and addressing and reducing offending by young people. The Select
Committee consistently heard that early intervention was essential to reducing or minimising
young people’s contact with the Youth Justice System. Mr Norm Elliott, a South Australian
Police Officer submitted that there was a great need to emphasise the role of fathers given
that young males commit most offences. He stated that fathers are often absent or are poor
role models.226 It was also noted that Aboriginal youth suffer from not having sufficient role
models or older people available to provide a mentoring role to them. Additionally some
parents/families have a lack of insight/level of dysfunction that does not aid the development
of responsible young people. The Select Committee heard there is a need to assist these
families in the care of their children and develop and enhance protective factors in them. The
Select Committee believe Recommendations 23, 24 and 25 will re-affirm the role of parents
in the Youth Justice System.
6.4
Child Protection and Youth Justice / The Layton Report
The document ‘Our Best Investment: A State Plan: To Protect and Advance the Interests of
Children’ (the ‘Layton Report’) reviewed the structure and delivery of Child Protection
Services in South Australia and provided an overall framework or ‘State Plan’ for areas
requiring immediate attention.227 The Select Committee noted that many young people are
the subject of child protection and youth justice processes. CYFS provides services to the
same client group and administers services under different pieces of legislation, the Child
Protection Act and the YOA.
The Layton report did not specifically consider the South Australian Youth Justice System
however, it did discuss a number of issues relevant to child protection, youth offending and
the care and protection of young people, especially those young people under the
guardianship of the Minister.
As a result of the 1992 Select Committee on the South Australian Youth Justice System the
child protection and Youth Justice were legislatively separated. CYFS also undertook
structural and managerial changes regarding the way it made services available to these two
225
226
227
West Australia, Office of Crime Prevention, Department of Premier and Cabinet, op cit., January 2004, Appendix Two, p.
22
Norm Elliott Submission 9, p. 2
Robyn Layton, Our Best Investment: A State Plan: To Protect and Advance the Interests of Children, March 2003
93
areas: child protection and Youth justice. Robyn Layton states in the foreword to her report
that:
The task of child protection had exceeded the ability of Government to deliver the support and
services required, with the staff and resources it had made available. This was most evident in
Family and Youth Services (FAYS/CYFS). Yet at the same time FAYS (CYFS) had developed
best practice protocols and guidelines in a number of strategic areas, the problem was a failure
to be able to implement them fully, due largely to the overwhelming workload.228
The Government’s response to the Layton Report has been the release of the Keeping Them
Safe: The South Australian Government’s Child Protection Reform Programme which is a
framework for effecting change within the child protection area. The Government has
announced a number of measures to address the recommendations of the Layton Report
including the provision of a state-wide home visitation service for mothers and newborns and
some targeted parental programmes.229 The Select Committee acknowledged that
addressing child protection issues as identified by the Layton Report will contribute to the
enhancement of parental supports for many South Australian families, however, the
Committee found that there is little support provided to those families whose children are in
contact with or ‘in’ the Youth Justice System. There is also little evidence of the importance
of the role of parents within the Youth Justice System.
6.5
Guardian for Children and Young People
Part 5, Division 2 (43) of the Children’s Protection Act 1993 provides for the ‘effect of [a]
guardianship order:
If the Court places a child under the guardianship of the Minister or any other person or persons
under this Division, the Minister or the other person or persons is, or are, the lawful guardian, or
guardians, of the child to the exclusion of the rights of any other person.
Part 7 (53) provides for the Powers of the Minister in relation to children under the Minister’s
care and protection. The Minister is legally responsible for the care and protection of children
under his/her guardianship.
In August 2004, the South Australian Government announced the appointment of Ms Pam
Simmons, as the Guardian for Children and Young People. The functions of the Guardian
are to:
•
•
•
•
•
•
•
228
229
230
Promote the best interest of all children and young people in out of home care;
Ensure the rights of children and young people in out of home care are safeguarded and
promoted;
Receive representations from children and young people (and their advocates) under the
Guardianship of the Minister or in custody of the Minister in relation to their care and healthy
development;
Monitor, audit and review both the handling of cases of children and young people under the
Guardianship of the Minister or in custody of the Minister and the systems, policies and
practices related to their care;
To undertake or seek the initiation of inquiries into systemic issues related to the care of
children and young people under the Guardianship or custody of the Minister for Families
and communities;
Monitor the quality of care in designated agencies (Families and Communities Act 1972)
and examine care arrangements in government and non government sectors; and
Promotes the participation of children and young people under the Guardianship of, or
custody of, the Minister in matters that affect them, including the matters of Guardian.230
ibid., foreword
Keeping Them Safe: Past Achievements and Future Initiatives 2004-05, South Australian Government, 2004
Pam Simmons, Guardian for Children and Young People, email communication 16 June 2005
94
The position was created in response to the Layton Report.231 The legal responsibility for the
care and protection of children and young people under the Guardianship of the Minister still
resides with the Minister for Families and Communities.
The Select Committee heard that there are 1380 children and young people on a
guardianship order in South Australia. The Guardian also has responsibility for monitoring
the quality of care in all out-of-home care facilities of which there can be between 2000 to
3000 children at any one time. Ms Simmons gave evidence to the Select Committee and
explained that in 2002-2003 in excess of 50 per cent of children and young people on justice
orders have been subject to a care and protection order and 11.6 per cent had been subject
to a care and protection order and had been removed from their families for their
protection.232 It should be noted however, that being subject to a Care and Protection Order
does not necessarily mean a child will be removed from the parental home.
Ms Simmons referred to a number of risk factors for offending including poverty, familial
dysfunction, drug and alcohol use and the lack of adequate social services support within the
community. She acknowledged that the there had been a shift in focus within CYFS in the
last few years to child protection issues which meant a general shift away from adolescent
services. She also indicated the need to have ‘better, earlier and continuous services to the
identified group of adolescents at risk to prevent them from coming into the Youth Justice
System.’233 She emphasised the need for early intervention services for children ‘at risk’ and
a range of resources, including intensive parental support programmes be made available to
assist families.234
The Select Committee believed that the powers of the Guardian for Children and Young
People should be extended to allow the Guardian to monitor children and young people who
have come to the attention of the Youth Justice System. This would require the Guardian
having oversight of a data base of children and young people who have come to the notice of
Police. This database would include those children and young people who have received an
informal caution. Currently, informal cautions are not formally recorded. The Select
Committee recommends that informal cautions (and formal cautions, and family conferences)
should be collated and provided to the Guardian for Children and Young People. The
Guardian would, for example, oversee the identification of children who the Police had
determined to be ‘at risk’ of offending or a child who had offended and had not been able
access a timely welfare/intervention service.
The Committee believed the Guardian’s powers should be extended to provide advocacy for
children and young people who had been identified as ‘at risk’ and children who had
offended and those who have been diverted from the formal system.
For further discussion of recording informal cautions, please see Term of Reference E,
Recommendation 34.
Recommendation 26
That the powers of the Guardian for Children and Young People be extended to allow for the
monitoring of children and young people determined to be ‘at risk’ of offending or have
offended.
231
232
233
234
DHS Media release, 3 June 2004
Pam Simmons, Guardian for Children and Young People, Hansard, 1484
ibid., 1498
ibid., 1498
95
6.6
Care and Protection Issues/Children ‘At Risk’
The Select Committee noted the links between child protection issues and offending
behaviour as highlighted by the Care and Protection Unit.235 The Care and Protection Unit’s
submission referred to research conducted by Stewart, Dennison and Waterson regarding
maltreatment and youth offending.236 The study looked at 41,700 children born in
Queensland in 1983. Of the 41,700, approximately 10 per cent came into contact in some
form with the Department of Families because of a child protection issue. Approximately 5
per cent of the 41,700 had a court appearance for a proven offence. Many of these children
also had contact with both the Department of Families concerning a maltreatment issue and
with the Youth Justice System because of their offending behaviour.237 Stewart, Dennison
and Waterson found that:
Preventing maltreatment in the first place is likely to produce a larger reduction in offending. By
directing attention to those children who are maltreated and ensuring that the maltreatment is
not repeated, significant benefits in crime reduction and outcomes for children can also be
obtained.238
The Care and Protection Unit noted with concern the significant numbers of Indigenous
children in both the Care and Protection system and the Youth Justice system.239
Tables 3 to 6 detail the number of children admitted to secure care for the first time during
2002-2003 and additionally showing how many had prior involvements in other programme
areas.
235
236
237
238
239
See Care and Protection Unit, Submission 33, p. 5;
Anna Stewart, Susan Dennison and Elissa Waterson, ‘Pathways from Child Maltreatment to Youth Offending’, Australian
Institute of Criminology: trends and issues in crime and criminal justice, No 241, 2002
Adam Graycar, foreword to Anna Stewart, Susan Dennison and Elissa Waterson, ibid, p 1.
Anna Stewart, Susan Dennison and Elissa Waterson, ibid, p. 6.
Care and Protection Unit Submission 33, p. 6
96
Table 3:
Number of Children (Aboriginal Cultural Group) Admitted to Secure Care for
the First Time During 2002-03 Showing How Many Had Prior Involvements in
Other Programme Areas (Child Protection Data Since 1981, 1992 for Other
Areas)
No. of
children
Prior Child
Protection
notification
Prior Alt.
Care
placement
Prior
Community
Service
Order
Prior
Obligation
Gender
Female
Male
Total
5
18
23
4
18
22
3
6
9
0
1
1
1
3
4
4
18
22
80.0%
100%
95.7%
Gender
Female
Male
Total
9
44
53
8
30
38
6
10
16
0
4
4
3
5
8
8
31
39
88.9%
70.5%
73.6%
Gender
Female
Male
Total
7
24
31
4
10
14
4
5
9
0
6
6
2
5
7
5
14
19
71.4%
58.3%
61.3%
18 and
over
Gender
Female
Total
1
1
1
1
1
1
1
1
1
1
1
1
100%
100%
Unknown
Gender
Male
Total
2
2
0
0
0
0
0
0
0
0
0
0
0%
0%
Gender
Female
Male
22
88
17
58
14
21
1
11
7
13
18
63
81.8%
71.6%
Total
110
75
35
12
20
81
73.6%
Aboriginal Cultural
Group
Age
Group
10 - 12
13 - 15
16 - 17
Total
How many
had any
of these
97
Table 4:
Number of Children (Non-Aboriginal Cultural Group) Admitted to Secure
Care for the First Time During 2002-03 Showing How Many Had Prior
Involvements in Other Programme Areas (CP data since 1981, 1992 for other
areas)
No. of
children
Prior Child
Protection
notification
Prior Alt.
Care
placement
Prior
Community
Service
Order
Prior
Obligation
Gender
Female
Male
Total
5
9
14
5
6
11
5
2
7
0
0
0
0
2
2
5
7
12
100%
77.8%
85.7%
Gender
Female
Male
Total
24
77
101
20
52
72
11
19
30
0
10
10
0
9
9
20
57
77
83.3%
74%
76.2%
Gender
Female
Male
Total
16
83
99
9
40
49
3
19
22
2
14
16
2
11
13
10
50
60
62.5%
60.2%
60.6%
18 and
over
Gender
Male
Unknown
Total
8
1
9
1
1
2
0
0
0
2
0
2
2
0
2
4
1
5
50%
100%
55.6%
Unknown
Gender
Male
Total
1
1
0
0
0
0
0
0
0
0
0
0
0%
0%
45
178
1
34
99
1
19
40
0
2
26
0
2
24
0
35
118
1
Non-Aboriginal
Cultural Group
Age
Group
10 - 12
13 - 15
16 - 17
Total
Gender
Female
Male
Unknown
Total
224
134
59
28
26
How many
had any
of these
154
77.8%
66.3%
100%
68.8%
98
Table 5:
Number of Children (Not Known Cultural Group) Admitted to Secure Care
for the First Time During 2002-03 Showing How Many had Prior
Involvements in Other Programme Areas (CP Data Since 1981, 1992 for
Other Areas)
No. of
children
Prior Child
Protection
notification
Prior Alt.
Care
placement
Prior
Community
Service
Order
Prior
Obligation
Gender
Male
Total
1
1
1
1
0
0
0
0
0
0
1
1
100%
100%
Gender
Female
Male
Total
1
3
4
1
3
4
1
1
2
0
0
0
0
0
0
1
3
4
100%
100%
100%
Gender
Female
Male
Total
1
7
8
1
2
3
0
0
0
0
1
1
0
2
2
1
5
6
100%
71.4%
75.0%
Gender
Unknown
Total
33
33
2
2
0
0
0
0
0
0
2
2
6.1%
6.1%
Gender
Female
Male
Unknown
2
11
33
2
6
2
1
1
0
0
1
0
0
2
0
2
9
2
100%
81.8%
6.1%
Not Known Cultural
Group
Age
Group
10 - 12
13 - 15
16 - 17
Unknown
Total
Total
46
10
2
1
2
How many
had any
of these
13
28.3%
99
Table 6:
Number of Children (Total Cultural Group) Admitted to Secure Care for the
First Time During 2002-03 Showing How Many had Prior Involvements in
Other Programme Areas (CP Data Since 1981, 1992 for Other Areas)
No. of
children
Prior Child
Protection
notification
Prior Alt.
Care
placement
Prior
Community
Service
Order
Prior
Obligation
Gender
Female
Male
Total
10
28
38
9
25
34
8
8
16
0
1
1
1
5
6
9
26
35
90.0%
92.9%
92.1%
Gender
Female
Male
Total
34
124
158
29
85
114
18
30
48
0
14
14
3
14
17
29
91
120
85.3%
83.4%
75.9%
Gender
Female
Male
Total
24
114
138
14
52
66
7
24
31
2
21
23
4
18
22
16
69
85
66.7%
60.5%
61.6%
18 and
over
Gender
Female
Male
Unknown
Total
1
8
1
10
1
1
1
3
1
0
0
1
1
2
0
3
1
2
0
3
1
4
1
6
100%
50.0%
100%
60.0%
Unknown
Gender
Male
Unknown
Total
3
33
36
0
2
2
0
0
0
0
0
0
0
0
0
0
2
2
0%
6.1%
5.6%
Gender
Female
Male
Unknown
69
277
34
53
163
3
34
62
0
3
38
0
9
39
0
55
190
3
79.7%
68.6%
8.8%
Total Cultural
Group
Age
Group
10 - 12
13 - 15
16 - 17
Total
Total
380
219
96
41
48
How many
had any
of these
248
65.3%
Table 6 shows the number of children admitted into secure care in 2002-2003 who had a
prior involvement in other CYFS programme areas. Of the 380, 219 had a prior Child
Protection notification (58%), 96 had a prior alternative care placement (25%), 41 had a prior
Community Service Order (11%) and 48 had a prior obligation (13%). Overall 248 children
(65%) had a prior contact with CYFS.240 Again the Select Committee noted the significant
over representation of Indigenous youth in these areas.
The Select Committee noted the significant numbers of children aged 10 to 15 years who
have been both the subject of a prior child protection notification and a detention order. This
was a further indication to the Committee of the need for intensive support for children aged
10 to 15 years. It also highlighted the need for parental supports and adequate transitional
planing from Secure Care back into the community.
240
FAYS Data Warehouse, received via email 21 June 2004
100
The Care and Protection Unit gave evidence stating that an excessive case list, limited
resources and the skill base of CYFS staff result in a limited engagement with the family of a
child who was the subject of a child protection notification. Ms Donnie Martin, Senior Care
and Protection Coordinator with the Care and Protection Unit stated in evidence that:
Often I think that it is easy for statutory welfare agencies to get into a kind of authoritarian or
punitive kind of mode…I think it is very hard for CYFS to hold people accountable when their
own system has been so chaotic. There is a lack of accountability on all sides.241
Ms Martin’s comments speak to a need for a quality service from CYFS, something that has
already been identified by the Layton Report.242 Ms Martin’s comments also reveal the lack of
support services or programmes external to CYFS. With regard to family reunification
programmes, she stated:
It is a lot to do with CYFS but to do with other organisation as well. There may be an agreement
that CYFS will make a referral for a family reunification programme, but if there are no places in
the family reunification programme it cannot happen. Some of the cases that have a 12-month
Care and Protection Order are such that you see 10 or 11 months elapse before anything
happens and then there is a flurry of activity just prior to its coming back to court to ask for
another 12 month order to have another go. Those 12-month periods should be an opportunity
for a really intensive effort to try to assist the family and, if it does not work, we should move on
to something else, but often the 12 months is frittered away.243
The Care and Protection Unit receives referrals from CYFS and less often, the Youth Court.
The Unit does not have connection to specific services and instead relies on external service
providers such as CYFS, CAMHS and non-government service providers.244 It does not have
links with mentor programmes nor can it make direct referrals to these services.
The Select Committee noted that while Youth Justice is not always as a result of child
maltreatment or child protection issues, early intervention and programmes which attempt to
reduce recidivism can be the very same programmes that other ‘at risk’ young people
require. Children and young people who display offending behaviours are ‘at risk’ and
therefore, require services and supports to minimize that ‘risk’.
The Layton Report considered the question of ‘children at risk’ and argued that there was no
mechanism for the high-level case management for young people who present with complex
issues. The report stated that:
Services are either non-existent, uncoordinated, inappropriate or waiting lists are too long. There
are also inconsistent responses and confusion as to roles and responsibilities of various
agencies such as [CYFS], schools and SAPOL…There is a tendency to view this group of
young people as ‘stand alone’ individuals, outside of a family or extended family context and, as
a result, many young people may be inadvertently cut off from valuable support and care which
their families can provide.’245
The Layton Report provides an analysis of early intervention and prevention framework and
services within South Australia. Much of the analysis concerns the importance of generic
early intervention and prevention. The National Crime Prevention Strategy is cited as a key
document with regard to the development of programmes and systems for young people
‘who are at risk of becoming involved in crime or anti-social behaviour, and their families’. 246
Recommendation 117 of the Layton Report calls for family care meetings, which are
241
242
243
244
245
246
Care and Protection Unit, Donnie Martin, Hansard 8 June 2004, 821
Layton, op cit., p. 1.7
Care and Protection Unit, Donnie Martin, Hansard 8 June 2004, 803
ibid., 805-809
Layton, op cit., p. 13.2
ibid., p. 6.10
101
facilitated by the Care and Protection Unit, to be utilised much earlier in the case
management of children at risk and not be used as ‘a last resort’.247
As referred to previously in the discussion of parental responsibility, DECS submitted to the
Committee that schools are often aware of parental neglect and other ‘at risk’ indicators, yet
the Child Protection Act 1993 and the mandatory notification system do not provide an
adequate response to ‘at risk’ children. Senior Sergeant Wardrop spoke to the Select
Committee about the informal networks between SAPOL and some Schools that exist in
some Local Service Areas. He stated:
At Elizabeth, for example, we have a thing called the exchange meetings, and we have a rule
that confidentiality finishes at the door and while we are in the room together we talk frankly
about the young people that we are dealing with. And it is interesting that we can identify to the
school, kids that we have identified that they didn’t know about – they might be model students
but they are getting up to all sorts of stuff after school. But, similarly, they identify kids in the
school who are creating havoc who are going to be customers of ours. And we can put in place
some of the few of the programmes that are out there.248
The Select Committee noted that this practice of sharing information between agencies takes
place in the Youth Offending Team (YOT) structure and whilst the Committee did not want to
introduce a YOT system at this time they did want to encourage the practice of establishing
protocols and practices around confidentiality. See Term of Reference E for a further
discussion of confidentiality provisions in the Youth Justice System.
The Family Conference Team informed the Select Committee that:
Experience has indicated that it may be difficult to get a CYFS officer to attend a Family
Conference unless CYFS have a current open and active file for the youth in question. This
includes where a family may request CYFS support, but the concerns articulated by the parents
(and in some instances, the Youth Justice Coordinator) do not rate above a tier three CYFS
classification and therefore their resources do not allow them to attend a conference.
Additionally, even though there is specific provision under the Children’s Protection Act,
concerns noted by the Youth Justice Coordinator in a Family Conference regarding a child being
‘at risk’ can only be communicated via the generic Child Protection Hotline.
[T]he Family Conference Team has no capacity to access programmes that CYFS provide to
other areas of the Youth Justice System. It would seem a more appropriate use of resources
that wherever CYFS are involved with a youth and there is an allocated case manager that
CYFS programmes should be an option available to the conference to comprise or support
undertakings.249
The Select Committee noted, however, that CYFS struggles to adequately provide
assistance/programmes to those children and young people they do have an obligation to
provide services to, let alone being able to extend their services to those children from a
Family Conference.
The Select Committee observed that the problems can be ‘seen’ by several agencies,
however, there is an inadequate system response given to ‘at risk’ children. Without a
comprehensive case management plan and broader social changes that strengthen
community, parents and other networks, then ‘at risk’ children will remain just that.
The Select Committee did not want to move away from a justice emphasis on accountability
and restoration, however, there remain significant ‘welfare’ issues and the broader social
implications of not providing adequate strategies that may interrupt and minimize offending
247
248
249
Care and Protection Unit, Submission 33, p. 8
Senior Sergeant Wardrop, SAPOL, Hansard, 310
Family Conference Team Submission 23, p. 15
102
behaviours. The Select Committee concurred with the Care and Protection Unit’s view that
family care meetings be utilised earlier in the case management of families ‘at risk’.250
Recommendation 27
That Family Care Meetings conducted by the Care and Protection Unit be utilised earlier in
the case management of families ‘at risk’ and Parental Responsibility Orders be utilised
during these meetings.
6.7
Children ‘at risk’ aged 6-9 years
The Youth Justice System deals with those children and young people from age 10 to 17
years who have offended. Support systems, such as the Metropolitan Aboriginal Youth Team
(MAYT) work with this age group. Representatives from MAYT gave evidence to the Select
Committee about the lack of services or systems of support for children aged 6-9 years who
are ‘at risk’ and display anti-social and/or offending behaviours.
Some of these young children become known to the police, who are unable to respond in
any significant way to this behaviour, with some young people gaining a lengthy CYFS list of
tier three (children in need) notifications prior to them reaching the age of ten.251 Ms
Stephanie McGarrigan, Acting Supervisor, MAYT explained that ‘it is the families who often
get referred on to FAYS or CYFS over and over again, but because they get that assessment at
the lower level nothing is done. Often we get kids at 10 who have a hundred pages on the
system but no-one has intervened.’252 The Select Committee was told that MAYT has recently
been funded to address young people 10 to 17 who have come to the attention of CYFS
through a tier three notification. Lisa Kambouris, Coordinator, Panyappi Mentor Programme
explained that these children ‘are just floating through until 10 and then someone can pick
them up. By the time we see them, they are entrenched.’253
As previously mentioned, SAPOL has informal systems in place with DECS with regard to some
young people under 10 years of age who have or are at risk of offending. Senior Sergeant
Wardrop informed the Committee that:
We have established an unofficial link, I guess, between the Youth Justice System and the
behavioural managements systems in schools. We have some processes where we run a
system similar to a family conference in schools to look at behaviour. ‘Community conferencing’
they call it. … it is done periodically spasmodically around the place on certain issues.254
The Committee felt that this approach was consistent with the community policing model that
operates within South Australia and with broad crime prevention initiatives. They noted
however, that caution should be taken to ensure that we do not inadvertently expand the
parameters of the ‘Youth Justice System’ so that more and more adolescent behaviours are
articulated as anti-social or behaviour management issues and thereby attract an ‘informal
justice response’. The Select Committee notes that the recommended expansion of the role
of the Guardian for Children and Young People should provide oversight of children and
people in or at risk of being in the Youth Justice System.
250
251
252
253
254
Ms Donnie Martin, Care and Protection Unit, Hansard, 813, Care and Protection Unit Submission 33, p. 7
The three tier system of child protection notifications: Tier One – Children in Danger; Tier Two – Children at Serious Risk,
Tier Three – Children in Need. For the background information pertaining to the implementation of this child safety and risk
assessment, see: the Layton Report, op cit., p. 4.10
Stephanie McGarrigan, MAYT, Hansard 1269
Lisa Kambouris, Panyappi Mentor Program, Hansard 1267
Senior Sergeant Wardrop, SAPOL, Hansard 309
103
6.8
Therapeutic Safe Keeping Orders
The Select Committee noted that the Layton Report considered the exploration of a
Therapeutic Safe Keeping Order for young people who could be legitimately detained
because they are at risk to themselves. The Layton Report acknowledges that:
such arrangements must be strictly monitored and assessed to prevent ‘systems abuse’ and
that these orders should not be used by agencies to ‘dump’ difficult adolescents ‘because the
service system has failed to provide proper supports and assistance at early stages.’255
DACS recommends caution regarding mandatory treatment for drug and alcohol issues as it
does not believe it facilitates rehabilitation. The notion of voluntary involvement appears
relevant to the effectiveness of intervention and treatment. DASC goes so far as to say that it
has significant concerns with recommendation No. 73 of the Layton Report regarding the
‘safe keeping’ detention of adolescence at risk and the therapeutic treatment of these young
people.256 DASC recommends that therapeutic safe keeping arrangements with secure shortterm accommodation and appropriate services be made available to young people and that
transition planning back to the community also be available. 257
The Select Committee acknowledged that there was a need for strict parameters placed on
the issuing of a Therapeutic Safe Keeping Order to ensure there were adequate procedural
safeguards. The Select Committee understands that the Department for Families and
Communities are currently exploring the development of Therapeutic Safe Keeping Orders.
Given the evidence heard, the Committee endorsed the adoption of therapeutic safe keeping
orders as it recognised that early intervention is required at all possible opportunities. It
acknowledged, however, that there should be an expansion of health and welfare services,
including psychiatric services, for children and youth people in South Australia to facilitate
any required treatment as directed by the Order. This increase in services should be in
addition to those identified in Term of Reference C.
Recommendation 28
That Therapeutic Safe Keeping Orders be introduced in South Australia. That an expansion
of children’s services, including psychiatric services be made to South Australian hospitals
and welfare services.
6.9
Mentoring
The Crime Prevention Branch (CPB) of the Commonwealth Attorney General’s Department
defines mentoring as:
A mutually beneficial relationship which involve[s] a more experienced person helping a less
experienced person. A mentor programme for young people at risk aims to match the young
people with appropriate mentors, and support the relationship over time.258
Several submissions mentioned the importance of mentoring for young people within the
Juvenile Justice System or at risk of entering the system. The guidance offered by a
productive mentoring relationship was described in positive terms. The Australian Institute of
Criminology’s literature review of crime prevention and strategies programmes that target
recidivism (‘What Works in reducing young people’s involvement in crime‘) found that of the
255
256
257
258
Layton Report, op. cit., p. 13.8
DASC, Submission 11, p. 3
ibid., 13.9
ARTD Management and Research Consultants (2001b) Strategic Review of the DJJ Mentor Program, Report prepared for
the NSW Department of Juvenile Justice, ARTD, Haberfield, Sydney, p. iv, cited in Australian Government AttorneyGeneral’s Department, ibid, p. 1.
104
limited number of evaluations that have been undertaken by mentoring programmes, these
programmes were shown to have promising short-term results.259
CYFS currently runs a centrally organised mentor programme for the metropolitan area
through the Southern Metropolitan Regional Office. The programme was reviewed in June
2004. According to CYFS, once recruited, mentors have a police check and are then
provided with an induction programme and access to the CYFS training calendar. In addition,
some country and metropolitan based district centres engage with the mentor programme on
an ‘as needed’ basis. Mentor contracts are instituted for 3 month terms, to provide case work
support to broader case management plans. 12 to17 year old young people, who are either
in the Justice system, are ‘at risk’, or are under the guardianship of the Minister, can access
the mentor programme as part of their case management plan.
CFYS have argued that anecdotal evidence from CYFS case managers suggest that
mentoring can make a positive difference to some young people. However, some children in
the Juvenile Justice System or ‘at risk’ have attachment disorders which may be exacerbated
by providing short-term mentor programs.260
South Australia has three Indigenous-specific mentoring programs: Bush Breakaway in
Ceduna, Panyappi, and the Metropolitan Aboriginal Youth Team (MAYT) Mentor Programme
in Adelaide.261 Representatives from the ALRM stressed the need to have mentors within
Indigenous communities so that they could work with families act as a role model and impart
life skills to Indigenous young people.262
The ATSIC/ATSIS submission stated that the Aboriginal Prisoners and Offenders Support
Services (APOSS) do not use CYFS mentors because they do not possess the necessary
expertise. Instead, they access the Panyappi (younger brother and sister) mentor
programme which is under the auspices of MAYT. The aims of Panyappi are to:
1. Intervene in pathways of offending behaviour and bring about a positive shift in each young
person’s attitude toward offending and their behaviour.
2. To decrease each young participant’s contact with the Juvenile Justice System and/or
agencies associated with this system.
3. To promote self-discovery and self-determination by young people participating in the
program, their family and the wider community.
4. To work collaboratively with all agencies that have mutual responsibility for resolving the
young person’s difficulties.263
Panyappi is funded through the Attorney General’s Department Crime Prevention
Programme and CYFS. Documentation submitted to the Select Committee stated that
Panyappi is currently seeking to decrease their eligibility from 10 to 6 years because of a
demonstrated need within Indigenous communities.264 Panyappi is primarily inner-city
focused, having first been devised to address the high incidence of young Indigenous youth
in the city on Friday and Saturday nights.265 Lisa Kambouris, Coordinator of Panyappi
appeared before the Select Committee and explained how the programme worked with
young people ‘at risk’, providing them with mentors and attempting to link them with positive
259
260
261
262
263
264
265
Australian Institute of Criminology, ‘What Works in Reducing Young People’s Involvement In Crime?: Review of Current
Literature On Youth Crime Prevention’, Australian Capital Territory Government, 2002, p. 31
CYFS, email communication, July 7, 2004
Australian Government Attorney-General’s Department, Early Intervention: Youth Mentoring Programs – An Overview of
mentoring programs for young people at risk of offending, Canberra, 2003, p. 8.
Richard Coates, ALRM, Hansard, 926
K. Stacey, Panyappi Indigenous Youth Mentoring Program: External Evaluation Report, May 2004, p. 3
ATSIC/ATSIS Submission 30, pp. 8-9
Lisa Kambouris, Panyappi, Hansard 1185-1186
105
activities including education and training. Ms Kambouris highlighted the need to work, not
only with the individual young person but with the wider family and community.266
The organisation In2Life made a submission to the Select Committee and stressed the
importance of having mentor programs for young people. In2Life run the mentor programme
RUSH which is currently operating in the local communities of Seaton, Gawler, Elizabeth,
Salisbury, Modbury and Aberfoyle Park.267
The Crime Prevention Branch (CPB) of the Commonwealth Attorney-General’s Department
recently released a review document on mentoring: Early Intervention: Youth Mentoring
Programs: An overview of Mentoring Programs for Young People at Risk of Offending.268 The
Review was undertaken by the social research consultants Urbis Keys Young to review
mentoring programs for young offender, particularly for young people aged 10 to 13. Like the
Australian Institute of Criminology review on crime prevention literature, the Early
Intervention Report found that there has been a lack of evaluations conducted on mentoring
programs both in Australia and overseas.269 In-built and consistent evaluation is essential to
a mentor programme in order to monitor the effectiveness of the programme.
The Early Intervention Report found that mentoring is a promising but unproven strategy.
There is insufficient evidence available about the effectiveness of mentoring programs to
reduce offending, but because many mentoring programs report some positive outcomes
regarding reductions in offending, mentoring should therefore be viewed as a promising
strategy in an effort to reduce offending levels. The literature analysis revealed two studies
that found that mentoring programmes did have positive effects regarding young people,
drug and alcohol use and violence.270 The national consultation process undertaken by Urbis
Keys Young found that one mentoring programme found it difficult to engage some youth
who had a history of significant cannabis use. One piece of research analysed argued that
skills training has a greater impact on recidivism rates than does mentoring programs and is
more cost-effective.271
The Report concludes that there are a number of positive outcomes of mentoring programs
including:
•
•
•
•
•
•
a reduction in offending;
increase in the completion of juvenile justice orders;
reduced substance misuse and other risky behaviours;
increased participation/performance in education, training and employment;
improved self-esteem, social/communication skills and personal relationships; and
a level of general satisfaction of both mentorees and other programme
stakeholders.272
The Report also stressed that not all young people are suitable to refer to mentoring
programs and of those referred, not all will benefit from the programme.
266
267
268
269
270
271
272
ibid., 1197-8
In2Life Submission 39, unmarked page.
ibid.
ibid., p. 65
McLaren K., Tough Love is Not Enough – Getting Smart about Youth Crime: A Review of Research on What Works to
Reduce Offending by Young People, Ministry of Youth Affairs, Wellington, New Zealand, 2000 and Sherman, L.,
Gottfredson D, MacKenzie D, Eck J, Reuter P and Bushway S (1998) Preventing Crime: What Works, What Doesn’t, and
What is Promising: A Report to the United States Congress, National Institute of Justice, Washington D.C. as cited in
Australian Government Attorney-General’s Department, ibid., p. 69
Australian Government Attorney-General’s Department, ibid
ibid, pp. 69-71
106
An insufficient level of stability in the lives of the mentorees was cited as one of the most
significant reasons as to why a young person may get only a limited benefit from a mentoring
programme.
For one young man who had had a very chaotic life and committed various offences, having a
mentor had clearly had a dramatic impact, and he had managed to turn his life around with the
guidance of his mentor. The mentor had however come into his life at a stage where the young
man had accepted that he had various problems and did not want his life to continue in the
same pattern. In contrast, another young man had only seen his mentor on a few occasions
before the relationship ended and appeared to have little interest in the process. He seemed to
be quite happy with his offending lifestyle and did not appear motivated to change it.273
The MAYT programme was cited by the ALRM and ATSIC/ATSIS as being a valuable,
culturally appropriate service that worked in a ‘holistic’ and inclusive manner with Indigenous
families. Programmes such as MAYT and the Aboriginal Prisoners and Offenders Support
Services (APOSS) are positive services, which have the confidence of Indigenous
communities because of their understanding of kinship principles. ALRM requested that
MAYT’s resources be increased to better meet the need within Indigenous communities.274
ATSIC/ATSIS informed the Select Committee that MAYT is not only working directly with
Indigenous Communities, the programme has also provided training opportunities for Social
Work and Medical students from South Australian universities, thereby enhancing the skill
level and understanding of health professionals working with Indigenous communities.275
Senior Judge Moss from the Youth Court also cited MAYT as being a valuable program,
‘they just do not have enough young men and enough resources’.276
The Panyappi programme, which MAYT auspice, is funded by the State Attorney General’s
Department Crime Prevention Programme and CYFS, however it does not receive on going
funding, which ATSIC/ATSIS argued is required. Their joint submission states:
Panyappi are not funded to be ongoing and are frequently at risk of closure due to
unsustainable funding and expectations. Despite successes demonstrated in this program,
Panyappi receives little support from government to continue the development of the
programme and their contribution to juvenile justice [in] SA. Panyappi is also seeking to
decrease their eligibility age from 10 to 6 years because of the demonstrated need for this
service.277
ATSIC/ATSIS cite the recommendation made by Dr Andrew Day and Rosemary Wanganeen
in their 2003 research regarding Indigenous youth in secure care and cite the need to
increase and secure the resources of MAYT and the Panyappi programme.278 Lisa
Kambouris, Manager, Panyappi, noted that the programme’s funding is to cease as of 30
June 2005. The Select Committee felt that this programme which had been initially
established to address young people coming into the city on Friday and Saturday nights,
should continue and increased to enable it to decrease its eligibility age from 10 to 6 years
and expand its services to rural areas.
The Select Committee supports the ongoing work of Panyappi and strongly recommends that
its funding be extended and increased to enable it to decrease its eligibility age from 10 to 6
years and expand its services to rural areas.
273
274
275
276
277
278
ibid, p. 74
ALRM Submission 20, p. 3, ATSIC/ATSIS Submission 30, pp. 8-9
ATSIC/ATSIS , ibid., pp. 11-12
Snr. Judge Moss, Hansard 355
ATSIC/ATSIS, ibid., p. 9
ATSIC/ATSIS, ibid., pp. 14-15, See Dr. Andrew Day and Rosemary Wanganeen, ‘The Needs of Young Indigenous People
In Secure Care in South Australia’, June 2003, recommendation 10, p. 7
107
Recommendation 29
That Panyappi’s funding be extended and increased to enable it to lower its eligibility age
from 10 to 6 years and expand its services to rural areas.
6.10
Adventure Programmes
The Select Committee appreciated that idleness in and of itself can contribute to the risk of
‘getting into trouble’ and offending. Participation in recreational and adventure activities
contribute to social and physical wellbeing as well as potentially leading to a sense of
positive community spirit. The Committee wanted to stress there was a need to encourage
the establishment of a range of low cost recreational activities in all parts of South Australia.
Children and young people need activities which not only occupy their time but also where
they can gain access to role models and where they are able to gain positive experiences of
being a young person.
The Select Committee acknowledged the work that the One and All Youth Development
Sailing Training Programme have undertaken with South Australian youth and noted that this
programme should be more fully utilised with either youth ‘at risk’, those youth in or who have
had a previous involvement in the Youth Justice System.279
The Select Committee received information from Chief Inspector Bill Prior, State Coordinator
of Blue Light Services which is a recreation programme that police run for youth. The
Committee acknowledged the significant work that the Blue Light Services undertake each
year through their youth programmes including adventure camps held at Iron Knob. For a
further discussion of ‘Police Boy’s Clubs’ see Term of Reference F, Recommendation 36.
Operation Flinders Foundation Incorporated made a submission to the Select Committee
which highlighted the important work it continues to do with young people through its
adventure programmes. The Attorney-General’s Department, DECS and CYFS fund some
Operation Flinders Programme places for young people to participate on the programme.
Representatives from the Select Committee visited the Operation Flinders Camp and
witnessed some of the significant youth/adventure work being undertaken. The Select
Committee acknowledged the positive evaluation that Operation Flinders undertook in 2001
and notes that ‘[t]hose participants still in the education system recorded significantly
improved teacher behavioural ratings in the areas of initiative, social attention, coping with
success and failure, social attractiveness, and self-confidence.’280 In its submission, the
Legal Services Commission acknowledged the importance of programmes such as
Operation Flinders, yet also made the point that spaces on the programme are limited.281 The
Australian Institute of Criminology’s literature review cited Operation Flinders’ most
significant impact was on high-risk youth.
The AIC’s literature review found that the value of recreation programmes generally is in their
ability to keep children and young people occupied and engaged. The Report concluded that
‘these effects will not be sustained over time as the young people return to their original
lifestyle and community.’282 Far from being a criticism, as already noted, the Select
Committee noted how idleness in youth and limited opportunities to provide low cost
recreational activities for children and young people contributed to youth offending rates and
anti-social activity.
279
280
281
282
The Sailing Ship Trust of South Australia Incorporated Submission 24
Operation Flinders Foundation Incorporated submission 38, p. 4
Legal Services Commission Submission 15, p. 7
Australian Institute of Criminology, ‘What Works in Reducing Young People’s Involvement In Crime?: Review of Current
Literature On Youth Crime Prevention’, Australian Capital Territory Government, 2002, p. 41
108
To extend and build on the value of such programmes as Operation Flinders and the One
and All Youth Development Sail Training Programme, the Select Committee felt that young
people who complete an Operation Flinders camp or programme should be linked with a
mentor, through either the Panyappi or CYFS mentor programme.
Recommendation 30
That children and young people who have offended or are considered to be ‘at risk’ and who
have completed either an Operation Flinders Foundation Incorporated camp or programme or
a One and All Youth Development Sail training programme be assigned a mentor from either
the Panyappi or Children Youth and Family Services mentor programme.
6.11
Volunteers
The Select Committee considered the role of volunteers in the Youth Justice System. CYFS
has a formal volunteer programme with volunteers operating in most District Centres. A
volunteer coordinator exists in each District Centre to assist in the administration,
management and provision of structured support for volunteers.
Most volunteers work in the Child and Family Team where they provide transport,
supervision of access visits and family contact services. While some volunteers are used in
the adolescent area it is generally held that a different skill base is required in this area of
CYFS work. Those volunteers who do work with adolescents primarily tend to assist with
recreation and associated programs.283
The Operation Flinders Foundation Incorporated runs adventure programmes with the
assistance of several volunteers from various agencies including SAPOL staff.
The United Kingdom Youth Offender Panels have volunteer members. Youth Offender
Panels appear to be similar to Family Conferencing. To be a volunteer member of the Youth
Offender Panel, you have to be over 18 years of age, have a full criminal history check
conducted (although previous convictions, especially older ones, may not preclude a person
from being accepted as a volunteer) and be prepared to attend training. The volunteers are
coordinated by the Youth Offender Teams (YOTs) who wish to attract people with an interest
in addressing the rates of youth offending and making a civic contribution.284
In some smaller cities in the UK, Magistrates in the Youth Court are volunteers. They are
unpaid, lay members of the public who are provided advice on matters of law from justice
clerks. In larger cities, district judges (Magistrates) are paid professionals with legal
qualifications.285
The Select Committee noted the existence of issues associated with the coordination and
screening of volunteers and a need to recognise that some young people can be dis-inhibited
and vulnerable to the abuse of others. There is also a need to recognise that some young
people may demonstrate extreme behaviours which may be counter-productive to any
programme. With this in mind, the Committee remains strongly of the opinion that the
increased use of volunteers in the Youth Justice system should be encouraged.
283
284
285
CYFS, email communication , July 7, 2004.
See www.youth-justice-board.gov.uk accessed on 29 September, 2004.
John Graham, ‘Juvenile Crime and Justice in England and Wales’, in Nicholas Bala, Joseph P Hornick, Howard N. Snyder
and Joanne J. Paetsch (eds.) Juvenile Justice Systems: An International Comparison of Problems and Solutions,
Thompson Educational Publishing Inc, Toronto, 2002, p. 86
109
6.12
Gambling Machine Taxation Revenue
The Gambling Machines Act 1992 provides for the distribution of specified funds from annual
gaming machine tax revenue. These funds are to be distributed as follows:
• $20 million to the Community Development Fund;
• $3.5 million to the Sport and Recreation Fund;
• $3.845 million to the Gamblers Rehabilitation Fund; and
• $4 million to the Charitable and Social Welfare Fund.
Consolidated revenue receives the remainder of the gaming taxation revenue.
The Select Committee considered whether identified funds should be allocated from the
Community Development Fund to ‘youth’ initiatives. Currently the fund is used to resource a
range of Government programmes with the majority being used for education, hospital
waiting lists, disability support funding, information technology initiatives and programmes to
address hospital waiting lists. These funds are not subject to annual bidding processes. 286
Given the evident need for recreational, civic and employment programmes that can be
sustained in communities, the Select Committee recommend that funds be identified for this
specific purpose out of the Community Development Fund of the Gambling Machine
Taxation Revenue.
Recommendation 31
That a range of mentor, recreational and employment programmes, for children and young
people who are at risk of offending or who have offended, be developed.
That funding for these programmes to be identified from the Community Development Fund
of the Gambling Machine Taxation Revenue.
6.13
Intervention Programmes
The Select Committee heard that meaningful intervention often does not happen until a child
or young person has been in significant trouble and has committed a number of offences.
Paul Bennett from Aboriginal Legal Rights Movement (ALRM) told the Select Committee:
The system at the moment is based on an approach whereby maximum intervention only
happens once [the young person is] older and once they have been in significant trouble, and
that is a false economy. It rarely works. It needs to be at an earlier age and at an earlier stage
of their offending. If you take that approach, on occasions you may predict wrongly and assist
people who do not need assistance, but at the moment the system is almost completely
misdirected in that by the time significant resources are directed at young people they are at
the stage where sometimes it works but often it does not.287
CYFS involvement with the Juvenile Justice System is at the tertiary end of the system with
no CYFS involvement in any part of the diversionary processes.288 However, several
agencies cited the lack of adequate resources for CYFS to successfully do what it is currently
meant to do ‘at the tertiary end of the system’ let alone offering services to other areas.
Ms Bernie McGinnes, Principle Programme Manager, Youth Justice, CYFS, made reference
to the need to ensure the availability of both generalised parental intervention and specialist
intervention (targeted specifically at offending behaviour ‘across the age ranges’).289 Ms
McGinnes stated that early intervention is not enough and that a continuum of service, both
286
287
288
289
Department of Treasury and Finance, email communication, May 3, 2005
Paul Bennett, ALRM Hansard 927
Ms Bernie McGinnes, Hansard 229
ibid., Hansard 270
110
preventative and specifically targeting interventions aimed at offending behaviour is required.
She stated:
In terms of justice intervention in [the] management of young people in the system, enormous
volumes of research are now coming out about models of intervention that are very specifically
targeted at certain kinds of populations that also reduce offending. So, there are the general
wellbeing approaches and there are also some specific targeted justice type interventions as
well. Both need to be understood, because it is only by marrying them together that you get
continuum of service – early intervention is not enough.290
6.14
Intervention Models
The Select Committee consulted a body of research concerning programmes aimed at
offending behaviours including the National Crime Prevention Initiative and Professor Ross
Homel led Pathways to Prevention: Development and Early Intervention Approaches in
Crime in Australia as well as other interventionist approaches which they felt should form the
basis of interventionist models in the Youth Justice System. 291
Representatives from CYH gave evidence to the Select Committee detailing the Home
Visiting Programme that CYH are undertaking in South Australia. Mr David Englehardt,
General Manager of CYH explained that the programme has:
a comprehensive assessment process called Pathways to Parenting, which is based on what
the international literature tells us are risk factors. Every household goes through that
assessment programme, which assesses those things that Child Health traditionally assesses
(weighing and measuring babies and looking at the obvious health issues), but it also looks at
things such as drug and alcohol abuse, mental health issues, homelessness and economic
problems.292
Mr Englehardt stresses to the Committee that ‘universal non-stigmatised programmes
available in the early years and available to all’ were the most effective interventionist
programmes. He explained that ‘it is sold to parents as having availability of additional
support early in life, rather than, ‘you have difficulties as a parent’.293 Additionally, the
Committee acknowledged the analysis that the Layton Report undertook regarding Early
Intervention and Prevention Framework and Services.294
A recently released Canadian meta-analysis of treatment programmes by the Department of
Justice Canada, collated data from studies that measured the effects of treatment on youth
recidivism rates and other key outcomes. 200 treatment programs were assessed. The
research made the following observations on what appeared to work within the programmes
to reduce recidivism:
1. conduct the treatment in a therapeutic environment using multiple forms of counselling
(individual, group and family);
2. screen youth for anger issues and provide an anger management component where
suitable;
3. directly involve educators within the treatment programme and directly target school
performance and attendance where necessary;
4. target anti-social attitudes in treatment including encouraging respect for authority and for
the institutions of the criminal justice system;
5. develop cognitive skills in the youth in order to improve problem solving, perspective taking
and goal setting;
290
291
292
293
294
ibid.
National Crime Prevention Pathways to Prevention: Development and Early Intervention Approaches to Crime in Australia,
Canberra, 1999
David Englehardt, CYH, Hansard 1748
ibid., 1754
The Layton Report, pp. 6.1- 6.33
111
6. enhance social skills including communication strategies and the ability to work within
groups (e.g. giving and receiving feedback);
7. encourage and teach positive communication (e.g., warm, respectful, honest) within
families;
8. provide parents with the appropriate skills to monitor and supervise youth;
9. increase the employment potential of the youth (where maturity and external obligations
permit) by offering specific vocational training and provide general skills such as resume
writing and interviewing for acquiring and maintaining gainful employment;
10. limit the programme length to six months and provide a maximum of 20 hours of programme
exposure for low risk offenders and increase the treatment dosage for high risk offenders;
11. develop programme manuals, provide staff training and supervision, and measure
programme compliance;
12. attempt to provide suitable interventions early in the lives of youth in conflict with the law;
13. encourage meaningful and substantial family involvement in the programme;
14. attempt to involve the community (e.g., police, non-governmental organisations, community
leaders) within the treatment programme where appropriate; and,
15. address ambiguous and less promising treatment targets (anti-social peers, relapse
prevention, community functioning, substance abuse, psychological well-being,
leisure/recreation) and other non-criminogenic needs when deemed appropriate on a case
by case basis.295
6.15
What Works in Reducing Young People’s Involvement in Crime?
The Australian Institute of Criminology (AIC) has prepared a report entitled: ‘What Works in
Reducing Young Peoples’ Involvement in Crime? The report provides ‘an overview of the
current knowledge of ‘what works’ in preventing and reducing offending in young people
aged 12 to 25 years’. 296 155 texts about youth crime prevention or intervention programs
were analysed. The findings suggest that the principles that programmes should contain to
include:
•
•
•
•
•
•
•
•
•
•
295
296
Programmes addressing many risk factors have a greater effect than those addressing only
one per intervention.
Programmes that work across social settings – within the family, school, peers and the
community – can impact on the whole of the young person’s life. These are more
effective in reducing offending than concentrating on one area of influence.
Programmes that alter the way a young person thinks and acts are particularly effective.
Offending behaviour is linked to deficiencies in thought processes, poor problem-solving
and decision-making abilities and therefore social competence programs are beneficial.
Programmes containing skill-based components to increase educational attainment, and
improve employment prospects and help the offender reintegrate into the community can
have a positive impact.
School –based programmes focusing on the way the school and classes are run and
emphasising behavioural skills appear to be effective….
Programmes should be culturally specific.
Programmes should have:
− Clear aims and objectives;
− Well-trained, committed and enthusiastic workers with ownership of the programme;
and programme integrity;
Be targeted – a risk/needs assessment of the youth would determine the type of
programme that would be most effective for them;
Target those with the highest risk of future offending and employing a minimal
interventionist approach for first time offenders, for example by using cautions and
conferences, might be a beneficial approach;
Be sufficient in length and intensity to impact on the behaviour – more intensive
interventions appear to be effective for younger offenders, while in community – based
Department of Justice Canada. Treating Youth in Conflict with the Law: a New Meta-Analysis, 2003 p. 20
Australian Institute of Criminology, ‘What Works in Reducing Young People’s Involvement In Crime?: Review of Current
Literature On Youth Crime Prevention’, Australian Capital Territory Government, 2002, p. 5
112
•
interventions ‘small dose’ weekly treatments over longer periods of time are promising;
and
Be monitored and evaluated to established the effectiveness of the programme and identify
features that are less effective so that the intervention can be improved and replicated.297
The Committee noted that there should be a tiering of rehabilitative responses depending on
the severity or frequency of offending and an assessment of both the criminogenic and
responsivity factors of the offender. It acknowledged the information provided by Aldis
Putniņš, Chief Clinical Psychologist and Steve Harvey, Senior Psychologist, CYFS, about the
psychological and criminogenic interventions within youth offending populations.298
The Select Committee also noted other programmes that specifically address youth
offending behaviour, including Multi-Systemic Therapy.
6.16
Multi-Systemic Therapy
The Western Australian Government have recently announced the introduction of on
Intensive Supervision Programme for repeat youth offenders. The programme is aimed at
addressing the offending behaviours of these young people by using Multi-Systemic Therapy
(MST). This programme focuses on sustained behavioural changes by working with the
young person in a community setting with their family, peer group, educators and the general
community.299 MST was first developed in the USA and has had significant results in
preventing
• violent offending;
• other criminal offending;
• drug- related offending; and decreasing the seriousness of crimes.300
MST combines elements of Parental Management Training (PMT) and family therapy and
has been shown to be effective in dealing with persistent offenders and young offenders with
alcohol and drug use issues.301 The AIC report and literature review ‘What Works in
Reducing Young People’s Involvement in Crime’ cited an evaluated study of a MST
programme that targeted young offenders 12 to 17 years who displayed violence and
substance abuse. The literature review stated that the:
duration of the programme was 60 hours contact over four months and the intervention
incorporated family therapy, behavioural parent training and cognitive behaviour therapies.
MST increased family cohesion and adaptability, increased supportiveness and decreased
conflict between parents and the offender. …Other studies found similar findings with increased
family cohesiveness, lower arrest rates and fewer days incarcerated for those who participated
in MST.302
The Youth Justice System currently has a limited ability to engage with these types of
issues. Dr Andrew Day wrote to the Select Committee on behalf of the Forensic Psychology
Research Group at the University of South Australia and argued for ‘the systematic provision
of rehabilitation programs for young people in detention in order to reduce the risks of young
297
298
299
300
301
302
ibid., p. 8
Aldis Putniņš and Steve Harvey CYFS Submission 47, pp. 2-6
See ‘Reducing Juvenile Offending in Western Australia’, see
http://www.justice.wa.gov.au/portal/server.pt/gateway/PTARGS_0_2_323_201_0_43/http%3B/justicecontent.extranet.justic
e.wa.gov.au/content/files/Reducing_juvenile_offending.pdf accessed on 19 October, 2004
ibid.
Australian Institute of Criminology, ‘What Works in Reducing Young People’s Involvement In Crime?, op cit., p. 35, see
also Andrew Day, Kevin Howells and Debra Rickwood, ‘The Victorian Juvenile Justice Rehabilitation Review: Final Report’
p. 61
Howell, J.C., ‘Promising programs for youth gang violence prevention and intervention’, in R. Loeber and D. P. Farrington
(eds.) serious and Violent Juvenile Offenders Risk Factors an Successful Interventions, Sage Publications, California, 1998
113
people re-offending.’303 The Forensic Psychology Research Group and the AIC were
responsible for the development of the rehabilitation framework for the Victorian Department
of Juvenile Justice. Dr Day explained that the ‘evidence base supporting the implementation
of these programs has now been established, particularly with older adolescents’ and yet it
appears that the South Australian Juvenile Justice System is unable to take up these
findings in a systematic way. The Committee did note the Secure Care Psychological
Screening (SECAPS) assessment that has been ‘developed to provide a brief yet broad
standardised assessment of youths coming into secure care in South Australia’.304 This
assessment tool and the Community Adolescent Psychological Screening (CAPS) are being
used by CYFS to determine the risk of re-offending and to indicate the level to which
intervention strategies should be targeted.305 It was not clear to the Committee how an
individual’s Risk Index Score was communicated to the Youth Court to allow the Court to
make informed determinations about a young offender. CYFS indicated there were
approximately 3000 assessments in a database.306 The tool appeared to be used as a
research tool and not as a guide to intervention or behaviour management strategies.
The Select Committee consulted further AIC research literature by Dr Andrew Day, Kevin
Howells and Debra Rickwood regarding current trends in the rehabilitation of young
offenders. The paper further clarified a tiered case management model based on a ‘what
works’ psychological interventionist model. The authors point out that the Youth Justice
System in Victoria is ‘considering implementing a tiered programme model’.307 See Figure 16
below:
Figure 16:
Tiered Case Management Model
Level 4: intensive
programme for serious and
persistent offenders
Level 3: offence-focused criminogenic
programmes for medium/high-risk offenders
Level 2: social integration programmes
Level 1: sentence administration
Day et al. argue that:
The first level of service delivery would focus solely on sentence or order administration and
would be offered to low-risk offenders, including those who only require supervision and
monitoring or who have family support sufficient to meet their needs. These offenders may also
have needs relating to integrating with the community. The needs are generally not considered
criminogenic, but are an important part of the work in juvenile justice. Interventions of this sort
are at the level 2 stage and typically address issues that might obstruct community integration
such as employment, accommodation, education and leisure.
303
304
305
306
307
Dr Andrew Day, University of South Australia Submission 4, p. 2
CYFS Submission 47, p. 2
ibid., p. 4
ibid., p. 2
Andrew Day, Kevin Howells and Debra Rickwood ‘Current Trends in the Rehabilitation of Juvenile Offenders’, Australian
Institute of Criminology: Trends and Issues in Crime and Criminal Justice, No. 284, p. 4
114
For young offenders at medium to high risk of offending, level 3 or 4 interventions are indicated.
The aim of these interventions is to reduce the risk of offending and programmes would
explicitly target criminogenic needs. A range of programmes for different criminogenic needs
should be available, including for common areas of need such as substance use, pro-offending
attitudes, peer/criminal associate influences and family influence. As a minimum, these needs
should be targeted through systematic intervention.
Level 4 interventions are the most intensive and should be offered to the highest risk or most
persistent offenders. According to professional judgement, they may also be offered to those
whose offences are considered particularly harmful. It is likely that the number of young people
requiring level 4 programmes will be small, and as such resources might be targeted towards
particular offending groups (for example, serious and/or persistent violent and sexual
offenders).308
The tiered system has the advantage of focusing resources on those young people
assessed to have a high risk of re-offending given their criminogenic factors.
In light of the evidence and research consulted, the Select Committee believed South
Australia should adopt a ‘what works’ approach to young offenders which included MST for
serious/repeat offenders. The Committee also noted that a significant human resource
allocation is required to implement and sustain this programme. ‘For further discussion on
the human resource skill base within CYFS, please see Term of Reference J.
Recommendation 32
That a ‘What Works’ approach to young offenders to be adopted in South Australia including
the use of Multi-Systemic Therapy for serious and/or repeat offenders.
308
ibid., p. 5
115
7
TERM OF REFERENCE E
The effectiveness of interaction between departments and agencies in
Juvenile Justice.
7.1
The Layton Report and Inter-Agency Cooperation
Our Best Investment: A State Plan to Protect and Advance the Interests of Children (The
Layton Report) was released in March 2003. It considered the issue of confidentiality
provisions and inter-agency cooperation within the context of child protection.309 Layton said
there was a need for a greater understanding of confidentiality provisions and enhanced
information sharing.310 Within the area of child protection there has been ‘[c]onsiderable
confusion and anxiety regarding how and when information should be shared and for what
purpose.’311 According to the evidence submitted to the Select Committee similar points can
be made of individuals and agencies working with young people in the youth justice context.
Layton’s findings concerning confidentiality provisions and inter-agency cooperation
regarding child protection can be read across Youth Justice:
•
A need for inter-agency collaboration to enhance service provision
−
A clear and concise direction is needed so that all departments and systems are
working from the same plans
−
Policy and processes that provide guidelines and outline procedures for inter-agency
collaboration and partnership need to be established. Approaches currently appear to
be agency based or dependent on individuals and tend to be ad hoc.
−
•
A number of critical factors underpin the effectiveness of interagency collaboration and
partnerships:
ƒ
Commitment, follow up, consistency and responsibility.
ƒ
A perceived failure to focus on the needs and interests of children and young
people (including their offending behaviour).
ƒ
Inter-agency cooperation needs to focus on the interests of the child or young
person and ensure that the standard of care approximates that which would exist
for a child within a nurturing family context.
ƒ
Information needs to be accessible, giving appropriate consideration to the
child’s right to privacy, to facilitate care especially for medical treatment. Often
important medical information critical for assessing and determining treatment for
a child is not available after hours if they are in alternative care.
Service providers, including CYFS staff, are frustrated in their attempts to access services
for children and young people in a timely manner
−
Agencies from which CYFS seek a service for their clients are most often struggling to
provide a timely service.
−
•
309
310
311
Waiting times of many weeks to a few months are very common. This impedes CYFS
intervention and frequently has a negative impact on the families, who often lose the
motivation to address issues if they cannot be provided with the required service.
Perceived confidentiality provisions impeding communication between agencies
−
Often there are difficulties in trying to get DHS agencies to work collaboratively for the
benefit of the client.
−
Confidentiality requirements impede process as does having to have an involuntary
client giving permission before relevant information is shared.
Robyn Layton, ‘Our Best Investment: A State Plan: To Protect and Advance the Interests of Children’ March 2003
Robyn Layton Report, p. 7.9
ibid.
116
−
Improvements are needed in how and what type of information is shared between
Government agencies and the non-Government sector and paid and unpaid workers.312
SAPOL have stated that the issue of confidentiality has impeded the coordination of Youth
Justice System responses.313 Ray Gilbert OAM, Mayor of the City of Onkaparinga also
requested a greater sharing of information and working with parents regarding early
intervention programs and linking with departments such as the DECS.314 Mr John Wallace,
APM, a retired Police Officer who was awarded a Churchill Fellowship in 1998 (to investigate
youth crime) recommended the establishment of community crime prevention committees.315
CFYS raised the issue about the need to have the medical history of a young person in care
as it affected their case management.
The Select Committee wished to stress that while protecting the confidentiality of children
and young people was important it was also important to be able to access information and
data relevant to those young people so that intervention plans could be made regarding
youth offending. The Committee were aware of the need to protect human rights and ensure
that confidentiality provisions were not abused. However, it was also clear that too close an
adherence to issues of confidentiality may impede some young people obtaining a service
that assisted them to address their offending behaviour.
7.2
Collaboration and Coordination
Multicultural Youth South Australia Inc. (MYSA) stated there was evidence of good
collaboration between agencies and culturally and linguistically diverse (CALD) communities;
however, there were also other opportunities to further this collaboration through enhanced
interaction between the ‘legal system’ and CALD communities and workers.316 The Care and
Protection Unit submission explained there was a great deal of ‘goodwill’ between various
agencies, and that the Intra-Governmental Youth Justice Advisory Group (IGYJAC) was
established in part to facilitate inter-agency coordination.317 Ms Pam Simmons, Guardian for
Children and Young People referred to the IGYJAC when asked by the Select Committee
about inter-agency coordination. She said this group had identified a lack of coordination
within the Youth Justice System but that there were positive steps now being taken to
address this. However, ‘there is still significant tension between the agencies involved’.318
The Family Conference Team submitted that they had productive working relationships with
SAPOL who were primarily responsible for the referrals to family conference. The Family
Conference Team met with SAPOL periodically to discuss issues and trends. The Family
Conference Team noted that they and SAPOL have:
worked together to address some major systemic issues such as both working off distinct data
servers (SAPOL work off of JIS [Justice Information System] and the CAA [Courts
Administration Authority] works from CRIMCASE). After recent enhancements we are able to
send and receive electronic information that assists with reducing double entering, and
accuracy of information.
Regarding their relationship with CYFS, the Family Conference team stated that they deal
with a large number of young people who have never had and do not require engagement
with CYFS. Yet they also have a number who have and will have engagement with CYFS.
The Family Conference Team explained that the family conference process often reveals risk
factors for continued offending, such as truancy, significant familial conflict or drug and
312
313
314
315
316
317
318
Layton Report, p. 7.6-7.7
SAPOL Submission 25, p. 8
Onkaparinga, Submission 27, p.
John Wallace APM, Submission 28, p. 11.
MYSA Submission 18, pp. 9-10
Care and Protection Unit, Submission 33, p. 16
Pam Simmons, Guardian for Children and Young People, Hansard 1534
117
alcohol issues etc., yet because these risk factors are rated as a tier three (children at risk) in
a Child Protection assessment, there is a difficulty in gaining a response from CYFS to work
with the young person because of a shortage of resources.
The Select Committee acknowledged that this situation may encourage frustration and
possibly undermine confidence in the system’s ability to adequately respond to offending
behaviours, until that behaviour becomes entrenched. Because there is a lack of resource
provision in several CYFS areas, including youth at risk services and alternative care, and
allied heath care systems, some youth are inadvertently being accelerated within the Youth
Justice System in order to gain a welfare response.319
The post-1994 primary focus to addressing offending behaviour was the diversionary
process including informal and formal cautions and family conferencing. However, these
systems rely on a standard of service provision that, in retrospect, appears to have been
inadequately structured and funded.
The design of the Youth Justice ‘system’ may have been well thought through and may be an
appropriate balance between helping to facilitate individual accountability and provide
support services, yet the implementation of this model appears to have not been adequately
evaluated and adjusted post the 1993 legislative changes. Therefore, significant gaps in
service provision have occurred with little real opportunity to address them.
The lack of service provision is not confined to CYFS. For example, the Family Conference
Team noted that a young person’s attendance at a health service for an assessment and
possible subsequent referral for anger management or other counselling may be difficult to
obtain even though it has been the agreed outcome of a family conference. The Family
Conference Team Submission stated:
Even though the young person has agreed and consented to attend an appointment for
assessment …service providing agencies are sometimes unclear about the [voluntary status] of
the client.320
As discussed in Term of Reference B section of this report, referral pathways to community
based treatment programmes are not established. Additionally agency confidentiality
standards can mean that the Family Conference Coordinator/Team is not informed as to their
clients attendance at the service, nor the completion of any identified program.
The Family Conference Team has pointed out that:
There is no singular, on-going point of referral from the Youth Justice System for these clients.
There are generalist services that may include anger management in their brief. Most referral
agencies utilized have traditionally expressed difficulties in being accountable to the justice
system.321
Having established an agreed set of actions at a family conference, some of those actions
may not be carried out due to a lack of appreciation of the issues when dealing with young
people who have offended. Agreed actions that get developed in a conference have to be
delivered within a system. Confidentiality provisions and the service mandates of individual
youth agencies can hinder the coordination of obligations.
The Family Conference Team sets obligations that have to be fulfilled in order to make
sufficient restitution to the victim and society. Yet the Family Conference Team cannot
319
320
321
CYFS Submission 42, p. 34
Family Conference Team Submission 23, p. 16
ibid.
118
adequately coordinate those obligations nor ensure they are carried out. This can undermine
the agreed outcomes, and identified opportunities to engage young people and address their
offending behaviour.
Ms Carolyn Doherty, Senior Youth Justice Coordinator in the Family Conference Team,
stated:
Outcomes from the conferencing process attempt to address the needs of both the victim and
the offender. This approach requires individual relationships to be established with programme
provider agencies. Sometimes that approach has been to the detriment of clients, especially
young people. A better service delivery model would be to recognise the importance of early
intervention to ensure an integrated approach to young people and their relationship with the
Youth Justice System. …we should have priority access to programme providers.322
The Family Conference Team asked that consideration be given to devising individual
service agreements with agencies regarding the referral of young people within the Youth
Justice System in an attempt to enhance the provision of services in a timely manner.
SAPOL stated in their submission that programs such as Conflict Management or Victim
Awareness are only provided by CYFS to approximately 30% of young people who appear
‘before the Youth Court post detention’.323 The Family Conference Team explained that it
was unable to access any programs offered by CYFS for other young people in the Youth
Justice System.324
Recommendation 33
That Memoranda of Understanding be developed between service agencies and the Family
Conference Team and an identified resource allocation be made to these agencies to enable
service provision to young offenders who have undergone a Family Conference and who
have identified obligations.
7.3
Communication Systems
Inter-agency cooperation is also not aided by deficiencies in communication and data
management systems within the Youth Justice System.
Effective communication and interaction between departments and agencies relies to some
extent on an effective strategic coordination of the Youth Justice System which has to be
supported by adequate communication strategies and data management systems. The
current information systems within the Youth Justice System do not facilitate communication
or case management between government agencies.
SAPOL stated that effective case management cannot currently take place because the
systems do not allow it. SAPOL explained that the:
Justice Information System (JIS) caters for SAPOL’s need for criminal history information and
to record file movement but the system does not provide case management capabilities. JIS
blocks SAPOL access to information from other linked agencies even if it concerns the same
youth.325
322
323
324
325
Carolyn Doherty, Family Conference Team, Hansard 439
SAPOL Submission 25, p. 6
Family Conference Team Submission 23, p. 15
SAPOL, op cit., p. 8
119
The Children’s Interest Bureau requested that CYFS and the Youth Justice System combine
their data management system.326 There appears, however, to be some confusion amongst
agencies and departments about the capabilities of the JIS. According to CYFS the ability to
collate data already exists, albeit in a limited capacity.
CYFS informed the Select Committee that they operate within the same data management
environment as SAPOL and the Department of Corrections, namely Justice Information
System (JIS). There are no (or minimal) technological barriers to sharing information
between these agencies. Potentially all users are able to access any information entered into
the ‘JIS environment’. However, this is managed through the use of inter-agency agreements
and the assignment of different security levels to user groups. Ultimately the level of access
available to an individual user is the outcome of a policy decision, not a technological
issue.327
All CYFS files are individual client based and are opened or closed according to CYFS
involvement. If a young person is in the justice system, but is not involved with CYFS, a file
will not be activated. This means that the management of file information within the Youth
Justice system is fragmented depending on whether the young person already has a CYFS
file generated. A young person could have committed offences for which he/she was
informally and formally cautioned, and may even have attended a number of conferences but
unless they are a CYFS client a centralised client file will not be produced, which is available
for all agencies to consult. Police will have records and intelligence on the young person, and
the Family Conference Team will also have added to their case file if the young person has
attended a family conference but CYFS would have no information about these young
people.
If a young person already has an open CYFS file and subsequently becomes involved in the
justice system this will be recorded in the case notes section of the file. Limited case file
information is kept on the information technology based JIS and usually only relates to basic
client information, key decisions and formal order details (both care and protection, and
justice).
CYFS has indicated that it is currently entering into the development phase of an IT based
case management system, this project is expected to take approximately three years to
complete. Identifying existing systems and the need for linkages and data exchange with
external agencies will form a part of this development process. The basic premise of the
case management system will be to provide a view of an individual client’s involvement
across all CYFS programme areas, and potentially relevant external agencies.
7.4
Client Relationship Information System (CRIS), Department of Human
Services, Victoria
The Department of Human Services (DHS) in Victoria has undertaken to develop and
implement the Client Relationship Information System (CRIS) which is an integrated
electronic client information and case management system. It will replace the Youth Justice
Client Information System which was introduced in 1996 but has limited functionality, similar
to the South Australian System. The CRIS system is still in its development and
implementation phase. The Client Relationship system will link youth justice, child protection,
disability services and early childhood intervention services within one DHS case file.
To assist non-Government agencies (funded through DHS) to better case manage their
clients through shared information, the parallel system: Client Relationship Information
System for Service Providers (CRISSP) has been initiated. It will link parts of the CRIS
326
327
Children’s Interest Bureau, Submission 36, p. 4
CYFS, email communication, July 2, 2004
120
system’s functionality to non-Government community service organisations. The pilot project
was implemented in August 2004 and will be applied across Victoria from February 2005 to
2006.328
7.5
Recording Informal Cautions
Police currently do not record informal cautions. Informal cautions are issued verbally to
young people who have committed very minor offences and police have decided do not
warrant a formal response. Police do record the number of informal cautions for internal
operational recording procedures.
The Select Committee believed that informal cautions should be kept by Police so that
patterns of at risk, anti social or illegal activity could be noted and collated. The Select
Committee believed a database should be established that contained the names of young
people who have been informally and formally cautioned, family conferenced or have
received a Youth Court Order. The Guardian for Children and Young People would oversee
the database and chart any trends or areas/cases requiring immediate intervention. For a
further discussion of the extension to the Guardian for Children and Young People’s powers,
please see Term of Reference D, Recommendation 26.
Recommendation 34
That informal cautions be officially recorded.
7.6
The Structure of the Youth Justice System
The Select Committee believed there was an adequate balance between a justice and a
welfare perspective and were confident in the current structure of the Youth Justice System.
It noted CYFS’ decision to restructure its Youth Justice services into one Directorate. Mr
Steve Ramsey, Director, Youth Justice Directorate, CYFS, told the Select Committee that it
was a ‘significant signal that youth justice needs to be firmly on the [CYFS] agenda…There is
a need for us to refocus, rebuild and reassess what we are doing.’329 The Select Committee
noted that apart from the current provision of services the actual structure of the Youth
Justice system was adequate. There was general support given by key agencies for the YOA
and its operation. The Select Committee noted SAPOL’s comments regarding the request for
a Office for Youth Justice, and better strategic coordination of the Youth Justice sector,
however, in the absence of any other substantial criticism of the Youth Justice System’s
structure, the Select Committee did not believe it was warranted at this time.330
The Select Committee acknowledged that the Courts Administration Authority was
represented on the Intra-Governmental Youth Justice Advisory Committee though it wished
to stress the need to ensure that this representation included magistrates from the Youth
Court. Additionally, that this Committee remain a Senior Executive Committee for the
purposes of the setting and maintaining Strategic Direction for the Youth Justice System in
South Australia.
7.7
The Interface Between Child Protection and Youth Offending
As indicated previously in this report, child maltreatment is a significant risk factor for
offending behaviour. The Select Committee considered the issues identified in the Layton
report and noted the significant factors that CYFS face as an organisation wishing to address
328
329
330
Jasmine Thompson and Milt Carroll, ‘Programme Initiatives Within Youth Justice Victoria’, Paper presented at the Youth
Justice: From Lessons of the Past to a Road Map for the Future Conference, Sydney, 2003, p.13-14,
http://www.aic.gov.au/conferences/2003-Youth/carroll.html, accessed June 30, 2004
Mr Steve Ramsey, CYFS, Hansard 1296
SAPOL, Submission 25, p. 6
121
these issues. However, it also seriously considered the views expressed by Ms Nerida
Saunders, Director, CYFS who stated that:
At the moment, the focus for CYFS, as an agency, has been the child protection issue. I think
that most of us would agree that Youth Justice issues are not necessarily on the table, apart
from this Select Committee’s work. Part of that process for us, as an agency, is about dealing
with the issues and their impact from the last decade in relation to service capacity within the
organisation and the increase in demand for services in that same context and the complexities
of individual cases….
Certainly, from an organisation point of view we are not just talking about introducing additional
bodies into the organisation, we are also talking about a major cultural shift within the
organisation. We are also talking about major discussions about standards and development of
all of our programme areas. In terms of rebuilding within the organisation, we are talking about
a three to five year period before we would start, in reality, seeing some of the benefits of those
processes.331
The Select Committee acknowledged the recent establishment of the Youth Justice
Directorate within CYFS. The Committee stressed the need to make Youth Justice and
‘youth at risk’ a priority focus for CYFS resources and service attention. Early intervention
into the lives of these young people and their families with better coordination between child
protection and ‘youth at risk’ services was required.
331
Nerida Saunders, CYFS, Hansard 1295-1296
122
8
TERM OF REFERENCE F
Innovative approaches that could be used in the Youth Justice System.
8.1
Regional Supervised Bail Programme
The Western Australian, Department of Justice, informed the Select Committee of its
Regional Supervised Bail Programme which aims to reduce ‘unnecessary travel and
dislocation for Aboriginal Youths living in remote areas.’332 The programme allows for young
people (who fit specified criteria) to be bailed to their regional community.
[These] are often Aboriginal communities who enter into a fee-for-service agreement with the
Department. When no suitable adult can be found to sign a bail undertaking or there is no
appropriate accommodation for the offender on bail, the youth can be supervised within these
communities.333
The Western Australian government has piloted the programme in several regional
communities and has had significant success in reducing the number of days a youth spends
in secure custody whilst on bail. It also allows youth to remain within his/her community for a
longer period of time and does not rely on the presence of a parent or family member who is
willing or able to accept responsibility for the young person. Consideration should be given to
the appropriateness and level of support communities have available to them, to be able to
support this programme. The Select Committee felt this programme should be piloted in
some remote and regional communities to assess the suitability of the programme here is
South Australia.
Recommendation 35
That a Regional Supervised Bail Programme, based on the Western Australian model, be
piloted to assess its suitability in South Australia.
8.2
Youth Workers placed at Major Police Stations
The Select Committee believed that Youth Workers with particular skills in working with
young people should be situated at major police stations in the metropolitan and rural areas
in order to help police officers engage with youth. The Select Committee acknowledged the
positive ways in which police, particularly the Community Programmes Support Branch, work
with youth, however, it felt that a co-location initiative could aid relationships between police
and youth.
8.3
Police Officers to be placed at Schools
The Select Committee believed that Secondary Schools should be able to invite police
officers to be situated on a permanent basis, at their school. These Police Officers could be a
resource to assist in teaching a range of subjects including:
•
•
•
•
Civic responsibility;
Legal rights and responsibility;
Driver safety; and
Personal safety
332
Department of Justice, Western Australia, Submission 41, p. 8
ibid.
333
123
8.4
Police Boys Clubs
The Police Boys Clubs that have been in operation in other states for a number of years
should be initiated in South Australia. The Select Committee acknowledged the work that the
Blue Light organisation did, however it felt that an extension of their activities to include
‘Police Boys (and Girls) Clubs’ could build relationships with particular youth groups.
Recommendation 36
That Youth Workers be situated at major Police stations in metropolitan and rural areas.
That secondary schools be able to invite Police Officers to be permanently located at their
school.
That SAPOL and the Blue Light organisation consider establishing Police Boys and Girls
Clubs in South Australia to provide sport and fitness activities to local youth.
124
9
TERM OF REFERENCE G
Student Behaviour Management Policies and Practices as they Relate to
the Juvenile Justice System
9.1
Behaviour Management Practices
The Department of Education and Children’s Services (DECS) made a number of
submissions to the Select Committee detailing the operation of their services and their
behaviour management policies, practices and supports. DECS explained that regulation 40
and 41(1997) under the Education Act 1972 provides principals with the authority to ‘suspend
a student from attendance at school for up to five days or exclude a student for up to ten
weeks if under the age of compulsion.’334 DECS explained to the Committee that:
Principals can suspend or exclude a student if they:
(a) threaten or perpetuate violence
(b) act in a manner that threatens the safety or wellbeing of a student or member of staff or
other person associated with the school (including by sexually harassing, racially vilifying,
verbal abusing, or bullying that person)
(c) act illegally
(d) interfere with the ability of the teacher to instruct students or a student to benefit from that
instruction
(e) act in a manner that threatens the good order of the school by persistently contravening or
failing to comply with rules applying within the school, with respect to behaviour.
A student can also be suspended if they:
(f) show persistent and wilful inattention or indifference to school work.335
Approximately 2 per cent of students are suspended and 0.2 per cent are excluded each
year. Disabled Aboriginal or Torres Strait Islander students are excluded or suspended at a
rate three times as much as able students and non-Aboriginal and Torres Strait Islander
students. Additionally, 4 out of 5 students who are suspended are male.336
DECS provided the Committee with the following data regarding exclusions:
All year levels Reception to Year 12
Number of exclusions
Number of students excluded
2001
256
247
2002
223
217
2003
236
230
DECS stressed that in 2003 the age of compulsion increased from 15 years to 16 years of
age which they argued may account for the increase in exclusion numbers. Regarding
suspensions, DECS explained that the statistics have been relatively consistent over the last
few years with 3808 students (Reception – Year 12) suspended in 2001, 3488 students in
2002 and 3828 students in 2003.337 They explained that ‘[s]tudents with a disability and
students from an Aboriginal or Torres Strait Islander background continue to be suspended
and compared to their percentage in the DECS student cohort by around a factor of three.’338
The Select Committee were told that one recent initiative of DECS was to fund an ‘additional
forty-three primary school counsellor salaries enabling over one hundred new primary
schools to appoint a primary school counsellor.’339 Although the Committee thought this was
a good initiative, it did question the practice within DECS of appointing teachers to school
334
335
336
337
338
339
DECS Submission 44a, p. 1
ibid.
ibid.
ibid., p. 2
ibid., p. 3
ibid.
125
counselling positions rather than social workers and psychologists. The Committee noted
that School Attendance Counsellors had social work qualifications and suggested more of
these positions should be funded to specifically work with families. The Committee noted that
schools were now not just sites for curriculum delivery but were communities in themselves
and as such they presented an opportunity to provide services to children, young people and
their families in broad, holistic pastoral care frameworks. Diversifying the range of staff skills
within a school environment may assist the school in providing services to young people in a
familiar environment.
DECS did outline the range of policies and initiatives that they have within the school system
to maintain student well being and engagement, minimise the incidence of disruption, whilst
facilitating early intervention for children ‘at risk’. They explained that with the increase in the
compulsory age of school attendance, many additional initiatives have been introduced to
support the 15 year old cohort. These initiatives include:
•
•
•
•
•
•
•
The appointment of eighty mentors in secondary schools to support 800 students nearing 16
years of age.
The appointment of an additional four School Attendance Counsellors (Retention) to support
schools with their attendance plans.
An additional forty-three primary school counsellor salaries enabling over one hundred new
primary schools to appoint a primary school counsellor.
$2.1m over four years for the training of counsellors in schools with a focus on child
protection and pastoral care.
An additional $8.8m to support leaders in primary schools.
An additional 160 junior primary teachers in the State’s most disadvantaged schools.
The $800,000 annual budget for the Learning Links programme (sic.) which aims to support
speech and behavioural issues in early childhood settings.340
DECS explains that there is a ‘continuing tension for principals in creating a safe and
supportive learning environment for all students whilst managing the behaviour of an
individual student that threatens this environment and keeping this student connected to
education.’341
They also explain that:
in 2004 and 2005 a cross-agency review of the implementation of the suspension, exclusion
expulsion (SEE) procedures will be conducted. This will enable DECS in collaboration with other
agencies especially Community (sic.) Youth and Family Services (CYFS) and Child and
Adolescent Mental Health Services (CAMHS) to consider the overrepresentation of Indigenous
[students], and Guardianship of the Minister students and students with a disability.342
The Committee acknowledged the broad range of services and programmes that DECS
implements to ensure basic levels of educational support for the student population.
The Select Committee heard from Deborah Laycock, Project Officer with the Centre for
Restorative Justice who provided details of the Restorative Schooling Project. This Project is
being piloted by the Centre for Restorative Justice which is an arm of the Offenders Aid and
Rehabilitative Services of South Australia Inc. The Committee received evidence from Ms
Laycock explaining the benefits of using restorative processes with young people in an
educational context. The Committee heard that the collaborative pilot project is reliant upon
the integrated working together of parties including the DECS, SAPOL, local councils, church
communities and the local community.343 The Committee noted that an extension of
340
341
342
343
ibid., p., 4
ibid.
ibid.
Deborah Laycock, ‘Restorative Schooling – A Proposal’, Centre for Restorative Justice, March 2004
126
restorative justice processes in other contexts may provide productive strategies and
approaches to dealing with conflict within an educational context.
9.2
Truancy
The Select Committee considered the issue of Truancy. Section 80 of the Education Act
1972 provides for the powers in relation to suspected truancy:
(1)
The following persons shall be authorised officers for the purposes of this Part:
(a) any member of the police force; or
(b) any person authorised in writing by the Director-General of Community Welfare to
exercise the powers of an authorised officer under this Act; or
(c) any person authorised in writing by the Director-General to exercise the powers of an
authorised officer under this Act.
(2) Where an authorised officer observes any child who appears to him to be a child of
compulsory school age in any public place at a time when the child should normally be
attending school, he may accost the child and seek to obtain from the child the following
information:
(a) the name and address of the child; and
(b) the age of the child; and
(c) the reason for his non-attendance at school.
(2a) An authorised officer may in the circumstances referred to in subsection (2), if the child is
in the charge or company of some person apparently over the age of eighteen years,
request that person to furnish the authorised officer with the information referred to in that
subsection.
(2b) If it appears to an authorised officer who is a member of the police force, after enquiring
into the child's reasons for not being at school, that the child does not have a proper
reason for being absent from school, the authorised officer may take the child into his or
her custody and return the child—
(a) to someone in authority at the school; or
(b) to a parent or guardian of the child.
(3) An authorised officer may, at any time in the day, call at a dwelling house and request any
person to furnish him with the following information:
(a) the full names of all children of compulsory school age resident in the dwelling house;
and
(b) the respective ages of those children; and
(c) the schools (if any) at which those children are enrolled in pursuance of this Part.
(4) Any person who, when requested to furnish information under subsection (2a) or (3), fails
to furnish the information to the best of the person's knowledge or belief, or wilfully
furnishes any false information, shall be guilty of an offence and liable to a penalty not
exceeding two hundred dollars.
The Select Committee appreciated that school non-attendance is a significant social issue
and that a greater emphasis on tackling truancy in a proactive way is required. The Select
Committee gave consideration to extending the ability of a Court to issue a compulsory
Parenting Responsibility Order to those parents who failed to ensure their children attended
school.
The Select Committee received information regarding a School Attendance Programme that
had been conducted in New South Wales between Centrelink and a selection of high
schools. The Positive Attendance Strategy for Secondary Students (PASS) Project aims to
work with secondary school students at year 11 level and explore positive attendance
strategies including emphasising the roles of responsibilities of students to attend school.
Reasons for non-attendance are identified and either challenged or strategies of support are
devised to assist young people to fulfil their attendance requirements at school or access
other forms of education, training or employment. The Workshops are conducted by a
127
Centrelink representative with the aim of providing basic career counselling and information
about Centrelink including their ability to breach young people for non-attendance of school.
These workshops are not, however, restricted to only those young people who receive a
benefit but rather, to those students absent from school (both with and without a valid
reason).
The Select Committee believed this programme appeared to be potentially productive as it
placed suitable emphasis on young people being responsible for their school attendance.
The Committee noted that the programme only worked with young people who were
completing their final years of schooling. It recommended that consideration be given to
piloting the programme in South Australia. Additionally consideration should also be given to
extending the ability to breach parents who receive a benefit from Centrelink should their
children be absent from school without an adequate reason. This would enable information
about the need for school attendance to be given to parents (even those who do not receive
a benefit) in addition to placing an emphasis of accountability and responsibility on parents to
ensure their children attend school on a regular basis.
Recommendation 37
That Parenting Responsibility Orders be issued to those parents whose children are
truanting.
That the Positive Attendance Strategy for Secondary Students (PASS) Project be piloted in
South Australia.
9.3
Youth Education Centre
The Select Committee visited the Youth Education Centre and took evidence from the
Principal, Ms Gerri Walker, and the coordinator Mr Paul Altschwager.
The Youth Education Centre (YEC) is a school within DECS, situated at the Magill Training
Centre Campus. The YEC provides education within the Magill and Cavan training centres
and at the Flexicentre which is based at Magill. Young people who reside in CYFS residential
care facilities (some of which may have offended and be on conditional release or have
completed their sentence order) attend the school as an alternative to other education
facilities.344 Ms Walker and Mr Altschwager explained the structure and range of programmes
offered by the Flexible Learning Centre and the Virtual School. Members of the Committee
were genuinely impressed with the enthusiasm and commitment expressed by the staff of
the school.
Numeracy and literacy levels are assessed while the young people are in care (if their
admission to Magill is longer than a week).345 CYFS submitted that:
•
344
345
346
Eighty-three percent of the Secure Detention population have been expelled or excluded
from the education system prior to incarceration. Approximately a quarter of the population
have reading ages below the ‘survival reading age’ of 10 years. For Aboriginal children and
young people the statistics are even more alarming with sixty-one percent of boys having a
reading age of below 10 years and fifty-three percent of these having a reading age below 8
years. Against this backdrop and with mainstream youth unemployment rates high, the chances
for young people in the justice system to gain employment are low.346
Gerri Walker, Hansard 559
ibid., 576
CYFS Submission 42, p. 12, CYFS Submission 47, p. 7
128
Ms Walker confirmed that the number of young people who have age appropriate numeracy
and literacy levels is low. Some do not have letter recognition.347 Due to a high level of
transience, these young people may not have been captured in the Basic Skills Test that the
Department of Education conducts.348 The YEC advised that they have recently added a
young person’s education component to detention plans for those young people who are on
a lengthy detention order.349
YEC have formed partnerships with external agencies and industry such as the Service to
Youth Council, Kentucky Fried Chicken and Alcoholics Anonymous, to deliver vocational and
life skills training packages to young people.350 The YEC offers opportunities to experience
success through education and schooling. Ms Walker spoke about the enthusiasm that the
young people had about their work and how they were happy to have it acknowledged
through formal and informal, internal accreditation systems. It was not clear to the Select
Committee however, how these innovative ways of teaching and developing education plans
for these children who had been excluded from other forms of schooling could be modelled
within the broader education system.
The Committee was impressed with the individualized packaging of vocational and life skills
training for the young people however, there were concerns raised about transitional
planning, including the lack of provision for conditional release to allow for implementation of
transitional education and employment plans.351 Given the evidence taken, the Committee
felt that transitional planning should begin upon admission as individuals require assessment
as part of their rehabilitation plan.
The YEU referred the Select Committee to the work of researchers Pamela Snow and
Martine Powell concerning oral literacy levels of young offenders. Snow and Powell’s
research involved 30 male young offenders aged 13 to 19 years who were completing a
community-based order and 50 male secondary students who were attending state high
schools in a metropolitan area of Melbourne. The research found that young male offenders
had significant differences on the following measures:
• Understanding ambiguous sentences;
• Understanding figurative (non-verbal) language;
• Narrative discourse – simple story telling; and
• Speed of comprehension.352
Oral literacy is particularly significant as young people require a level of oral literacy skills to
make statements to the police and to engage verbally in the family conference process. The
Select Committee felt that Snow and Powell’s research was interesting as it demonstrated
the need to address oral literacy. The Select Committee wished to highlight the need to place
educational resources on oral literacy in addition to numeracy and literacy skills for all
children and young people, not only those involved in the Youth Justice System. Accordingly
it recommends that oral literacy testing be conducted in South Australian schools and that
programmes be developed and delivered to those children and young people identified
through the testing process.
347
348
349
350
351
352
Gerri Walker, YEC, Hansard 573, 677
ibid., 689
ibid., 590
ibid., 595
ibid., 597
Pamela Snow and Martine Powell, ‘The Oral Language Skills of Juvenile Offenders: Yep, Nup and Dunno Revisited’
unpublished paper, and ‘What’s the Story? An Exploration of Narrative Language Abilities in male Juvenile Offenders’,
presented at the Juvenile Justice Conference, Sydney, email communication, 21 May 2004
129
Recommendation 38
That oral literacy testing be conducted in South Australian schools and that programmes be
developed and delivered to those children and young people identified through the testing
process.
130
10 TERM OF REFERENCE H
Any Special Circumstance that may apply to Children or Youth from a Non
English Speaking or Aboriginal Background.
10.1
Use of Interpreters in the Court System
The Aboriginal and Torres Strait Islander Commission/Aboriginal and Torres Strait Islander
Service (ATSIC/ATSIS) noted the importance of ensuring availability of interpreters of
Aboriginal languages within the Court system and cited recommendations 99 and 100 of the
Royal Commission into Aboriginal Deaths in Custody regarding this issue. They also
suggested that the Court circuit to rural and remote communities should be based on the
Pitjantjatjara Court circuit, where interpreters are used as part of the court process.353
The Select Committee agrees that interpreting services should be made available to ensure
that a due legal process is carried out and to facilitate young people’s understanding of the
Court process.
MYSA argued that even with the appointment of an interpreter, some people did not
understand the legal process or ‘legal jargon’. To address this, the placement of culturally
and linguistically diverse (CALD) workers in the court system was advocated. The Select
Committee also acknowledged the Migrant Resource Centre of South Australia (MRCSA)
call for the ‘mandatory and appropriate use of interpreters who are trained in Youth Justice
matters..[and] the appointment of bilingual workers and advocates across the Youth Justice
System’.354
ATSIC/ATSIS stated in their submission that ‘[s]pecific programmes are needed to ensure
that Aboriginal people are available as court staff and interpreters in locations where large
numbers of Aboriginal people are appearing before the courts.’355 Senior Youth Court staff
and the Family Conference Team gave evidence that an Aboriginal Justice Officer was
required in the Youth jurisdiction to assist Aboriginal young people and their families to
understand and negotiate the Court process.356 The Aboriginal Legal Rights Movement also
made this recommendation to the Select Committee.357
As, already mentioned, MYSA has advocated for the placement of CALD cultural workers
within the Youth jurisdiction to advocate on behalf of CALD young people and their families,
and ‘translate’ legal and cultural issues.358 The MRCSA recommended that the Youth Justice
System should be mindful of the specific issues that affect individuals from newly arrived or
settled migrant communities in South Australia.359 To facilitate this, they recommended that
all Youth Justice System personnel be required to undertake cultural diversity training.360
353
354
355
356
357
358
359
360
ATSIC/ATSIS Submission 30, p. 5
Migrant Resource Centre of South Australia Submission 21, p. 3
ibid.
Snr. Judge Moss, Youth Court, Hansard, 320; Magistrate Vass, Hansard, 376, Family Conference Team Submission 23, p.
20
Aboriginal Legal Rights Movement, Submission 20, p. 3; Richard Coates, ALRM Hansard, 951
Multicultural Youth South Australia Inc. Submission 18, page unmarked.
Migrant Resource Centre of South Australia Submission 21, pp.2-4
ibid. p. 3
131
Recommendation 39
That there be an increase in the provision of interpreters in the Youth Justice System.
That information and resources be made available to enhance new arrival migrant and
refugees’ knowledge of the Youth Justice System.
10.2
Petrol Sniffing Inquest Recommendations – Anangu Pitjantjatatjara
Yankunytjatjara Lands.
ALRM included in this submission paragraphs 10.65-10.76 of the State Coroner, Mr Wayne
Chivell’s report regarding the Petrol Sniffing Inquests of 2002. ALRM wished to highlight the
level of service provision to the APY Lands by CYFS. ALRM stated that:
FAYS (CYFS) did not attend the court (including Youth Court) circuits to the APY lands and at
that time FAYS had no projects or programs to offer the Youth Court on the APY lands to assist
young Anangu offenders, particularly those affected by petrol sniffing. ALRM has been
informed that that situation has not changed by that FAYS considers there are comparatively
few young offenders on the APY lands at this time.
ALRM does not accept this as correct. For instance, during the most recent APY Court circuit
from 16-20 February 2004, there were 36 Youth Court matters. This is a substantial number
which, anywhere else in SA, would require FAYS assistance at the Youth Court. This should
occur as part of an increased FAYS presence on APY lands. If FAYS require additional
resources to achieve this, it should be done by the State Government as a priority.
ALRM referred the Select Committee to the:
Coroner’s comments about understaffing of the Coober Pedy office of FAYS and the desirability
of commencing crime prevention strategies, a greater emphasis on youth workers to dissuade
youths from starting sniffing and the desirability of putting greater emphasis on community
development aspects of social work by FAYS and staff recruitment for [the] Coober Pedy
office.361
The Select Committee acknowledged the comments made by the ALRM and Mr Chivell’s
recommendations from the 2002 inquest.
361
ALRM Submission 20, p. 6
132
11 TERM OF REFERENCE I
The Adequacy of Resources Provided for the Operation of Juvenile
Justice
11.1
CYFS Staffing
CYFS told the Select Committee there was a ‘limited mix of staff skills (including
psychologists, social workers)’.362 Most CYFS staff working in the Youth Justice area are
youth workers with ‘a significant commitment and experience in working with this population
of children and young people’. CYFS advised the Select Committee that it has ‘very few
professionally qualified staff specialising in work with young offenders’. They explained:
District Centres use mainly Youth Workers and of the 400 staff in secure care centres,
community-based residential care, and Youth and Juvenile Justice Programmes, there are very
few (11) in the PSO stream where there is a requirement for tertiary qualifications. These are
three psychologists and eight social workers (5 of which are in the Court Liaison Unit). The vast
majority of staff are youth workers (positions for which no qualifications are required)…[F]ew
managers within CYFS have qualifications in criminology/justice disciplines or in
treatment/forensic service disciplines. There is an overwhelming need to increase the number of
qualified specialist staff.363
The Select Committee questioned whether this skill mix/level is either adequate or
appropriate to fully address the range of complex offending behaviours for young people in
the Youth Justice System, particularly for those who have substantial histories of offending.
The Select Committee noted that without an adequate human resource skill base many of
the Recommendations identified in this report may struggle to come to fruition. It is the
concern of the Committee that there must be a diversity of skills and professions working in
the area of Youth Justice. It is recommended therefore, that CYFS employ more specialised
staff to work in Youth Justice.
With regard to Child Protection, the Layton Report recommended that CYFS improve its
quality of workforce. Regarding workload management:
Like many human service providers, there are a number of drivers which impact on the capacity
of an agency to provide effective services to the community. Managing demand is only one
aspect to be taken into consideration. Work demand is affected by broader societal and
economic pressures over which statutory welfare agencies have limited control – factors such
as employment rates, community and neighbourhood cohesiveness, family structure, financial
safety net payments, etc. These factors also impact on other community support agencies
resulting in contraction of the scope of services available for child protection as they too
‘struggle’ to deal with increasing demand.
Non-Government agencies and community services have the option of using mechanisms to
control workloads, for example, only accepting referrals from particular types of clients such as
those presenting with a particular problem; restricting intakes to limit times or locations, holding
waiting lists or closing their books. However, a statutory welfare agency’s capacity to manage
and control its incoming work is driven by a legislative mandate. In the area of child protection:
‘FAYS (CYFS) remains the agency of last resort when other agencies withdraw their services. If
Government cut back the range of its services, directly and inevitably this ups the ante on
FAYS in terms of the non-negotiable demand for service that FAYS must respond to.’
362
363
CYFS Submission 42, p. 18
Aldis Putniņš and Steve Harvey, CYFS Submission 47, p. 9
133
Once a case is ‘accepted’ in the system there are also a variety of ‘internal’ drivers that impact
on the capacity of individual workers to respond. The most significant one: the work generated
as a result of impending Youth Court action and the need to maintain extensive record keeping
and data in order to fulfil legal obligations. This, coupled with the complex mix of issues and
needs that many families now present with, further increases the pressures upon workers’
capacity to respond effectively.364
The report made a number of specific recommendations regarding CYFS workload
management. Generally it identified the need to:
•
•
•
•
•
•
return to quality social work skills
strategies for staff recruitment and retention
workload management system
wage parity and classification enhancement
training at all levels on ongoing basis
additional staff and resources.365
CYFS faces many challenges regarding the effective delivery of services that they are
responsible for. For example, CYFS identified that ‘there is inconsistency in the standard of
supervision provided to young people, and confusion about the role of supervision in the
management of orders’.366
Additionally, CYFS acknowledges that ‘[t]here is inconsistent focus placed on offending,
reducing re-offending or engagement of young people in addressing their behaviour and their
dislocation from their community; currently focus is weighted toward welfare intervention.’367
The skill mix and level of this agency requires analysis if it is to shift the focus away from
general welfare services to targeted, evidence based intervention models for young
offenders.
Recommendation 40
That Children Youth and Family Services appoint a diversity of staff, including specialist staff
to work in the area of Youth Justice.
11.2
Alternative Care
The Select Committee took evidence from a number of agencies who identified that there
was a lack of suitable alternative care accommodation options for young people and that this
had an impact on both offending and re-offending. The Select Committee took evidence from
Ms Carmel O’Loughlin, Director, Foster Care Relations, Department for Families and
Communities, regarding foster care. Ms O’Loughlin spoke about a range of issues affecting
the alternative care system including the inadequate level of resources dedicated to
alternative care in South Australia. The Select Committee was aware of recommendations 64
and 66 of the Layton Report which identified the need for significant change with regard to
alternative care services in South Australia. The Select Committee concurred with those
recommendations and acknowledged the work that the Department for Families and
Communities have instigated to reform the alternative care system.368
364
365
366
367
368
Layton Report, op cit., p. 9.7
Layton Report, op cit., p. 1.7
CYFS, op cit., p. 18
ibid., p. 19
The Layton Report, pp. 11.2 – 11.8
134
11.3
Lack of Accommodation Options Post Secure Care
The Select Committee noted the lack of post secure care accommodation options for young
people in South Australia. YACSA argued that there was a lack of accommodation support
provided to young people post secure care. The lack of accommodation options, including
supported accommodation, represented a risk factor with regard to re-offending.369
The Division of Mental Health at the Women’s and Children’s Hospital argued that South
Australia had no transitional housing options for young people when they neared the
completion of their detention order, thereby limiting their ability to productively re-engage with
the community.370
A range of accommodation services are required to facilitate transitional plans post secure
care to assist in minimising recidivism risk. The Select Committee acknowledged that
housing options must be supported with adequate support and service links.
11.4
Lack of Accommodation Options for those Young People on Bail
The Select Committee heard that there was an inadequate availability of accommodation
resources to which young people could be bailed.371 The Legal Services Commission argued
that while homelessness is not in itself a legitimate reason for denying bail according to the
Bail Act 1985, many children and young people are refused bail because they are unable to
meet residential bail conditions.372 As previously referred to in Term of Reference B, the
Youth Court requested Bail Hostels be re-established so that young people would not need
to be placed in custody.373 Additionally young people could continue with education and
employment activities and thereby be kept engaged in meaningful activities while awaiting
further court proceedings.
The Youth Court submission states that the lack of suitable accommodation options and level
of familial dysfunction often meant that ‘the court has no choice but to remand a child in
custody simply because there is no placement. Disturbingly this is often the situation with
children who are under the Guardianship of the Minister.’374 The Children’s Interest Bureau
referred to the high percentage of children and young people under the guardianship of the
Minister in secure care and the practice of some children being placed on Guardianship
orders when they leave secure care because their family fail to resume responsibility for
them.375
The Aboriginal Legal Rights Movement (ALRM) also referred to the lack of housing and
accommodation calling for the re-establishment of Aboriginal Bail Hostels, operated by
Aboriginal staff.376 Paul Bennett, Lawyer and Manager of the Criminal Section of ALRM
stated that there ‘is an overwhelming need for a number of Aboriginal bail hostels in the city
and country areas.’377 Having young children in custody rather than on bail gave rise to what
was referred to as a ‘contamination’ problem with young children being placed in secure care
with older, young people who, have often had previous lengthy involvement with the Youth
Justice System. Bail options may reduce this co-habitation and therefore, the mixing of very
young offenders with older and possibly more entrenched offenders.378
369
370
371
372
373
374
375
376
377
378
YACSA Submission 29, p. 10
Division of Mental Health, Women’s and Children’s Hospital Submission 10, p. 2
YACSA Submission 29, p. 10, Need to reference other agencies who said there was a shortage of housing options post
secure care.
Legal Services Commission Submission 15, p. 4
Youth Court, Submission 14, p.3
Youth Court Submission 14, p. 3
Children’s Interest Bureau, Submission 36, p. 1
Paul Bennett, Aboriginal Legal Rights Movement, Hansard, 943, 945
ibid. 942
Tony McCarthy, ibid., 942
135
11.5
Alternative Care Placements
The Remand Intensive Neighbourhood Care Programme (Remand INC) is a community
based accommodation option for young people assessed as posing risk to the community
and facing potential remand into custody. The programme is facilitated and supported by
CYFS. Young people on the programme are supported to meet the conditions of Court bail
while being accommodated in a specialist alternative care (foster) placement. The
Programme provides an alternative to being remanded into custody and limits exposure and
progression of the young person in the Youth Justice System.379
The Legal Services Commission noted that ‘[a]n average 66 youths were held in custody per
day during 2002. The high proportion of young people (50%) who are on remand pending the
outcome of their court proceedings is of particular concern’.380 They also noted that there
was an inadequate number of Remand INC placements. ALRM also said there was a large
demand for the Remand INC programme.381
The Legal Services Commission also stressed that when a form of suitable accommodation
was found for a young person while chargers were finalised, there was an inadequate level
of supervision of the young person by CYFS personnel due to staff shortages.382 They also
stated that:
[a]t times, young people are forced to reside at an emergency accommodation facility such as
Burdekin Place. This kind of facility, which typically houses adult offenders with chronic drug
and alcohol problems, is clearly unsuitable for children.383
Mr Frank Nam, Manager of the Kumangka Youth Service stressed the importance of having
alternatives to custodial sentences. He stated:
[i]t is essential that we have some sort of bail-house process, where community programmes
can work with youth and instil confidence in them to get them back into the community in a
positive way, rather than just placing them in detention centres, where all they learn is how to
steal a car more professionally, or how to open certain windows.384
Mr Nam issued a cautionary note against the removal of children and young people from
their families and placing them within the alternative (foster) care system. He stated:
Intensive neighbourhood care is also an issue for me, because we are willing to take a young
person away from their home for 6 months and pay someone else $280 a week or fortnight,
whatever it is, to care for that youth over that six-month period, whereas they could do some
more realistic work with the family and put the same …social support into the family and keep
the child within the family. The moment you take that youth away from their family they become
very bitter. I believe we need to do a lot more work with families and look at the real issues
within those families and try to deal with them and keep the youth within the home structure.385
While the Select Committee was mindful of the significant issue that Mr Nam raised with
regard to providing adequate supports within the family, they also recognised that a range of
accommodation options for young people who are either at risk, on remand or bail was
required.
Mr Tauto Sansbury, Regional Chairperson, ATSIC and Mr Frank Nam explained to the
Select Committee the lobbying that they and others had undertaken to establish a bail hostel
379
380
381
382
383
384
385
CYFS, email communication, 26/10/04
Legal Services Commission Submission 15, p. 4
Paul Bennett, ALRM, Hansard 940
Legal Services Commission, op cit. p. 4
ibid.
Frank Nam, Kumangka Youth Service, Hansard 1079
ibid.
136
for young people in Adelaide. Yet instead of a bail hostel being established, Marni Wardli
(Good House) a youth accommodation programme, was established. The Select Committee
learnt from CYFS that Marni Wardli provides accommodation placement options for ‘at risk’
Aboriginal young people. Children and Young People under the Guardianship of the Minister
and those on Justice Orders are prioritised, although the service is available to other ‘at risk’
groups. The service provides intensive support to a small number of young Aboriginal
people. The service documentation states the programme expects to service 15 young
people in the first year of its operation.386
Given the evidence taken the Select Committee found that a range of accommodation
options for children and young people who are either ‘at risk’, on remand or on bail was
required. Access to a range of stable accommodation options with support systems was
required to assist in the prevention of youth re-offending.
Recommendation 41
That a range of accommodation options for children and young people who are either ‘at risk’,
on remand or on bail, be made available.
386
CYFS, email communication, 9 September 2004
137
12 TERM OF REFERENCE J
Any other relevant matter.
12.1
Timelines
YACSA noted their concern about the length of time some court cases take to be resolved.
Representatives from the Youth Court reassured the Select Committee that their lists were
not overtly lengthy and that most cases are dealt with in a reasonable timeframe.387 It was
stated that the transience of some youth, especially Indigenous youth, does make it difficult
to complete cases whether in the Youth Court or a family conference, in a timely manner.388
The Legal Services Commission agreed that timelines were reasonable.389 The Select
Committee also took evidence from ALRM who indicated that they had not had a significant
increase in funding in real terms in some years and that this did effect their case load
management and therefore some timeframes.390
12.2
Broad Community Understanding of the Youth Justice System
YACSA told the Select Committee that the communities understanding of the Youth Justice
System was poor and that there was significant media attention given to representing the
‘youth crime problem’ and the ‘get tough on crime’ discourse.391
The Select Committee recognised the importance of ensuring youth are aware of their rights
and responsibilities concerning the law. YACSA argued for the re-publication of the
document What’s the Story? Young People and the Law in South Australia, which was
produced by the Children’s Interest Bureau.392 It provided information to young people about
legislation affecting them and their rights under the law.393 In their submission, the Children’s
Interest Bureau argued that there was a lack of training for people working with young people
or where to send young people so that they could access information.394 YACSA also stated
that there was a need within the youth sector itself to enhance worker understanding of the
Youth Justice System, including relevant legislation.395 YACSA has produced a text entitled:
‘Legal Issues Handbook for Workers with Young People’ which provides some basic
information about youth and the law to be used by youth workers.
The Central Community Legal Service has produced literature which it distributes to youth
who access the service, however, beyond these publications, and information that young
people may obtain through their formal education in such courses as legal studies, there is
little other information available regarding the law and the rights and obligations of young
people.396
MYSA submitted to the Select Committee that many migrants and refugees who have come
to Australia do not have a full knowledge of the law or the legal system. Education
programmes specifically addressing these issues for these communities should be made
available in order to build knowledge and to reduce any ‘fear’ some community members
may have about legal systems. MYSA recommended a number of ways to address these
issues. They include the recruitment of specialist cultural workers in the education system
387
388
389
390
391
392
393
394
395
396
Snr. Judge Moss, Youth Court Hansard, 319
Ms Carolyn Doherty, Family Conference Team, Hansard 401
Ms Lana Chester, Legal Services Commission, Hansard 970
Mr Paul Bennett, ALRM, Hansard 886
YACSA Submission 29, p. 4
Children’s Interest Bureau, What’s The Story: Young People and the Law in South Australia, Adelaide, 1999
YACSA loc cit. p.5-6
Children’s Interest Bureau, Submission 36, p. 4
Samantha Laubsch, YACSA, Hansard 511
David Ferraro, loc cit., Hansard 518
138
and youth services; developing crime prevention strategies in conjunction with members of
the CALD communities and providing training for CALD community workers regarding the
legal system.397
YACSA also made reference to Police cadets receiving limited training regarding youth
issues. They stated that cadets only currently receive half a day of training regarding
relations with young people which they felt could be extended.398
The Select Committee acknowledged the need to ensure the wider public were aware of the
structure, purpose and principles that underpin the Youth Justice System in order to reassure
them that the system was adequate in protecting their rights as members of the South
Australian community.
Further, the Committee noted that information should be made available to Indigenous
communities concerning the Youth Justice System, particularly the diversion processes,
including Family Conferencing. The Family Conference process promotes and provides for
Kinship Systems to be observed and incorporated.
Recommendation 42
That education packages regarding the Youth Justice System be developed and made
available to Community Legal Centres, Police Stations and the Youth Court.
That information packages on the Youth Justice System be developed for migrant and new
arrival communities.
12.3
Sexual Assault Counselling Services
The Select Committee took evidence from a member of the public whose daughter had been
the victim of a sexual assault. The Committee heard that the young woman had not been
able to access services from Yarrow Place, (the specialist sexual assault support service in
Adelaide) as it did not provide services to those under 16 years of age. The Select
Committee heard that the experience of the crime was the point at which the young woman
began offending. Additionally, there were delays in the young woman obtaining counselling
services. The Select Committee wished to register its dissatisfaction with this arrangement
and to recommend that the age restriction for Yarrow Place intakes should be lowered to 14
years of age.
Recommendation 43
That the eligible age for Yarrow Place Services be lowered.
397
398
Multicultural Youth South Australia Inc. Submission 18, page unmarked
YACSA Submission 29, p. 15
139
APPENDIX 1
Submissions received into evidence:
1.
Kerrigan, Stephen, Chief Executive Officer, Regional Council of Goyder;
2.
Tatnell, Maxwell, Detective & Security Agency Pty Ltd;
3.
Vansetten, Paul;
4.
Day, Andrew, School of Psychology, University of South Australia;
5.
Gunn, Hon Graham, Member for Stuart;
6.
Keenihan, Chris;
7.
Cox, Ian S;
8.
Carns-Chalman, Louise, Port Augusta Youth Support Strategy;
9.
Elliot, Norm, Mount Gambier;
10.
Robinson, Philip, Chief Division of Mental Health, Women’s and Children’s Hospital;
11.
Drug and Alcohol Services Council;
12.
Ward, Martin Gregory;
13.
Local Government Youth Services Forum;
14.
Youth Court of SA
15.
Legal Services Commission of SA;
16.
Joy, A;
17.
Centre for Restorative Justice – Offenders Aid & Rehabilitation Services SA;
18.
Multicultural Youth SA;
19.
Youth Education Centre;
20.
Aboriginal Legal Rights Movement Inc., includes 20(a);
21.
Migrant Resource Centre of South Australia;
22.
Mary Street Adolescent Program;
23.
Family Conference Team;
24.
Sailing Ship Trust of SA Inc.;
25.
South Australia Police;
26.
Hill, Maxwell J;
27.
City of Onkaparinga;
28.
Wallace, John;
29.
Youth Affairs Council of SA;
30.
Aboriginal and Torres Strait Islander Commission;
31.
Department of Education and Children’s Services;
32.
The Law Society of SA;
33.
Care and Protection Unit, Courts Administration Authority;
34.
Juvenile Justice Advisory Committee;
140
35.
Smith, Roy;
36.
Children’s Interests Bureau;
37.
Victim Support Service Inc.;
38.
Operation Flinders Foundation Inc.;
39.
Children Youth and Family Services, Department of Families and Communities,
Briefing Papers includes 39, 39(a) and 39(b);
40.
Department of Communities, Queensland;
41.
Department of Justice, Western Australia;
42.
Children Youth and Family Services, Department for Families and Communities;
43.
Brown, Sandra Cr (City of Onkaparinga);
44.
Department of Education and Children’s Services, includes 44(a);
45.
Child and Youth Health, Dept. of Health;
46.
Robyn Waller, Principal, Junior Primary, Braeview School concerning the Braeview
School Fire.
47.
Aldis Putniņš & Steve Harvey, Children Youth and Family Services – Youth and
Juvenile Justice psychologists; and
48.
Magistrate Greg Clark, Magistrates Court, Mount Gambier
141
APPENDIX 2
Papers received into evidence:
1. Aboriginal Legal Rights Movement –
a. Evaluation of the Legal and Preventative Services Programme (Extracts) – Office of
Evaluation and Audit, ATSIC
b. Files Counted by Court – Criminal Law Service (ATSIC aggregate).
c. Submission and Correspondence to Select Committee on the Administration of
Indigenous Affairs (Commonwealth) – dated 30 July, and 1 August 2004;
d. Submission to Senate Legal and Constitutional Committee (Commonwealth) dated 20
August 2004;
e. Response to Aboriginal & Torres Strait Islander Services – Exposure draft of a
request to tender for the purchase of Legal Services for Indigenous Australian dated
21 April 2004;
f. Submission to Joint Committee of Public Accounts and Audit (Commonwealth) dated
21 May 2004;
2. Additional DECS information concerning absenteeism and retention;
3. Australian Capital Territory –
a. Developing a Blueprint for Action for Young People at Risk – Discussion Paper – ACT
Government;
b. Profile of Young Offenders in the ACT 2001-2002 – Chief Minister’s Office;
c. Mapping ACT Government Funding Programs for Young People at Risk – ACT
Government;
4. Australian Institute of Criminology –
a. Youth Justices Criminal Trajectories AIC 2003
b. What Works in reducing young people’s involvement in crime
c. Rehabilitation of Offenders, International Perspectives Applied to Australian
Correctional Systems – May 1999
d. Indigenous Courts and Justice practices in Australia – May 2004
5. Centre for Restorative Justice – Restorative Schooling
6. Confronting Youth in Europe - Juvenile Crime and Juvenile Justice.
7. Early Intervention Youth Mentoring Programs
8. Extract from The Advertiser – ‘Youth walk free from courts’ – December 13 2004
9. Extract from The Age ‘Young People moved out of adult jails’ May 28 2004;
10. Extract from The Australian – ‘Parents pay for crimes of sons’ – July 10-11 2004
11. Gendered Violence & Restorative Justice – Views of Victim Advocates
12. Identification of Juvenile Offenders – Karen Sampford, Queensland Parliamentary
Library;
13. In2Life connecting youth and community – Discussion Paper Mentoring
14. Juvenile Justice Act 1992 (Queensland) – S. 18A (covering conferences) – footnote.
15. Juvenile Justice and the Diversion of Indigenous Youth from the Criminal Justice System
– Meghan Eyre.
142
16. Juvenile Justice Legislation –
a. A comparative Table of Australian State and Territory Legislation;
b. Objectives and Principles
17. Marni Wodli Community Fact Sheet.
18. Metropolitan Aboriginal Youth Team, MAYT – Service and Management Review, May
2004.
19. Narrative abilities in Juvenile Offenders, Psychology, Crime and Law – P.C. Snow &
M.B.Powell.
20. New South Wales
a. Department of Juvenile Justice – Information from Annual Report 2002-2003.
b. Legislative Council Select Committee on Juvenile Offenders – Terms of Reference
21. PANYAPPI Indigenous Youth Mentoring Programme – External Evaluation Report –
Metropolitan Aboriginal Youth Team, May 2004.
22. Parental Restraining Orders Western Australian Discuss Paper
23. Partnerships in Youth in Coober Pedy – Pat Clifford
24. Pathways to Prevention – Developmental and Early Intervention Approaches to Crime in
Australia – National Anti-Crime Strategy.
25. Positive Attendance Strategy for Secondary Students Project – Partnership between
Centrelink, Area North Central & Department of Education, Northern Region.
26. Programs Anti-social Youth In Aus/NZ
27. Psychological Treatments for Rehabilitating Offenders: Evidence-based Practice Comes
of Age – Andrew Day and Kevin Howells.
28. Red Hook Community Justice Center – Information
29. Sexual Offence Cases finalized in court, by conference, and by formal caution in SA for
young offenders 1995-2001 – Kathleen Daly – Final Report August 2003.
30. South Australia Government –
a. Aboriginal (Nunga) Courts, Information Bulletin – Office of Crime Statistics and
Research
b. Crime and Justice in South Australia. 2002 - Juvenile Justice, A Statistical Report –
Office of Crime Statistics and Research.
c. Family Conference Team Procedures Manual.
d. General Order 8980 – Youth Justice and Community Programs – SA Police.
e. Partnerships for Learning, Prevention and Opportunity Through the Partnership
Outreach Education Model Initiative – Dept. of Education and Children’s Services.
f. Health Service Model for Cavan & Magill Training Centres.
g. Inequality in South Australia – Key Determinants of Wellbeing, Vol 1 The Evidence
2004 – Dept of Health.
h. Juvenile Justice Advisory Committee (SA) – Report 2002-2003
i. Juvenile Justice Review 1996
j. Magill Training Centre Client Admission Data 2003.
k. New Juvenile Justice System – Resource and Information Kit, October 1993.
l. Social Inclusion Initiative, Young Offenders – Breaking the Cycle, A Preliminary
Issues Paper.
m. Virtual School, Bridging the Gap between Education, Health, Welfare & Crime
Prevention – Youth Education Centre – March 2003.
n. What’s the Story – Young People and the Law in SA – Dept of Human Services.
31. State and Territory Education Acts in Relation to Truancy and Attendance
143
32. The Law, Youth Work & Young People – Handbook For Youth Workers in South Australia
– Youth Affairs Council of SA
33. The needs of Young Indigenous People in Secure Care in SA – Andrew Day and
Rosemary Wanganeen – June 2003
34. Victorian Government –
a. A Balance Approach to Juvenile Justice in Victoria – Ministerial Statement, Hon C
Campbell MP – August 2000.
b. Juvenile Justice Rehabilitation Review – prepared for the Dept of Human Services –
January 2003.
c. Recidivism Among Victorian Juvenile Justice Clients 1997-2001 – Dept of Human
Services 2001
35. What Works reducing Youth Crime
36. Youth Justice 2004 UK
a. Misspent Youth 1996 UK
b. Misspent Youth 1999 UK
144
APPENDIX 3
Witnesses who appeared before the committee:
Allen, Philip
Indigenous CAMHS Consultant, Division of Mental Health,
Women’s & Children’s Hospital;
Altschwager, Paul
Coordinator, Youth Education Centre POEMs Project;
Asa, Shannon
Counsellor, Mary Street Adolescent Program;
Bennett, Paul
Criminal Practice Manager, Aboriginal Legal Rights Movement;
Charles, Christopher
General Counsel, Aboriginal Legal Rights Movement;
Chester, Lana
Youth Court Solicitor, Legal Services Commission;
Cleland, Amy
Officer, Metropolitan Aboriginal Youth Team (MAYT), CYFS;
Coates, Richard
Youth Court Solicitor, Aboriginal Legal Rights Movement;
Cox, Greg
Policy Adviser, Student Behaviour Management, Department of
Education and Children’s Services;
Dawson, Michael
Chief Executive Officer, Victim Support Service;
de Cean, Michelle
Policy Officer, Youth Affairs Council of South Australia;
De Michele, Karen
Home Duties;
Doherty, Carolyn
Senior Co-ordinator, Family Conference Team, Youth Court;
Engelhardt, David
General Manager; Child & Youth Services Branch, Dept of Health;
Evans, Peter
Senior Sergeant State Juvenile Justice Coordinator, SA Police;
Ferraro, David
Member, Youth Affairs Council of South Australia;
Foord, Tricia
Home Duties;
Garret, Leigh
Chief Executive Officer, Centre for Restorative Justice;
Gillespie, Neil
Chief Executive Officer, Aboriginal Legal Rights Movement;
Gollan, Malcolm
Manager, Metropolitan Aboriginal Youth Team (MAYT), CYFS;
Hall, Rob
Counsellor, Mary Street Adolescent Program;
Harvey, Janine
Assistant Director, Child and Student Wellbeing, Department of
Education and Children’s Services;
Hatzirodos, George
Education Officer, Legal Services Commission;
Jenkins, Alan
Programme co-ordinator, Mary Street Adolescent Program;
Jennings, Barry
Judge, Youth Court;
Johnston, Garry
Mental Health Links Nurse, Division of Mental Health, Women’s &
Children’s Hospital;
Kambouris, Lisa
Coordinator, Panyappi, CYFS;
Laubsch, Samantha
Executive Officer, Youth Affairs Council of South Australia;
Laycock, Deborah
Project Officer, Centre for Restorative Justice;
Marsland-Smith, Dorian Strategic Manager, Youth Services, Child & Youth Services
Branch, Dept of Health;
Martin, Donnie
Senior Coordinator, Care and Protection Unit, Youth Court;
McCarthy, Tony
Youth Court Solicitor, Aboriginal Legal Rights Movement;
McEntee, Pauline
Manager, Divisional Operations, Division of Mental Health,
Women’s & Children’s Hospital;
McGarrigan, Stephanie Supervisor, Metropolitan Aboriginal Youth Team (MAYT), CYFS;
McGinnes, Bernie
Principal Manager, Youth & Juvenile Justice, CYFS;
Morey, Sandy
Senior ASergeant, SA Police;
145
Moss, Allan
Nam, Frank
O’Connell, Terry
O’Loughlin, Carmel
Pickering, Deb
Prior, Bill
Ramsey, Steve
Robinson, Phil
Rowe, Patricia
Sansbury, Tauto
Saunders, Nerida
Schluter, John
Simmons, Pam
Vass, Chris
Walker, Gerri
Wardrop; David
Washington, Judi
Wundersitz, Joy
Senior Judge, Youth Court;
Kumangka Aboriginal Youth Service;
Director, Real Justice;
Director, Foster Care Relations, DFC;
Counsellor, Mary Street Adolescent Program;
Chief Inspector, Community Programmes Branch, SA Police;
Director, Youth and Juvenile Justice, Community, CYFS.
Chief, Division of Mental Health, Women’s & Children’s Hospital
Magistrate, Youth Court;
Regional Chairperson, Aboriginal & Torres Strait Islander Services
Executive Director; Youth & Juvenile Justice, CYFS;
Policy Adviser, Interagency Attendance and Crime Prevention,
Department of Education and Children’s Services;
Guardian for Children and Young People;
Magistrate, Youth Court;
Principal, Youth Education Centre;
Senior Sergeant, SA Police;
Registrar, Youth Court; and
Director, Office of Crime Statistics & Research, Attorney-General's
Department.
146
APPENDIX 4
Newspapers advertised in:
Adelaide Advertiser
Sat 10/01/2004
Whyalla News
Thu 15/01/2004
Weekend Australian
Sat 10/01/2004
Port Lincoln Times
Thu 15/01/2004
Ceduna West Coast Sentinel
Thu 15/01/2004
Yorke Peninsula Country Times
Tue 13/01/2004
Adelaide Messenger (All 11 Papers)
Wed 14/01/2004
Koori Mail
Wed 14/01/2004
Clare Northern Argus
Wed 14/01/2004
SA Chinese Weekly
Fri 16/01/2004
Barossa and Light Herald
Wed 14/01/2004
Il Globo (IT)
Mon 12/01/2004
Millicent South Eastern Times
Thu 15/01/2004
Croatian Herald
Fri 16/01/2004
Port Pirie Flinders News
Wed 14/01/2004
Express Wieczorny
Mon 19/01/2004
Mt Gambier Border Watch
Thu 15/01/2004
World Serbian Voice
Tue 13/01/2004
Coober Pedy Regional Times
Thu 15/01/2004
El Espanol (Spain)
Tue 13/01/2004
Murray Valley Standard
Thu 15/01/2004
Adelaide Tuan Bao
Thu 15/01/2004
Port Augusta Transcontinental
Wed 14/01/2004
Nam Uc Tuan Bao
Fri 09/01/2004
Gawler Bunyip
Wed 14/01/2004
To Vema (NC)
Mon 19/01/2004
Cleve Eyre Peninsula Tribune
Thu 15/01/2004
Strathalbyn Southern Argus
Thu 15/01/2004
Mt Barker Courier
Wed 21/01/2004
Victor Harbor Times
Thu 15/01/2004
Kangaroo Island Islander
Thu 15/01/2004
147
ABBREVIATIONS
AIC
Australian Institute of Criminology
AJO
Aboriginal Justice Officer
ALRM
Aboriginal Legal Rights Movement
AOD
alcohol and other drug
APOSS
Aboriginal Prisoners and Offenders Support Services
ATSIC/ATSIS
The Aboriginal and Torres Strait Islander Commission/Aboriginal and
Torres Strait Islander Service
CAA
Court’s Administration Authority
CALD
Culturally and Linguistically Diverse
CAMHS
Child and Adolescent Mental Health Services
CAPS
Community Adolescent Psychological Screening
CPB
Crime Prevention Branch, Commonwealth Attorney Generals Department
CIU
Court Improvement Unit, Justice Department
CPU
Care and Protection Unit
CRIS
Client Relationship Information System
CRISSP
Client Relationship Information System for Service Providers
CYFS
Children Youth and Family Services
CYH
Child and Youth Health
DASC
Drug & Alcohol Services Council South Australia
DECS
Department of Educations and Children Services
DFC
Department for Families and Communities
DHS
Department for Human Services
FACS
Family and Community Services
FAYS
Family and Youth Services
HDO
Home Detention Order
IGYJAC
Intra-Governmental Youth Justice Advisory Committee
ISSP
Intensive Supervision and Surveillance Programme
JCC
Justice Cabinet Committee
JJAC
Youth Justice Advisory Committee
MAYT
Metropolitan Aboriginal Youth Team
MRCSA
Migrant Resource Centre of South Australia
MYSA
Multicultural Youth South Australia Inc.
REMAND INC
Remand Intensive Neighbourhood Care Programme
SECAPS
Secure Care Psychological Screening
SAPOL
South Australian Police
SAYTC
The South Australian Youth Training Centre
TSS
The Second Story Health service
YACSA
Youth Affairs Council of South Australia
YCJA
Youth Criminal Justice Act Canada
148
YEC
Youth Education Centre
YOA
Young Offenders Act, 1993
YOT
Youth Offending Teams
149