Northern Territory Second Reading Speeches

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YOUTH JUSTICE LEGISLATION AMENDMENT BILL 2016

YOUTH JUSTICE LEGISLATION AMENDMENT BILL
(Serial 5)

Bill presented and read a first time.


Ms WAKEFIELD (Territory Families):
Madam Speaker, I move that the Bill be now read a second time. The Youth Justice Legislation Amendment Bill 2016 amends the Youth Justice Act and the Youth Justice Regulations. The Bill gives effect to the government’s intent to prohibit the use of a restraint chair on youth detainees in the Northern Territory, pursuant to the Youth Justice Act.

On 25 July 2016, ABC’s
Four Corners aired an investigation into the Northern Territory’s youth detention centres. The report showed CCTV footage of a youth detainee, seated upright in a purpose-built chair, with material belts secures around the wrists, ankles and lap, and across each shoulder and under the armpits of the detainee. The detainee’s head was fitted with a mask, colloquially termed a ‘spit hood’, used to prevent the transfer of diseases from spitting and biting.

There is no doubt these images had a significant impact on the community, as is evident from the number of community members who approached me, expressing their distress at what had occurred. It is an absolute priority for me, as Minister for Territory Families, to ensure that young people are treated with respect and dignity, while also ensuring the safety of staff. These priorities are not mutually exclusive and I am committed to consulting and working with staff and the community to create a safe environment for those young people and the dedicated staff who work with them.


I acknowledge and welcome the Royal Commission into the Protection and Detention of Children in the Northern Territory and the opportunity to give careful consideration to the findings of the Royal Commission relative to:


·
failings in the protection and youth detention systems of the government of the Northern Territory

·
the effectiveness of any oversight mechanisms and safeguards to ensure the treatment of detainees was appropriate

·
cultural and management issues that may exist within the Northern Territory youth detention system

·
whether the treatment of detainees breached laws or the detainees’ human rights

·
whether more should have been done by the government of the Northern Territory to take appropriate measures to prevent the reoccurrence of inappropriate treatment.
We know that the child protection and youth justice system requires reform, and this government will fully cooperate with the Royal Commission. While we wait on the findings of the Royal Commission this government cannot remain passive with regard to the use of restraint chairs on youth detainees; this matter requires immediate attention.

I have met with the Children’s Commissioner, Ms Colleen Gwynne, and discussed with her the concerns she identified in her own initiative investigate into services provided by the NT Department of Correctional Services to Don Dale Youth Detention Centre and Alice Springs Youth Detention Centre. The Children’s Commissioner’s report will be tabled during these Sittings and gives further credence to the importance of this Bill.


I have also given consideration to the
Australian Children’s Commissioner and Guardians report into human rights standards in youth detention facilities in Australia: the use of restraint, disciplinary and other specified practices. The report provided guidance regarding the circumstances under which force or restraint should be used. It provided a guide for this amendment and will help to guide the review of all policies and procedures that Territory Families is undertaking in youth justice to protect the wellbeing of young people and staff.

Due to the urgency needed to ensure restraint chairs are not able to be used on youth detainees pursuant to the
Youth Justice Act, the Bill currently before the House is limited in its scope but remedies an urgent issue of significant public importance. This is a beginning; the first pragmatic step that needs to take place in order to ensure the safety of young people and staff and to begin to restore public confidence in the Youth Justice system, however, it cannot stop there.

Today, with the support of my Ministerial colleagues, I commit to a full review of the current
Youth Justice Act and to the introduction of a new contemporary Youth Justice Act. This new Act will reflect international standards and the standards set by the Australasian Juvenile Justice Administrators and will only be drafted after extensive community consultation and will be guided by the findings of the current Royal Commission.

Madam Speaker, I seek to make it abundantly clear to the House that under this Bill, youth detainees in the Northern Territory cannot be secured in a restraint chair pursuant to the
Youth Justice Act.

It is important to note that the effective prohibition of restraint chairs, though not approving the restraint chair for use as an approved restraint in amended section 151AB of the
Youth Justice Act, applies for all people in the care and custody of Youth Justice, Territory Families irrespective of where the young person is accommodated. Operational staff, whether Youth Justice or Correctional Services must act in accordance with the Youth Justice Act when engaging with youth detainees. Amended Section 151AB of the bill lists only those devices which may be used to restrain a youth detainee. The advice of the Youth Detention Restraint Practice Advisory Group, comprised of Northern Territory government agencies that have expert skills, knowledge and experience relevant to youth detention has been used to inform government in proposing the devices that are permissible for use on youth detainees.

The Bill clearly sets out that only devices considered to be approved restraints in amended Section 151AB are handcuffs, ankle cuffs and waist restraining belts. Any device not listed is therefore prohibited from being used to restrain a youth detainee pursuant to the
Youth Justice Act. The devices listed in the bill as approved restraints include restraints within the category of the restraint; for example handcuffs may include a flex cuff or Velcro locking handcuff. This recognises an approved restraint must be suitable for each and every circumstance it is used, taking into account the physical, psychological and emotional welfare of the individual youth detainee and the behaviour the detainee is displaying or security risk the detainee presents. The authority to approve devices to restrain youth detainees will no longer rest with the Commissioner of Correctional Services and instead will be subject to scrutiny through the law making process as per amended Section 151AB of the Youth Justice Act This is because the only way an additional device can be considered an approved restraint for use on a youth detainee is by further amending the legislation.

The Bill also provides increased accountability as to the use of approved restraints, that being handcuffs, ankle cuffs and waist restraining belts on youth detainees, through requiring the commissioner to make a determination governing the use of approved restraints. The
Youth Justice Act currently prescribes, in section 217(3), that the regulations may authorise the commissioner or a superintendent of a detention centre to make a determination with respect to the management and operation of a detention centre, the maintaining of order within a detention centre, a grievance or complaint of a detainee or the health, welfare, safe custody and protection of a detainee.

Regulation 30(1) then provides that the commissioner or superintendent may make a determination in relation to any aspect of the management and operation of the detention centre. This is further qualified by regulation 30(2) which provides that a determination may relate to the conduct of persons, whether detainees or other persons, within the detention centre.


The Bill amends regulation 30(1) to cover the entirety of section 217(3) of the
Youth Justice Act, therefore widening the matters for which the commissioner or the superintendent can make a determination. The ability to make a determination will therefore have application to the use of the restraint on a youth detainee.

To achieve this, the draft bill amends the definition of ‘appropriate’ in section 151AA by inserting a new paragraph (c) which provides in relation to the use of an improved restraint, appropriate means, using the restraint in accordance with the determination made by the commissioner under regulation 30(1). Section 151AA currently provides that appropriate means using the restraint in the least restrictive or invasive way reasonable in the circumstance and for the minimum amount of time reasonable in the circumstance.


The newly inserted section 151AA(3) complements the existing safeguards in requiring that for the use of approved restraint to be appropriate it must be in accordance with the determination made by the commissioner. The effect of the proposed amendment is to place a requirement on the commissioner alone to ensure that a determination regarding the use of approved restraints must be developed prior to any use of an approved restraint on youth detainees. The determination will prescribe that approved restraints are used as a last resort, where methods of engaging a youth detainee to de-escalate behaviour have been exhausted.


The amendment requires that the use of an approved restraint on a detainee in a youth detention centre must be carried out in accordance with the determination binding operational practice and therefore must be followed by all staff.


The Bill amends section 158A(1) of the
Youth Justice Act to expand upon the particulars that must be contained in the register of use of approved restraints. Currently the superintendent of a detention centre is required to keep a register of the particulars relating to the identity of the youth detainee, the type of restraint used, the circumstances leading to the use of the restraint, the date the restraint was used, the time the restraint was applied and the time it was removed, the identity of the person who authorised the use of the restraint and any medical attention that was required.

The Bill omits paragraphs (d) and (e) from section 158(1) and inserts a new paragraph (d) to specify that the superintendent of a detention centre must record the period for which the approved restraint was used, including the date and time at which the restraint was applied and the date and time at which the restraint was removed.


The considerations under existing paragraph (d), regarding the requirement to record the date on which the approved restraint was used, and existing paragraph (e), regarding the requirement to record the time period of restraint use, are now provided for in the newly inserted paragraph (d). This avoids inconsistency in terminology or repetition in the particulars that must be contained in the register, relative to recording details of any assessment made during the period the restraint was used, through the insertion of new paragraph (e).


The Bill inserts new paragraph (e) to specify that the superintendent of a detention centre must include in the register details of any assessment made during the period the restraint was used on a youth detainee. This includes the time the assessment was made, the outcome of the assessment and the reasons for that outcome. The Bill further amends section 158A to insert subsection (3), which provides that for the purposes of section 158A, assessment means an assessment as to whether (a) the restraint can be removed or (b) the restraint is still necessary.


The requirement to assess the ongoing use of restraint at minimal intervals from the time that the restraint is applied reflects existing reporting requirements when a restraint is used on a youth detainee.


Operational practice dictates that staff must assess the use of the restraint throughout the period of restraint use to ensure the application of the restraint is still necessary. Newly inserted subsection (3) confirms that while making an assessment staff must record in the register the reasons why the restraint was removed from the youth detainee, or alternatively the reasons why the restraint is still necessary. This provides greater transparency during the period which the restraint was used and complements the requirement now contained in newly inserted paragraph (d) for staff to record the date and time of restraint use relative to a youth detainee.


It is anticipated that Northern Territory government agencies will provide advice in the making of a determination regarding the use of restraint on youth detainees to ensure that the operational guidance contained within the determination is representative of the position of Northern Territory government agencies that have a clear intersect with restraint use relative to youth detainees.


Consultation with non-government agencies regarding the content of the determination has already commenced.


This government is committed to ensuring increased transparency and accountability regarding the use of restraint on youth detainees. Determinations pertaining to restraint use must be given to youth detainees upon their admission to a detention centre or as soon as practical after their admission to ensure that detainees are informed and made aware of how restraints can be used on them.


Determinations will be made publicly available.


Madam Speaker, I commend the bill to honourable members and table the explanatory statement to accompany the bill.


 


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