David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I, and also on behalf of Senator Cox, move:

That the following matter be referred to the Legal and Constitutional Affairs References Committee for inquiry and report by 26 November 2024:

Australia's youth justice and incarceration system, with particular reference to:

(a) the outcomes and impacts of youth incarceration in jurisdictions across Australia;

(b) the over-incarceration of First Nations children;

(c) the degree of compliance and non-compliance by state, territory and federal prisons and detention centres with the human rights of children and young people in detention;

(d) the Commonwealth's international obligations in regards to youth justice including the rights of the child, freedom from torture and civil rights;

(e) the benefits and need for enforceable national minimum standards for youth justice consistent with our international obligations; and

(f) any related matters.

To be clear, this motion is seeking to refer to the Legal and Constitutional Affairs References Committee an inquiry with a requirement to report by 26 November this year into Australia's youth justice and incarceration system, with particular reference to the outcomes and impacts of youth incarceration in jurisdictions across Australia; the overincarceration of First Nations children; the degree of compliance and non-compliance by state, territory and federal prison and detention centres with the human rights of children and young people in detention; the Commonwealth's international obligations in regard to youth justice, including the rights of the child, freedom from torture and civil rights; the benefits and need for enforceable national minimum standards for youth justice consistent with our international obligations and any related matters.

We have seen so many instances of states and territories permitting their criminal justice system to imprison, in particular, First Nations youth at rates that are shameful. But we've also seen instances of systemic abuse across the entire country. There was a royal commission recently into the Tasmanian treatment of young people, more broadly, and child sexual abuse. Its findings in relation to Tasmania's sole child detention system were so appalling, showing such systemic abuse of young people in that prison: physical abuse, sexual abuse and violence. It is unimaginable that that institution continues, and yet it does.

I'll give you one indication of the horrific nature of that child jail in Tasmania. The evidence was that, when the young girls were being admitted into that detention centre, if they had reached puberty, they were automatically being put on the pill. The system knew that they would end up being sexually assaulted in that place. That facility continues. There has been only one criminal prosecution brought in relation to the systemic abuse identified in that institution in Tasmania. That prosecution was brought against a corrections officer who took his life. There are no active prosecutions despite the appalling nature of the evidence, and that institution continues.

We could go across the country to WA, where the Banksia Hill Detention Centre has been found by repeated Western Australian Supreme Court judgements to be acting in breach of WA laws in the prolonged torture of children. These are repeated findings of the Supreme Court that it's acting unlawfully against somewhat weak existing limitations on detaining children in WA. And the WA government has repeatedly ignored the findings from the WA Supreme Court. As my colleague Senator Cox will make clear, the tragedy, the loss of life, the loss of hope and the brutality of that particular institution identify the systemic unresolved failings in the WA youth justice system.

We could turn our attention to the Northern Territory, where, while we are gathered here tonight in the Senate, I think we can have 99 per cent certainty that every child and every youth who will be jailed tonight under the Northern Territory's detention system, including some that are so notorious—pretty much every child in those children's jails will be a First Nations child. And the Territory government has just been taken by the CLP, who want to lower the age of criminal responsibility and put more First Nations kids in jail.

We could turn our attention to Queensland, where tonight there will be dozens, perhaps hundreds, of kids held in Queensland police watch houses, because they keep putting more and more kids—the majority of them First Nations kids but not just First Nations kids—into the criminal justice system. They've seen an explosion of kids in jail, as a failed way of dealing with concerns about children's behaviour, sometimes criminal behaviour.

In my home state of New South Wales, there are multiple child jails. I visited many of them on numerous occasions when I was a state MP. I've seen the way those detention centres can snuff out hope for young people and drive what is often child removal. It leads to a child being removed from their family. I've seen the failings in the foster care system, or the state care system, where the child has been removed. The child finds themself in juvenile detention, which is a pipeline into the criminal justice system. That system is broken.

What I will say, though, is that there are some lessons to learn from New South Wales. The proportion of kids in juvenile detention in New South Wales effectively halved over the last 12 years. It effectively halved because of a series of measures taken—sometimes against the flow of state politics there—that have seen more kids being found stable accommodation outside of jail. If we look at why kids end up in jail in WA, the Northern Territory, Queensland, New South Wales and Tasmania, often it's because the courts know that there's no safe home for them to go to, apart from jail. The kids spend months on remand. They eventually get sentenced. Often it's a non-custodial sentence. They've been punished largely because there was no home for them.

With all of that happening at the state and territory level, the Commonwealth government has done nothing—absolutely nothing. The federal Attorney-General will occasionally make some sad statement on Twitter to a collection of state and territory leaders. But who has all the international obligations to ensure that children aren't tortured and that the rights of the child are respected, that First Nations' rights are respected and that civil and political rights are respected? Which level of government has all those international obligations? It's not the Northern Territory government. It's not the WA government. It's not the New South Wales government. The international obligations—obligations to prevent torture, for example—all lie with the Commonwealth, and all the Commonwealth ever does is pass that responsibility on to the states. It washes it through the system and passes it through the states and says it's never any of the Commonwealth's business. What we say is that that passing of responsibility, that duckshoving, is failing generations of kids.

We've seen the evidence that states and territories by themselves will not fix the system. Yes, there's marginal improvement in New South Wales, but, even then, the systemic problems remain. The states and territories will not fix this problem by themselves. They've proven that time after time after time.

What this inquiry is calling for is a close examination of the benefits of and the need for enforceable national minimum standards for youth justice consistent with our international obligations, and they are Commonwealth obligations. It's about time the Commonwealth lifted its game.

In the short time that these terms of reference have been available and circulated in the Senate, we did get some suggestions from Senator Thorpe's office to expand them. The suggestions are pretty much already covered by the terms of reference that I've read into the record, particularly that final term of reference, 'any other related matter'.

I also note that this inquiry needs to report by 28 November. It needs to be focused and it needs to deliver a pathway for reform that's going to get some kids, as many kids as we can, out of jail; that's going to push back against the flow of increased incarceration; and that's going to put an obligation on the Commonwealth to do more than just wring its hands. Whilst I fully respect and understand the rationale behind those amendments, they are covered by the existing terms of reference. We already face an enormous challenge in getting this inquiry done in a time that it can be considered by this parliament. I commend the motion.

Dorinda Cox (WA, Australian Greens) Share this | Link to this | Hansard source

As the co-sponsor of this motion, I echo and support my colleague Senator Shoebridge's comments. Time and time again we've seen governments across this country, as Senator Shoebridge said, put out a sad post or a sad Instagram reel talking about the loss of life—in my home state of Western Australia we've lost two children the last two months—to youth incarceration. There has been a flurry of people coming in and out of that state—politicians, former politicians, the previous director-general of corrective services—saying quite publicly that areas like Banksia Hill need reform, that areas like Unit 18 at Casuarina Prison need to be shut down because they are representative of torture.

Children as young as 15 and 16 would rather harm themselves—kill themselves, in fact, by suicide—than be incarcerated or subjected to the torture and trauma in these places. With the death of Cleveland Dodd, the coronial inquest and the harrowing evidence that's already been shared as part of that process, it is beyond time. That a second child died in Western Australia less than two weeks ago means that, as Senator Shoebridge said, the time is up for the wringing of the hands of state governments and territory governments in this country. It is up here tonight.

As a mother of a child—my youngest daughter is 10 years old, and I think about the age of criminal responsibility, which governments in this country would like to lower, and I think about her being incarcerated. I can't remove that level of trauma from my mind. I don't think anybody in this chamber would agree with that. If this was your child, your niece, your nephew, your grandchild, would you want that for them? I hope we see in this chamber tonight an overwhelming amount of support for this motion, because we should. This is the human thing to do. It is with humility that Senator Shoebridge and I have brought this motion forward here tonight. We are frustrated when we hear the constant excuses about why they can't do anything.

We know that 70 per cent of the children that are incarcerated in youth justice—and we can't even use that word because it's not about justice; there is no justice for our children that are incarcerated in this country. Seventy per cent of them are First Nations children, but there are many others—children who are homeless, children who have been in the child protection system, children of migrants and refugees in this country, children who have experienced trauma.

Then we go to the cost. People will often argue with us that this is about a tough-on-crime approach. It costs $1 million per year to keep a child in custody. But we need to have some care and protection for our children in this country when one in six of them is living in poverty.

All of you in this place will sit around and talk about cost-of-living pressures and what it means. But these children and the love, the care and the protection they need is not in an institution. And we have to dismantle that pipeline. That will be your legacy in this place tonight as you vote for this motion. The humanity that you can restore for the future generations of children here in Australia is out here laid bare on the floor for you all, because everybody's watching—those folks watching at home tonight. We know the stories, the media articles that are being shared, about the reintroduction of spit hoods, the deaths of those children in my home state of Western Australia. Yet we will hear politicians provide the lame excuses time after time.

These kids are complex. These kids have disabilities. Well, do you know what? They don't belong in a cage. That's the reality of this situation. Tonight Senator Shoebridge and I bring this motion because jailing is failing in this country. And it's not just a hashtag. This is about our children and the fact that we have the opportunity—the responsibility—to stop youth justice equalling incarceration and jailing the next generation of our children.

Question agreed to.