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Maintaining children's rights amid youth detention crises

Kate Galloway |  12 January 2017


Youth detention is an issue that simply will not go away.

Dylan Jenkings is a former NT youth detainee who is part of a class action suing the Government.In July 2016, Four Corners revealed footage of abuse of young people in the Northern Territory's notorious Don Dale Youth Detention Centre. Despite a defensive response from the Northern Territory government and a sanguine response from the relevant Commonwealth Minister, the Commonwealth nonetheless called a royal commission into youth detention in the Territory.

In the wake of the Don Dale abuse, the public became aware of allegations of abuse of juveniles in detention. The Queensland government responded with its own inquiry.

While Queensland and the Northern Territory have form in youth detention, it was perhaps somewhat more surprising that Victoria — a state with a charter of human rights — experienced its own youth detention issues before Christmas last year.

The crisis in Victorian youth detention arose from riots at Melbourne Youth Justice Centre at Parkville, in November. The disturbance resulted in damage to the facility, which became unsuitable to house the full complement of 'inmates'. In response, the government announced that those responsible for the riots would be moved to Barwon Prison, an adult secure facility.

On the face of it, the reason for the 'temporary' removal is the lack of facilities at Parkville while they are being repaired. However comments by the Premier indicate a punitive element to the plan: 'I don't think you could see a more powerful demonstration of our resolve to keep our staff safe and to keep the community safe than our decision to relocate these offenders who have behaved appallingly to Barwon Prison.'

Among the 40 young people removed to Barwon were Koori youths. In light of the serious problems with incarceration of Aboriginal and Torres Strait Islander Australians, and their special vulnerability in the prison system, the Victorian Aboriginal Legal Service challenged the plan to locate the Koori youth in Barwon Prison.

Consequently, a deal was struck with the State. Koori youth would only be transferred to an adult prison in 'exceptional circumstances' and then only with the permission of the Commissioner for Aboriginal Children and Young People.


"It is certainly a concern to see a Minister for Children and Young People speak in opposition to the exercise of children's human rights."


The remaining non-Indigenous youth were sent to Barwon, but the Fitzroy Legal Service and the Human Rights Law Centre challenged the transfer. The Victorian Supreme Court found that the government had acted unlawfully and the Court of Appeal upheld that decision.

But the government had other plans. In response to the Court of Appeal decision, it formally re-classified one part of Barwon Prison as a youth facility. The aim is to work around the Supreme Court decision, attempting to make it lawful to hold youth in an adult prison.

The Minister herself has committed to improving existing youth detention facilities, the appointment of 100 more staff to resolve issues with 'staffing limitations', and revision of the state's youth detention policy. But in doing so, she has sheeted home blame to the former government for the current state of youth detention, and has accused lawyers for the children of pandering to ideology. Further, the government's discourse continues the tough-on-crime narrative rather than acknowledging the causes and contexts of juvenile offending, the diverse contexts of juvenile detention (some are merely in on remand), and the consequences of appalling facilities on the youth who are detained.

It is trite to remark on the test of society's civility in how it treats the vulnerable. But it is certainly a concern to see a Minister for Children and Young People speak in opposition to the exercise of children's human rights.

The Minister cannot deny that children hold rights. Government must exercise its authority over children in accordance with those rights — the government is bound to act in accordance with the law. The Minister must also appreciate that it is the responsibility of lawyers to hold government to account.

Further, the responsibility of government is to protect the vulnerable. The fact that there is a Minister for Children and Young People reflects this responsibility. Indeed some of the Minister's statements indicate concern for the wellbeing of the youth in her care. Yet other statements — and actions — in focusing on a punitive approach do not seem to grapple with the wider issues of youth detention.

In reality, rights only go so far. Where government power is exercised in accordance with the law, the role of rights tends to move out of the spotlight. The action taken so far has perhaps resulted in government meeting the minimum standards of valid exercise of authority. But there are broader issues of justice, and rights, that remain.

Importantly, the Victorian government cannot ignore the national context of youth detention generally, and detention of Indigenous youth in particular. The rights exercised to date by the young people in Barwon are the last line of defence for those youth. In addition to upholding rights at this last frontier, governments nationally would do well to reconsider their role in young people's lives in light of their inherent dignity.

Without this change in perspective, failures in youth detention will continue — themselves a sign of how society fails our youth.


Kate GallowayKate Galloway is a legal academic with an interest in social justice.

Pictured: Dylan Jenkings is a former NT youth detainee who is part of a class action suing the government.



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Submitted comments

The picture says it all. Stress that we are talking about children. Heaven forbid that we should show a muscled-up seventeen year old who can legally be battered on a football field by men twice his age. As for "the causes and contexts of juvenile offending", how about "your actions have consequences." Perhaps in our brave new world, that no longer applies.

Frank 16 January 2017

We should stop using the term "children" when discussing this issue as it gives it a wrong angle. I care for a young man who lived in a DHS residence for many years and who relates how "wrecking the joint" for fun or out of anger at perceived mistreatment is normal for many of the youth in care. He himself spent 2 stints in "juvie" at Parkville for burglary and, from what he has told me, the conditions there were excellent and provided him with activities and interests that he was denied in the residence. DHS shows very little responsibility or real duty of care to the young people in their hands and it is little wonder that they are angry at what they experience at the hands of inexperienced, uncaring staff.

w.edwards 16 January 2017

The challenge for us is when a complex problem becomes oversimplified. The article raises many legitimate concerns- it is essential that youth detention systems offers the best possible chance for rehabilitation. However we all must take responsibility for our actions, especially serious crimes. Perhaps we need to explore with how we respond with crimes committed by 15,16 and 17 year olds. An approach based on 18 years or more you are treated as a adult, under 18 you are children, does not recognise that age alone does not determine maturity - life experience is a significant determinant. Victims of crimes and justice needs to be part of the balance as well as mercy and compassion.

Kevin 16 January 2017

I agree Kate. Youth detention in this country is a total disgrace and will continue to be so whilst this Government continues to fail at job creation, pursue a facile "free trade" policy (as if we can ever compete with wages in ASIA) and give major contracts like the subs and air force jets to our manufacturing competitors in the USA and France. Google destroys the taxi industry with impunity. Amazon is poised to help destroy the fresh food industry. I wonder where their taxes will go? Whose produce will they flog online? Our politicians are condemning our teenagers to wander in the desert of despair. While they eagerly plunder travel entitlements and grant themselves pay rises. There is so much humbug and hot air coming out of Canberra, is it any wonder there is massive global warming.

francis Armstrong 16 January 2017

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