Legislative Council: Wednesday, November 15, 2023


Young Offenders Act Regulations

Adjourned debate on motion of Hon. R.A. Simms:

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

(Continued from 27 September 2023.)

The Hon. C. BONAROS (17:15): I was not actually anticipating speaking on this—I do not know how that happened—but I rise to indicate that I will not be supporting the motion on the basis of the advice that has been provided to me by the government and particularly the Attorney-General with respect to this issue. I do so on the basis that it is my understanding that notwithstanding any good intent on the part of the honourable member and whether or not you agree with it or not there are also a number of potential unintended consequences. I am sure the Attorney will speak to these shortly.

They have been outlined in a letter that I, at least, have received from the Attorney in recent days. That letter basically spells out, I guess from the government's perspective, the consequences of a disallowance via this instrument, which they describe as a blunt instrument. The reason they do so is that they say we are unable to disallow a single regulation but would have to disallow all of the regulations in their entirety, and there are a number of regulations in the regulations that are the subject of this disallowance motion that, if we were to disallow, would have a number of consequences.

I am going to let the Attorney elaborate on what those consequences are, but as I say we have all had the benefit of that advice. Regardless of whether we agree with the underlying intent of what the honourable member was trying to achieve, my position is that I agree with the Attorney: it is a blunt tool and to disallow the regulations would therefore result in disallowing all of the regulations, which we cannot afford to do.

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (17:18): I rise on behalf of the opposition to voice our concerns regarding the proposed disallowance of regulations, which are crucial regulations that govern our approach to handling young offenders, particularly in regional and remote areas, and to place on the record that we, too, will not be supporting the honourable member's disallowance motion.

I think we need to consider the practical implications of removing these regulations. Regulation 9, the ability to detain youth in police prisons or approved stations in rural areas, should be protected. This is not just a procedural hiccup; it is a matter of public safety and juvenile welfare. By denying local facilities we risk leaving these young individuals without appropriate alternatives, forcing them to travel considerable distances to Kurlana Tapa Youth Justice Centre. This is not only impractical but potentially harmful to the youth involved.

Moreover, in situations where youth are engaged in harmful criminal behaviour, swiftly removing them from the case is crucial. This immediate intervention, often facilitated by local police stations, is not just about youth enforcement but about protecting the community and the youth. The disallowance of these regulations would hinder the ability to make these necessary and immediate interventions.

Disallowing these regulations with a broad stroke could lead to unforeseen consequences. For instance, disallowing regulations 4 to 7 would strip the Training Centre Review Board of vital procedural guidance. Regulation 8's disallowance might leave certain youths inadequately supervised under the terror oversight regime. The absence of regulation 11 would lead to confusion over handling surrendered items, creating legal ambiguities and potential disputes.

It is crucial to understand that disallowing these regulations does not simply tweak the system, it dismantles vital components of it. This is not about being soft on crime; it is about being intelligent and pragmatic in our approach to youth justice. We need regulations that reflect the complexity of these cases, especially in rural and remote areas where resources are already thinly stretched. We must aim for a system that balances the need for justice with the practical realities on the ground, always considering the best interests of the youth and the communities we serve.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:21): I rise to indicate that the government will not be supporting this motion. As other speakers have said, we understand the reasons behind the disallowance motion—and the consistency, I must say, in which the Hon. Robert Simms has approached these issues—but I will outline why the government will not be supporting this disallowance motion.

The Young Offenders Regulations 2023 replace the Young Offenders Regulations 2008 and set out a range of procedural matters to give effect to the scheme of the Young Offenders Act 1993 and facilitate the administration of justice for youths in this state. The government does acknowledge, I think as the Hon. Robert Simms has mentioned in the past, that the detention of children is and should be an option of last resort. This year's Training Centre Visitor Annual Report outlines that no 10 year olds were detained in Kurlana Tapa for a second year and that there was the lowest proportion of 10 to 13 year olds in the daily centre population since the program of reporting began.

Section 15(1) of the Young Offenders Act 1993 provides that if a youth is not granted bail under the Bail Act 1985, the youth must be detained at the Kurlana Tapa Youth Justice Centre. In the event that the youth is arrested in an area specified in the regulations as being more than 40 kilometres from the GPO and it is not practical to detain the youth at Kurlana Tapa, the youth must be detained in a police facility—that is, a police station, lock-up, watch house or police prison. If a youth is detained in a police facility, the person in charge must take steps to keep the youth from encountering an adult detainee. If it becomes reasonably practical to detain the youth at Kurlana Tapa, such as upon arranging suitable transport, there is no power to continue the detention in a police facility.

The regulations were remade as part of the government's regulation expiry program, with input from relevant agencies. I understand, as I have stated before, that the Hon. Robert Simms' primary concern relates to regulation 9, which is the one I have outlined in relation to the 40 kilometres from the GPO and detention of youths in police facilities. However, and I think as the Hon. Connie Bonaros mentioned, if the council supported the disallowance that I understand is the primary concern of the Hon. Robert Simms, the entire set of regulations would be disallowed, as is the way that disallowances proceed.

If the regulations were disallowed, there would be other consequences; for example, regulations 4 to 7, without those there would be no guidance as to meeting procedures for the Training Centre Review Board, no requirement for the registrar at the Youth Court to provide information to the board, and the board would no longer be required to give consideration to recommendations made by the manager of the training centre for conditional release from detention. For the members' benefit, the Training Centre Review Board effectively operates like the Parole Board for youth that are detained.

The disallowance of regulation 8, I am advised, may result in certain youth falling outside the definition of a terror suspect and are therefore not subject to the oversight regime for terror suspects. With no area prescribed by regulation 9, youths cannot be detained at a police facility, and this would particularly be of concern in country or remote locations with significant distances to travel and the ability of youth to be removed from a situation to ensure their safety or the safety of the community.

Without regulation 11 there would be no scheme for dealing with surrendered items, and that may cause disputation. The other legal risk arises in relation to judgements of the Youth Court without these regulations. Again, although I understand and acknowledge the consistency with which the honourable member puts forward issues relating to the detention of young people to this chamber, we cannot support the disallowance of all these regulations.

The Hon. R.A. SIMMS (17:26): I thank honourable members for their contributions to this debate: the Hon. Connie Bonaros, the Hon. Nicola Centofanti and the minister, the Hon. Kyam Maher. I am, however, disappointed that there is not support for this chamber and for this disallowance motion from the Greens. I note the Leader of the Opposition referred to the term 'intelligent and pragmatic solutions'. I do not think locking up children is an intelligent or pragmatic solution—surely we can do better than that.

To briefly draw to the attention of the chamber some key statistics, in 2021 a study from the Australian Institute of Health and Welfare revealed that South Australia detains children at a higher rate than the national average. In 2022, a report from the Commissioner for Children and Young People noted that children were arrested or detained in SA Police cells or watch houses 2,030 times between 2020 and 2021. Of those admissions, 43.8 per cent were Aboriginal or Torres Strait Islander young people.

In 2023, on 21 June, the ABC reported that child detainees were suffering in isolation at Kurlana Tapa Youth Justice Centre. The article stated that children spent 21 consecutive hours locked in cells on 31 May and 1 June 2023. On 3 August, new young offenders regulations were gazetted. A particular concern to the Greens, as the Attorney-General has acknowledged, is regulation 9, which is the regulation that provides that children as young as 10 can be detained in adult facilities if they are taken into custody further than 40 kilometres from Adelaide's GPO.

The government had an opportunity to change those regulations and they have not taken it up, they have not done so. The government's case seems to be, 'Well, if this regulation is removed, then all the others fall away.' Surely, the government can then step in and fill the gap if necessary. I am very concerned about the welfare of these children, and those concerns were only heightened when on 31 October this year the training centre visitor report was tabled in this parliament. I will read from some of those key statistics.

That report showed that in 2022-23, 39 young people under the age of 14 were detained. For the first time since 2019, two 10 year olds were detained, that is, children of primary school age. Ninety per cent of young people detained on an average day were on remand, so only alleged to have committed a crime, and in 2022-23 there was an 11 per cent increase in the number of individual young people admitted compared with the previous year, that is, 324 young people. One in two of those children are First Nations young people (53 per cent) and 25 per cent of young people at the Youth Justice Centre have a known diagnosed disability.

Surely, we can do better by those young people in 2023. Surely, there is a better solution for these young people than locking them up in adult prisons. It is immoral, and I think the government has an obligation to do something about this. The Greens are very concerned that this issue is being pushed off into the never-never. There needs to be action taken on this sooner rather than later, because it is very clear from the reports that have been raised by the Training Centre Visitor that the situation is dire, and we need some leadership from the government on this urgently. I want to indicate to members that I will be calling a division, so that their views are on the public record.

The council divided on the motion:

Ayes 2

Noes 17

Majority 15


Franks, T.A. Simms, R.A. (teller)


Bonaros, C. Bourke, E.S. Centofanti, N.J.
El Dannawi, M. Game, S.L. Girolamo, H.M.
Hanson, J.E. Henderson, L.A. Hood, B.R.
Hunter, I.K. Lee, J.S. Maher, K.J. (teller)
Martin, R.B. Ngo, T.T. Pangallo, F.
Scriven, C.M. Wortley, R.P.

Motion thus negatived.