FOREWORD TO
PRIVATISING YOUTH DETENTION
A Publication of the Centre for Public Policy, The University of Melbourne, 1999.
BY THE HONOURABLE JOHN FOGARTY AM,
ADVISORY BOARD MEMBER, THE AUSTRALIAN SECTION OF DEFENCE FOR CHILDREN INTERNATIONAL; FORMER JUDGE OF THE FAMILY COURT OF AUSTRALIA.
INTRODUCTION
I thank the editors for the opportunity to provide an introductory comment to this special issue of their journal. This edition will hopefully stimulate decision-makers
and those who advise them to review the positions they have taken on the unseemly march towards the construction of a new, potentially private, Senior Youth Training
Centre for older teenage boys in Victoria.
As a former judge, I must confess to having a certain attachment to matters of evidence and persuasion. I have always liked to think that policy makers and
advisers, whatever their political colours, hold these values in similar regard. But my confidence has waned considerably since the seminar on 25 February 1999 which
forms the basis of this volume. The Victorian Minister for Youth and Community Services, Dr. Denis Napthine, has promoted the erection of a further detention centre
in a manner that appears to be the antithesis of sound policy development.
[Editorial Note: Following the Victorian election in September 1999, there was a change of government in the State. Dr Napthine is now leader of the Liberal Party in opposition.]
Before explaining why I have come to that conclusion, it is necessary to set out some background matters.
It is the most vulnerable and impressionable of young offenders aged 17 to 20 years under custodial sentence who are sentenced in the adult courts to Senior Youth
Training Centres instead of prison. These centres are operated by the Department of Human Services Victoria under the responsibility of the Minister for Youth and Community Services.
A snapshot of the 100 or so teenage boys in Senior Youth Training Centres, would find that:
- More than half are serving their first sentence of detention.
- Many were previously or still are under the responsibility of the child and adolescent protection services of the Department of Human Services Victoria
due to abuse or neglect.
- Young people with intellectual and/or psychiatric disabilities are relatively common in these centres and at any one time nearly one in ten is under
close staff monitoring due to the risk of suicide or self-harm.
- About eight percent are Aboriginal young people and between one fifth and one quarter are from a non-English speaking background.
- 80 per cent of these young people are in Senior Youth Training Centres due to drug or alcohol related offending.
These statistics speak much about disadvantage, despair and desperation. These older teenagers, now in custody, are as much the legacies of policy and resource
choices made in the past as they are reflections of the present. It is with these young people in mind that two fundamental questions are raised by the current controversy.
There is deep and widespread doubt about the basis for believing that additional custodial beds are needed in the Senior Youth Training Centre system. Those who
know and work with these young people call for a “stocktake” of existing community based programs and resources for this age group and improvements to them, before
moving to build a new facility. In the course of this debate, there has been no challenge to the obvious policy validity of such an approach and no evidence or data
put forward by the Minister to justify the contrary.
The Minister’s position is ironic. Victoria’s juvenile justice measures for 10 to 16 year olds have been the subject of praise. But the resources and strategies
committed to diversion and community supervision programs for 10 to 16 year old young offenders are not matched for 17 to 20 year olds.
It is poor resource and social policy to build new beds before determining whether, and if so how, existing as well as future demand could be reduced by greater
investment at the “front end” of the system. The message is simply sound policy: that Victoria must do its utmost to ensure that rehabilitation happens in the
community rather than in confinement wherever the public good is not compromised. Victorians cannot say that yet and the Minister seems to be avoiding that basic issue.
It is only since the seminar that Dr. Napthine has released the consultancy report upon which he relies for his view that more custodial beds are needed. Ward’s (1998)
report would seem to have been prepared for the Minister’s Department with public monies and bears a January 1998 front page. The seminar was held on 25 February
1999. The delay and timing of its release leads to understandable speculation about the transparency of decision-making based on that report.
With respect to the Minister and those who advise him, I think the report provides evidence that adds considerable weight to the arguments in favour of improving and
evaluating our system’s approach to the 17 to 20 year old offender before we are locked into building custodial beds for young people who could have been diverted from detention.
I note in particular that Ward recorded a number of significant factors in the operation of the criminal justice system which were thought to be placing additional and
unnecessary demands upon the Senior Youth Training Centre system; for example:
- Declining court confidence about what will happen to young offenders in a private prison;
- The reductions in legal aid availability;
- That the sentencing process for 17 to 20 year olds does not necessarily receive the degree or quality of advice and information that is available for
children under 17 years of age;
- That if police prosecutors do not locate and consolidate all outstanding matters at the young person’s initial court hearing, there is a greater chance
of subsequent hearings adding sentence time;
- The need for the same bail support and advocacy for 17 to 20 year olds as is provided in the case of younger offenders;
- The abolition of suspended sentences for drug treatment;
- The need for better feedback to the courts about the availability and outcomes of community-based diversionary options, and trends and developments in the
system. (Ward 1998 at page 38, chapter 4 and section 6.4)
These are profound concerns about the operation of the system. If the purported current or expected demand for custodial beds is due to flaws or shortcomings in
how the criminal justice system operates for 17 to 20 year olds, and Ward’s report suggests this is the case, then logic as well as principle and policy dictate that this
is where the analysis must start.
The consultant’s report is not, however, the full picture. The Criminal Bar Association rightly argues that a sentencing judge or magistrate considers the
option of a sentence to Senior Youth Training Centre detention having regard to what would be provided by a community-based order. It points to a glaring gap in the
youth justice service continuum. Victoria has no specialised community supervision programs for the young offender age group in question, even though by creating the
specialised detention instead of imprisonment option, Parliament has identified 17 to 20 year olds as an age bracket which warrant special measures (Bourke 1999).
There has been no public statement indicating that the Minister has initiated a process to address these matters.
We must never forget that loss of liberty is the most serious sanction of our justice system. For both reasons of principle and wise public expenditure, incarceration is
rightly a last resort. As a “last resort” all steps must be taken to ensure that it is tightly controlled and diversion from incarceration is pursued to the maximum. The
Minister’s apparent failure to make public any steps to redress these system factors raises legitimate concerns, and suggests that the proposed expansion of the Senior
Youth Training Centre system is premature.
Even if a review of the current system still leads to support of the need for additional beds, there is the further question whether government should abdicate its direct
responsibility and substitute private control.
2. If the Senior Youth Training Centre system is to be expanded, should the new capacity be in private rather than public hands?
The second aspect to the current controversy is that a new centre may be built, owned and operated by private corporate interests. The government had hoped that
church-based and non-government agencies would join private consortia. However, the agencies and the Churches have reportedly said, properly in my view, that they will not do so (Pegler, 1999).
The consequences of a private detention facility reach beyond the young offenders directly affected. They raise broader matters of principle about the respective roles
of government and the church-based and non-government service sector (Carney, 1999). There is also the concern that once a privatised facility for 17 to 20 year olds
is created, current Senior Youth Training Centres and also centres holding children as young as 10 years old will follow suit, (Sandor, 1999).
The Minister has asserted that “[t]o exclude the possibility of private and non-government provision before investigating it, as critics have done, is ideologically
blinkered.” (Napthine, 1999). Regrettably, the evidence points the other way.
One must remember that private adult prisons are still merely an experiment in Victoria. They began operating in 1997 and have been the subject of a great deal of
criticism throughout the period since. The experiment is yet to be evaluated in any thorough and transparent way. What we do know about suicide and self-harm in
these Victorian institutions, and the disturbing reports about overseas private operators connected to Australian companies, gives reason for alarm (Gow, 1999; Bourke, 1999).
Community concern has been exacerbated by what has been described as “a damning report into the increasing rates of suicide and self harm in Victorian prisons”
(Brady, 1999). The expert authors had been assured their findings would be made public when they were appointed to the task in September 1998 but the government
initially refused to release the results (Brady, 1999). An edited version was tabled in State Parliament on 11 May 1999 after criticisms by community groups (McKay, 1999).
An expert panel has also been involved with the privatised Senior Youth Training Centre proposal, (Sandor, 1999). When Dr. Napthine announced the establishment
of his panel in December 1998, it was said to have the role of assisting in the investigation of the question of private and non-governmental provision of detention
(Napthine 1998). It transpires, however, that the actual role of the group appears to be to prepare specifications documentation for the tendering process. This is a far
cry from the function that was portrayed to the public.
These events make it difficult to believe that the Minister is genuinely concerned with
“investigating” non-public detention or has an “open mind” (Napthine, 1999). If that were true, it should be unthinkable for the Victorian Government to contemplate
private ownership and operation of youth detention before there has been a proper review of the adult private prison experiment in Victoria and the results have been made public.
CONCLUSION
This edition of Just Policy catalogues profound concerns about current young offender policy directions in Victoria. They are as far reaching as the fundamental
shifts which accompanied and followed the Child Welfare Practice and Legislation Review (1984) conducted during the 1980s. That review was a process of dialogue
and community participation in which one of its goals was to improve our framework for rehabilitating young offenders. The informed criticisms of the authors in this
volume strongly suggest that the Minister has not been pursuing these imperatives.
REFERENCES
Richard Bourke Expansion of SYTC [Senior Youth Training Centres] and Privatisation – The Response of The Criminal Bar Association, 3 March 1999.
Nicole Brady 'Jail deaths report to stay secret' The Age 17 April 1999 at page 2
Terry Carney in this volume.
Child Welfare Practice and Legislation Review (1984) Report – Equity and Social Justice for Children, Families and Communities.
Catherine Gow Reviewing the U.S. Experience in Privatising Juvenile Detention, Paper presented at Privatising Youth Detention : A Roundtable, University of
Melbourne Centre for Public Policy 25 February 1999.
Sandra McKay 'Prisoners at risk in system: report' The Age 12 May 1999 at page 2.
Dr. Denis Napthine ‘How best to deal with young offenders’, The Age 15 March 1999 at page 13.
Dr. Denis Napthine 'Community and Academic Experts to Help Plan New Youth Training Centre', Press Release 8 December 1998.
Tim Pegler ‘Churches to stay out of jails’ The Australian 20-21 March 1999 at page 11.
Danny Sandor in this volume
Lisa Ward Consulting (1998) Demand Projections and Capital Planning for Victorian Juvenile Justice Custodial Facilities.
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