Youth Justice Amendment (Searches in Custody) Bill 2022

Ms WEBB (Nelson) – Thank you, Mr President.  I am very pleased to rise to speak on this bill and thank you to the Government for bringing it forward and for the briefings provided.

We are looking at this bill in the context of a youth justice system which has utterly failed thousands, probably, of Tasmanian children for decades, through governments of both stripes.  It has become a matter of such urgency that we are now in the midst of a commission of inquiry that is, in part, looking at that very system.

There is still a detention centre at the heart of our youth justice system.  This current Government has known for at least six to eight years now it is entirely insufficient and unfit for purpose. There was an investigation into the Ashley Youth Detention Centre in 2014-2015.  An independent, expert review from Noetic said that it should close. That was explicit expert advice to this Government, and it was ignored.

Ms Siejka – A lot of work went into that.

Ms WEBB – A lot of people contributed to that review, certainly from the sector that the member for Pembroke and I were in at that time.  A clear recommendation was made, and ignored.  The decision was to keep the Ashley Youth Detention Centre open and spend $7 million on it.  It is interesting that yesterday in another debate we had the member for McIntyre mention that $7 million was spent making the entrance look pretty.

That $7 million was apparently supposed to be spent making it into a better trauma‑informed, more therapeutic environment for youth detention.  If all that happened, according to someone who’s observed it, is that it made the entrance look pretty, then no wonder we are where we are today.  What a shame that it is six to eight years later, or something like that. Absolutely appalling.

To have lurched towards closing that centre, which thankfully now has been committed to, but is still at least two years away from now, it is such a shame that we have to get to those points of urgency, and people’s distress reaching such high levels that it bursts into the public domain in such vivid ways. 

Unfortunately, it is just not Ashley and its closure where we saw that dynamic play out, where action is taken when we have that vivid, urgent, public airing of difficulty.  We had that with this area too, and it is such a shame that it took those distressing stories about searches of children to get to this point.  We talk about them as youth or young people, but they are also children.  It was highly distressing to hear those stories and to have that then trigger this reform.  Thank goodness we are here; but what shame is on us that it took that, and that we had not fixed that earlier when we knew it was occurring.

Having said that, it is very important to remember that the children we are talking about, who encounter our youth justice system, by and large are children that we as a community, a society, and a government have already failed on multiple fronts.  These are typically children who have encountered difficulty in many aspects of their life.  They have encountered difficulty in their home environment that might have involved trauma or abuse.  They have had difficulty in their education environment, and often many of them have already absented themselves from our educational system, because it has not served them well – it has rejected them and been unable to meet their need.  They are often children who have precarious housing and home situations.  Many of them are homeless or in very temporary or uncertain housing situations.

There is a category of children called ‘crossover kids’.  They are children who have exited education, are experiencing homelessness or precarious housing, and they are also in our youth justice system.  It is a very common trilogy that we see.  These are children we, as a community, have failed on multiple fronts.  That context is important when we are talking about this bill, which is very specific around searches in custodial facilities.  However, it is worth having in mind that the children we are talking about are children in that broader context.  That is why it is particularly pleasing to see the care that has been taken with many elements of this bill to accommodate the fact that children who are going to be dealt with in this manner – who have likely come from backgrounds of disadvantage, potentially of significant trauma, abuse, and different sorts of failures of our systems – need and deserve particular care taken when we interact with them in the youth justice setting.

Having said that, it is good – distressing as it was – that the Commissioner for Children and Young People clearly raised concerns when we had those particular cases come to light, and was able to provide recommendations to government which government then responded to.  I understand that the reason it has taken some extra time to come to this place is that there was a round of consultation on a draft which received considerable input and was responded to, which is pleasing to hear.  Taking extra time to respond to worthwhile expert and community advice, and advice from children themselves, means that we have a much better bill than it might otherwise have been if we had rushed back then and set aside that advice.

I note that the Commissioner for Children and Young People wanted matters relating to youth searches in custody to be in line with those well-established human rights standards and best practice approaches in a contemporary environment.  Quite frankly, that is exactly the line we should be taking on most things.

If we were to have a human rights act in this state, that would be the default position.  If we had a human rights act as a fundamental piece of our legislative architecture then we would be able to pin all manner of things to it, things like this bill, but also many others which really could and should have an explicit connection to a human rights basis.

It is very pleasing to see it explicitly at least stated in relation to this bill and to have that sit back with that advice from the commissioner.

It is also pleasing, in the meantime, while we have waited for the development of this bill to come to fruition, that current practice has already been modified, improved, adapted, and we no longer – it is reported – have routine unclothed searches and things that had been occurring, but that has already been positively changed.

Without a legislative basis, we have already been introducing those concepts of accommodating individual circumstances and applying the least intrusive principle in our current practice.  Body scanning technology is an excellent way forward and I believe the Government has invested in it.  I am interested to know where we are up to with that being in place and being used.  It is particularly important, with children, we are able to absolutely to the greatest extent possible ensure those non‑intrusive search options are available that do not involve touching or removal of clothing.  I look forward to the full implementation of that technology and those sorts of options.

This bill relates to the Youth Justice Act which we have heard already can override other laws in relation to matters such as this.  One of the things that did occur to me though is the Youth Justice Act has a definition of youth as 10 years or older.  Currently in this state, 10 years is the age of criminal responsibility, which no one will be surprised to learn I regard as utterly shameless.

We have discussed it in this place in a motion and we have agreed, as a Chamber, and put to the Government that it should be at least 14 years.  I look forward to the inevitable day when we will make that change in this state.

What happens currently if there is any circumstance where a child under 10 years old, who is not covered by the Youth Justice Act and therefore not regarded as able to be criminally responsible but still may encounter, say, police officers or others, particularly police officers?  Are there any cases in which a child under 10 years old is searched?  I am interested to understand that.

Perhaps the Government would be able to give me an explanation of anything in relation to that circumstance.  Can a child under 10 years be searched under any circumstances?  If so, do we keep records of that?

Mrs Hiscutt – A bit of clarity.  I understood you said you wanted numbers of children who have been searched and then you said the numbers of children who could be searched.

Ms WEBB – No, I did not say the word ‘numbers’, I said ‘can’.  Are there any circumstances in which children under the age of 10 years can be searched?

Mrs Hiscutt – Thank you.

Ms WEBB – I am assuming there will be times when police officers, for example, might encounter a child under the age of 10 years out in the community and may be concerned about something they might have on their person, may be concerned about something they might have in their possession –

Ms Siejka – That can be an issue sometimes in my experience when you do go to the child guardian for permission but, as we know, sometimes the guardian also does not have the best interest of the child.  It is an area that needs a lot of work.

Ms WEBB – What is the current situation on this, particularly given in this bill – and I will talk about this more – we have a lot of emphasis around information provision?  We have a lot of emphasis on keeping records of what has occurred.  In those situations there might be a child under 10, who is not going to be dealt with under the Youth Justice Act.  What situations might there be on any searching or interacting in that way that we do?

The bill usefully provides a very consistent approach across all custodial facility settings.  Reception prisons, police watch houses, prisons and detention centres.  It is really important we have a consistency of approach across all those and that the bill excludes or does not relate to body cavity searches, because they are dealt with elsewhere, and require a particular form of authorisation through a magistrate.

I add my very firm agreement with others in this place who indicated we would regard body cavity searches as the absolute extreme end of things that should virtually never have to occur, particularly for a young person or child.  We would always want emphasis to be that this is an extreme end of necessity that would take us to that place.  I hope we never see them.

I note, in the bill it establishes the authority to search and who is able to undertake search actions as then defined in the bill.  Clearly, in the case of prisons, it makes sense, the Director of Corrective Services is the authority, then the correctional officers and you can have specified in the director’s standing orders other people authorised in that setting by the director to conduct a search.

In other settings, you have the authority who then can allow others to conduct searches.  That seems a fairly clear delineation of who is authorised to do the searches.  The interesting one for me is, a police officer is authorised to carry out a search, because naturally, that is also consistent with their other statutory powers and responsibilities.

One of the things I was interested in that we talked about in the briefing, but perhaps can talk about more here and others have raised it.  I will reiterate it.

This bill relates to searches occurring within custodial facilities.  I understand that police may conduct some form of searches, not within a custodial facility setting if they are apprehending young people.  I am keen to understand how the constrictors they have on them in that circumstance align with this bill, or how we might ensure they do align.

My understanding from the briefing and perhaps we can have it confirmed here by the Government, in those situations outside of custodial settings police have to abide by the Commissioner for Police standing orders.

I am interested to understand how those standing orders currently might align with the measures in this bill when it comes to youth and whether we currently see consistency across those two situations where it might be the very same child or young person that might be treated differently out and about somewhere, compared to within a custodial facility.

Alongside that, again noting the emphasis in this bill on provision of information and noting the emphasis on recording and keeping a record of activity around searches, the degree to which searches outside of custodial facilities by police officers, the degree to which that is recorded and accountable, in that same way.

As others have, I also welcome the measures in this bill that deal with the requirements around gender of the search officer.  It is excellent to see a best practice approach in relation to that.

Having the situation where, as far as reasonable and practical, it applies here, makes sense.  There will be situations, no doubt, particularly in rural and regional areas, where it might be difficult.  However, you would certainly want there to be rigour in the attempt to always require that the gender of the search officer is according to this bill, to the greatest degree possible.  If that means a little bit of inconvenience, so be it.  We would not default to not complying with it, to the ‘oh it is not reasonable or practicable, we will go with who is here’.  We would never want that to become anything done casually or without a really genuine attempt to make sure we comply first.

In relation to the conduct of searches and the way that that is outlined and defined in the bill, it is excellent to see that establishment of decision-making criteria about the type of search and the manner that the search is conducted in.  The emphasis that it must be on reasonable grounds and proportionate to the circumstances and be firmly based on the implementation of a least intrusive framework.  That is incredibly important and impressive to see put into this bill so explicitly.

It is interesting.  There will still be a lot of discretion to a certain degree in applying that decision-making and determining that least intrusive approach and what is proportionate.  You cannot eliminate all of that.  I want to understand how those who may be authorised under this bill to conduct searches will be guided and trained in an ongoing way, receive professional development about applying those principles.  Others have asked about training as well.  It is reiteration of that same question.

Again, the use of force is along similar lines in the bill, which is that least amount of force necessary principle, which I believe we would all agree is really important to see.

One of the things I wanted to pick up on is the relevant search purposes in the bill.  That part of the bill talks about there being relevant purposes for searches and safety of the youth or others being a relevant purpose to obtain evidence, to ascertain whether the youth has possession of a concealed weapon or drugs, and where the searches are clothed searches, the removal of articles belonging to the youth.  One of the things I wondered about, in terms of a relevant purpose being to obtain evidence or to ascertain whether there is a concealed weapon or drugs, do the officers conducting the search need to have reasonable grounds to believe that those things are present before conducting the search, and a bit of a description about what that might mean?  ‘Reasonable grounds’, if that is the case.

As others have raised, I wish to understand a little more about the information provision that is required in the bill.  It is really important that that is a part of this bill and it is pleasing to see it there to the extent that it is.

As others have pointed to, I also wonder how we accommodate the varying capacities of the children and young people who this bill may be relevant to, particularly given a lot of the challenges that many will have in their background.  Some will have literacy challenges or challenges relating to capacity; others might have challenges relating to disability. 

The member for Murchison very rightly pointed out that we need to make sure they understand.  My question is a little more pointed than that.  I agree with the member for Murchison, we do need to know that the children understand when they are informed that a search is going to take place and are provided with the information about that.  However, what if it is not clear that the young person or child has understood? 

I think of times I have interacted with children.  I am thinking particularly of a child who might be autistic, where there can be a common response to shut down.  It can be really difficult when you are trying to interact with a child who has shut down, to know whether they have actually heard and understood what you have said to them.

In terms of this bill, I want to understand, where it requires that a youth be informed, does that entail that the person is required to also be convinced that the youth has understood what they have been told?  Is that requirement to inform about, ‘I have said it’, or is that requirement to inform one step further and I am confident and know that the child has understood what I have said?

In relation to the general information being available for viewing in custodial facilities about search obligations, I am sceptical that having a poster on the wall or a brochure on a desk or that level of information available will really cut it, or is what we could regard as being sufficient.  It would be my best guess that a child taken into custody and in those sorts of scenarios is incredibly unlikely to pick up a brochure or even to notice a poster on the wall.  Again, reminding ourselves that this is explicitly a human rights-based approach that we have here, how are we ensuring that the child, the young person involved here, has actually been provided with information that they have understood?

One of the other things I did wonder – it may not have come up in any conversations, I am not sure – is there any requirement that when a search is conducted of a child or young person that their parent or guardian is informed?  Thinking about it, at some point some of these children will be returned to a parent, some might be returned to a guardian, some might be returned to a foster care situation, some might be in the detention centre, so that is not so relevant.  Although potentially, even for children in a detention centre, if they have been searched, perhaps it is appropriate that parents and guardians are informed about a search having occurred.  I am thinking particularly of situations where a parent or guardian may have to deal with impacts and effects later on from the experience that the child had while in custody.  They might benefit from knowing what has occurred while the child was in custody, so that they can be on the lookout for picking up on any flow-on effects, impacts later, know how to interpret comments that they might make or concerns they might raise. 

Particularly, we are being careful to have mechanisms for complaints to be raised or concerns to be brought forward.  I imagine, unless parents and guardians or others responsible for the children have been informed about what occurred, it is hard for them to know that something needs to be followed up.  It may be that that is a requirement there.  I have not seen it in the bill, but it may be that there is requirement that is captured in some other way to do that.

The final area that I noted in the bill that I wanted to touch on briefly relates to the register of searches that is required to be maintained, which is really important.  It is a very good accountability measure, particularly because it records not just that the search has occurred, but the degree of intrusiveness, the use of force and other details that will be further outlined in regulations.  I note that the register is to be available for inspection by the Custodial Inspector, the Ombudsman and a person approved by the person in charge of custodial facilities.

The member for Murchison also asked for clarification on whether the Commissioner for Children and Young People would have access to that register.  In terms of scrutiny of that register, whether that is something that can be scrutinised by parliament, either say through Estimates or through questions in the Chamber.  Is it something that can be looked at through those sorts of mechanisms here in this place?

Does it become something that is RTI-able – obviously privacy considerations would come into play in any of these circumstances – but whether the details, statistics or the data coming out of that register is able to be scrutinised through those other measures too?  This is something I am interested to hear about.

I will conclude my remarks by reinforcing that I am really pleased we are taking a much more robust human rights-based approach to this.  For children in our community who many of us might find incredibly challenging were we to encounter them in the street, and that is being quite frank, who have found themselves in their situations often because of multiple system failures in our community and society.  Both from their home and education environment, from our health and wellbeing services, we have in many cases failed them. 

If members are really interested to know more about the young people who might be the focus of this bill, I cannot point them to anywhere better than a piece of work undertaken by Anglicare Tasmania, published in 2017.  A research report called Too Hard? Highly vulnerable teens in Tasmania by Dr Catherine Robinson looks at exactly these kids 10-17 who are excluded and outside of the school environment, homeless, involved with youth justice and falling through all the cracks.

The picture painted in that report is utterly heartbreaking, but gives you a very good insight into why we have to go to the lengths in this bill to make sure we are dealing with the vulnerability as effectively as possible.