Legislative Council: Wednesday, September 27, 2023



Young Offenders Act Regulations

The Hon. R.A. SIMMS (17:10): I move:

That the general regulations under the Young Offenders Act 1993, made on 3 August 2023 and laid on the table of this council on 29 August 2023, be disallowed.

Members in this place know that the Greens hold grave concerns about the welfare of young people in our criminal justice system. In South Australia, young people from the age of 10 can be remanded in or sentenced to youth detention. A 2021 study from the Australian Institute of Health and Welfare revealed that South Australia detains children at a higher rate than the national average.

Exposure to the criminal justice system can cause cognitive harm to young people and can affect their wellbeing into their adult life. We need to ensure that we protect children from this harm by ensuring that they are kept out of the criminal justice system. The regulations that were gazetted on 3 August this year have raised concerns among organisations that advocate for young people.

Regulation 9 provides that children as young as 10 years of age who are in lawful custody and were taken into custody further than 40 kilometres of Adelaide's General Post Office may be detained in 'a police prison or approved police station, watch-house or lock-up in accordance with those sections'. This means that in cities such as Gawler, Mount Gambier, Whyalla, Murray Bridge, Victor Harbor, Port Lincoln, Port Pirie and Port Augusta, children as young as 10 are being detained in adult facilities—children as young as 10. They do not belong in prison. They belong in school.

In a 2022 report, the Commissioner for Children and Young People noted that children were arrested or detained in SA Police cells or watch-houses at least 2,030 times in 2020 to 2021. Of those admissions, 43.8 per cent were Aboriginal or Torres Strait Islander young people. In some regional and remote locations almost all children arrested and detained were Aboriginal or Torres Strait Islander. So this is a policy that has a disproportionate impact on Aboriginal and Torres Strait Islander people.

The Greens believe that no child should be detained in a youth justice centre, a police prison, a police station, a watch-house or a lock-up. Jailing children sets them on a pathway that results in continuous contact with the criminal justice system. The United Nations Convention on the Rights of the Child sets out binding principles for sentencing juvenile offenders. Article 37 states:

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

Given the terrible damage that detention does to the wellbeing of children, we must ensure that provisions such as these are subject to maximum scrutiny.

On 21 June, the ABC reported that child detainees were suffering in isolation in Kurlana Tapa Youth Justice Centre. The article states that children spent 21 consecutive hours locked in cells on 31 May and on 1 June this year. Training Centre Visitor Shona Reid was quoted in the article, saying:

To be in this tiny little room having nothing but a foam mattress, a shower and a toilet, metal bathroom and a screen that has a couple of channels to watch on TV for 21 hours is something that's really difficult for anybody, let alone kids and young people…to comprehend.

Ms Reid cited staff shortages at the youth detention centre as being one of the issues that is resulting in poor outcomes for children detainees as there are currently 20 vacant staff positions at that centre. How is it acceptable to allow children as young as 10 to be locked up in these facilities?

We need to do better; we are failing our state's most vulnerable young people. We need to be looking at alternatives and considering how we can divert children from the criminal justice system. I welcome the Malinauskas government's indication that it is doing that. I note the reply the minister gave to my question today in this place, where he indicated the government is looking at diversion programs. We welcome that, but they should not be continuing on with these regulations that continue a practice that the Greens regard as immoral.

Instead of introducing regulations that maintain the status quo and continue the jailing of children, we should be implementing these new models and programs that will keep them out of this system. The expiry of the previous regulations have presented an opportunity for the Malinauskas government to improve the conditions for young people who are entering the criminal justice system. Instead, the regulations that were laid on the table in this place have retained the existing provisions and will keep children locked up.

The Greens are moving to disallow these regulations to put the government on notice that this is not good enough. They need to start implementing alternatives to locking up kids. If this place decides that these regulations are to be disallowed, the government will need to go back to the drawing board and try again. That is what we are asking the government to do: create a system that supports getting kids out of the legal justice system instead of perpetuating a cruel system that locks up young people and sets them on a path to crime.

I will be bringing this matter to a vote in coming months so that we can test the position of the parties in this place. It is a moral test, and I really hope that this parliament rises to the occasion and rejects this immoral approach to youth justice.

Debate adjourned on motion of Hon. I.K. Hunter.