Explainer: Children should not be held in adult prisons

Explainer: Children should not be held in adult prisons

On 17 November 2016, the Victorian Government decided to use the Grevillea Unit in the Barwon maximum security adult prison as a youth jail and started sending children as young as 15 there. The government had flagged the possibility of locking up children in adult jails in October. After the damage done to the Youth Justice Centre at Parkville in the 13-14 November riots, the government applied to the Youth Parole Board to send 7 children to adult prison. The Youth Parole Board refused the transfer and the government moved to set up the unit at Barwon as a youth jail.

Legal challenge succeeds in stopping the transfer of Aboriginal children

Working with the Victorian Aboriginal Legal Service and pro bono barristers led by Brian Walters QC, we took legal action to stop the government locking up children in an adult prison. In late November, the government settled the case, agreeing to remove all Aboriginal children from Barwon and to not send any more Aboriginal children there unless the Commissioner for Aboriginal Children and Young People approved the transfer as being in the child’s best interest.

Supreme Court and Court of Appeal both rule that the government acted unlawfully

No child should be held in an adult prison. The settlement was a win for the Aboriginal children’s rights but it didn’t cover the non-Aboriginal children. So we immediately took new legal action with Fitzroy Legal Service for non-Aboriginal children at Barwon.

On 22 December, the Supreme Court ruled that the government acted unlawfully in setting up the youth jail at Barwon. The court said that the government didn’t properly consider the children’s human rights and didn’t properly consider other important issues around the children’s wellbeing. The judge said “the Department and the Minister were flying blind as to the real situation and suitability of the Grevillea unit”.

The government appealed. On 28 December, the Court of Appeal confirmed that the government acted unlawfully. Both decisions are important rulings on children’s rights.

Government persists in sending children to an adult prison

On 22 December, the government told the court there were 32 free beds at Malmsbury Youth Justice Centre. There were only around 15 children held at Barwon. Instead of transferring them back to a normal, lawful, safe and age-appropriate youth justice centre, the government responded to the court rulings by making a new decision to try and set up a youth jail at Barwon. It started sending more children there prompting the Human Rights Law Centre to lodge a new case.

Supreme Court finds Government acted unlawfully in transferring children to Barwon jail

In May 2017 the Victorian Supreme Court ruled that detaining children at the Barwon maximum security adult prison was unlawful and prohibited the Victorian Government from continuing to detain children there. The Court documented extensive evidence of the harmful conditions at Barwon including the extended solitary confinement, ongoing handcuffing and the denial of proper education. This was was an important win for children’s rights and Victoria’s Human Rights Charter.

What’s wrong with holding children in an adult prison?

Science backs up what we know from common sense – that children are different from adults. They think and act differently. The law says that children can’t vote, drink, drive alone or smoke. The law should treat children who are involved in crime differently from adults.

Mistreating children at Barwon

The conditions at Barwon at manifestly unfit for children. The Supreme Court documented the mistreatment of children at Barwon. This included extreme solitary confinement, very little time outdoors, the use of guard dogs in the unit, threats of using tear gas, no proper schooling, handcuffing children when they went to the exercise yard, denial of family visits and more.

The physical conditions in the unit increased risks of self-harm, fire and security breaches. One child self-harmed. Children were asked to sign a form on arrival that said “if you attempt to escape or escape you will be apprehended by SESG [the adult prison response team] using dogs, OC spray, tear gas and firearms.”

Our Supreme Court case pressured the government into improving some of the conditions at Barwon. However things are now getting worse again. Due to staff shortages, children have been locked in their cells 21 hours a day for days on end. Some children have been locked in cells for 23 hours a day. One child was not taken outside for around a week. The government cannot deliver proper education programs.

Grevillea Unit is effectively a maximum security prison within a prison. It is a harsh, desolate environment with high concrete walls, covered in razor wire. The school registration authority cannot register the unit as a school. Mandatory school age children are being denied schooling. The physical conditions and staff shortages are leading to excessive lockdowns, solitary confinement and limited time outdoors. The inability to deliver proper programs increases security risks. Children should not be held there.

Supreme Court bail case

In a separate Supreme Court bail case concerning a boy held at Barwon, on 6 January Justice Elliott said, “The overwhelming impression given from the building and its surrounds is that Barwon Children’s Remand Centre is an adult prison and not a centre for holding children on remand…it is difficult to envisage that, whatever measures are taken with respect to programs and other resources that might be made available to the residents, this distinct impression will materially change.”

You can read the full statement here.

What’s the alternative?

The damage to Parkville in the riots created a new major challenge for the government. The answer to that challenge can never be cruelty to children. We believe the government chose Barwon for political reasons and continues to ignore other alternatives available to it. It defies belief that the only place the government could find to hold children was a unit in the state’s most notorious adult prison.

On 22 December, the government gave evidence that there were 32 free beds at the Malmsbury Youth Justice Centre. Most were low security beds. Just one option is to transfer the lowest risk children to those beds, to free up secure beds to receive children back from Barwon. The government could also strengthen those units instead of investing enormous resources trying to refit an inappropriate adult maximum security prison as a youth jail.

Don’t the kids deserve it for damaging their cells at Parkville?

Many of the children sent to Barwon weren’t even at Parkville at the time of the damage. Some were at Malmsbury and some were in the community. Those who did commit damage should be held accountable. The way to do this is through criminal charges, not through mistreatment in an adult prison. Mistreating children in an adult prison will only make things worse.

Don’t we need to teach them a lesson?

Those who did commit damage should be held accountable through criminal charges. Acting unlawfully and mistreating children in an adult jail sends completely the wrong message. Mistreatment in jails makes reoffending more likely on release. Safe, age-appropriate, humane jails are easier to manage and improve community safety.

All the children held at Barwon will eventually be released. We need to provide pathways away from crime for children who are locked up so that they can reach their potential. The way to do this is through education and programs, not locking kids up for 21 or more hours a day in small concrete cells in an adult maximum security prison.

All the kids we’ve spoken to want to do proper education. At Parkville and Malmsbury they were getting credit towards their VCE or equivalent school qualification. Some were getting their white card at Parkville for construction work, others were engaged in landscaping, carpentry and much more. None of this is possible at Barwon.

Sending children to Barwon is bad for the kids and bad for community safety.

What’s going on at Parkville and Malmsbury Youth Justice Centres?

Successive governments have neglected youth justice going back to the 2010 damning Ombudsman’s report on Parkville. They have neglected the staffing issues, the policy framework and the physical infrastructure.

Jail riots don’t just happen. A secret report for the government before the November 2016 riots that was leaked to the media shows that the riots were entirely predictable and preventable. It points to staff shortages, excessive lockdowns and poor physical infrastructure as risk factors.

Similar issues caused riots at the Banksia Hill youth justice centre in 2013 in WA. The watchdog report into those riots highlights that while physical infrastructure is important, the best facilities in the world will fail if governments don’t manage staffing and detainee issues properly.

The children held in youth justice facilities in Victoria are no different from kids held in youth justice facilities around Australia. The problems in Victoria stem from neglect by successive governments.

What do we need to do?

The youth justice system in Victoria has done many things well. The strong focus on rehabilitation has helped to give Victoria one of the lowest child crime rates in Australia and one of the lowest child imprisonment rates. Parkville College has been achieving strong results delivering schooling to kids at Parkville and Malmsbury.

Police data shows that crime by 10-17 year olds in Victoria has dropped around 25% over the past 5 years and the number of children committing crime has dropped around 40%. Court sentencing data backs this trend.

We need to do more to drive crime down further. The way to do this is to strengthen the things that are working well and fix the things that aren’t.

The government is doing some good things like getting former Victoria Police Chief Commissioner Neil Comrie to review the causes of the November 2016 riots; launching a review to refocus and modernise youth justice policies and fixing the physical infrastructure problems.

The government urgently needs to address issues around staff shortages and training. It also needs to fix the issues leading to extremely high numbers of children being held on remand – in pre-trial detention. High remand rates are bad for rehabilitation and make centres harder to manage.

More broadly the government needs to focus its energy and resources on tackling the issues that prevent crime. Many of the children involved in the youth justice system have backgrounds of child neglect, child abuse, involvement in child protection, disengagement from school, mental health problems and substance abuse. Investing in these issues will prevent crime.

Harsher punishments, mistreatment and treating kids like adults will only make things worse. We only need to look at what happened in the Northern Territory with Don Dale to see what happens when governments do this.

More reading

Opinion The Herald Sun http://www.heraldsun.com.au/news/opinion/state-governments-stance-on-keeping-youths-in-the-barwon-adult-prison-defies-belief/news-story/87ba86e7702d496083defc937ea20950?login=1

Opinion The Age http://www.theage.com.au/comment/the-real-crisis-facing-victorias-youth-justice-system-20161229-gtjqb2.html

Opinion The Age: We now have a Premier who makes no apologies for disregarding the human rights of children https://www.hrlc.org.au/opinion/2016/12/9/we-now-have-a-premier-who-makes-no-apologies-for-disregarding-the-human-rights-of-children

Opinion The Herald Sun: It’s no answer to dump youths in adults jails after centre riots https://www.hrlc.org.au/opinion/2016/11/25/it-is-no-answer-to-dump-youths-in-adult-jails-after-centre-riots

The 2016 Supreme Court decision is here: http://www.austlii.edu.au/au/cases/vic/VSC/2016/796.html

The Court of Appeal decision is here: http://www.austlii.edu.au/au/cases/vic/VSCA/2016/343.html

The 2017 Suprmee Court decision is here: http://www.austlii.edu.au/au/cases/vic/VSC/2017/251.html