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Youth Justice Amendment (Searches in Custody) Bill 2022

Cassy O'Connor MP  -  Wednesday, 4 May 2022

Tags: Youth Justice, Ashley Youth Detention Centre

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Speaker, the Greens strongly support the Youth Justice Amendment (Searches in Custody) Bill 2022. We recognise that while it has taken some time for this legislation to come to the House, it rightly puts the rights of children and young people in youth custody front and centre. We are dealing with them as we come into the system.

We all know that most of, if not all of the children who end up in places like Ashley Youth Detention Centre were born with a massive eight ball behind them. Their lives to that point where they reached the gates of Ashley or the remand centre have been filled with trauma, disadvantage. In most cases that disadvantage is intergenerational.

How we deal with kids when they come into the system can make all the difference to whether or not we break the cycle for those young people. We all know that for a century at Ashley Youth Detention Centre, we did not break the cycle. What we did as a state, effectively, was almost guarantee that those kids never had a chance. We almost guaranteed that many of those young people would end up in the adult detention centre at Risdon.

I believe this legislation is founded on the principles of the Rights of the Child. I commend the Commissioner for Children and Young People for her outstanding work and advocacy on this issue.

Ms Archer - She did a lot on this bill.

Ms O'CONNOR - Yes, I know. Indeed, when you have a look at the advice and correspondence from the commissioner, her recommendations are embedded in the legislation.

Ms Archer - I forgot to say she issued a media release wholeheartedly supporting it. I can read that.

Ms O'CONNOR - What we want to achieve is to keep children and young people out of the system in the first place. We acknowledge that the Government has been undertaking a significant body of reform work on youth justice and making sure we do have a therapeutic response to children and young people who end up in the system, and that the response is trauma-informed.

The minister for children and young people knows very the well the Greens' position on Ashley Youth Detention Centre, which for a century brutalised children and young people who came into that place and effectively embedded the trajectory of suffering and compounded damage to them.

Slowly but surely, we are together as a parliament, putting in place reforms that provide a much better, more compassionate and intelligent response to children and young people who come into the juvenile justice system. We have had a commitment from government, after long advocacy, for Ashley Youth Detention Centre to be closed and be replaced with two therapeutic facilities, north and south. While I recognise that the Attorney-General is not the minister for children and young people, I hope that during the response on the second reading we can have an update on the closure of the Ashley Youth Detention Centre, and more detail on the timeline for the facilities that will replace Ashley.

We would also like an update on the replacement for Many Colours, One Direction and a bush therapy program that has a tailored, therapeutic, response to juvenile defenders and kids who are in trouble.

Ms O'CONNOR (Clark - Leader of the Greens) - Mr Speaker, I did only have a short time to outline the Greens' support for this legislation yesterday. We regard this bill as a very solid bill and it should be supported by the entire House.

It applies a rights-based framework to how we deal with young people who enter the juvenile justice system - young people who have, too often, been brutalised and dehumanised as a result of what were routine strip searches. I will also ask the question that was asked by the Opposition about the number of strip searches that have been undertaken in various different settings in this past year, the year before that and the year before that.

We were also pleased to hear the Attorney-General this morning in question time, make it clear that the Ashley site is the only site that is in contention for the new northern rehabilitation centre.

Ms Archer - I think they cheered.

Ms O'CONNOR - Who would know where Labor stands on anything on any given day?

We recognise that the key elements of this bill provide that a person who may conduct a search, is limited to authorised search officers and it applies gender requirements to search officers. I can flag, Attorney-General, that we have a proposed amendment that seeks to define intersex or a person who is born with a variation of sex characteristics, applying the ABS definition and a definition put forward by the Human Rights Commission, because there is no definition that currently exists, as we understand it, in Tasmanian law.

We trust that this new legislative framework will be accompanied by intensive education and training of police officers, people who work in correctional facilities, remand centres and youth justice facilities, so that young people who are transgender or gender diverse, have their identity respected and protected, should they enter the juvenile justice system.

We recognise that this bill applies an overarching risk-based legislative framework which restricts searches and the conduct of searches, including that a search is only to be conducted when necessary and relevant for search purposes; the type and manner of the search to be proportionate to the circumstances; and the least intrusive type of search necessary. On that point, we are pleased that the Government is using to institute body scanning processes in juvenile justice settings.

We note that there will be additional authorisation required to conduct an unclothed search, as there should be, because for young people, that can be a deeply dehumanising experience. We would argue that only in exceptional cases, should a search be undertaken on a young person unclothed; we note that. At Ashley Youth Detention Centre not enough care has been taken around searches and as we understand it, modesty gowns which were to be available to young people for those kinds of searches were in scarce supply at Ashley. It is a concern that certainly in the past we believe some strip-searches of young people who came into the Ashley Youth Detention Centre were designed almost more than anything else to belittle, marginalise, control or seek to control young people who came through the doors of that hell chamber.

We note that the legislation requires that there be search registers that include specific information that will be available for inspection to assist appropriate auditing and accountability. We also note that the authorised inspectors for this framework are the Ombudsman and a custodial inspector, but we are certain the Commissioner for Children and Young People will take a close interest in those search registers. On those search registers, should the use of force be considered necessary, it is a requirement for the searching officer to detail the rationale for applying force. Perhaps the minister could outline to the House her understanding of what reasonable force might be in circumstances where a correctional officer or police officer feels they have to use some measure of force in order to undertake a search of a young person.

We also received a briefing from the department and we are very thankful for that. One of the issues that was raised relates to the part of the bill that allows some of these processes which are being instituted to be circumvented or short-cut, particularly or potentially in small rural or regional police stations, for example. It may not be possible for a young person who has been detained by a male police officer, for example, if that young person is a female. What is that legislation's response to that situation? We regard it as absolutely unacceptable that a young female detainee would be searched in any way by a single male police officer in a rural and regional police station setting.

We know that this legislation comes from a place of seeking to respect the dignity of young people and reduce the trauma they can experience, first of all coming into the juvenile justice system but also when they are subject to a search, and that this legislation will embed practices that are the least intrusive in terms of searching young people. I have some questions for the minister relating to the use of force and what is 'excluded force'. Perhaps she can flesh that out a little bit.

Ms Archer - Sorry, what was that?

Ms O'CONNOR - In proposed new section 25J - this is where there is a requirement to report the use of force - what does it mean in proposed new subsection (3)(b)? Proposed new subsection (2) says:

A person conducting a search of a youth must provide under subsection (1) the report in relation to the search as soon as practicable after the search is conducted but in any case within 7 days after the search is conducted. [OK]

Proposed new subsection (3) says:

For the purposes of this section, reportable force, in relation to a youth, is -

(a) force used in the course of a search of the youth; and

(b) force used, before the search is conducted, to enable the search to be conducted -

but does not include excluded force in relation to the youth. [OK]

Could the minister please flesh that out a little bit?

We also note that in reflecting the rights-based framework that is embedded in this bill, there is much closer attention being paid to the need to talk to the young person in question about the processes and their rights, as well as make it very clear that should they feel aggrieved about the way they have been treated they have the right to make a complaint. This is very important. We have to protect the rights of young people and we are talking about people who are the subject of or have endured trauma all their lives. If, when they come into contact with the state, that contact is respectful of their rights and does everything it can not to retraumatise or dehumanise that child, that is so important.

I also have a question relating to proposed new section 25D(1)(b), which says:

if the youth is transsexual, transgender or intersex -

(i) a person of gender that the youth requests; or

(ii) if a person of the gender requested is not immediately available, a person who is, at the further request of the youth, male or female. [OK]

Can the minister please clarify that and perhaps lay out how this law responds to people born with a variation of sex characteristics? Can the minister also confirm that the LGBTIQ+ reference group has contributed to this particular section of the legislation? As we know from a survey that was released last night, even at an official level, amongst health professionals certainly, there is potential transphobia, bigotry and certainly misunderstanding.

In that same proposed new section 25D, subsection (3) says:

A search of a youth that involves the removal of any clothing being worn by the youth or the touching of the youth -

(a) is to be conducted by a search officer who is a person of the required gender in relation to the youth; and

(b) is, if the search is an unclothed search and is conducted in the presence of persons other than the youth and the search officer - to be conducted in the presence only of other persons who are persons of the required gender in relation to the youth. [OK]

However, subsection (4) says:

Subsection (3) does not apply in relation to a youth if the person in charge of the custodial facility in which the search is conducted believes on reasonable grounds that it is not reasonable or practicable for that subsection to apply in relation to the youth because of the urgency with which the search is required in order to address the risk of harm or trauma to the youth or another person. [OK]

How does that work in rural and regional settings? If there is going to be that override of the previous provisions in this proposed new subsection, what processes are in place to check whether those reasons are justified in relation to that young person?

Proposed new section 25H talks about information to be given to the youth before the search is conducted and includes informing the youth that a search is to be conducted; if it is to be an unclothed search, inform the youth that an unclothed search of the youth is to be conducted; and inform the youth that they may, before the search of the youth occurs, surrender an article that is on the person of the youth. This is a very important provision in the legislation because it gives that young person an opportunity not to have to endure that search. It also, in this section, gives the youth an opportunity before the search of the youth occurs to surrender in circumstances that afford reasonable privacy to the youth an article that is on the person of the youth. This just tells us how far we have come, that we are putting young people at the centre of this process. We are respecting their rights and their dignity.

In this information provision section, what is the capacity of the young person to ask about the gender of the search officer, or is that covered in the previous clause?

What role does the Attorney-General foresee the Commissioner for Children and Young People playing in relation to oversight? I acknowledge the excellent work of the Youth Custodial Inspector in recent years. They have helped this parliament and Tasmanians understand how far we have come, to an extent, but also how far we need to go to make sure that we have a youth justice system that is not brutalising young people and putting them on a certain path to Risdon Prison. It was a report from the custodial inspector some three years ago, as I recall, that revealed - certainly at Ashley Youth Detention Centre - some arguably dangerous, and definitely undesirable, practices on the part of staff at that facility. It exposed that there was very unchecked and free movement of staff members and other adults through that facility. It revealed that contraband drugs were quite regularly finding their way into the facility. That work the custodial inspect has done, I believe, has been very helpful to assist us to fix some of these problems for the young people who we all care about and we all want to see set on a different trajectory in their life.

Have the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) principles been applied in this legislation and could the Attorney-General update the House on where we are with the OPCAT agreement and the commitment from Government around the prevention of torture?

How does the complaint mechanism work for young people? If you are a young person who comes into Ashley before it is -rightly - closed, or comes into a police office or one of the two new therapeutic facilities that will be established, how does that complaint mechanism work on a step-by-step basis? If a young person feels aggrieved by the way they have been treated or searched, what is the first step in the complaint mechanism? Where does the complaint go? Who or which agency responds to that complaint, and how is the response to the complaint provided back to the young person who made it?

Attorney-General, we seek to go into Committee on this legislation because we want to move our amendment relating to the definition of 'a person born with variations in sex characteristics' and our proposed amendment would insert the definition:

a person born with variations in sex characteristics means a person with innate genetic, hormonal and/or physical sex characteristics that do not conform to medical norms for female or male bodies, including but not limited to variations to genitals, hormones, chromosomes or reproductive organs.

I might just divert at this point to remind the House that still today in Tasmania and in many other parts of the country, babies born with a variation in sex characteristics are routinely subject to mutilation, effectively, and surgery, that has been the default response of doctors to intersex children and parents who are made to feel that their child must physically be one or the other. I have met intersex people and the feeling of grief that many have, because they did not have a choice, is very real. It is lifelong and it is debilitating. We know there was reference to the need to better protect people born with a variation of sex characteristics in the Tasmanian Law Reform Institute Report on the gender reforms that this parliament passed in 2018-19.

I am keen to know, because this will fall, in part, within the Attorney-General's area of responsibility, when will the state move to protect the rights of babies born with a variation of sex characteristics? As a state and as a community, we cannot condone the routine mutilation of babies who do not conform or who doctors regard as not conforming.

Slowly but surely, we are making the juvenile justice system a safer place for young people. Slowly but surely, we are putting in place policies like that outlined in the discussion paper on Reforming Tasmania's Justice System Practices and Legislation that better respect and protect the rights of young people who come into contact with the youth justice system. However, all of us in this place know that the best thing we can do is keep young people out of the youth justice system in the first place. We need good early intervention and prevention programs. We need to have supports that wrap around families in disadvantage, distress, and dysfunction. I know that is part of the reforms that the Government is undertaking, but it has to be a priority. If we are serious about breaking the cycle and giving every young Tasmanian a chance for a good life, then we have to recognise the fact that many of these kids were born behind a massive eight ball and there is a requirement for gentle but effective state support and intervention.

I do not use the word 'intervention' in a heavy handed way. It just means the state needs to respond to the fact that we can stop these kids from ending up in Ashley and ultimately Risdon. An important part of that response is making sure that when young people are leaving our families where there is dysfunction or disadvantage or addiction that they have a home to go to, for example. Those housing needs are critical as well. We have all heard stories of young people being booted out the gate at Ashley into homelessness, and for those young people there is a high risk that they go back into the environment that caused the problem in the first place. We can do so much better by these kids.

I remember when I was Minister for Housing and talking to some of the young people at Thyne House [ok] after we opened it and seeing what an incredible difference it made to their lives of these adolescents. They were 16-, 17-, 18-years-old, and the difference it made to their lives and their hopes for the future to know they had secure roof over their head and that there were services there to help them achieve their goals. The data that came out of Thyne House, for example, showed that once you provide that accommodation and supports you have young people reconnecting with family in a healthy, connecting with education and training, being able to have employment and feeling healthier, so there is a lot of benefits in investing at the front end. While we have to have a good youth justice system, it is far better that we keep kids out of Ashley and places like that and commit to making every young Tasmanian who is born has the best opportunity for a good life, because that is what they deserve.