Alternative Law Journal
MIA DAMBACH[*] looks at options to juvenile detention centres
In NSW, the courts have the power to impose residential requirements under section 36(2)(a) Bail Act 1978 in relation to bail. The courts often make it a condition of bail for children charged with criminal offences, who are homeless or in need of care, that they ‘reside as directed by the Department of Community Services’ (DoCS). This approach is adopted especially when children are under 16, are homeless, or do not have carers or appropriate parental supervision. The residential condition is imposed to ensure a greater likelihood that the child will attend court for the next hearing of their matter, and to ensure that their whereabouts are known.
The difficulty is that if the child is in ‘need of care’, and DoCS fail to find accommodation for the child, detention is likely the ‘default’ outcome. Magistrate Mulroney told the Sun Herald in February 2006, ‘You see quite a few kids who end up in fairly substandard accommodation or they will end up staying in custody because a place can’t be found for them.’ In the same newspaper report, DoCS maintained that they were not responsible for finding accommodation.
This view is contrary to section 9(e) Children and Young Persons (Care and Protection) Act 1998 (CYP Act) which states:
If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State.
Similar provisions creating specific responsibilities to find accommodation also exist in sections 74, 113 and 120 of the (CYP Act). Clearly, DoCS are delegated as the Government’s representative responsible for children in need of care and protection, which arguably includes those that are homeless.
Accordingly, this Brief examines firstly, the DoCS abdication of this delegated responsibility and secondly, the consequences of this abdication, including breaches of international law. In the last section, the article discusses some law reform proposals to help counter this lamentable situation.
When DoCS fail to find accommodation for children who are in need of care, the only practical alternative is detention. In practice, when DoCS decline to make a direction that a child reside somewhere, the child cannot enter into their bail undertaking and must remain in detention. In some situations, children can remain in detention for a number of weeks, which is especially concerning when it is likely that they will not receive a custodial penalty when their matters are finalised. The Public Interest Advocacy Centre (PIAC) in NSW is continuing its work in collecting a number of case studies on this very point to establish whether the detention of children in these cases is lawful.
Lawyers for the Children’s Court have found that DoCS can be even more reluctant to find accommodation when children do not obey their directions (eg: attend certain schools or accept certain house rules). The result is that the Bail Act 1978 is used as a tool to punish children who fail to obey the sometimes unreasonable directions of the DoCS. Regrettably, for children in need of care, their punishment is detention even though granted bail whereas children from more stable backgrounds, but who do not obey similar directions, are often punished by other means such as being grounded or limited in phone calls.
It is conceded that the DoCS are under-resourced and there are limited accommodation options for children, especially for those who are difficult to manage. Yet in practice DoCS prioritises other cases — such as those children subject to sexual abuse — rather than respond adequately to the needs of children charged with criminal offences. Moreover, the DoCS can be swayed by the belief that the optimal outcome is for children to be in the controlled environment of detention rather than to be ‘out of control’ in the community.
The abdication by the DoCS of its responsibility to find appropriate accommodation for children is a misuse of the NSW Government’s limited resources, administrative maltreatment of the children in their care, and contravention of international law.
The use of detention as substitute accommodation is expensive and unjustified. Professor Cunneen has found that ‘current costs for detention in a juvenile justice centre are $498 per young person per day or $3486 per week. The comparable costs for a young person under community supervision are $35.91 per day.’ By having more children in need of care in detention, the inevitable result is also that the detention centre population in terms of remand numbers will increase. This is problematic for detention centre limited resources and can have a detrimental impact on programs and conditions in detention centres. Professor Cunneen further argues that ‘if the remand population continues to increase there are important implications for the running of detention centres: the focus must shift away from programs and development towards security warehousing.’
Alternative community-based options have greater benefits for the community and the child. Placing children in detention centres is punitive, as studies have shown that institutionalisation fosters delinquency and recidivism.
Prisons are undeniably powerful social settings that have a decisive impact upon the construction and/or maintenance of social identities. If an individual’s most defining experiences of growing up are primarily based within a prison environment, it will seem unlikely that such experiences will equip that individual for a life removed from criminal sub-cultures.
Research has also shown that the refusal of bail can lead to a deprivation of income, education, loss of employment and the child being taken away from the community supports.
Moreover, the failure of the DoCS to find appropriate accommodation for homeless children is a clear contravention of international law. Rules 34 and 38 of the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) place a clear obligation on the State to provide accommodation.
Implicit in these rules is that detention is inappropriate and if it is to be used, other international law principles dictate that detention should be only used as a last resort and for the shortest amount of time. Article 37(b) of the Convention of the Rights of the Child 1989 (hereafter CROC) states that ‘No child shall be deprived of his or her liberty unlawfully or arbitrarily.’
The use of detention for homeless children is not in their best interests (Article 3.1 CROC) nor does it promote their well being (Rule 17.1(d) United Nations ‘Standard Minimum Rules for the Administration of Juvenile Justice’ (Beijing Rules)).
The failure of the Government to provide non-custodial options is unacceptable in light of such international principles and reforms are urgently required.
Better alternatives for protecting society and monitoring alleged offenders need to be developed rather than using detention as a first resort. In practice, the DoCS should not wait for when they have meetings with all stakeholders before they approve a placement for a child. The finding of short-term accommodation should be immediate as it could take a number of weeks for long-term accommodation.
It is essential to create alternative housing where there has been family breakdown or children are effectively homeless. It is encouraging that the Annual Report 2004/2005 of the Department of Juvenile Justice mentions the possibility of developing ‘accommodation brokered through the Armidale and Tamworth Youth Refuges and the recruitment of Aboriginal Foster carers.’ This is an important indication that the Government is considering other options, but these appear to be limited to rural areas.
It is equally important to develop a comprehensive model, where options are provided for all of a State, as seen in the bail services offered in Queensland. These more global policies are provided by the Queensland Department of Families, which worked with other stakeholders to ensure that ‘the partnerships that have developed from this process have contributed significantly to enhancing accommodation options for young people at risk of being remanded in custody.’ 
Another possible avenue that needs to be explored is child-specific bail hostels. Hostels are temporary refugees for children in the short-term, giving Government agencies such as DoCS time to find long-term options. These hostels could be connected to educational resources in order to provide better employment opportunities. However stakeholders in Queensland did not adopt the ‘bail hostel’ model because of a number of limitations, including the high risk of net widening through young people’s contact or contamination with more experienced offenders, insufficient funding to adequately staff a hostel, and the potential isolation of the child from their parents. Despite these findings, it is arguable that the NSW Government must at least consider the ‘bail hostel’ option in light of the inadequate accommodation services currently available.
Bail laws have a punitive effect on children in need of care. The main area for concern is where children are granted bail with the condition that they reside as directed by the DoCS. When the DoCS fail to find accommodation, this condition is not met and children can remain in custody for days and weeks. The ongoing application of the Bail Act 1978 to ‘children in need of care’ is costly, has minimal benefits for the community and the child and is in clear breach of international law.
Reforms such as providing more suitable accommodation for children are especially needed. Other alternatives should be investigated that are equally less costly for the child, their family, for society and which comply with international law. The DoCS must stop the lamentable practice of using detention as suitable accommodation for homeless children.
[*] MIA DAMBACH has been a children’s lawyer practicing in NSW
© 2007 Mia Dambach
 This term includes children who are in the care of the Director-General (section 60) and children who are homeless (section 120) according to Children and Young Person (Care and Protection) Act 1998.
 Munro and O’Dwyer, ‘DoCS can’t be trusted with teens: Magistrate’, in Sun-Herald (Sydney)
 Chris Cunneen, ‘The impact of Bail Amendments on Young People’ (Paper presented at Institute of Criminology Seminar: Crisis in Bail and Remand, Sydney University Law School, 29 May 2002) 4.
 Cunneen, above n 4, 5.
 Emma Ogilvie and Mark Lynch, ‘Responses to Incarceration: a Qualitative Analysis of Adolescents in Juvenile Detention Centres (2001) 12(3) Current Issues in Criminal Justice 330, 334.
 NSW Bureau of Crime Statistics and Research, Bail Reform in NSW (1984) Attorney-General’s Department, 4.
 United Nations ‘Guidelines for the Prevention of Juvenile Delinquency’ (The Riyadh Guidelines).
 On 17 December 1990, Australia ratified the convention with a reservation to Article 37(c) regarding separate imprisonment.
 See detailed history of Bail Support Services in Julie King and Darren Hegarty, ‘Bail Support Services in Queensland: A Collaborative Approach to Crime Prevention’ (Paper presented at Crime Prevention Conference, Sydney 12–13 September 2002, 3.
 . King and Hegarty, above n 9, 7–8.
 King and Hegarty, above n 9, 4–5.