2017-03-08
Victorians deserve to know the basis for Ms Mikakos's decision to propose a brand-new youth justice facility at Werribee South. On youth justice the Andrews government has been short on detail, information and consultation and very long on rhetoric. The Andrews government and Minister Mikakos would have Victorians believe that everything was hunky-dory when Labor was last in government and that after the 2010 election and up until the 2014 election the Baillieu-Napthine coalition governments squibbed the whole youth justice portfolio. Labor would have us believe that much of the crisis we have seen emerging in Victoria's youth justice system since September 2015 can be put down to a combination of Liberal failures and a new cohort of particularly vicious and violent young people for whom existing facilities, which have served Victoria well since the early 1990s, are no longer fit for purpose. The Minister for Families and Children would have us believe that young people currently detained in Victoria's youth justice centres are the worst of the worst and that they really need to be in a high-security prison staffed with prison guards with weapons and broad powers.
It is a nice, simple little story that the government wants to tell. It is a story which hopefully absolves the government of most of the responsibility for the way it has treated the teenagers in its custody and care and the way it has responded to their entirely predictable behaviour. It is a story that is perhaps appropriate for the times. It fits quite neatly into a broader environment of fake news and alternative facts because it is a story that is just not true.
What has actually happened is that governments of both flavours — Liberal and Labor, red and blue — have systematically and categorically failed the most vulnerable young people in the care and/or custody of the Victorian state for years, indeed for decades. What has actually happened is that successive governments' systematic neglect of the children in their care has meant that the child protection system tragically has become a conveyor belt for youth justice and also for adult corrections.
What has actually happened is that recent governments, especially those led by Premiers Baillieu and Napthine, have systematically gutted the capacity of the Department of Health and Human Services to respond effectively to the challenges in youth justice centres.
What has actually happened is that this government — the Andrews government — and this minister have presided over a period which has seen staffing shortages, huge increases in remand numbers and an increasingly accepted use of solitary confinement as a way of managing both staff shortages and problem behaviours among young people. It is absolutely undeniable that the use of solitary confinement or lockdowns have been directly implicated in the behaviour of young people in youth justice centres. What has actually happened is that this government, led by Premier Andrews and his minister directly responsible for the care and protection of extremely vulnerable and challenging young people in this state's care, have sought to shift the blame for government's systemic failures directly onto teenagers who have been failed abysmally by the adults in their lives when they should have been assuming responsibility in relation to them.
So now we have a proposal to build a brand-new, highly secure youth detention centre in Werribee South, complete with a maximum security behaviour management unit, which is exactly what many adult prisons have and which is precisely what the Don Dale youth prison had in the Northern Territory. I am very firmly of the opinion that we need to know the basis upon which the Andrews government and Minister Mikakos made this decision, because I have very deep concerns about it. They are not the same concerns I suspect the opposition has. The opposition has not helped this whole sorry state of affairs one iota, with its Trumpified language and its spreading of unsubstantiated alternative facts, innuendo, rumours and general rubbish and its proposal to get even tougher than the Andrews government is getting.
Victorians must know the basis for the government's decision to build the new youth detention centre at Werribee. We need to know that the decision was based on evidence about what actually works to reduce rates of reoffending among young people. The government really needs to address any concerns that exist in the minds of experts and of organisations which work with young people who display challenging and violent behaviours, not to mention the concerns of the community.
I have spoken to a whole range of experts who are worried that the government is simply panicking itself into building a new youth prison that will be built on principles of maximum security prison infrastructure and only secondarily — or perhaps not at all — on principles of rehabilitation and therapeutic intervention to address the root causes of a young person's behaviour. The worst case scenario is that the government has been spooked by an extraordinary and almost unprecedented campaign by the Herald Sun newspaper and the Liberal Party into responding to incidents of violence in Victoria's youth justice centres purely on the logic of physical security and physical security alone.
We have seen where that logic leads. It leads to solitary confinement, human rights abuses, lockdowns, tear gas, unmuzzled dogs, strip searches and increasing violence. There is a royal commission hearing mountains and mountains of evidence right now in the Northern Territory about how the logic of security led to the abuses at the Don Dale centre, abuses which were, for the most part, authorised by officials, as was shown on Four Corners in July last year. This is my concern: that if Minister Mikakos and the Andrews government have arrived at the Werribee South youth detention centre proposal by following the logic of security, then it will not end there. We are already seeing dogs, tear gas, lockdowns, solitary confinement and increasing violence, much of which has happened since teenagers were moved to the maximum security Grevillea unit of Barwon Prison in November last year. My concern is that the Werribee prison will be one more step, a very expensive and very permanent step, towards a solution that will further undermine the efforts of everyone involved in Victoria's youth justice system to reduce the likelihood that young people will commit violent offences.
The evidence is clear: Victoria has in recent years and decades detained a very small proportion of its young people in custody. This is in line with mountains of international and Australian evidence which shows that keeping young people locked up in prison-like environments does absolutely nothing to reduce the likelihood that they will commit criminal offences in the future; indeed it probably increases the likelihood. This is reflected in actual crime statistics. Only the ACT and WA have lower rates of criminal offending among young people than Victoria. Despite what the Herald Sun and the Liberal opposition would have Victorians believe, there is no youth crime wave in Victoria. Criminal offending rates by young people in Victoria have not increased, except as reflected in the existence of new procedural offences on the books. This is the strangest thing about the whole youth justice panic over the last year or so. Young people are categorically not responsible for the recent increase in the Victorian crime rate, but young people have been blamed. There have been front-page Herald Sun headlines screaming about the youth crime wave that Victoria is apparently experiencing, but there is just no evidence that there is any youth crime wave.
So what has the government said so far about why it has decided to propose a new youth detention centre? All we really have thus far is an assurance — and coming from this minister it is no assurance at all — that the decision was based on both an independent assessment by former police commissioner Neil Comrie and a 2010 opinion by the then Ombudsman, Mr George Brouwer.
Let us consider those titbits of information in turn: first, the 2010 Ombudsman's report into Parkville. The then Ombudsman, Mr Brouwer, conducted an own-motion investigation into the situation at Parkville after he received a tip-off that some staff members were assaulting young people, inciting violence among young people, supplying them with tobacco and marijuana and stealing things. The 2010 report was not and is not, in light of recent events, pretty reading. The Ombudsman did find significant problems with the physical infrastructure at Parkville. Among the many problems he identified was that one unit was too close to a boundary fence. He found that it was too easy for young people to climb onto roofs. He found that people could too easily wander onto the precinct. He found staircases in places that created unnecessary risks and blind spots, and he found electrical hazards, mould, unhygienic food preparation areas, unprofessional maintenance and broken glass in landfill. He even found a high prevalence of communicable infections including scabies and staph, and he found various points throughout the precinct that young people could use to attempt to take their own lives.
In the end he concluded in 2010 that the problems he identified were beyond simple maintenance repair. As he saw it, the only practical way to address the conditions at the precinct in the long-term was to develop a new facility at another site. Of course we have heard the minister echo that 2010 opinion quite often recently, but we have not quite as often heard her repeat the outcome of the Ombudsman's 2014 follow-up visit to Parkville. Let me just quote from the Ombudsman's recommendations report of February 2014:
The recommendations from my investigation have all been implemented and have had a significant impact upon the operation of the youth justice precinct and the youth justice system statewide.
It is impossible for the minister to claim, as she often has, that no steps were taken following the Ombudsman's 2010 report. My understanding is that Mr Ian Lanyon was appointed director of youth justice custodial services in March 2011 and then director of secure services in December 2012 largely to oversee the implementation of the recommendations which remained to be actioned. Going by the Ombudsman's comments in February 2014, by that point Mr Lanyon and the Department of Human Services, as it was known at that stage, had largely satisfied the Ombudsman's earlier concerns about physical infrastructure.
Beyond the physical infrastructure of Parkville there were some important reforms that were implemented during this post-2010 period. Perhaps the most significant of those reforms was that Parkville College commenced operations as a registered school, which in time would provide specialist, tailored, trauma-informed, evidence-based education for young people detained in not just the Melbourne youth justice precinct at Parkville but also the Malmsbury Youth Justice Centre, the secure welfare facilities at Maribyrnong and Ascot Vale, the Melbourne Children's Court and the Disability Forensic Assessment and Treatment Service at Fairfield.
Parkville College provides a fascinating case study. As with all things, I need to add a standard caveat because the government does not provide very much actual information about anything much at all in this area. My understanding is that the Parkville College spaces have been largely spared much of the damage that has been caused to both the Parkville and Malmsbury youth justice centres by young people since September 2015. My understanding is that when young people have run amok in Parkville and Malmsbury, they have left the Parkville College program areas largely undamaged. One interpretation of this is that young people respect Parkville College spaces much more than they do other parts of the centres, which is quite possibly a reflection of the extent to which they feel respected.
There has been a very moralistic tone to much of the public commentary around youth justice over the past year or so. It is the same moralistic tone that gets applied to adult prisoners. It is a tone that reflects the very widespread refrain that people who commit crimes do not deserve to be treated with respect and that they have somehow forfeited their rights and just need to be punished as harshly as possible. I can understand that response, and I think everyone who has been a victim of a criminal offence can understand that kind of moralistic response. The problem with that is that it leads to policy outcomes that are just not helpful — that are actually the opposite of helpful. What we know beyond a shadow of a doubt about young people who commit violent criminal offences is that they are overwhelmingly likely to have been victims of sustained, extreme abuse and/or neglect themselves as children.
This is all laid out in the Youth Parole Board's annual reports, and while I have previously put these figures on the record quite recently in this chamber I think it is worth doing again, because it is on this foundation that our current situation derives much of its context. So I will quote again some figures from the most recent annual report, which gives a snapshot of young people serving sentences and on remand as of 7 October 2015. A staggering 64 per cent of those young people were subject to a current or previous child protection order; a whopping 63 per cent of those young people were victims of extreme abuse, trauma or neglect — and that is based on self-reporting, so the actual proportion is likely to be much higher; 62 per cent have been suspended or expelled from school; almost one in five has a history of self-harm; one-quarter of those young people represented with some form of impaired intellectual functioning; an absolutely astounding 66 per cent of those young people had a history of misuse of both drugs and alcohol; and 38 per cent of those young people had parents, brothers or sisters who had also been imprisoned.
This is a picture of extraordinary, overwhelming, tragic disadvantage and social exclusion. I am not suggesting for one moment that everyone who suffers this kind of disadvantage is prone to committing criminal offences, but what I am saying is what the evidence says, and that is that young people who grow up in environments in which they are abused, assaulted, neglected or all of the above by people they should be able to trust and rely on are, statistically speaking, much more likely to end up in the youth justice system, and the vast majority of young people who do enter the criminal justice system have had backgrounds of truly horrific abuse and neglect.
We also know — and I have put it on the record here as well — that the human brain does not stop developing until a person reaches the age of 25. As policymakers and authorities, we have choices. We can either respond to young people who commit violent offences, as Parkville College is set up to respond, by looking beyond a person's often very challenging behaviour and working to address whatever deficits each young person may be carrying as a legacy of their past experiences or we can respond with violence of our own, which is likely to entrench whatever feelings of anger, resentment and isolation they are experiencing and which is likely to entrench any violent behaviour that presents as a symptom. My deep and growing concern is that instead of taking Parkville College's approach, which emphasises a therapeutic evidence-based response to challenging behaviour, and threading that right through the youth justice centres, what successive governments have done is to emphasise security and physical infrastructure.
Minister Mikakos has said many times that her decision to propose a new youth justice precinct at Werribee South was based on a review of existing physical infrastructure undertaken by former police commissioner Neil Comrie. That may be so, but unfortunately we have not seen that Comrie report. What we have seen is one report completed by Peter Muir, an external consultant who is a former director-general of the New South Wales Department of Juvenile Justice and a former assistant director-general of the New South Wales Department of Family and Community Services.
The report by Mr Muir that I am referring to was commissioned by Minister Mikakos following a major incident of violence in the Parkville youth justice centre in March last year. Mr Muir's report — at least his second for this minister after he completed an earlier report following violence in September 2015 — is still being kept secret by this minister, but sections of it were leaked to the Age. We know that in May last year Mr Muir wrote:
In this group —
of young people in youth justice centres —
there are high levels of mental health disorders, alcohol and other drug use and cognitive disorders. A further exacerbating factor has been the dramatic increase in the remand population within the Parkville Youth Justice Precinct. Within the last few years, the ratio of 80 to 20 sentenced to remand has flipped to 20 to 80, with the overwhelming majority of clients now being on remand. Remand clients are known for their increasing complexity and challenging behaviours … Their uncertain futures also tend to heighten behaviours.
Further, he concluded:
I believe that there was a rising degree of tension in the precinct over the issue of lockdowns as the result of staffing shortages that was a contributing factor to this incident.
'Lockdown' is usually a euphemism for solitary confinement. This is what actually happened. When the Liberals were in government they took a wrecking ball to the Victorian public service in line with an ideologically driven need to cut the size of government. They paid out a fortune in redundancies in all departments, including in what is now the Department of Health and Human Services, and they lost so much more in the years or decades of senior experience of those who walked out the door forever. So much experience was lost in both operations and the bureaucracy that some remaining employees say that an entire ethos was lost from youth justice — an ethos that prioritised therapeutic intervention over punishment and security.
In the centres themselves, while Mr Lanyon was getting rid of staff who apparently belted kids, the government was actively undermining him by pursuing efficiency dividends, which meant that good staff members were following the bad ones out. It is entirely understandable to me that this whole process provoked a lot of resentment among the staff who stayed; mass redundancies are almost never a good solution to anything, especially not in an area as sensitive as youth justice.
My understanding is that Mr Lanyon saw his role as ushering in a much more evidence-based therapeutic approach to the staffing and management of the youth justice centres. I say with the greatest respect that it appears that whatever was tried, he or the department were not able to foster a working model successfully. I have heard a lot of different things about this, but what seems obvious is that whatever reform was attempted occurred within a silo system. Therapeutic intervention can only be effective if it is a whole-of-system approach, underpinning all operations — it is not just within one isolated segment. For example, in the case of the Parkville or Malmsbury precincts it was used in Parkville College but not in the accommodation units or other divisions. Without a holistic approach underpinning all operations, division and manipulation is bound to occur.
So whatever the case may be, what we do know is that a therapeutic evidence-based approach to the staffing and management of Victoria's youth justice centres has not prevailed. There are lots of labour hire staff who have replaced much more experienced staff members. Many of the floor staff are now basically required to act as little more than security or prison guards — at least that is how they appear to many of the young people. I have heard that there is much less emphasis on staff building rapport with young people, which is actually one of the best protective factors in a youth justice centre.
Instead there is high absenteeism among staff; there is much less experience; there is understandable resentment, given the way restructures have been managed; and there are major staffing shortages. Clearly the current minister has not been able to get on top of these issues in any way during the two years she has had the job. In fact the problems have gotten so much worse. For the young people who are detained in the centres, staff shortages mean one thing: lockdowns and solitary confinement.
It is absolutely shocking and disgraceful that Victorian authorities have been locking children up for 15, 20, 22 and even 23 hours every day for days and even weeks on end. Here is what the United Nations special rapporteur on torture says about the use of solitary confinement on people over the age of 18:
Research further shows that solitary confinement appears to cause 'psychotic disturbances', a syndrome that has been described as 'prison psychoses'.
…
While the acute effects of solitary confinement generally recede after the period of solitary confinement ends, some of the negative health effects are long term. The minimal stimulation experienced during solitary confinement can lead to a decline in brain activity in individuals after seven days.
… lasting personality changes often leave individuals formerly held in solitary confinement socially impoverished and withdrawn, subtly angry and fearful when forced into social interaction. Intolerance of social interaction after a period of solitary confinement is a handicap that often prevents individuals from successfully readjusting to life within the broader prison population and severely impairs their capacity to reintegrate into society when released from imprisonment.
That is how solitary confinement affects adults.
Here is what the special rapporteur concluded in 2011 about the use of solitary confinement on people under the age of 18:
… the Declaration of the Rights of the Child and the preamble of the Convention on the Rights of the Child state that, given their physical and mental immaturity, juveniles needs special safeguards and care, including appropriate legal protection … the special rapporteur holds the view that the imposition of solitary confinement, of any duration, on juveniles is cruel, inhuman or degrading treatment and violates article 7 of the International Covenant on Civil and Political Rights and article 16 of the convention against torture.
The current Minister for Families and Children clearly does not see things this way. It appears she thinks solitary confinement is a solution to staff shortages and challenging behaviours. Then, when the young people at Parkville respond in what Mr Muir described in his May 2016 report as an entirely predictable way to lockdowns in conditions of solitary confinement, Minister Mikakos thought that moving teenagers into the maximum-security unit of an adult prison was a solution to the loss of beds which occurred in November. Then, when the young people at Parkville continued to behave in an entirely predictable way after being kept in solitary confinement for 23 hours every day in Barwon Prison, Minister Mikakos thought that an appropriate response was to send in prison guards armed with weapons, dogs and tear gas.
I think we have got to be highly circumspect about the idea that 'high security' somehow means 'safe' for either young people or staff members. Let us not mistake the concept of stability for security. There is no doubt that young people, particularly with the histories many of them have, need a secure, stable and structured environment, not just to quell some of their destructive behaviours but also to begin to allow the positive relationships they need to begin to heal, something that was a hallmark of the Victorian youth justice system of the past. What is abundantly clear is that punitive measures will not provide the same results.
Let us just reflect for a moment on what has happened in recent times. Despite an increase in security measures at Parkville youth justice centre, including anti-climb protections, we have seen young people continually access roofs and ceilings and cause millions of dollars of damage at Parkville. Despite the fact that Malmsbury Youth Justice Centre is one of Australia's newest high-security facilities, it experienced perhaps Australia's most significant mass breakout in recent years on the day before Invasion Day this year.
Despite the fact that Mr Lanyon and the Department of Health and Human Services could find no facility, other than the Grevillea unit of Barwon Prison, that was secure enough to house the young people who needed to be transferred out of Parkville after the damage in November, we have seen the continuation of major incidents there, including one incident during which a 16-year-old boy suffered broken vertebrae in his back. As I have said, we have already seen the use of tear gas, dogs and weapons by prison staff against these young people, who I understand are still being locked in solitary confinement most of the time.
Minister Mikakos said repeatedly last year that she just did not know what was causing the worsening situation inside Victoria's youth justice centres throughout last year. I cannot know whether that reflects advice she was getting from the Department of Health and Human Services. I do know that Mr Lanyon said exactly the same thing on a number of occasions while he was still director of secure services. But we do know that what was causing the violence or at least contributing significantly to it was the frequent and increasing use of lockdowns and solitary confinement in Victoria's youth justice centres, the use of which in the view of the United Nations amounts to a breach of the convention against torture and just does not work to induce better behaviour among young people and paradoxically creates an even more unsafe workplace for staff.
I do not know what kind of advice the minister has been receiving about this. I know she has essentially stopped listening to the Department of Health and Human Services and she is basically taking her cues from the people responsible for adult prisons, Corrections Victoria, under the Department of Justice and Regulation. We do know that the minister has apparently relied on the report of a former police commissioner in her decision to build a new high-security youth prison. We do know that the minister has rejected at least one, perhaps two, concrete proposals to improve the therapeutic responses for young people exhibiting challenging behaviour in youth justice centres. These are proposals that offer vastly different models to what currently exists in Victoria and have had profound successes elsewhere. They would offer the opportunity to rebuild a broken system based on the evidence of responses that have been proven to work.
We do know that lots and lots of services that work with young people exhibiting challenging and violent behaviours were essentially begging the minister not to make any major decisions before Professor Ogloff and Ms Penny Armytage reported. Despite this, the minister made the most massive decision imaginable, which has probably changed the face of youth justice in this state forever. She has announced that she is severing the all-important administrative link between youth justice and child protection by removing responsibility for youth justice from the Department of Health and Human Services and shifting it to Corrections Victoria.
This has been a really important administrative link in Victoria for decades. In fact, it is in the states and territories which do not have that administrative link — Western Australia, Queensland, New South Wales and of course the Northern Territory — that we have seen most of the really big and violent incidents in youth detention centres around the country in the last few years. In my naivety I believed the minister when she told this Parliament on repeated occasions last year that she was working on improving the department's data linkages between youth justice and the child protection system. It turns out that what she is actually doing is severing them completely.
This administrative separation can in no way improve Victoria's response to young people who commit criminal offences. We need to know a lot more than we do now about how so many people are failed by the child protection system and wind up in the Children's Court and then youth justice centres for offending behaviour. I suspect we will know much less about these links in the future.
The minister has also moved adult prison guards into youth justice centres to ostensibly restore order, with weapons and spray and dogs and strongarm tactics, when it is just as likely that it is this kind of treatment that has contributed to young people's increasingly challenging behaviour over the past 12 to 18 months. And of course the minister has proposed a whole new youth prison at Werribee South, with apparently no consultation with the community, no consultation with services and no consultation with experts.
We do know that the minister is very deliberately using highly inflammatory language in relation to young people. She insists on describing them as the worst of the worst. She has even called them potential rapists on Twitter. She clearly does not care about the mountains of evidence that predicts how describing young people in this way will work in a self-fulfilling way. It will work to confirm young people's sense of themselves as violent, bad people who deserve to be locked up.
We do know that the minister has basically washed her hands of the young people in custody in Victoria. She calls the young people who she has moved to Barwon Prison young offenders, despite the fact that they are pretty much all on remand and have not been found guilty of any offences by the Children's Court yet. She implies that they deserve to be in custody because they are the worst of the worst. She is simply not interested in their welfare, from what I can gather. By extension she is simply not interested in working with them in ways the evidence says will reduce their violent behaviour and reduce the chances that they will reoffend in the future.
I am extremely concerned that what the minister hopes to do with her brand-new youth detention centre in Werribee South is continue down this corrections-driven path of punishment and security, with lockdowns and solitary confinement and prison guards and dogs and spray, but in a much more so-called secure facility that the young people cannot damage when they retaliate. That is why we need to see the full basis upon which the minister made this decision.