Simon Ashworth (Partner), Eddie Scuderi (Partner), Jodie Burger (Special Counsel) and Viva Paxton (Lawyer)

Correctional services attracts media headlines, political scrutiny and fierce debate across the nation. With 112 custodial facilities holding over 41,000 people at a cost of approximately $3.7 billion, it’s little wonder there is intense focus in Australia on whether this investment can be justified by the outcomes. More fundamentally, we need to question whether there is any broad consensus within society on what these outcomes ought to be and what level of resources should be expended to achieve them.

So, what can we expect in 2018 and beyond?

A review of key events and challenges in 2017 is a great place to start.

At the start of last year, we were six

into the Protection and Detention of

Children in the Northern Territory (Royal

Commission). We were also recently

recovering from substantial riots in

Victoria’s Parkville youth detention

centre, which ended up costing the

State an estimated $3.3 million.

Victoria was braced for litigation following

its decision to move the Parkville youth

detainees into the freshly-gazetted unit

in the Barwon adult prison. Meanwhile,

Queensland was preparing to move its

17-year-olds from adult prisons into

youth detention centres.

A year of substantial change and

substantial challenges lay ahead.

The Royal Commission took 16 months to prepare its final report into the Protection

and Detention of Children in the Northern Territory. It heard from 214 witness,

conducted 11 case studies and received more than 480 witness statements.

Its findings and recommendations were not altogether surprising – the system has

been in need of immediate reform. Its key observation on youth detention was that

current facilities were designed to “break”, not rehabilitate, young people. Until

the findings were delivered, the Northern Territory has struggled with sentencing

youths. In January 2017, the Chief Justice of the Northern Territory instructed

being put under the spotlight.

The key findings which are likely to shape the near future are:

1 closure of Don Dale Youth Detention Centre and report to the Children’s

Commissioner on the program for that closure to be delivered by 17 February

2018;

2 increasing the age of criminal responsibility to 12 years, and precluding young

people under 14 years from being sent to detention in all but the more serious

circumstances;

3 ensuring that young people are placed in a detention facility closest to their

residence;

4 restrictions on contact with family should be removed;

5 the use of isolation is restricted to limited circumstances, and must never

exceed 24 hours;

6 detention centre staff must have demonstrated experience working with

vulnerable young people, including an understanding of poverty, cultural

identity, mental health and disability;

7 improved record keeping;

8 all children must be able to make complaints to the Commission for Children

and Young People; and

9 improved exit-planning processes, which will be evaluated and reported on in

five years’ (including with attention to rates of recidivism).

In response to these findings, the Northern Territory Chief Minister has already

committed to the closure of Don Dale, $50 million for a replacement facility (or

facilities), and raising the age of criminal responsibility to 12 years. Media attention

has focussed on calls for Aboriginal and Torres Strait Islander organisations to lead

service delivery for vulnerable young people in the region.

Undoubtedly, all States and Territories will now be grappling with the

recommendations in the context of their own jurisdictions, with a view to ensuring

they avoid – as far as possible – the same events that caused the Northern Territory

Royal Commission, and the same issues it has uncovered.

We are likely to see all States and Territories considering the adequacy of their

physical youth detention centres, as well as their models of care and operation, as

well as the minimum age of criminal responsibility and diversion programs.

We are likely to

see all States

and Territories

considering the

adequacy of their

physical youth

detention centres

On 3 April 2017, the United Nations Special Rapporteur on the rights of

indigenous peoples released an end of mission statement, following a twoweek

visit to Australia.

She pointed out that many indigenous children in detention were there for

“relatively minor” offences, and said that:

“It is completely inappropriate to detain these children in punitive,

rather than rehabilitative, conditions. They are essentially being

punished for being poor and in most cases, prison will only aggravate

the cycle of violence, poverty and crime.”

She called on Australia to detain children “only as a last resort”, and to

refocus detention away from punishment and towards rehabilitation.

She commended justice reinvestment programs such as Sydney’s Clean Slate

Without Prejudice Program, a police and indigenous organisation-led initiative

that targets youths at risk of offending and which has seen a reduction in

youth crime in inner Sydney.

threatens the system’s ability to provide safe services. As at June 2017, there

were over 41,000 people in full-time custody, up 1.5% from the quarter before

There has been a 40% increase in the last five years, equating to 11,722

prisoners. These increases are disproportionately attributable to higher

numbers of remand (instead of sentenced) prisoners.

Unsurprisingly, prison capacity has not kept pace with this substantial

demand for beds.

Multiple states report being over capacity. In 2015-2016, Queensland’s high

security prisons were at 115.7%. New South Wales’ secure prisons were at

128.2% and the national average in 2014-15 was 109.3%. The national average

for prison utilisation in 2015-16 was 111.4%.

and progressed in 2017. Early works have commenced on the Grafton New

Correction Centre, with a projected capacity of 1,700, and Victoria’s 1,000-bed

Ravenhall Prison opened in October 2017.

However, until these structures are complete, prisons continue to adopt

temporary measures are likely to place further strain on prisoners and those

responsible for their day-to-day supervision and care.

In August 2016, the South Australian government released its ambitious objective of reducing recidivism by 10% by 2020. In an effort to achieve this target, offenders are required to have management plans which focus on rehabilitation and community integration through the term of their incarceration – not only at the end of it.

prisons pass muster. The New South Wales’ “Better Prisons” project involved

a large-scale benchmarking exercise to improve the performance of its public

prisons, identifying key benchmarks by which its prisons must perform.

Australia’s imprisonment rates continue to rise at a rate that substantially threatens the system’s ability to provide safe services

1. Australian Bureau of Statistics, available at http://www.abs.gov.au/ausstats/abs@.nsf/mf/4512.0

On 15 December 2017, the Australian Government ratified the Optional

Protocol to the Convention against Torture and Other Cruel, Inhuman or

Australian entity or network responsible for inspections (called the

National Preventative Mechanism). Reports have indicated that the National

on States to implement tougher bail and parole laws after incidents of highprofile

deadly crimes committed by persons on bail.

At the same time, it is clear that the rise in prison utilisation is largely

attributable to a significant increase in the number of remand detainees. A

solution to reducing prison overcapacity would be to release many of these

remand detainees into the community, pending their trial.

The Commonwealth, States and Territories continue to struggle with finding

the right balance and high profile incidents tend to upset that balance.

One Queensland solution mooted in the youth justice space has been to

develop “supervised bail accommodation” (or “bail houses”) to keep juveniles

awaiting trial out of detention, but under monitoring conditions. Such a model

would look after youths who would otherwise be at risk of homelessness.

It is clear that the rise in prison utilisation is largely attributable to a significant increase in the number of remand detainees

The Outline Design Brief shows a campus-style facility with activity facilities

such as a swimming pool, sports courts, fitness facilities and spaces for

dancing. It proposes “cottage-style” accommodation with small numbers of

detainees sharing a community-living feel, but with safe spaces for those who

are at-risk or displaying problematic behaviour.

However, the brief was described in evidence to the Royal Commission

as “poorly researched and prepared”, pointing to references to outdated

legislation and failing to properly address the objectives of the facility with an

inmate-focus.

It is likely the vision for the replacement facility will be reviewed and amended

in light of the Royal Commission findings and recommendations.

The Royal Commission has also given extra profile to a series of legal actions

against the Northern Territory government brought by detainees.

while in detention between August 2006 and November 2017. So far, attempts

to settle have been unsuccessful. The Federal Court has also rejected the

governments’ application to have the cases heard separately, finding that the

class action was the only way of ensuring access to justice.

Separately, submissions have been made to the Royal Commission about the

limitation of actions for claims brought by detainees. Currently the limitation

is two months for actions against police and six months against detention

centre authorities, however the Northern Territory Legal Aid Commission is

seeking to have both these limitations changed to three years starting from

the later of release from detention or the claimant turning 18 years old.

It is likely the

vision for the

replacement

facility will be

reviewed and

amended in

light of the Royal

Commission

findings

rioting Parkville youths into a unit of Barwon adult prison for accommodation

while the $3.3 million damage to Parkville was rectified. The Victorian

Government gazetted the unit at Barwon – making it a youth detention facility

– in order to facilitate the transfer.

The decision was challenged and on 21 December 2016, the Supreme Court of

Victoria found that the decision to gazette the unit was made without sufficient

consideration to human rights (under the Victorian Charter of Human Rights,

of which there is no equivalent in any other Australian State). It was found

that the conditions in the Grevillea unit at Barwon amounted to treatment

or punishment in a “cruel, inhuman or degrading way” (section 10(b) of the

Charter), was against every child’s rights to “such protection as is in his or her

best interest and is needed by him or her by reason of being a child” (section

17(2)) and was against the right of every person deprived of liberty to be

“treated with humanity and with respect for the inherent dignity of the human

person” (section 22(1)).

On 23 December 2016, the Court of Appeal ordered the Government to remove

the children and place them in lawful youth justice centres by Christmas. On

24 December 2016, the Victorian government re-gazetted the unit as a youth

justice and a remand centre.

This re-gazettal was subject to legal challenge, with judgment on 11 May 2017

finding the government’s actions (again) unlawful. The judgment noted that

although by the time of the re-gazettal conditions at Grevillea had changed

to some extent, it remained unsuitable for the detention of children. It was

also held that because of the overcapacity in the system, the Department

had determined that a certain number of children had to be transferred to

Grevillea, regardless of its suitability for detaining children.

The government has gone on record that it would “vigorously defend” any

claims for compensation by youths detained at Barwon.

In the wake of the Parkville youth detention centre damage, the Victorian

The location of the centre was originally Werribee South, but was later moved to

Cherry Creek after substantial opposition from the Werribee South community.

It will take the high-risk offenders currently housed at Malmsbury detention

centre, which was designed for low- and medium-risk inmates only.

It is reported that the new centre will have smaller accommodation units

including “cooling-off” spaces and a “low stimulus” room designed in

consultation with mental health and behaviour experts.

2017 has described the system as being in “crisis” and calling for “significant

structural and cultural reform”.

It described that officers were not properly disciplining inappropriate

behaviour and not asserting sufficient control, suggesting that such leniency

can be fertile ground for rioting by detainees.

An independent

review of Victoria’s

youth justice

system released

in July 2017 has

described the

system as being in

“crisis”

Recommendations accepted by the Victorian Government include a new

youth justice system with a modern operating model to better manage youth

detainees, improved workforce capability and additional safety and response

staff, a new risk and needs assessment system to reduce recidivism and

establishing the position of an Aboriginal Liaison Officer.

In May 2017, the Victorian Government established the Fast Track Remand

requires criminal matters in Melbourne’s Children’s Court to be heard within

a maximum of 10 weeks from the date of remand to the date of the contested

hearing, with milestones at the first and second mention between those times.

On 10 August 2017, legislation passed the Victorian Parliament to provide

that it is an offence to possess a drone above or near a prison in a way that

threatens the security of the prison. The offence carries a penalty of 2 years’

imprisonment. Escort officers and police offers are also permitted to order a

person suspected of committing the offence to leave the neighbourhood.

South Australia has also introduced legislation to Parliament to create an

offence of having a drone within 100 meters of a prison, with the maximum

penalty for contravention of $10,000 or two years’ imprisonment. The Chief

Executive may also seize and retain any drones caught within the restricted

space. The legislation is yet to pass Parliament.

New South Wales, Tasmania and Queensland are also reported to be

have not yet introduced any equivalent legislation.

The Children and Justice Legislation Amendment (Youth Justice Reform) Act

also to more strongly punish crimes committed in youth detention facilities.

The amendments include:

court where it considers its sentencing options are inadequate to respond

to the offending;

crime, where crimes are founded on the same facts or are offences of a

same or similar character;

an alternative to detention for youths up to 21 years old;

detention in a youth justice facility;

sentencing;

committing certain serious offences;

Recommendations

accepted by

the Victorian

Government

include a new

youth justice

system with a

modern operating

model to better

manage youth

detainees

to address health, housing, education and employment. The “justice

reinvestment” program was co-designed with Aboriginal and Torres Strait

Islander service providers and community groups.

On 8 December 2017, the ACT Government passed the Inspector of

Corrective Services Act 2017 (ACT), which establishes the role of Inspector of

promote continuous improvement and best practice in corrective services.

In November 2016, the Queensland Parliament passed legislation to provide

that 17-year-olds must not be detained in adult facilities. Previously, it was the

The legislation was expected to come into effect by November 2017, but

this has recently been extended to 13 February 2018. The government has

committed to having all 17-year-olds out of adult detention by that date.

The vast majority of young people in youth detention in Queensland are on

numbers and improve processing times, including:

The transition plan also provides for Queensland’s youth detention facilities to

hold 10 to 13 year olds separated from the 14 to 17-year-olds.

Closely after the announcement of the Northern Territory Royal

Commission, issues in Queensland’s youth detention facilities were exposed

and released to the public (with a number of redactions) on 26 April 2017.

Following advice sought by the Attorney-General about the number of

redactions, a revised version was released with fewer redactions in late

June 2017.

and made 83 recommendations, including those on the use of force and the

discontinuation of the use of security dogs.

The government accepted all 83 recommendations from the report, including

the establishment of an independent statutory Office of the Inspector of

Custodial Services (in a similar form to Western Australia’s).

The vast majority

of young people in

youth detention in

Queensland are on

remand

Queensland has sought to implement the findings of its November 2016

Parole Board Queensland replaced three previous parole boards, and is

mandated to decide applications for parole within 120 (rather than 180) days.

The government has also rolled out the use of GPS trackers to better monitor

released offenders.

In March 2017, KPMG released a report into the Tasmanian prison system,

that 7 prisoners were wrongfully set free in 12 months, as “[t]here is no single

source of accurate, reliable and verifiable data for information used in the

criminal justice sector.”

The Report’s key recommendation was for Tasmania to procure an IT system

that integrates across the prison services, courts and policy, and greater

training of staff. The IT system was due to be upgraded in 2013 but was

suspended due to budget cuts.

In October 2017, Tasmania’s Custodial Inspector tabled a report in Parliament

rehabilitative programs. It is also critical of detention facilities, noting that

many are out of date, don’t have appropriate natural lighting and water,

defective showers and poor access to toilets, and are not suited to Tasmanian

winter.

Tasmania is considering the feasibility of constructing a new prison in the

north, however such a decision is likely to be made after the State election,

which is predicted to be in early-to-mid 2018.

The Report’s key

recommendation

was for Tasmania

to procure an

IT system that

integrates

across the prison

services, courts

and policy, and

greater training of

staff

There have been various reports in the media about proposed reforms

to South Australia’s youth justice system, but none have yet resulted in

legislative change.

In April 2017, it was reported that the South Australian Government was

limiting offences that result in detention and removing fines for those who

cannot afford them.

In May 2017, it was reported that the State Government was considering

years, allowing trials in adult courts from 16 years, and removing the

availability of youth detention for those over 18 years.

So far, none of these policy ideas have been implemented, but we may see

them progressed in 2018.

On 18 October 2017, the government introduced legislation to Parliament to

penalty for contravention of $10,000 or 2 years’ imprisonment. The Chief

Executive may also seize and retain any drones caught within the restricted

space.

The legislation is currently progressing through second reading.

South Australia’s opposition are promising to follow New South Wales in

pushing for particular technology which is able to identify illegal use of mobile

phones, and record information about the attempted contact, such as the

intended recipient.

The State

Government

was considering

increasing

the maximum

detention period

for youths from

three to four years,

allowing trials

in adult courts

from 16 years,

and removing the

availability of youth

detention for those

over 18 years

In June 2017, Western Australia’s Inspector of Custodial Services released a

report into Banksia Hill juvenile detention centre, exposing numerous failings.

The report recommends that youths should be detained closer to home in

After initially rejecting the recommendation, the government is now exploring

ways to make it happen.

It has been reported that the Wandoo Reintegration Facility will be

when the current operating contract expires. This repurposed facility will be

aimed at breaking the cycle of drug and alcohol related crime. The Wandoo

facility is currently operated by private sector company, Serco, and the prison

was described by the Inspector of Custodial Services in January 2017 as a

Whilst the creation of a dedicated facility targeting drug and alcohol addiction is

undoubtedly a positive step, it is unfortunate that it will result in the repurposing

of the facility with reportedly the best prison offender management model in the

State. The redevelopment will cost the State $9.6 million.

When tendering for management of the John Morony Correctional Centre,

New South Wales took the unprecedented step of allowing its internal

department (Corrective Services NSW) to bid alongside three private sector

In May 2017, the government selected Corrective Services NSW, finding that

its proposal would achieve value for money for the State.

More broadly, the New South Wales government looked to its 2 privately

managed prisons to set the standards for its 35 publically managed prisons.

Over the next few years, each public prison will have a set budget and

performance targets appropriate for its size, role, function and security classification.

The privately-operated Junee Correctional Centre has recently announced a $220 million expansion.

The report recommends that youths should be detained closer to home in smaller facilities across the State

The key themes for 2018 can be found in the events, successes and challenges of 2017.

implement the recommendations of the Royal Commission. After Queensland

successfully transitions out its 17-year-olds from adult jail, hopefully by

March 2018, Australia may be able to withdraw its reservation to Article

37(c) of the International Convention on the Rights of the Child, as it will be

compliant with its requirement to have youths in youth facilities.

numbers and recidivism rates. It is unlikely to happen overnight, but may

eventuate after some carefully planned prevention programs and community

reintegration support.

the provision of custodial services. Whilst Wandoo in Western Australian

will revert to public hands at the end of its operating contract, in New South

Wales (Parklea) and Queensland (Arthur Gorrie and the Southern Queensland

Correctional Centre), Governments are expected to retender their operating

contracts to the private sector at the expiry of those contracts.

Responsible age is not yet a legislative trend, as every Australian jurisdiction

still sets the minimum age of criminal responsibility at 10 years. However, the

Commission has called for the age of criminal responsibility to be 12 years,

with detention for those of 12 and 13 years being a last resort. The Northern

Territory has already committed to this course of action, and other States and

Territories may follow.

Finally, if Australia fulfils its commitment to ratify OPCAT, it will put in place

and New South Wales models may have the requisite independence

mechanisms to meet the mark, other States may need to adjust the structure

and reporting of their inspection bodies to meet OPCAT requirements for

genuine independence.

Each State will continue to struggle with overcrowding and capacity issues until one or some of them see a breakthrough in reducing remand numbers and recidivism rates

WWW.CORRS.COM.AU

8 Chifley

8-12 Chifley Square

Sydney NSW 2000

Tel +61 2 9210 6500

Fax +61 2 9210 6611

567 Collins Street

Melbourne VIC 3000

Tel +61 3 9672 3000

Fax +61 3 9672 3010

ONE ONE ONE Eagle Street

111 Eagle Street

Brisbane QLD 4000

Tel +61 7 3228 9333

Fax +61 7 3228 9444

Brookfield Place Tower 2

123 St George’s Terrace

Perth WA 6000

Tel +61 8 9460 1666

Fax +61 8 9460 1667

Level 2, Pacific Place

Port Moresby

National Capital District 111

Pupua New Guinea

Tel +675 303 9800

Fax +675 321 3780