YOUTH JUSTICE AMENDMENT BILL 2016 Second Reading Speech

Northern Territory Second Reading Speeches

YOUTH JUSTICE AMENDMENT BILL 2016

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

YOUTH JUSTICE AMENDMENT BILL
(Serial 165)

Bill presented and read a first time.

Mr ELFERINK (Attorney-General and Justice): Madam Speaker, I move that the bill be now read a second time.

The Youth Justice Amendment Bill 2016 proposed to amend the Youth Justice Act to clarify the provision of mechanical devices for use by the Commissioner of Correction Services to restrict the movement of a detainee and further clarify when such devices can be used or authorised for use to escort a detainee both inside and external to a detention centre as an exception to the use of force in maintaining discipline or to protect the safety of a detainee and of other persons.

In recent years, children in custody have become increasingly violent, dangerous and irresponsible. Recent critical incidents in youth detention centres demonstrate the legislative impediments upon government to adequately provide for the safety of detainees, members of detention centre staff and the public. Without urgent legislative change there are grave concerns that a detainee, member of detention centre staff or a member of the public may be seriously injured. The bill provides that detainees, members of staff and the public will benefit from increased safety and security in circumstances where it is necessary to use mechanical devices to restrict the movement of a detainee.

The proposed amendments will achieve greater protection for the safety and security of detainees, members of detention centre staff and the public by bridging current operational gaps in the Youth Justice Act. The Youth Justice Act currently provides, in section 155, that handcuffs or a similar device may be approved by the superintendent for the purposes of escorting a detainee outside of the detention centre. The superintendent may also use handcuffs or a similar device to restrain a detainee as an exception to the prohibition against using approved restraints for the purposes of maintaining discipline at a detention centre pursuant to section 153 of the Youth Justice Act.

This includes, if the superintendent is of the opinion that an emergency situation exists and a detainee should temporarily restrained to protect the detainee from self-harm or to protect the safety of another person. The superintendent may use handcuffs or a similar device to restrain the detainee until they are satisfied the emergency situation no longer exists. The phrase ‘handcuff or similar device’ is not defined.

The newly inserted section 151AB contains a definition of approved restraint. An approved restraint is a mechanical device the commission for correctional services has approved for restricting the movement of detainees. This clause provides clarity as to the mechanical devices of restraint which may be approved for restricting the movement of a detainee’s arms, feet or body. In practice it is proposed the term, approved restraint, strictly refer to four categories of restraint instruments: handcuffs, ankle cuffs, waist restraining belts and safety equipment.

The new inserted definition of an approved restraint also ensures that modern mechanical devices of restraint or advancements in technology will adequately be provided for in the Youth Justice Act. The bill thereby omits all references to handcuffs or similar devices and replaces it with approved restraint.

Detainees have become physically aggressive with members of staff by kicking or throwing their arms, legs or body around. Members of staff have sustained injuries from detainees who have hit, punched, kicked, spat at or bitten them. The bill provides that a superintendent will be legislatively empowered to authorise staff members to use approved restraints to restrict the detainee’s arms, legs and body when necessary to engage the detainee or assist the detainee in safely de-escalating his or her behaviour.

The bill inserts a definition of appropriate in relation to the use of an approved restraint in the newly inserted section 151AA. The appropriate use of an approved restraint means using the restraint in the least restrictive or invasive way reasonable in the circumstances, and using the restraint for the minimum amount of time reasonable in the circumstances.

Proposed section 151AA thereby contains a twofold safeguard regarding the manner in which an approved restraint is to be used when restricting the movement of detainees and the period of time that an approved restraint can be applied.

Subsequent clauses in the bill specify that the superintendent may use appropriately an approved restraint on a detainee, or authorise the appropriate use of an approved restraint on a detainee, meaning approved restraints are to be used in a manner which accords with the newly inserted definition of what is appropriate.

Section 151(3)(c) of the Youth Justice Act pertains to the superintendent’s overarching responsibility to ensure the safe custody and protection of all persons who are within the precincts of a detention centre, whether as detainees or otherwise.

Section 152 qualifies the powers of the superintendent in discharging such a responsibility as the superintendent has the powers that are necessary or convenient for the purposes of his or her functions.
The bill contains the newly inserted section 152(1)(a) which specifies to protect a detainee from self-harm or to protect the safety of another person the superintendent may use appropriate and approved restraint on a detainee or authorise the appropriate use of an approved restraint on a detainee.

This regards the very real circumstances when restraints must be used for safety purposes. For instance, when a detainee is self-harming or poses a threat to him or herself or others, including members of staff at a detention centre, in circumstances where a detainee is engaged in self-harm, members of staff must intervene. With regard to safety, the use of a restraint in the Youth Justice Act is currently confined to maintaining discipline at a detention centre. This is an inadequacy in the legislation as the responsibility to maintain discipline should not be conflated with the need to provide safe custody for detainees.

The Youth Justice Act currently also limits what members of staff can do to safely intervene in potentially life-threatening incidents, the use of physical force or handcuffs or similar device. The application of physical force to a detainees arms, legs and body, where the detainee is self-harming or attempting to self-harm, can further compromise the detainees health. This includes the increased risk of positional asphyxia, whereby a detainee is positioned in such a way as to prevent him or her from breathing adequately.

I previously alerted this House to ambiguity of the term ‘handcuffs or similar device’. The bill provides members of staff with clarity as to the mechanical devices which can be used to restrict the movement of a detainee and the specific circumstances in which approved restraints may be used or authorised for use. In clarifying the legislative definition of mechanical devices which are approved for use on detainees by the Commissioner for Correctional Services, the bill enables the commissioner to approve mechanical devices of restraint so the superintendent or staff members will be able to select the approved restraints that are most suitable to the physique of the individual detainee and the behaviour he or she is displaying or security risk he or she represents.

The bill contains an amendment to section 153(3d) of the Youth Justice Act to specify the use of approved restraints to restrict normal movement is generally prohibited for the purposes of maintaining discipline. The Youth Justice Act provides that the superintendent may use force which is reasonably necessary in the circumstances. Reasonably necessary force does not include the use of approved restraints to restrict normal movement.

The bill further amends section 153(4) to provide an exception to the ban of the use of approved restraints. If the superintendent is of the opinion that an emergency situation exists or that restraining a detainee would reduce the risk to the good order or security of the detention centre, the superintendent may use appropriate and approved restraint on the detainee or authorise the appropriate use of an approved restraint on the detainee.

This clause is intended to further enable members of staff to safely de-escalate incidents where detainees have compromised the good order and security of a detention centre by attempting to escape or committing acts of property damage including vandalism. Without legislative amendment, such incidents have escalated to an emergency situation. The immediacy of the emergency situation has then meant that members of staff were unable to engage with the detainees so as not to risk their own safety or that of the detainee.

Additionally, property damage by detainees to detention facilities has placed a significant financial burden upon government and taxpayers of the Northern Territory. Damage as a direct result of the destructive behaviours displayed by detainees has been so substantial as to render large areas of the facilities unsafe and inoperable. Incidents of this nature have highlighted the operational failing in the use of mechanical devices to restrain detainees when there is a risk to the good order and security of the detention centre.

Providing the authority to use appropriately or authorise the appropriate use of mechanical devices to reduce the risk to the good order and security of the detention centre would allow staff to safely de-escalate volatile events before they crescendo into a dangerous and potentially life-threatening situation, thereby decreasing the likelihood of harm to detainees as well as members of staff. Section 153(4) therefore describes limited circumstances where the prohibition against using approved restrains for the purposes of maintaining discipline is lifted.

Amendments to section 155 will confirm that when a detainee is being escorted, whether inside or outside a detention centre, the superintendent may use appropriate and approved restrained on the detainee or authorise the appropriate use of an approved restraint upon a detainee. In practice, the provision will have application to detainees escorted outside the detention centre and for the movement of detainees inside the detention centre. This clause is targeted at mitigating incidents in detention centres where detainees have used physical force, including hitting, punching, kicking, spitting and biting to evade escort during movement inside and outside a detention centre.

I am aware of an incident involving a detainee being escorted to the accommodation room within the detention centre, who assaulted escorting youth justice officers in an attempt to escape from the accommodation block. Clearly, incidents of this nature illustrate there is an operational necessity to use mechanical devices when escorting a detainee inside a detention centre. The fact that the current legislation does not allow for members of staff to take appropriate measures to ensure their own safety and the safety of others, including the detainees, is personally alarming.

The proposed amendments empower the super intendant to authorise youth justice officers to use appropriately approved restraints to escort detainees within a detention centre. This will mitigate incidents of aggravated disruption to the security and good order of a detention centre and improve safety for detainees and staff members in detention centres.

Section 155 will also provide for the use of approved restraints in the event of an emergency or natural disaster including a cyclone. Where the population of detainees may need to be restrained and moved within a detention centre to ensure their own safety and the safety of the detention centre.

The proposed amendments render that the public will benefit from the reduced risk of escaped detainees from youth detention centres. The safety of the public has been compromised by some detainees who have used excessive force and violence to accost members of staff and breached the perimeter of the detention centre. This has resulted, in some instances, in serious injuries to both detainees and staff members.

Government does not accept that the current legislation blatantly exposes a member of staff and the public to unacceptable levels of risk. It does not allow for an adequate management regime for detainees who have a history of combative and violent behaviour. Where we know detainees present a high risk through previous escape attempts or abuse of outbursts, we must be able to appropriately authorise the appropriate use of force for an approved restraint to ensure detainees remain within the safe custody of the commissioner for correctional services.

Stricter security measures include the use of approved restraints for the movement of detainees inside a detention centre or when there is a risk to the good order and security of a detention centre. Additionally, escorting a detainee outside a detention centre means the detainee can interact directly with the public. For example, when the detainee is attending court or receiving medical attention.

This bill is aimed at mitigating incidents regarding young people where they may compromise the safety of the public and their confidence in the integrity of the youth detention system.

The bill amends sections 152(1A), 153(4) and 155 to clarify that, in the relevant circumstances, a superintendent may:

(a) use appropriate and approved restraints on a detainee, or

(b) authorise the appropriate use of an approved restraint on a detainee.
This means that for the purposes of implementing an instrument of delegation, the superintendent may distinguish the staff members who can use appropriate restraints in relevant circumstances and those who can authorise the appropriate use of restraints.

Section 157 of the Youth Justice Act currently provides that the superintendent of a detention centre may delegate in writing any of his or her powers and functions to a member of a staff of a detention centre. In practice, the superintendent’s delegation of any of his powers or functions is recorded in a written delegation instrument signed by the superintendent.

An approved restraint will only be used by members of staff who have the relevant training, including training to authorise the use of an approved restraint.

The bill inserts new section 158A to impose an obligation on the superintendent of a detention centre to maintain a register of particulars of the mechanical device and the circumstances in which it was used or authorised for use. This will ensure transparency and accountability in the use of approved restraints on detainees in detention centres. In particular, section new 158A contains a requirement that the superintendent record specific details about the circumstances in which the approved restraint was used, and the person who authorised the use of the approved restraint. This complements the notion that approved restraints must only be used when it is reasonable in all the circumstances, and when appropriate authority is given.

Additionally, the requirement on the superintendent to record the date and time in which the approved restraint was applied and removed reinforces the approved restraints are a temporary measure used to assist the detainee and members of staff in safely de-escalating the detainee’s behaviour.

The bill satisfies that the register may be kept in any form and on any medium that the Commissioner for Correctional Services considers appropriate. This replicates the current requirement for the Commissioner for Correctional Services to keep a register of detainees in section 158 of the Youth Justice Act. It is anticipated that the register regarding the use of approved restraints be kept in writing. The register created in this clause is not intended to supplant any current legislative requirements but will instead complement the superintendent’s obligation to maintain details regarding detainees in the Integrated Offender Management System, commonly known as IOMS, pursuant to section 158 of the Youth Justice Act.

I acknowledge that the proposed amendments may incite commentary from legal and youth services professions as to the perception that mechanical devices will be used to excess or in such a way that is not appropriate to the risk posed by young people in detention. I make no excuses for the proposed amendments. They are crucial in providing detainees, members of staff in youth detention centres and public with greater safety and security. They are consistent with this government’s priorities regarding young people in the justice system.

The proposed amendments are complemented by a commitment on behalf of government to review the Youth Justice Act, namely in Part A Youth Detention Centres, Division 2 Superintendent, within 24 hours of the bill coming into force. To achieve this I have approved the establishment of the youth detention provisions legislative review working group, from now on known as the working group. The working group consists of representatives drawn from the Northern Territory government agencies, the Office of the Children’s Commissioner and non-government stakeholders with specialist knowledge, experience or interest in relation to the youth justice system.

Young people in the system and youth detention centre: it is anticipated that the government will use the results of the review and consultation with the working group members to inform possible amendments to the Youth Justice Act.

In undertaking the review the working group will be tasked with considering whether the existing provisions are reflective of contemporary detention practices and the approach to youth justice, determining if the relevant provisions continue to reflect on the principles of youth justice and addressing identified deficits in the existing legislation.

We cannot allow violent, aggressive and dangerous conduct to go unattended in our youth justice systems. We must make and keep those detention centres safe for both the detainees and those people who detain.

I commend the bill to honourable members and table a copy of the explanatory statement.

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