Introduction to Volume 5

In accordance with the Order establishing our Commission of Inquiry, Volume 5 examines the Tasmanian Government’s responses to allegations of child sexual abuse at Ashley Youth Detention Centre since 2000. Any references to the Centre’s predecessor—Ashley Home for Boys—are solely to cast light on the present system of youth detention.

Ashley Youth Detention Centre is Tasmania’s primary dedicated youth detention facility. However, it is not the only facility where children and young people are held in detention in Tasmania. Some adult custodial facilities have been declared to be youth detention centres, including Hobart Reception Prison, Launceston Reception Prison and Risdon Prison.1 Children and young people can also be transferred from Ashley Youth Detention Centre to an adult prison facility.

While we have not inquired into the treatment of children and young people in adult custodial facilities, many of the issues raised in this volume will also have implications for children and young people in those settings. We encourage the Government to consider our recommendations broadly and approach implementation consistently in relation to children and young people in all custodial settings in Tasmania.

Under the Youth Justice Act 1997, the Secretary of the government department with responsibility for Ashley Youth Detention Centre is designated as the ‘guardian’ of children in detention and is responsible for the security and management of detention and for the safe custody and wellbeing of detainees.2

There are high rates of sexual abuse for children in detention, making children in detention among the most vulnerable in our community to this abuse.3 We know children in detention have often experienced trauma, maltreatment and significant development disorders, all of which are risk factors for abuse.4 There is also an over-representation of Aboriginal children in detention. Aboriginal children experience heightened vulnerability because of the impacts of intergenerational trauma stemming from the damaging legacy of colonisation.5 The already substantial barriers to disclosing sexual abuse are heightened for children in detention, who some in the community perceive as ‘criminals’.6

The ‘closed’ nature of detention environments compounds these vulnerabilities, creates opportunities for abuses of power and heightens the risk of child sexual abuse. Risk factors for child sexual abuse in detention include:

• the deprivation of children’s liberty and a lack of privacy
• isolation and disconnection from friends, family and community
• lack of access to trusted adults
• the power imbalance between adult staff and detained children
• the use of rigid rules, discipline and punishment
• the lack of voice afforded to children
• cultures of disrespect for, and humiliating and degrading treatment of, children
• strong group allegiance among management.7

Ashley Youth Detention Centre is located in an area that is geographically remote from Hobart, Launceston, Burnie and Devonport, resulting in the isolation of many children and young people from their homes, families, communities and services. This location meant that the widespread and systematic abuse experienced by some children and young people at the Centre occurred away from the public eye. This volume contains harrowing details not only of allegations of child sexual abuse, but of a culture of unauthorised use of force, restraints and isolation and of belittling and humiliating behaviours allegedly used to dehumanise children and young people in detention.

For more than two decades, concerning incidents and risks to children at Ashley Youth Detention Centre have populated the media.8 The Tasmanian Government has been alerted to the risk of sexual abuse for children in state care on many occasions, including through the findings of previous reviews of the Tasmanian statutory child protection and out of home care systems, the National Royal Commission report, and many internal and external briefings, reviews and reports into Ashley Youth Detention Centre. Our Commission of Inquiry uncovered a pattern of the Government either ignoring reviews and recommendations, or implementing them without achieving meaningful or sustained reform.

We know there are current and former staff at Ashley Youth Detention Centre who care about and are committed to supporting the wellbeing of children. We also know that some staff felt, at times, fearful and unsafe in their work and insufficiently equipped or trained to deal with the distressing and complex behaviours exhibited by some traumatised children and young people. Despite these challenges, we found former detainees who spoke positively about the members of staff who were not complicit in harmful and abusive behaviours.

We acknowledge these hardworking and dedicated staff at Ashley Youth Detention Centre who performed to the best of their ability in a highly complex, fraught and difficult environment to meet the needs of children detained at the Centre and to act in their best interests. We appreciate and acknowledge the impact and toll our Inquiry has had on Ashley Youth Detention Centre staff. However, it was critical to the wellbeing of children in detention that we engaged in a comprehensive examination of the conditions at the Centre.

Our examination of Ashley Youth Detention Centre drew from multiple sources of information. We visited the Centre and reviewed thousands of documents. We heard from numerous victim-survivors, who described similar experiences of abuse over different periods—similar to each other and similar to the records we reviewed of critical incidents and complaints. We thank these victim-survivors, without whom we would not have understood patterns of abuse. We recognise others from whom we did not hear personally.

We also heard from former and current staff, and others with experience of the Centre. Some shared their previous efforts to change what was occurring at the Centre, and their deflation and frustration as problems persisted. We are indebted to all those who took the time to share information with us, sometimes at a personal cost. Without some of these witnesses, particularly whistleblower Alysha (a pseudonym), we would not have known where to focus our Inquiry.9

This volume contains three chapters. In Chapter 10—Background and context: Children in youth detention—we describe the background to and context for, our examination of Ashley Youth Detention Centre. We discuss the risks of child sexual abuse in youth detention and the National Royal Commission’s recommendations to address these risks. We then give an overview of Ashley Youth Detention Centre, including the demographics of children in detention and the Centre’s management, staffing, operations, key processes and oversight mechanisms. We also summarise previous reports and inquiries into Ashley Youth Detention Centre.

In Chapter 11—Case studies: Children in youth detention—we present seven case studies that examine:

• the nature and extent of allegations of child sexual abuse at Ashley Youth Detention Centre
• allegations of harmful sexual behaviours and the responses to those behaviours
• unauthorised use of isolation as a common practice
• the excessive use of force
• two examples of how complaints from staff and detainees were managed
• the Tasmanian Government’s response to allegations of child sexual abuse by staff at the Centre.

These case studies illustrate the scale of systematic abuse and an entrenched culture that threatened the safety of children and young people in detention.

In Chapter 12—The way forward: Children in youth detention—we make recommendations to improve the safety and wellbeing of children in detention. Our recommendations are directed at addressing the legacy of abuse at Ashley Youth Detention Centre, achieving lasting cultural change in youth detention, reducing the number of children in detention, addressing the over-representation of Aboriginal children and creating a child-focused detention system where practices such as isolation and the use of force are minimised. We also recommend changes to improve responses to harmful sexual behaviours in youth detention and to strengthen complaints and oversight mechanisms to reduce the risks of child sexual abuse.

A note on language

Children and young people in detention are referred to in different ways, including ‘detainees’ and ‘residents’. In our report, we refer to ‘children and young people in detention’ or ‘detainees’ because we consider this terminology more accurately reflects their situation. Similarly, we tend to refer to ‘cells’ or ‘rooms’ rather than ‘bedrooms’ at Ashley Youth Detention Centre.

In this volume, we use the term ‘Department’ to mean the department responsible for youth detention at the relevant time. From 2000 to 2018, this was the Department for Health and Human Services.10 From 2018, it became the Department for Communities (also referred to as Communities Tasmania).11 In October 2022, the department responsible for youth detention changed to the newly formed Department for Education, Children and Young People.12 Where there is potential ambiguity, we use the full name of the relevant department.

1. Introduction

In this chapter, we discuss the risks of child sexual abuse in youth detention and the recommendations made by the National Royal Commission in response to these risks. We outline the international and domestic rights of, and obligations to, children and young people in detention.

We then focus on Tasmania’s primary dedicated youth detention facility, Ashley Youth Detention Centre, discussing the demographics of children and young people at the Centre; its management, staffing and operations; its key processes in managing children and young people’s behaviour and responding to incidents; and the oversight mechanisms for youth detention.

Finally, we discuss previous reports and inquiries into Ashley Youth Detention Centre and identify common themes that emerged from these reports, including concerns about the treatment of children and young people in detention. We end with some conclusions about a system in crisis.

1. Risks of child sexual abuse in youth detention

It is common for children and young people who have contact with the justice system, including those who are held in detention, to have experienced prior trauma.13 International research shows that many incarcerated children and young people have grown up in the most disadvantaged families, neighbourhoods and communities.14 Also, many have been exposed to violence, abuse or neglect in their immediate social environment, resulting in the involvement of child protection authorities.15

Elena Campbell, Associate Director, Research, Advocacy and Policy at the Centre for Innovative Justice in Melbourne, told us that ‘adverse childhood experiences’, including childhood sexual abuse and neglect, are key drivers of children and young people’s contact with the justice system.16 Ms Campbell noted that more than two-thirds of children in youth justice environments in Victoria had experienced violence, abuse or neglect. Research in Queensland and Western Australia has found that three-quarters of young people in contact with the justice system have experienced some form of non-sexual abuse.17

It is also common for children in out of home care to have contact with the youth justice system. The ‘crossover’ from out of home care to youth detention can be driven by multiple factors, including exposure to peers with difficult behaviours, inadequate carer training, poor placement decisions and poor interagency relationships—all of which create volatile living environments and increase the likelihood of police intervention.18 Under such conditions, events such as ‘underage drinking, smoking marijuana or smashing the wall out of frustration’ that could be minor in nature will often result in children being transferred from the out of home care system into the criminal justice system.19

Research shows that prior maltreatment affects the psychological, emotional and social wellbeing of children and young people in detention and places them at greater risk of ongoing abuse, including sexual victimisation and assault, while in detention.20 The National Royal Commission noted that the combination of several factors may increase the risk of child sexual abuse in youth detention.21 Also, the longer a child or young person stays in detention, the greater the likelihood they will experience sexual victimisation.22

Recent international studies have estimated that about 7 per cent of girls and 6 per cent of boys in detention are exposed to sexual victimisation by peers or staff.23 Studies have also concluded that children and young people who identify as LGBTQIA+ are at greater risk of victimisation than their peers.24

Youth justice centres are characteristically highly controlled institutions that are largely closed off from the outside world; they are also hierarchical institutions, with significant power disparity between staff and the young people who are detained. In ‘total’ or ‘closed’ institutions, such as youth detention centres, there is a greater risk that children or young people are dehumanised and that staff adopt attitudes and practices of punishment and control.25 These factors, in turn, increase the risk of, and opportunities for, the sexual abuse of children and young people.26 Also, as researcher Eileen Ahlin explains:

Unlike adult jails and prisons, where guards and inmates are above the age of 18, youth are poised to experience exploitation or coercion that could be cloaked behind the guise of guardianship.27

The National Royal Commission outlined numerous factors that increase the risk of child sexual abuse in contemporary detention environments and, more specifically, youth detention facilities. These factors may be environmental, operational or cultural, and include:28

• the deprivation of liberty and lack of privacy
• blind spots in building design that impede the visibility of children
• inadequate supervision of staff and inadequate oversight of day-to-day operations
• isolation, lack of access to a trusted adult and disconnection of young people from family, friends, community and culture
• power imbalances between staff and children, including staff control of the day-to-day lives of children
• the use of strict rules, discipline and punishment
• cultures of disrespect for, and humiliating and degrading treatment of, children
• cultures where children’s voices are not encouraged, and their welfare is not prioritised
• group allegiance among staff and among managers.29

We discuss other risk factors for mistreatment of children and young people in detention in Chapter 12.

As part of our Inquiry, we commissioned researchers to engage with Tasmanian children and young people to explore how they perceived safety in institutional contexts, including youth detention.30 Broadly, children and young people identified ‘safe’ institutions as stable and predictable environments marked by the availability of protective adults and peers. Children and young people also associated safety with having some agency over their lives.31

On the other hand, the feeling of being ‘unsafe’ in an institution was commonly linked to experiences or observations of bullying, intimidation and violence.32 Many young people in our commissioned research reported that a major problem with youth detention is the tendency for this environment to be, in the researchers’ words, ‘chaotic, damaged or in disrepair’, lacking privacy and occupied by the kinds of people who would be more, not less, willing to respond to conflict with disproportionate violence.33

Some young people with experiences of detention also told our researchers that separating younger children in detention from older ones would be an effective way to keep young people safe, but this did not occur in detention facilities as a matter of course.34 As one young person put it:

Why put the 13 year old up with all the fucking people that are like 17 and 18 years old? But now they’ve got one little 13 year old in there. He’s trying to get up with all of us and then he says something wrong, and he ends up getting himself bashed.35

Another young person recalled his attempts to avoid victimisation at the hands of other young people in detention by asking staff for help. He said:

I told them multiple times over the years [about being physically assaulted], not just when I was younger … [that] I’ve been bashed by lots of people … They’re like, ‘You’ve been a cunt to us, so why should we protect you?’ … That’s what really pissed me off with the whole centre. They’re supposed to be there, worrying about our safety, but they’re sitting there, and they let us get bashed and stuff. And they sit there and watch you get bashed; they laugh about it. They say “Oh, I reckon you won that fight” or “he won that fight.” What the fuck’s that shit? That’s wrong!36

In other instances, some young people spoke about being assaulted by staff members, often in the context of being restrained or after a critical incident:

I had a few restraints, because I was young, back then I was having fun. Got restrained a heap of times. Got taken to my room. I got bashed multiple times by the staff and just thrown around. Obviously, they had to restrain me, but they’re trained to restrain people in a certain [way] like ... Not sit there and lay knees into you and that, and hit you in the back of the head. And there have been times where they’ve just stripped me of all my clothes and left me in my room and that.37

One young person gave the following account of his treatment by staff in detention:

And even if I had, they’re supposed to put me in a [cell with a camera] and not strip me of me clothes. But they done that anyway. And that was really awkward, having three blokes, they’re looking at you, why? You’re young, naked, standing there. And then making jokes, saying, “Oh, you’ve got a little one, there.” And I’m like sitting there, bawling my eyes out, because I’ve just been fucked up and I’ve just gotten my clothes stripped off, full invasion of your privacy.38

The research we commissioned also identified that some young people who have been detained have experienced or perceived barriers to raising concerns when they were mistreated. These barriers included a fear of retaliation, a reluctance to break the time-honoured prisoner code (sometimes referred to as ‘argot rules’) against ‘snitching’, a lack of knowledge about or access to complaints processes, staff discouragement of making formal complaints and doubts about the confidentiality of any complaint made. Some young people interviewed also felt powerless to challenge staff members’ versions of an event. As our commissioned research reported:

One young person in youth detention described being searched by workers who used significant force that intentionally caused him pain. After saying he would complain about what had happened, the worker replied “Go on do it. No-one is going to believe you”.39

These excerpts offer a small but significant insight into how youth detention environments can place children and young people at risk of abuse.

1. National Royal Commission

Volume 15 of the National Royal Commission’s Final Report focused on institutional responses to child sexual abuse in detention, particularly youth and immigration detention. The National Royal Commission highlighted that the Australian Government, as a party to the United Nations Convention on the Rights of the Child, was responsible for taking ‘all appropriate measures to protect children from all violence, injury, or abuse, neglect or negligent treatment and maltreatment or exploitation, including sexual abuse’.40

The National Royal Commission found that ongoing scrutiny was required for:

• the physical environments of youth detention facilities
• strip searches in detention
• ensuring young people have contact with trusted adults while in detention
• the institutional culture and staffing of youth detention facilities
• the needs of vulnerable groups of children in detention
• complaints handling and reporting processes for child sexual abuse in detention
• preventive monitoring of youth detention facilities
• independent oversight of detention facilities.41

The National Royal Commission made 10 recommendations in its volume on youth detention for implementing the Child Safe Standards; providing expertise in preventing and responding to child sexual abuse as part of Australia’s commitment to ratify the Optional Protocol to the Convention against Torture (discussed in Section 4); reviewing building and design features and relevant legislation, policy and procedures to create a safer physical environment; strategies to respond to children’s different needs, including the cultural safety of Aboriginal children in youth detention; supporting and training for staff; improving complaints handling systems; and independent oversight of youth detention.42 The National Royal Commission also made several observations about improving the safety of children and young people in youth detention. These included:

• ensuring a safer physical environment for children in youth detention by introducing closed-circuit television systems, body-worn cameras and electronic systems that monitor staff movements, noting also the need to protect the privacy of children43
• ensuring clear articulation of the circumstances in which a child can be strip searched, the process for conducting searches, and training for staff and children on what is appropriate and inappropriate when conducting strip searches44
• providing therapeutic treatment to sexual abuse victim-survivors in youth detention45
• providing adequate support and training to staff, including aiming to change attitudes and behaviours46
• avoiding issues regarding poor workforce retention, a casual workforce, staff feeling unsafe and unsupported in a high-pressure environment, a failure to maintain professional boundaries, and poorly defined and articulated roles and responsibilities.47

The National Royal Commission also noted that improving institutional responses to child sexual abuse requires changes to reporting and information-sharing processes to ensure:

• making a complaint is accessible and free from backlash for children and young people through confidential and unrestricted external channels48
• allegations of staff misconduct are reported to child protection authorities and police by heads of institutions49
• records relating to child sexual abuse are held for at least 45 years50
• internal monitoring and evaluation, as well as external and independent oversight, is in place to ensure compliance with policies and procedures.51

Importantly, the National Royal Commission indicated that children are safer in community settings rather than in closed detention settings.52

The Tasmanian Government’s most recent Annual Progress Report and Action Plan in response to the National Royal Commission reports that the implementation of many of these recommendations is underway.53 We explore the need for further reform in Chapter 12.

1. Legislative and other obligations when detaining children and young people

Children and young people in detention have rights that are set out in international and domestic law. Operators of youth detention centres also have duties and obligations, set out in those same laws. These rights and obligations are supported, explained or expanded on in various international and domestic standards and policies produced by governments, child advocate groups and statutory watchdogs.

In this section, we briefly outline the key international and national standards, and then focus on Tasmanian legislation and standards relevant to youth detention. As well as legislation and standards, there are departmental policies and procedures relevant to youth detention. These policies and procedures aim to give effect to obligations under the Youth Justice Act 1997 (‘Youth Justice Act’) and to reflect some of the broader expectations established under international and domestic frameworks. We discuss these policies and procedures throughout Chapter 12.

The United Nations Convention on the Rights of the Child is the key international instrument setting out the rights of children and young people, including their rights in detention.54 This Convention provides an international standard against which the operation of youth detention centres in Australia can be considered and assessed. Upholding these rights protects a child or young person in detention from abuse, including child sexual abuse.

Articles 37 and 40 of the United Nations Convention on the Rights of the Child relate explicitly to youth justice. Article 37 states that detaining a child should be a measure of last resort and that, when a child is detained, the detention should be for the shortest appropriate time.55 Article 40 states that every child who is accused of having infringed penal law should be treated ‘in a manner consistent with the promotion of the child’s sense of dignity and worth’.56

In 2019, the Committee on the Rights of the Child, which is responsible for monitoring the Convention, released General Comment No. 24 on children’s rights in the youth justice system. This comment provides more guidance on how the Convention should be implemented.57

Other relevant United Nations documents include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘Convention against Torture’), the Optional Protocol to the Convention against Torture (‘OPCAT’), the reports of the Special Rapporteur on the right of all to the enjoyment of the highest attainable standard of physical and mental health (‘Report of the Special Rapporteur on the right to health’), the reports of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (‘Report of the Special Rapporteur on torture’) and the United Nations Standard Minimum Rules for the Treatment of Prisoners (‘Nelson Mandela Rules’).58 Paragraph 53 of the 2018 Report of the Special Rapporteur on the right to health states that ‘the scale and magnitude of children’s suffering in detention and confinement call for a global commitment to the abolition of child prisons … alongside scaled up investment in community-based services’.59

OPCAT requires signatory states to establish a system of oversight and regular preventive visits to places of detention by domestic independent bodies known as National Preventive Mechanisms, and to accept visits from the United Nations Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the National Preventive Mechanisms.60 Tasmania was the first Australian jurisdiction to pass a comprehensive statutory framework on OPCAT.61 In late 2021, the Tasmanian Parliament passed the OPCAT Implementation Act 2021 (‘OPCAT Implementation Act’). We discuss the role of the oversight body under the OPCAT Implementation Act—the Tasmanian National Preventive Mechanism—in Chapter 12.

Three more United Nations instruments provide important normative principles on how the rights of children should be implemented in the youth justice system. They are the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the ‘Beijing Rules’), adopted in 1985; the United Nations Guidelines for the Prevention of Juvenile Delinquency (the ‘Riyadh Guidelines’), adopted in 1990; and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the ‘Havana Rules’), adopted in 1991.62

These international laws and standards have been implemented to varying degrees at the national level in Australia. The Australasian Juvenile Justice Administrators (now known as the Australasian Youth Justice Administrators) developed the Juvenile Justice Standards (2009), and the Australian Children’s Commissioners and Guardians issued principles relevant to the conditions of youth detention and the treatment of detained young people in 2017.63 Although these standards and principles are not binding, they provide a reference against which youth detention centre operations in Tasmania can be measured.

In Tasmania, the primary legislative instrument governing youth detention is the Youth Justice Act. The key objectives of the Act include to provide for the safe, therapeutic and secure management of young people held in detention centres; to promote their rehabilitation, including through providing appropriate programs; and to support their reintegration with the community.64 Section 129 of the Youth Justice Act outlines the rights of a child in detention, including the rights to have their developmental, medical, religious and cultural needs met; to receive visitors; and to be able to make complaints. The Act permits the clothed and unclothed searches of detained young

people in some circumstances (sections 25A to 25L), prohibits certain actions in relation to detained young people (section 132) and authorises the use of isolation in some circumstances (section 133).

In 2018, the Tasmanian Custodial Inspector published the Inspection Standards for Youth Custodial Centres in Tasmania, which state that they are based on the principles set out in the Inspection Standards for Juvenile Custodial Services in New South Wales.65 The Custodial Inspector monitors youth detention facilities against these standards. More detail on the Custodial Inspector’s role is in Chapter 12.

1. Strip searches

In this volume, we sometimes use the term ‘strip search’ because this is the phrase victim-survivors used when referring to a search involving any removal of clothing, whether partial or full. However, we note that in the Youth Justice Act and custodial standards and procedures, this practice is commonly referred to as an ‘unclothed search’, with a distinction drawn between partially clothed and fully unclothed searches. In this section, we refer to ‘strip searches’, ‘fully unclothed searches’ and ‘partially clothed searches’, depending on the context.

The 2015 Report of the Special Rapporteur on torture states that strip searches should not be performed on children without ‘reasonable suspicion’, but does not define this term.66 The Nelson Mandela Rules, which cover the treatment of children and adults in prison, state that searches should be conducted in a manner that is ‘respectful of the inherent human dignity and privacy of the individual being searched, as well as the principles of proportionality, legality and necessity’.67 Rule 51 of the Nelson Mandela Rules states that searches should not be used to ‘harass, intimidate or unnecessarily intrude’ on a prisoner’s privacy.68 The rule also states that records should be kept of any searches, with the record including the reasons for the search, the identities of those conducting the search and any results of the search.69

Rule 52 of the Nelson Mandela Rules states that intrusive searches, such as strip and body cavity searches, should be undertaken only if absolutely necessary and conducted in private by trained staff of the same sex as the detainee.70 It also states that body cavity searches should be conducted by a qualified health-care professional or by a staff member who is not primarily responsible for the detainee’s care and who is appropriately trained by a medical professional.71

In Tasmania, the Youth Justice Act regulates searches of children and young people in custody, including at Ashley Youth Detention Centre.72 On 1 December 2022, amendments to the provisions of the Youth Justice Act regarding searches of detained young people came into effect, with amendments including the introduction of sections 25A to 25L.73

Previously, section 131(2) of the Youth Justice Act stated that a detention centre manager could submit a detainee to a search for weapons, metal articles, alcohol, articles capable of being used as weapons, drugs or other prohibited items. They could do this as soon as possible after admission or on returning from a temporary leave of absence from the detention facility, and at any other time when there were reasonable grounds to believe that the detainee may have had contraband in their possession, or, in the manager’s opinion, it was necessary to conduct the search in the interests of security.

As a result of the 2022 amendments, the references to searches being conducted on admission or after temporary leave have been removed. Searches can now only be conducted where the search officer believes on reasonable grounds that the search is necessary for the ‘relevant search purpose’ and the type and manner of search are proportionate to the circumstances.74 Relevant search purposes are set out in section 25F of the Youth Justice Act and include ensuring the safety of the young person or other people, obtaining evidence relating to the commission of an offence or preventing the loss or destruction of evidence, and ascertaining whether the young person has possession of a concealed weapon or drugs.75

A search officer conducting a search under the Youth Justice Act must ensure it is conducted, as far as practicable, in a manner that retains the young person’s dignity and self-respect; minimises any trauma, distress or harm that may be caused to the young person; is the least intrusive search and conducted in the least intrusive manner necessary; is completed as quickly as is reasonably possible; accords reasonable privacy; does not remove more clothing than necessary; and, if clothing is seized, the young person is provided with adequate clothing to wear.76

In determining the least-intrusive type of search that is necessary and reasonable to achieve the ‘relevant search purpose’, the search officer or relevant authorising officer must consider factors such as the health and safety of the young person, their age, intellectual maturity, sex, sexual or gender identity, religion, disabilities, history and any other relevant matters.77

As indicated, the Youth Justice Act does not use the term ‘strip search’ but instead refers to an ‘unclothed search’. The following definition of ‘unclothed search’ was introduced with the 2022 amendments: ‘A search of the youth that requires the youth’s torso or genitals to be exposed to view or the youth’s torso or genitals, clothed only in underwear, to be exposed to view’.78 In contrast, a ‘clothed search’ is defined under the Youth Justice Act as ‘a search (other than a body cavity search) of the youth that is not an unclothed search’.79

Unclothed searches cannot be conducted in a detention centre under the Youth Justice Act unless they are authorised by the detention centre manager or the Secretary of the Department for Education, Children and Young People, and unless the search

is conducted in line with any conditions specified in that authorisation.80 An unclothed search cannot be authorised unless the person authorising the search believes, on reasonable grounds, that:

• the search is necessary
• the type and manner of the search are the least intrusive, proportionate to the circumstances, and necessary and reasonable to achieve the relevant search purpose.81

The Youth Justice Act now also requires a search that involves removing clothing or touching to be conducted by a search officer of the same gender as the young person.82

A ‘body cavity search’ is defined as a ‘search of the rectum or vagina of the youth, but does not include a search of the youth by a scanning device that does not touch the youth’.83 The amendments clarify that body cavity searches are not authorised under the Youth Justice Act in any circumstances.84

Force may be used if it is the only means by which the search can reasonably be conducted.85 In such circumstances, the force must be the least amount of force that is reasonable and necessary to enable the search to be conducted.86

Under the Act, records of searches must be kept in a search register and made available for inspection by oversight bodies such as the Ombudsman and the Custodial Inspector.87

Following the 2022 amendments, the Youth Justice Act now better reflects domestic standards for strip searches.

The Inspection Standards for Youth Custodial Centres in Tasmania, issued in 2018 before the amendments to the Act, state that searches of a young person must be conducted safely, ‘only when reasonable and necessary’ and that they must be proportionate to the situation.88 The Inspection Standards also state that unclothed searches should be a last resort, with pat searches, searches using metal detectors and increased surveillance used before an unclothed search. The Inspection Standards provide that staff should be appropriately trained to conduct searches and that the staff member conducting the search should be the same sex as the young person unless the young person identifies as transgender, in which case the young person should nominate the gender of the person they want to conduct the search.89

Under the Inspection Standards, unclothed searches are not to be routinely conducted on entry and exit to a detention facility where a young person has been in a secure vehicle while off the premises. The Standards confirm that cavity searches should never be conducted.90

Strip searches at Ashley Youth Detention Centre are also guided by internal policies and procedures set by the Secretary of the Department. The Centre’s policies, in line with the Youth Justice Act, do not refer to the term ‘strip search’ but instead refer to an ‘unclothed search’.91 These policies and procedures give effect to obligations in the Youth Justice Act and reflect some of the broader expectations in international law and domestic guidance. We discuss these policies and procedures in detail and make recommendations to strengthen them in Chapter 12.

1. Isolation

General Comment No. 24, issued by the United Nations Committee on the Rights of the Child, states that disciplinary measures such as ‘placement in a dark cell, solitary confinement or any other punishment that may compromise the physical or mental health or wellbeing of the child’ is a violation of Article 37 of the Convention on the Rights of the Child, and is strictly prohibited.92 While not defined in the Convention, ‘solitary confinement’ is understood in international law to mean ‘confinement of prisoners for 22 hours or more a day without meaningful human contact’.93

Specifically on isolation, General Comment No. 24 sets the following standards for solitary confinement and separation practices in youth detention, in the context of Article 37 of the Convention on the Rights of the Child:

Solitary confinement should not be used for a child. Any separation of the child from others should be for the shortest possible time and used only as a measure of last resort for the protection of the child or others. Where it is deemed necessary to hold a child separately, this should be done in the presence or under the close supervision of a suitably trained staff member, and the reasons and duration should be recorded.94

Similarly, the Havana Rules state:

Any disciplinary measures and procedures should maintain the interest of safety and an ordered community life and should be consistent with the upholding of the inherent dignity of the juvenile and the fundamental objective of institutional care, namely, instilling a sense of justice, self-respect and respect for the basic rights of every person.

All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited including … placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned.95

The link between solitary confinement or segregation practices and poor physical or mental health is recognised in several international instruments. Article 19 of the Convention on the Rights of the Child requires that signatories take steps to protect children from, among other things, ‘mental violence’ while in the care of a legal

guardian.96 General Comment No. 13, issued by the United Nations Committee on the Rights of the Child, provides that, in this context, ‘mental violence’ can include ‘[p]lacement in solitary confinement, isolation or humiliating or degrading conditions of detention’.97

The 2015 Report of the Special Rapporteur on torture has stated that solitary confinement of any duration ‘constitutes cruel, inhuman or degrading treatment or punishment or even torture’.98 The report recommended that solitary confinement of children in detention (of any duration and for any purpose) be prohibited.99 The negative mental impact of solitary confinement was reiterated in the 2018 Report of the Special Rapporteur on the right to health.100

In Tasmania, section 133(1) of the Youth Justice Act defines isolation as ‘locking a detainee in a room separate from others and from the normal routine of the detention centre’. Section 133(2) of the Act states that a detention centre manager may only authorise isolation if a detainee’s behaviour poses an immediate threat to their own safety, that of another person or property and all other reasonable steps to prevent the harm or damage have been unsuccessful, or if it is in the interest of the security of the centre.101

Under the Act, reasonable force may be used, if necessary, to place a young person in isolation.102 When in isolation, the young person must be ‘closely supervised and observed’ at intervals of no longer than 15 minutes.103 The detention centre manager must also ensure the particulars of every use of isolation are recorded in an isolation register.104 The period of isolation must not contravene any instructions issued by the Secretary of the Department.105

The Inspection Standards for Youth Custodial Centres in Tasmania provide that if it is necessary for a young person in detention to be placed into ‘separation, segregation or isolation’ for their own safety, the safety of others or for the good order of the detention centre, such actions should be:

• for the ‘minimum time necessary’
• only used when all other means of control have been exhausted
• recorded accurately in a separation and segregation register, including details of the young person’s routine while in isolation.106

In line with international obligations, the Inspection Standards suggest that staff closely supervise young people during isolation episodes.107 The Inspection Standards also state that isolation should take place under conditions providing ‘not less amenity than normal accommodation’, except where a young person presents a serious risk of suicide or self-harm.108

The use of isolation at Ashley Youth Detention Centre is also guided by internal policies and procedures set by the Secretary of the Department. These policies and procedures are intended to give effect to the Youth Justice Act obligations and to reflect some of the broader expectations in international law and domestic guidance. We discuss these policies and procedures in detail in Chapter 12.

1. Use of force

International law prohibits the use of restraint or force against young people in detention, except in exceptional circumstances. Both the 2019 General Comment No. 24 and the 2015 Report of the Special Rapporteur on torture state that restraint or force can only be used against a child in detention if that child poses an imminent threat of injury to themselves or others and only when all other means of control have been exhausted.109 General Comment No. 24 also states that prison staff should be adequately trained in the use of force, and that force should never be used as a means of punishment:

Restraint should not be used to secure compliance and should never involve deliberate infliction of pain. It is never to be used as a means of punishment. The use of restraint or force, including physical, mechanical and medical or pharmacological restraints, should be under close, direct and continuous control of a medical and/or psychological professional. Staff of the facility should receive training on the applicable standards.110

General Comment No. 24 also provides that states should record, monitor and evaluate all incidents of restraint or force used on children in detention and that those who violate these rules should be punished.111

These principles are reflected in a range of other international instruments including the Havana Rules and the Nelson Mandela Rules.112 These instruments describe best practice in relation to the use of force on detained young people as follows:

• The use of force is only permitted when it is strictly necessary—that is, where the child poses an imminent threat of self-harm or injury to others—and where other methods of control have been exhausted.113
• When the use of force is deemed strictly necessary, it must be used:
  • for the shortest possible time or a limited time114
  • without causing humiliation and degradation115
  • by properly trained staff116
  • only in self-defence, in response to attempted escape or in response to active or passive physical resistance.117

In Tasmania, section 132 of the Youth Justice Act prohibits the use of physical force against young people in detention unless the force is reasonable. The use of force must also be necessary to prevent the detainee harming themselves or anyone else, or damaging property, necessary for the security of the centre or otherwise authorised.

The Inspection Standards for Youth Custodial Centres in Tasmania provide that force must only be used ‘when it is necessary to prevent an imminent and serious threat of self-harm or injury to others, and only when all other means of control have been exhausted’.118 The Inspection Standards also state the following:

• The use of force must only occur for ‘the shortest time required’.119
• Force should never be used as punishment or to obtain a young person’s compliance.120
• Force should never be used in a way that causes humiliation or degradation.121
• All instances of the use of force should be recorded, investigated and reported.122
• Cameras should be used to record planned interventions involving the use of force.123
• A young person who has been subjected to a use of force should be provided health care following the incident.124

The Inspection Standards require that any use of force involve only approved techniques and restraints and that the young person should be given an opportunity to speak with staff not involved in the incident following the use of force.125

The use of force at Ashley Youth Detention Centre is also guided by internal policies and procedures set by the Secretary of the Department. These policies and procedures are intended to give effect to the Youth Justice Act obligations and to reflect some of the broader expectations in international law and domestic guidance. We discuss these policies and procedures in Chapter 12.

1. Punishment, intimidation, humiliation, physical or emotional abuse, discrimination

As a party to the Convention against Torture, Australia is obligated to take effective legislative, administrative, judicial or other measures to prevent acts of torture. The Convention against Torture defines torture as any act by which severe physical or mental pain or suffering is intentionally inflicted to punish, intimidate or coerce, or for any reason based on discrimination of any kind.126 It occurs when inflicted by, or instigated with the consent or acquiescence of, a public official.127

Under the Havana Rules, all disciplinary measures constituting cruel, inhuman or degrading treatment are strictly prohibited, including corporal (physical) punishment or any other punishment that may compromise the physical or mental health of the juvenile concerned.128

In Tasmania, section 132 of the Youth Justice Act also prohibits corporal punishment that inflicts or is intended to inflict physical pain or discomfort as punishment; the use of any form of psychological pressure intended to ‘intimidate or humiliate’ the detainee; the use of any form of physical or emotional abuse; and the adoption of any kind of discriminatory treatment.

The Inspection Standards for Youth Custodial Centres in Tasmania state that no young person should experience disadvantage, discrimination or abuse while in custody.129 Standard 8.6 covers behaviour management systems and states that rules must be applied fairly and consistently without discrimination. Standard 8.10 states that young people, staff and visitors understand that bullying and intimidating behaviour are not acceptable.130

1. Understanding the youth detention context in Tasmania

1. An overview of Ashley Youth Detention Centre

Ashley Youth Detention Centre is Tasmania’s primary dedicated youth detention facility.131 After a refurbishment in 2022, Ashley Youth Detention Centre can accommodate up to 40 young people across five accommodation units at any given time.132 The Centre is managed by the Department for Education, Children and Young People (formerly the Department of Communities) under the Youth Justice Act.133 We outline the management, staffing and operations of Ashley Youth Detention Centre in Section 5.3.

The Centre is in regional Tasmania near the town of Deloraine, which has a population of about 6,000 people.134 Deloraine is about 50 kilometres from Launceston and Devonport, and more than 200 kilometres from Hobart. During our Inquiry, we became aware that the geographical remoteness and isolation of the Centre may contribute to unfavourable outcomes for the young people detained there; for example, some young people cannot access the services required to support their complex needs. In many instances, family members, cultural support people, specialists (including medical practitioners, psychologists and alcohol and other drug support services) must travel from Hobart, Launceston or Melbourne to deliver services to young people at the Centre.135

An assessment of the Centre commissioned by the Tasmanian Government in 2016 concluded that the location of Ashley Youth Detention Centre ‘makes it difficult to deliver a throughcare approach, which builds on pro-social relationships with a young person’s family, community and service providers’.136

Ashley Youth Detention Centre operates on the site of the previous institution known as Ashley Home for Boys.137 Ashley Home for Boys transitioned to a secure youth detention centre for males and females aged between 10 and 18 years on 28 June 2000.138 Allegations of physical, sexual and emotional abuse made by former residents of Ashley Home for Boys have been the subject of a Tasmanian Ombudsman review, resulting in compensation and a State Government apology in 2005 to former wards of the state abused in care.139 Some staff from Ashley Home for Boys continued to work at Ashley Youth Detention Centre once it opened and remained working there for many years.140 Also, several current staff have been working in Ashley Youth Detention Centre since the early 2000s.141 We discuss concerns about the culture and operations of Ashley Youth Detention Centre over the past two decades in Section 6 and throughout Volume 5.

1. Children and young people at Ashley Youth Detention Centre

1. Demographic profile

According to data published by the Australian Institute of Health and Welfare, on an average day in 2021–22 there were eight children and young people aged 10 to 17 years in detention in Tasmania and, of these, six were on remand.142 The average length of time young people spent in detention during the year in Tasmania in 2021–22 was 72.5 days.143 As with other jurisdictions, Tasmanian legislation requires that detention of children and young people should be a last resort and for the shortest time necessary.144

Hannah Phillips, a lawyer with experience working with youth in the Tasmanian justice and child safety systems, told us that children and young people are often detained on remand because they have nowhere else to live while their charges are being processed by the court.145 Ms Phillips said that common factors associated with remanding rather than bailing children and young people include the lack of a fixed residence, the absence of family support (including kinship support) and appropriate supervision, the instability or breakdown of out of home care placements, and the presence of undiagnosed mental health issues or disability that has led to the offending behaviour.146 Ms Phillips told us that many young people who have contact with the justice system ‘live on the street or couch surf’ due to limited stocks of immediately available housing or emergency accommodation for young people.147 She noted ‘a magistrate or Justice of the Peace is rarely going to bail a young person without a stable address’.148

Vincenzo Caltabiano, former Director of Tasmania Legal Aid, told us this situation ‘leads to a greater number of the most vulnerable children being remanded in custody and exposes them to the adverse impacts of detention’.149

Mark Morrissey, former Commissioner for Children and Young People, observed that children and young people detained at Ashley Youth Detention Centre:

… often have serious psychological or emotional damage and issues, brain injury due to childhood trauma or conditions such as fetal alcohol spectrum disorder (FASD), family violence, chronic neglect, failed attachment and developmental delay.150

On an average day in youth detention in 2021–22, Aboriginal children and young people aged 10 to 17 years accounted for 44 per cent of the detention population in Tasmania for that age group, despite only comprising about 10 per cent of the total Tasmanian population aged 10 to 17 years.151 The impacts of colonisation, including poverty and disadvantage, have continued to drive the over-representation of Aboriginal children in detention.

Although the Tasmanian Youth Custodial Information System does not capture information about young people with disabilities in detention, broader data suggests that adults and young people with mental and cognitive disabilities are over-represented in detention settings.152 We heard that ‘significant mental health problems’ and previously unknown or unaddressed disability-related need are often not identified until children are in detention.153 Ms Phillips questioned the adequacy of Tasmania’s mental health system, particularly the absence of a dedicated facility for young people experiencing mental health issues and complex behaviours.154 Ms Phillips observed that ‘Ashley Youth Detention Centre is used to manage behaviour and address immediate risk rather than address[ing] the underlying issues’ that contribute to a young person’s offending.155

There are significant behaviour and learning challenges in the cohort of young people at Ashley Youth Detention Centre.156 The Ashley School Principal, Samuel Baker, told us that the literacy and numeracy skills of students at the school are, in general, ‘many years behind their peers in the community’, predominantly due to socioeconomic disadvantage and having missed significant amounts of schooling.157

Data provided by the former Department of Communities indicates that 43 per cent of all young people in detention in Tasmania in 2020–21 had also been in out of home care.158 Recent research indicates that, for young people with cognitive disability and complex support needs, the association between involvement in child protection and the justice system is particularly strong.159

1. Ashley Youth Detention Centre, reoffending and Risdon Prison

We heard that a high number of children cycle in and out of Ashley Youth Detention Centre in a relatively short period. Mr Caltabiano told us that more than 50 per cent of children aged between 10 and 16 years return to the Centre within 12 months of their release.160 He observed that, ‘like detention and imprisonment for adults, detention for children tends to contribute to a cycle of recidivism and then institutionalisation’.161

Ms Phillips described a tendency for some young people in Tasmania to view Ashley Youth Detention Centre as a viable alternative to life outside. She told us that detention could provide a sense of belonging for the most disadvantaged young people in Tasmania, where ‘they do not have to worry about drug debts, a household where there is family violence, or how they are going to get food every day’.162 Ms Phillips referenced one young person who asked for his bail to be revoked because ‘he wanted to go to school where he did not feel different’ and because ‘he did not feel he could avoid getting into trouble where he lived’.163 Ms Phillips noted that, in the absence of structure, family support, routine and the services and infrastructure known to enhance social inclusion and personal opportunity, it is virtually impossible for some young people to imagine living in conventional and prosocial ways.164

We also heard about the correlation between children who are detained at Ashley Youth Detention Centre and their incarceration as adults at Risdon Prison.165 Ms Phillips told us that she continues to represent many adult clients for whom she acted when they were children.166 The frequency of this phenomenon has led Ms Phillips to refer to Ashley Youth Detention Centre as ‘the kindergarten for Risdon Prison’.167 She told us that incarceration at Risdon Prison is ‘an expected course’ for some young people.168

Mr Morrissey similarly referred to the Centre as a ‘conduit’ for an adult criminal career. He highlighted the tendency for highly vulnerable young people to establish criminal networks in the Centre, which they maintained on release.169 Professor Robert White, Emeritus Distinguished Professor of Criminology, University of Tasmania, described the incarceration of children and young people in detention centres and prisons as contrary to the rehabilitative and restorative ideals that are commonly associated with youth justice:

If you put somebody into, say, a youth prison, there is a whole bunch of things that accompany that, detachment from home, from school, a whole bunch of things, but also the stigma that’s attached to spending time inside, all [of] that then generates a track record which makes it more difficult for young people to succeed into the future and a similar process with the adult prisons, as well.170

1. Management, staffing and operations of Ashley Youth Detention Centre

In July 2018, the department responsible for Ashley Youth Detention Centre changed from the Department of Health and Human Services to the Department of Communities.171 At this time, responsibility for administering the Centre sat with the Children and Youth Services division of the Department of Communities.172 In October 2022, the Department of Communities was folded into the Department for Education, Children and Young People, which has overall responsibility for the health, safety and welfare of children and young people in detention at Ashley Youth Detention Centre.173 As noted in the introduction to this volume, we use the term ‘Department’ in this volume to mean the department responsible at the relevant time for youth justice, with the specific department noted where required for clarity.

1. Management

The Secretary of the Department is responsible for the security and management of Ashley Youth Detention Centre and the safe custody and wellbeing of children and young people in detention.174 From 2000, when the Centre was established, until October 2022, the Secretary delegated the power to issue instructions concerning the management of the Centre and the safe custody and wellbeing of children and young people in detention to the Deputy Secretary, Children, Youth and Families and the Director, Youth and Family Violence Services, although the Secretary still held ultimate responsibility.175 Before October 2022, the Deputy Secretary reported directly to the Secretary of the Department and the Director reported to the Deputy Secretary, Children, Youth and Families.176

Before October 2022, the Director, Youth and Family Violence Services, also known by other titles including Director, Services to Young People and Director, Strategic Youth Services, was the senior executive in the organisational structure of Ashley Youth Detention Centre, but was not based at the Centre.177 We have elected to refer to this role as Director, Strategic Youth Services. Previously, this position oversaw other areas in the family violence and youth justice portfolio, but, in early 2022, oversight of Ashley Youth Detention Centre became a dedicated role.178 In August 2022, the newly created position of Executive Director, Services for Youth Justice became responsible for Ashley Youth Detention Centre. This position reports to the Associate Secretary of the Department for Education, Children and Young People.179

Before the October 2022 restructure, the Manager, Custodial Youth Justice (‘Centre Manager’) reported to the Director, Youth and Family Violence Services.180 The Centre Manager was responsible for managing the day-to-day operations of the Centre, developing and leading a management team, and providing direction for programs at the

Centre.181 As of May 2022, there were four direct reports under the Centre Manager—an Assistant Manager for Operations; a Manager, Professional Services and Policy; a Fire, Safety and Security Coordinator; and a Practice Manager.182

The general hierarchy has been in place at Ashley Youth Detention Centre since at least 2007, with some changes over time to specific reporting lines and roles. This hierarchy has the Secretary of the Department ultimately responsible for Ashley Youth Detention Centre, the Director level and above located in the Department, a Centre Manager at the Centre, and two streams (Operations and Professional Services) in the Centre.183

1. Staffing and operational structure

In this section, we outline the operational structure of Ashley Youth Detention Centre in broad terms, noting that the structure has changed over time. As noted, since at least 2007, the Centre’s organisational structure has been primarily divided between Operations and Professional Services staff, with each cohort reporting to the Centre Manager.184

Ashley Youth Detention Centre’s Operations Team works in the residential units and provides the day-to-day supervision, support and care of young people.185

The Operations Team includes:

• the Operations Manager, who manages the day-to-day operations of Ashley Youth Detention Centre and leads the Operations Team
• Operations Coordinators, who oversee the delivery of services to young people and coordinate and supervise youth workers
• youth workers, who assist in the daily operation of residential units and supervise and support young people attending programs and activities or taking part in daily routines.186

We understand that Operations staff work in fixed teams with an Operations Coordinator and multiple youth workers per team, and that teams are established with staff skills, gender and experience in mind.187

Stuart Watson, Manager, Custodial Youth Justice (‘Centre Manager’), told us that the Operations Team, specifically the youth workers:

… represent a parent-like person who assists the young people to meet their daily goals, including making their beds, cleaning, laundry, pro-social conversation and recreational activities such as playing cards or kicking the football.188

Operations staff also supervise offsite excursions and may engage in behaviour management actions such as restraining a young person where required.189

The Professional Services and Policy team was a multidisciplinary team that supported the development, review and implementation of relevant policies, procedures and programs.190 The team also provided case management and therapeutic supports to young people.191 It led the development of case or care plans and exit plans, undertook case conferencing and managed referrals to other services in the community.192 It also advised, developed and delivered training to the Operations Team, including on behaviour management strategies.193 Today, the team is known as ‘Ashley Team Support’ and it conducts similar functions. For the purposes of our report, we refer to it as the ‘Professional Services Team’.

The Professional Services Team includes:

• the Manager, Professional Services and Policy, who leads the development, review and implementation of practice standards, policies, procedures, programs and case management strategies, and manages and supervises some, but not all, Professional Services staff
• the Policy and Program Support Officer, who oversees programs and services to young people and provides policy advice on restorative justice and therapeutic responses
• the Practice Manager, who leads, supervises and mentors Operations staff and the Training Coordinator, and leads the development and evaluation of learning and development programs at the Centre
• the Training Coordinator, who develops, implements and evaluates staff training and professional development
• the Program Coordinator, who coordinates and facilitates program delivery, in conjunction with Ashley School
• the Case Management Coordinator, who maintains the case management system at Ashley Youth Detention Centre and provides direction, support and supervision to staff involved in case management
• the Case Management Officer, who assists with the provision of case management services.194

We have not received an updated organisational structure for the internal Ashley Youth Detention Centre management since the October 2022 restructure, although we have noted the creation of new positions in our discussion of the Keeping Kids Safe Plan in Chapter 12.

The conduct of staff at Ashley Youth Detention Centre is governed by standard operating procedures, which cover topics as diverse as the supervision and movement of young people, admissions, isolation, use of handcuffs, health care and searches of children and young people.195

Other Tasmanian government departments provide healthcare and education services to the children and young people detained at Ashley Youth Detention Centre.

1. Healthcare services

Correctional Primary Health Services and Ashley Youth Detention Centre work together to assess the physical and mental health status of young people in custody; deliver appropriate health services for young people; offer timely responses and treatment; and provide appropriate referrals and access for specialised assessment and treatment.196 They also share responsibilities for the care of young people with physical and cognitive disabilities.197

Michael Pervan, former Secretary of the Department of Communities, told us that the Department of Health, which was ‘independent’ of the former Department of Communities’ organisational structure, was responsible for staffing, supporting and running the general health service provided to young people at Ashley Youth Detention Centre.198

Correctional Primary Health Services has overseen Ashley Youth Detention Centre’s Health Team since 2011.199 Correctional Primary Health Services sits in the Department of Health, under the umbrella of Statewide Mental Health Services.200 In conjunction with its role at the Centre, Correctional Primary Health Services provides services to Risdon Prison, Hobart Reception Prison and Launceston Reception Prison.201 Correctional Primary Health Services is under the management of the Group Director of Forensic Mental Health and Correctional Primary Health Services (‘Group Director’).202

Health practitioners at the Centre are employees of (or are otherwise engaged by) the Department of Health.203 Members of the Centre’s Health Team do not report to Ashley Youth Detention Centre management or the Department for Education, Children and Young People, but to officials in the Department of Health.204 Health Team members are also subject to relevant Department of Health legislation, policies and procedures.205

This organisational separation is reflected in a memorandum of understanding between the former Department of Communities and Correctional Primary Health Services, dated May 2021, which is in place until February 2026.206 The Group Director told us that a memorandum of understanding in some form has been in place since 2011, when health services at Ashley Youth Detention Centre were transferred to Correctional Primary Health Services.207

We understand that the memorandum of understanding is reviewed annually. It states that the role of Correctional Primary Health Services at Ashley Youth Detention Centre is to provide:

• primary health and mental health care and treatment
• specialist referrals
• specialist mental health care and treatment
• initial treatment for Centre staff who are injured at work.208

The specific services to be provided by Correctional Primary Health Services are outlined in a schedule to the memorandum of understanding.209

While the Department of Health plays a central role in delivering healthcare services at Ashley Youth Detention Centre, Secretary Pervan confirmed that the former Department of Communities retained the ‘overall responsibility’ for the health, safety and welfare of young people at the Centre.210 This is reflected in the memorandum of understanding.211

Importantly, the memorandum of understanding sets out that Ashley Youth Detention Centre is responsible for:

• providing timely referrals to clinicians for health assessments according to existing policies
• facilitating transports and escorts to enable residents to attend appointments with health service providers in the Centre and externally
• providing Correctional Primary Health Services with information that will facilitate the ongoing health management and care of residents.212

The Health Team at Ashley Youth Detention Centre is made up of nursing staff, medical officers (doctors) and mental health professionals. Nursing staff appear to provide the bulk of healthcare services at the Centre. The Nurse Unit Manager is responsible for health services operations and is employed for 0.5 full-time-equivalent hours (working a further 0.5 full-time-equivalent hours at Launceston Reception Prison).213 The Nurse Unit Manager is on site at Ashley Youth Detention Centre most days and provides on-call assistance and shift cover as required.214 Any on-call assistance provided by the Nurse Unit Manager is unpaid.215

The Nurse Unit Manager oversees registered nurses who provide services on site.216 There is one registered nurse at the Centre for 12 hours a day, seven days a week, between the hours of 7.00 am and 7.00 pm (in addition to the Nurse Unit Manager).217 Outside those hours, a nurse is available on call.218

Nursing staff at Ashley Youth Detention Centre report to the Department of Health. The Nurse Unit Manager and registered nurses report to the Assistant Director of Nursing at the Department of Health, who reports to the Director of Nursing for Forensic Health Services (‘Director of Nursing’), who in turn reports to the Group Director.219

The Nurse Unit Manager and registered nurse on shift are stationed in an area known as the ‘health corridor’ or ‘health centre’ at Ashley Youth Detention Centre.220 In that area, there are two offices, a consultation room, a treatment room and a secure pharmaceutical storage area, with a medicine administration hatch.221 Most treatments and consultations take place in the health centre, but treatment can be provided elsewhere at the Centre if required—for example, in the gym or in the young person’s unit.222

A medical officer is employed at 0.2 full-time-equivalent hours at Ashley Youth Detention Centre and is supported by on-call medical officers for after-hours attendances.223 The medical officer provides consultative assistance to nursing staff, including by prescribing medication. As with other health staff at Ashley Youth Detention Centre, medical officers are employees of the Department of Health and report to the Clinical Director, Correctional Primary Health Services.224 The Nurse Unit Manager told us that medical officers are only on site at Ashley Youth Detention Centre for two hours a week.225

Regarding mental health support, a ‘forensic’ or ‘clinical’ psychologist is usually employed by the Department of Health for 1.0 full-time-equivalent hours.226 The psychologist reports to the Manager, Community Forensic Mental Health Services.227 We understand the role of the psychologist to be:

• addressing young people’s criminogenic needs and providing therapy
• undertaking self-harm and suicide risk assessments
• educating young people on ‘pro-social attitudes and behaviour modification’.228

The psychologist position has been vacant since November 2021.229 The Group Director told us that psychology telehealth sessions were available to detainees between November 2021 and June 2022.230 He also said that ‘alternative services have been access[ed] from private providers and there is a clinic 3 hours per week via telehealth’.231 The Group Director also told us that, given the ongoing challenges in recruiting a psychologist, Correctional Primary Health Services decided in March 2022 to change the psychology input into a sessional timetable rather than a psychologist being permanently based at the Centre.232

A child psychiatrist also provides onsite care to young people at Ashley Youth Detention Centre.233 The psychiatrist visits the Centre one day a month to assess, diagnose and treat young people.234 This psychiatrist is not an employee of the Department

of Health and is instead funded via a Commonwealth Government outreach program.235 The Department of Health provides clinical oversight of the psychiatrist.236 Otherwise, psychiatry services for children and young people in detention are accessed via telehealth.237

All Ashley Youth Detention Centre Health Team members must be registered with the Registration to Work with Vulnerable People Scheme, and those employed by the State must comply with the State Service Code of Conduct.238 We understand that there is no specific training for health staff who work in youth detention, aside from the normal tertiary education required for medical roles.239 Some nursing staff may undertake further education relevant to youth detention as part of their continuous professional development, such as for trauma-informed care and drug and alcohol dependency.240 However, this does not appear to be specific to the youth detention context. Health services for children in detention are discussed in Chapter 12.

1. Education services

The right of children and young people to access education continues in detention. A core principle of delivering youth justice services under the Youth Justice Act is that ‘no unnecessary interruption of a youth’s education’ occurs so far as the circumstances of the individual case allow.241

Ashley School, which is a Tasmanian Government school on the Ashley Youth Detention Centre site, delivers schooling to children and young people in detention. Young people do not start attending Ashley School until they have completed a school induction delivered by an Ashley School teacher or the principal, which occurs after they are remanded or detained for seven days.242 Students are generally expected to attend school from 9.00 am to 2.30 pm every weekday.243 Attendance at Ashley School is consistent with the attendance policy at other Tasmanian Government schools: there is an expectation that young people attend school if they can.244 A student might not attend a school program at Ashley Youth Detention Centre for a variety of reasons including due to a safety risk assessment, the need to attend an offsite appointment or because a student has indicated that they ‘don’t want to attend’.245

Ashley School offers a curriculum in literacy and numeracy, as well as specialist and vocational classes including art, woodwork, cooking, STEM (science, technology, engineering and mathematics), physical education, health, ‘fit gym’ and Aboriginal studies.246 The ‘core’ curriculum in literacy and numeracy forms about 30 per cent of each student’s schooling and is tailored to meet each student’s individual learning needs.247 Ashley School also promotes and educates young people in prosocial behaviours and values.248

Mr Baker told us that most, if not all, Ashley School students display challenging school behaviours and that Ashley School staff are often required to be hypervigilant, flexible, adaptable and resilient.249

We heard that Ashley School staff apply a therapeutic educational model that incorporates positive behaviour support to promote and acknowledge the behaviour they want to see in young people.250 Ashley School also provides a highly scheduled timetable and explicit expectations and learning intentions, so students know what is required and how to achieve it, and to minimise surprises or overstimulation.251

Mr Baker told us that Ashley School staff use a variety of strategies to support students to increase their functional literacy and numeracy including individual learning plans, individualised learning tasks, collaborative planning, high-intensity teaching strategies and high teacher-to-student ratios.252 He said that, for most classes, at least one teacher and one teacher assistant are assigned to no more than four students.253

Until October 2022, the Department of Education managed Ashley School independently from the former Department of Communities.254 The Department of Education was responsible for staff appointments for, support to, and the day-to-day running of, Ashley School.255 Mr Baker told us that the Department of Communities and the Department of Health shared essential information and feedback about the young people at Ashley Youth Detention Centre with the Department of Education to support Ashley School in making decisions in the interests of detained young people.256

Since October 2022, the newly formed Department for Education, Children and Young People has been responsible for administering Ashley School. As of August 2022, Ashley School was staffed with 6.0 full-time-equivalent teachers, 1.28 full-time-equivalent teacher assistants, 0.52 full-time-equivalent education facility attendants and a full-time School Business Manager.257 Ashley School staff have to follow the processes, policies and strategic planning of the Department for Education, Children and Young People.258 Education services for children in detention are discussed in Chapter 12.

1. Decision making and recommendation forums

Secretary Pervan told us that Ashley Youth Detention Centre ‘operates as a multidisciplinary centre’ and that the Operations and Professional Services Teams ‘work collaboratively through multidisciplinary teams, weekly review meetings, and program meetings’.259 The structure of team meetings changed in mid-2022. In this section, we set out the relevant features of teams and meetings before this change.

The Centre Support Team was a longstanding feature of Ashley Youth Detention Centre’s operation until mid-2022. The Centre Support Team determined a young person’s ‘colour level’ in line with the Behaviour Development System (replaced with the Behaviour Development Program in April 2022).260 The Behaviour Development System and the Behaviour Development Program are discussed in Section 5.4 and Chapter 11,

Case study 3, but essentially the System/Program is a behaviour management tool used to incentivise engagement and positive behaviour from young people. It allocates privileges or restrictions to a child or young person based on their ranking in a colour system. A child or young person’s colour corresponds to their behaviour and is reviewed at least weekly.

The Centre Support Team also determined a child or young person’s eligibility for leave, decided which unit a child or young person should be placed in, reviewed and managed responses to incidents in the Centre, and managed formal requests from children and young people, including for offsite activities and unit changes.261

The Centre Support Team’s membership changed over time and, although staff from the Professional Services Team were included as general members, it primarily included staff from the Operations Team and was chaired by the Operations Manager.262

The Centre Support Team met weekly and held interim meetings as required (either by the Centre Manager or Chair, or if requested by a general member and with the chairperson’s or Centre Manager’s approval).263 The outcomes of these meetings, including a child or young person’s colour rating and unit placement, were communicated to detainees after the weekly meeting. Alysha (a pseudonym), a former Clinical Practice Consultant at Ashley Youth Detention Centre, described this process in the following terms:

The [Centre Support Team] would meet from 9am to 12pm every Monday, and the Centre would then be locked down from approximately 12pm to 2pm and every child sent to their cell in what was effectively entirely accepted isolation. The [Centre Support Team] members, as a group, would go to each room and speak to each child about the outcome of the [Centre Support Team] meeting for them; whether they had moved up or down in the colour behaviour management system, and why. The children would be forced to sit on their beds while the adults stood to deliver the results. It would often not be good news and children would become distressed.

There would be four to five adults in the room, speaking to the child about how naughty and bad they had been. It was a visibly crushing and humiliating experience for a child. I could see how dehumanising and traumatising it was to have people they were generally afraid of, standing over them and telling them they were essentially bad. There was always a particularly negative lean on the feedback provided to each child and after difficult news was delivered the child would be locked into their cell alone whilst we went to see the other children. 264

Alysha also told us she considered the way in which the Centre Support Team delivered its decision to children to be ‘inappropriate, re-traumatising and ineffective’.265

We have been advised that this practice has since changed and is now referred to as the Weekly Review Meeting.266 Following this Weekly Review Meeting, in the early afternoon the Operations Coordinator visits the units.267 The Operations Coordinator and unit staff let the children and young people know their ‘colour’ and give them their incentives award/voucher if applicable through an incentives-based process.268 We were advised that the units have ‘quiet time’ from 12.30 pm until 1.15 pm, which immediately follows lunch.269 In the following couple of days (Tuesday/Wednesday depending on the number of detainees), the Ashley Team Support staff (Case Management) and an Australian Childhood Foundation staff member visit the young people to discuss their therapeutic plan, the reason for the Weekly Review Meeting decision, and their future needs. This is done in a meeting room, not on the unit, to give the young people the space and privacy to discuss any issues or concerns they might have.270

The Multi-Disciplinary Team has also existed for a long time at Ashley Youth Detention Centre. Copies of Multi-Disciplinary Team terms of reference documents made available to us indicate that the purpose, membership and decision-making protocols of the team have not changed substantially since at least 2018.271 We are aware of Multi-Disciplinary Team meetings as early as 2012.272

The Multi-Disciplinary Team provides ‘assessment, review, monitoring and a referral forum to address the needs of all young people’ at Ashley Youth Detention Centre.273 Its purpose is to ‘optimise health outcomes, address other risk factors and plan for the young person’s return to the community’.274

Among the tasks and responsibilities of the Multi-Disciplinary Team are:

• discussing care and case management plans for all young people at Ashley Youth Detention Centre
• developing plans to address risk factors and to provide ongoing reviews of those plans
• providing ‘professional liaison and support’ for Operations staff ‘in the supervision and management of young people as requested and/or required’.275

Case plans, safety plans and exit plans are updated following Multi-Disciplinary Team discussions.276

We understand the membership of the Multi-Disciplinary Team has changed over time but has generally reflected a broad range of Professional Services staff and a small representation from the Operations Team.277 The chairperson is the Manager, Professional Services (or delegate, Care Management Coordinator).278 Other staff or stakeholders (such as a youth worker or program provider) may be invited to a Multi-Disciplinary Team meeting as required.279 Mr Watson, Centre Manager, told us that regular invitees include nurses, paediatricians, psychologists, psychiatrists and representatives of the National Disability Insurance Scheme.280

According to its terms of reference, the Multi-Disciplinary Team develops, implements and documents responses to individual care/case management plans and provides feedback through the case management process to the child or young person in detention.281

In mid-2022, a Risk Assessment Process Team was established. Pamela Honan, Director, Strategic Youth Services in the Department, told us that this team was established in response to concerns that Ashley Youth Detention Centre staff felt unsafe at work because of the behaviour of children and young people in detention, the behaviour of staff and/or unsafe staffing levels.282 The Risk Assessment Process Team’s terms of reference are effective from 8 June 2022.283 Membership of the team includes the Ashley Team Support or Operations Manager as the Chair, the Assistant Manager of the Centre, Case Management Coordinator, Practice Manager, Operations Coordinator and representatives from Education (School Principal), the Department of Health (Clinical Psychologist/CPHS nurse) and a guest at the discretion of the Chair.284 The terms of reference note that the team reports to the Senior Management Team, which reports to the Director, Youth and Family Violence Services.285

The Risk Assessment Process Team’s terms of reference provide that the team’s purpose is to ‘establish a reliable, evidence-based framework for decision-making, analysis, planning, and implementation of risk management strategies to support staff with the ongoing care of young people’ at Ashley Youth Detention Centre.286

The Risk Assessment Process Team is primarily involved in reviewing incidents. Its tasks and responsibilities are described in the terms of reference as, among other things:

• analysing incidents, including considering underlying causes and assessing all available evidence (including closed-circuit television)
• developing behavioural management plans for young people involved in a ‘significant incident’
• making recommendations to the Centre Manager
• providing advice on operational practices and procedures
• providing practical support and advice for managing risks.287

The terms of reference state that meetings are held ‘as per the category timeframes for responding to a significant incident and following a new admission’.288 Two categories of incidents should initiate a response from the Risk Assessment Process Team:

• Category one incidents are incidents that are ‘significantly serious and critical in nature’.289 These are defined to include ‘all incidents involving immediate and/or ongoing acute risk’.290 Examples include attempted suicide or significant self-harm, actual or alleged sexual assault, uses of force or physical assaults requiring medical treatment, ‘pattern[s] of behaviour … that on a cumulative basis are a serious concern to safety’ and riotous behaviour.291
• Category two incidents are incidents that are ‘significantly serious but involve a less critical and/or immediate level of risk to the safety and wellbeing of young people, staff, and the Centre’.292 Examples include other physical assaults, attempted assaults, ‘sexualised behaviours’ (such as sexual threats, sexually demeaning language or indecent exposure) and having contraband.293

Category one incidents require a response from the Risk Assessment Process Team within two hours if possible, and no more than 24 hours.294 Category two incidents require a response from the team on the same or next business day.295

All other incidents are considered in the Weekly Review Meeting.296 The terms of reference for the Weekly Review Meeting state that it contributes to ‘celebrating the successes of young people and assists in the development of behaviour support strategies’.297 They state that, as part of the program to engage with young people and incentivise positive behaviour, the Weekly Review Meeting will review information and reports on young people to determine their colour level.298 Membership of the Weekly Review Meetings is the Operations Manager (Chair), the on-duty Operations Coordinator, Case Management Coordinator, a youth worker representative from respective residential units, Clinical Practice Consultant and support officer (alternate Chair), clinical psychologist and School Principal, and an administrative officer as executive support.299

Since introducing the Risk Assessment Process Team, the Weekly Review Meeting is no longer responsible for risk assessment or managing serious incidents.300 When required, the Risk Assessment Process Team also determines a young person’s unit allocation, although we understand this remains the usual responsibility of the Weekly Review Meeting.301 Unit placement decisions are discussed in Section 5.5.

We are also aware that there is a Program Assessment Team meeting to assess the suitability of placing detainees in programs offered by the Centre, including off site.302 Membership of the Program Assessment Team is the Program Coordinator, the Case Management Coordinator, the Operations Manager, the Operations Coordinator and the Ashley School Principal.303

1. Behaviour Development System

A program for behaviour development was implemented at Ashley Youth Detention Centre in 2001.304 Historically, it was known as the Behaviour Development System.305 In April 2022, it was replaced with the Behaviour Development Program.

As mentioned, the Behaviour Development System was established as a behaviour management tool under which children and young people in detention were allocated a colour rating based on their behaviour, which would, in turn, determine the privileges or restrictions for which they were eligible. The new Behaviour Development Program similarly operates as a behaviour management tool.

The case studies in Chapter 11 deal with incidents before April 2022. Therefore, we have summarised in this section the Behaviour Development System in place before that time. We consider the Behaviour Development Program and its appropriateness in Chapter 12.

The former Behaviour Development System had two distinct schemes: the ‘Incentive Scheme’ and the ‘Incident Management Scheme’.306 Together, the stated aims of these schemes were to:

Support the positive behaviour and manage the negative behaviour of young people in custody.

Encourage young people in custody to understand the consequences, both positive and negative, of their choices.

Integrate the key principles of restorative justice into the direct management of young people in custody (i.e. responsibility, reparation, diversion, rehabilitation and deterrence).

Provide a simple, clear and fair system that can respond consistently, accurately and in a timely manner to the behaviour of young people in custody.307

The following discussion focuses on the Incentive Scheme.

1. Colour system

Detainees were allocated one of four (or five) colour levels under the Behaviour Development System, corresponding to the perceived level of risk demonstrated by a child or young person at the time. Those colours were (from highest to lowest risk):

• Red—The red level was applied to young people who posed ‘an immediate threat’ to Centre security and safety, including to staff and young people.308 Examples of such immediate threats included escape, attempted escape, assaultive behaviour, possession of a weapon or a ‘persistent history’ of contraband possession and/or use.309 Young people who incited others to ‘behave in a way that is subversive and/or disruptive’ may also have been placed on the red level.310
• Orange—The orange level ‘represent[ed] a transition from red … to a more settled and acceptable behaviour’.311 It was applied to young people who demonstrated ‘medium level risks behaviours’, including ‘an accumulation of low-level incidents and/or an uncooperative or disinterested attitude’.312
• Yellow—The yellow level applied to young people who were ‘starting to show a higher level of pro-social responsibility and acceptance, participation in programs was on the increase and young people were attempting to meet their goals’.313 It was applied to all new admissions.314
• Green—The green level was applied to young people ‘promoting a high level of pro-social behaviour, tak[ing] responsibility for their actions and participating fully in Case Management Case Plan Review’.315

A fifth colour, blue, was a feature of the Behaviour Development System at various times (at least in practice).316 It was applied to the highest risk detainees and severely restricted their freedoms. The blue colour level, also known as ‘the Blue Program’, was most recently used at Ashley Youth Detention Centre for a period in 2019, although we note that Secretary Pervan gave evidence suggesting that versions of the Behaviour Management System that included the Blue Program were not ‘formalised or approved’.317 The Blue Program is discussed in Chapter 11, Case study 3.

Young people could also earn daily ‘points’ based on their behaviours, which would contribute to their colour level.318 We understand the criteria for these points were set out in a Daily Incentive Assessment sheet.319

Factors such as a young person’s attendance at programs or school, the level of responsibility they displayed in addressing their behaviour and the number of incidents they had been involved in would also contribute to their colour level.320

The Centre Support Team determined a young person’s colour level weekly or at interim meetings as required.321 Decisions at interim meetings were required to be ratified at the next standing meeting of the Centre Support Team.322

1. Benefits and restrictions

Each colour level was allocated particular ‘benefits’ or ‘restrictions’.323

Some of these benefits and restrictions appeared to correspond to the level of risk a young person was perceived to pose and the need to control their activities in the interests of safety or security, noting that the perceived risks may not have been imminent. For example, a young person on the green level was eligible for all activities and programs at the Centre, while a young person on the red level was only eligible for activities and programs in their unit.324

Other restrictions appeared more punitive (with no apparent risk management or harm prevention aim). For example, a young person on the red level had a bedtime of 7.30 pm, compared with a bedtime of 10.00 pm for a young person on the green level, though we note that the bedtime on green level appears to have been amended to 9.00 pm in September 2022 according to revised Unit Rules.325 Other benefits and restrictions related to canteen allowances, eligibility for leave, access to visitors and the number of phone calls, among other things.326

In addition to their colour designation, children and young people could also earn points to use on incentives.327 Incentives included more television time, extra phone calls, later bedtimes and access to a DVD player or gaming device.328

1. Placement decisions

Young people at Ashley Youth Detention Centre live in one of four units, in which they are assigned their own bedroom. When a unit is in use, one or more young people may be housed in the unit at any one time. Decisions are made regularly about which unit a young person stays in.

We understand that before 31 May 2022, the Centre Support Team determined unit placements (during standing weekly meetings or as part of interim meetings).329 Most evidence we received stated that placements were reviewed at least weekly.330 One staff member said that placement decisions were reviewed every day and that decisions were talked about ‘regularly’ by staff.331 Another staff member said that placement decisions were regularly reviewed by the Centre Support Team ‘anything from [every] one or two days to [once] a week’.332

We received evidence that placement decisions took into account some or all of the following factors: age, gender, safety/security, legal status, length of sentence, individual needs, behavioural issues, relationship dynamics between young people and staff, and the views of staff.333

Patrick Ryan, former Manager, Custodial Youth Justice (‘Centre Manager’), told us that the relevant procedure ‘allowed for operational dynamic decisions to be made by the Operations Coordinator’.334 Piers (a pseudonym), who held various positions at the Centre including operational, policy and managerial roles, told us that decisions made for a ‘safety and security reason’ were the responsibility of the Operations Manager and Operations Coordinator.335 We understood Mr Ryan’s and Piers’ comments to mean that Operations staff could initiate a unit move in emergency circumstances, such as during a riot. At least one policy dating back to 2017 acknowledged that the Operations Coordinator could ‘advise the Operations Manager/On Call Manager if a young person/s is required to be moved for operational reasons from a unit’.336 That policy did not define what constituted a suitable ‘operational reason’.

We received evidence that unit placement decisions made after hours due to new admissions or behavioural issues were made by the On Call Manager and the Operations Coordinator.337

Policy documents dating back to 2017 indicated that young people could make a formal request for a unit transfer, which the Centre Support Team would consider.338

Some Ashley Youth Detention Centre staff noted that unit placement decisions often required a fine balance between operational realities and the individual needs of young people. Those operational realities often included staffing issues. For example, a former Manager, Professional Services and Policy, reflected:

Over my time, thousands of placement decisions were made but until pressure came on in 2015 to reduce staffing levels and hence close down Units for a period, the prime motivation for Unit placement was what was in the best interests of the young person on the available known factors and information.

It goes without saying that deciding what was in the best interests of the child was often choosing the best out of a poor range of options.339

We discuss placement decisions since May 2022 in Chapter 12.

1. Incident reporting

During our Inquiry, we heard of several incidents at Ashley Youth Detention Centre, including riots and harmful sexual behaviours between young people. When an event occurs that staff cannot contain or readily resolve—for example, a potentially violent situation—and this requires immediate assistance in dealing with one or more young people, staff can initiate a ‘code black’.340 This means that the Operations Coordinator or designated youth worker and any other available staff member trained in non-violent crisis intervention who can safely leave their post must go to the location, evaluate the scene and coordinate a response.341

Staff must also record and report an incident that has arisen from the behaviour of a young person or young people. Incident reporting at Ashley Youth Detention Centre is governed by the AYDC Incident Reporting Procedure and the AYDC Incident Reporting form.342 Staff need to record details of the incident, including the date, time and location of the incident, the names of those involved or otherwise present (including staff), a description of the incident and a description of any evidence gathered.343

Staff also need to identify any ‘personal factors’ that may be affecting the young person.344 These include, for example, age/maturity, cognitive development, emotional regulation, fear, lack of family contact, physical development, sexuality/gender, substance withdrawal and whether the young person has an impending court date.345

‘Moderating factors’ must also be identified—for example, the extent to which a young person was incited or provoked by another, whether the young person accepted responsibility for their actions and whether the young person cooperated with staff.346

For each young person involved, the staff member must also note whether the young person was searched or if practices such as force, mechanical restraints or isolation were used against the young person, and identify the nature of the young person’s involvement in the incident (such as being a witness or participant).347

The staff member must support each young person involved to prepare a witness or victim statement and then collect their completed statement.348

Staff must categorise the incident into one of three categories:

• Recorded incident—an incident of a ‘very minor nature, where there is insufficient evidence to support a Minor Incident or a Detention Offence’.349
• Minor incident—a breach of Centre rules that ‘does not warrant court action or substantiation of evidence at the level required by a court’.350 Examples include disobeying published rules and reasonable instructions; lying; abusive, indecent, threatening language; behaviour ‘of a low-level nature’; petty stealing; ‘[d]eliberate harassment or provocation’ of staff, visitors or young people of a low level; play fighting; and minor damage to government property.351
• Detention offence—detention offences are prescribed by the Youth Justice Act.352 These include, for example, absence from a detention centre without lawful authority; assault of another person; possession of a weapon; wilful damage or destruction of property; using threatening language or a threatening manner; behaving in a disorderly or riotous manner; and possession or use of unauthorised substances.353

The staff member may gather evidence to support the incident report. The report is reviewed by the Operations Coordinator, who must oversee the quality of the report, collect any more evidence, and agree with how the incident is categorised or make an alternative recommendation.354

The report is then subjected to a ‘Management Assessment’.355 Neither the AYDC Incident Reporting Procedure nor the AYDC Incident Reporting form has been updated to reflect the disbandment of the Centre Support Team and the establishment of the Risk Assessment Process Team and Weekly Review Meeting—both the form and procedure continue to refer to the Centre Support Team and its role in reviewing incidents.356

The Management Assessment considers the level of seriousness of the incident, identifies whether a conference is needed, identifies whether one or more authorities or people should be notified (for example, the police, Child Safety Services or a young person’s parents), and whether any other actions are required (such as a program referral or an independent investigation).357

The policy provides that the Director, Strategic Youth Services, confirms whether to proceed with an independent investigation.358 In the new Department for Education, Children and Young People, the Director, Custodial Operations, chairs a weekly Incident Review Committee meeting at which all incidents are reviewed. 359 The Director, Custodial Operations, refers matters on for further investigation.360

As described, the Risk Assessment Process Team considers incidents that fall into particular categories of seriousness. Incident reports are also read by the Chair of the Weekly Review Meeting.361

1. Dealing with a detention offence

Section 140 of the Youth Justice Act outlines the way in which detention offences should be handled. Section 140(2)(b) of the Act requires that, before a complaint may be filed in respect of a detention offence that an offender admits committing, the Secretary must be notified of the offence. The Secretary must, where practicable:

• confer with the offender, a guardian (unless one cannot be found after reasonable enquiry) and any other person whose participation the Secretary considers is likely to be beneficial in determining how to deal with the offence
• consider how the offence should be dealt with.362

After doing so, the Secretary may:

• suspend further action, ‘on the undertaking of the offender to be of good behaviour for a period not exceeding 2 months’
• caution the offender
• delay the offender’s release by no more than three days, and/or
• file a complaint against the offender.363

The Youth Justice Act requires that a conference be held where practicable.364 Standard Operating Procedure No. 24: Conferencing describes conferencing as ‘an opportunity for both the offender and victim to enter a restorative discourse and for the offender to take responsibility for their behaviour and to make appropriate reparation’.365 Standard Operating Procedure No. 24 provides that sanctions may result from a conference, such as a ‘good behaviour bond’.366

We understand that, for a conference to be held, the offender must admit to the offence and agree to participate in the conference.367 If possible, the conference should involve the victim-survivor, a support person, a guardian and appropriate staff representatives.368

As of March 2022, Secretary Pervan delegated his functions with respect to dealing with a detention offence to the Deputy Secretary, Children, Youth and Families, the Director, Youth and Family Violence Services, the Centre Manager, the Assistant Manager and (to a more limited extent) the Operations Manager and the Coordinator, Training and Admissions.369

1. Oversight of youth detention in Tasmania

As highlighted by the National Royal Commission, external oversight bodies play a critical role in responding to allegations of child sexual abuse. The National Royal Commission recognised that external oversight bodies facilitate transparency and accountability and can have a positive impact on organisational culture, changes in policy and practice, and the capacity of an institution to implement best practice.370 The National Royal Commission also observed that, in jurisdictions that do not have independent oversight arrangements, there was significantly less publicly available information about the youth detention system.371

The National Royal Commission recommended that risks of child sexual abuse associated with youth detention centres be mitigated by preventive monitoring and independent oversight by custodial services, community visitor schemes, Ombudsman’s offices and children’s commissioners and guardians.372 The primary independent oversight mechanisms for youth detention in Tasmania are the Ombudsman, the Commissioner for Children and Young People, the Custodial Inspector and the National Preventive Mechanism under OPCAT. We describe these mechanisms and discuss ways to strengthen the oversight of youth detention in Chapter 12.

1. Previous reviews into Ashley Youth Detention Centre

The evidence and material available to our Commission of Inquiry included no less than 17 internal and external briefings, reports and reviews about Ashley Youth Detention Centre since 2003. While few of these briefings, reports and reviews directly considered child sexual abuse at the Centre, they all identified problems affecting the safety of young people in the detention environment. This section summarises the most relevant briefings, reports and reviews into Ashley Youth Detention Centre.

The summaries of these separate documents may seem repetitive. That is because they are. It was apparent to us when reviewing them that successive Tasmanian governments have repeatedly and consistently been made aware of persistent systemic issues in the treatment of children and young people detained at Ashley Youth Detention Centre and failed to achieve sufficient meaningful change to address those issues. Information we received through our Inquiry further suggests that many of the problems highlighted in these briefings, reports and reviews have persisted at Ashley Youth Detention Centre and continue to increase the risk of child sexual abuse. The language in the reports describes behaviour using euphemisms such as ‘inappropriate strip searching’ or ‘punitive’ approaches. Considering the international and domestic standards described previously in this chapter, these behaviours can only be described as human rights violations.

1. Abuse in State Care Program (July 2003)

In 2003, the Tasmanian Government announced a review of claims of abuse from adults who had been in state care as children, including youth detention.373 The announcement followed media coverage about a man who alleged he had been sexually abused as a child by his foster parent, who was a convicted paedophile.374

The review was undertaken by the Tasmanian Ombudsman in cooperation with the Department of Health and Human Services.375 The scope of the review was broad—it applied to allegations of abuse in state care in Tasmania, including in youth detention, with no qualifying period.376 After the review started, the Tasmanian Government announced that ex gratia payments of up to $60,000 would be available to eligible claimants who had suffered abuse in state care and that an independent assessor had been appointed to prepare a report and make decisions about individual cases.377

This program, called the Abuse in State Care Program, operated in four rounds from 2003 to 2013.378 Specific details of the nature of the abuse alleged at the Centre and at Ashley Home for Boys, and the outcomes of individual claims, were not publicly reported.379

According to reports published on the various rounds of the Abuse in State Care Program (which varied in the level and type of information they provided about claims):

• During the first round, which ran from 2003 to 2004, 32 people made claims about abuse that occurred at Ashley Home for Boys.380 The report described, in general terms, that most of these claims related to ‘sustained physical and emotional abuse’, with allegations of sexual abuse described as ‘less common’ in boys’ homes (including Ashley Home for Boys).381
• In the second round, which ran from 2005 to 2006, 117 claimants came forward about abuse that occurred at Ashley Home for Boys.382 We are unclear what type of abuse these claims relate to but note that, across all claims made in this period, 189 (or 45 per cent) related to sexual abuse.383
• There were 995 claims (in total) made in the third round, which ran from 2007 to 2010. We have not been able to identify the number of claims that were made about Ashley Home for Boys or Ashley Youth Detention Centre because a detailed report relating to this third round of claims was not available (we drew the 995 figure from the report of the fourth round of claims).384
• The fourth round of the program, which ran from 2011 to 2013, resulted in 172 claims against Ashley Home for Boys and Ashley Youth Detention Centre.385 We are unsure what proportion of these claims relate to sexual abuse but note that, across all 199 claims of sexual abuse, nearly 50 per cent were made by claimants who were placed in an institution.386

When the program wound up in 2013, it was replaced by the Abuse in State Care Support Service.387 We discuss the Abuse in State Care Program and the Abuse in State Care Support Service, and the nature of the claims made about Ashley Youth Detention Centre, in Chapter 11, Case studies 1 and 7, and in Chapter 12.

1. Review for the Secretary, Department of Health and Human Services (September 2005)

In 2005, following reports of assaults on two young people at Ashley Youth Detention Centre by other young people detained there, the Secretary of the Department of Health and Human Services established a review team to examine the robustness of systems and protocols at the Centre, and the effectiveness of those systems in ensuring the safety and wellbeing of detained young people.388 The review team consisted of the Commissioner for Children and Young People and two senior departmental officers.389 The review was to specifically examine the Centre’s systems for minimising abuse towards children and young people by other ‘residents’ or staff, for reporting allegations of abuse, and for responding adequately and in a timely manner to allegations of abuse.390

The review team identified several problems and made 23 recommendations, including the following:391

• There were varying levels of intimidation, from bullying to violence, among residents.392 The review team recommended that accommodation unit allocations be reviewed based on the mixture of residents at the Centre.393
• Physical blind spots impeded effective monitoring of residents and therefore affected the Centre’s ability to provide a safe environment. The review team recommended that these blind spots be assessed, and solutions implemented, along with a 12-month trial of closed-circuit television in one of the accommodation units.394
• There was a need for documented procedures to manage incidents and complaints.395 The review team acknowledged that children and young people in detention may not report incidents due to fear of retaliation or ridicule, and due to their lack of confidence that complaints would be effectively managed. The review team also found that residents did not have access to independent people from outside the Centre with whom they could discuss issues and concerns.396 The review team recommended that the complaints processes at the Centre be revised and that an Ashley Youth Detention Centre Residents’ Advocate position be created in the Office of the Commissioner for Children and Young People.397

There was no clear response from the Tasmanian Government to these recommendations at the time. We note that, from February 2022, the Commissioner for Children and Young People has had an advocacy role in place for children and young people in detention.398 The Commissioner’s 2020–2021 Annual Plan states that a function of this role is to regularly visit Ashley Youth Detention Centre.399 We also note that the Tasmanian Government’s most recent Annual Progress Report in response to recommendations of the National Royal Commission states that an Advocate for Young People in Detention, employed by the Commissioner for Children and Young People, ‘is present within the Centre as an independent person with whom the young people can speak … including to discuss any concerns or complaints’.400

It is unclear to us when closed-circuit television was introduced at Ashley Youth Detention Centre. Media reports indicate that closed-circuit television footage was used as evidence in relation to a staff member who allegedly assaulted two detainees at the Centre in July 2016.401 The Custodial Inspector’s Annual Report 2019–20 states that, following an inspection, more cameras had been added to known blind spots, and that more cameras would be installed as part of the Centre’s redevelopment.402

1. Ashley, Youth Justice and Detention Report, Legislative Council Select Committee (2007)

In 2007, a Legislative Council Select Committee was established amid concerns that previous reviews had failed to resolve longstanding problems at Ashley Youth Detention Centre, and that rehabilitation rates for children and young people in detention had not improved.403 In its report, the Committee stated that:

The system is under stress. Security is lax, contraband enters the site illegally and management struggles to maintain a well-trained, professional, and committed staff. From time to time there are violent aggressive episodes involving both residents and staff. There is a need to maintain a secure unit.404

The Committee made 32 recommendations to improve the youth justice system. Recommendations specifically relating to Ashley Youth Detention Centre included that the Government acknowledge the cost-effectiveness of diverting young people away from detention, that attendance at the Centre’s school be mandatory, that the low morale among employees be addressed, that only female workers supervise female detainees and that the Centre be renamed Ashley Secure Care Centre.405

The Tasmanian Government’s response in 2008 indicated that:

• Six of the recommendations were not supported. These recommendations were about amending the Youth Justice Act to allow access to diversionary programs before any guilty plea, creating supported accommodation for children on remand, creating dedicated youth justice magistrates, re-establishing a secure unit at the Centre separate from the rest of the facility and renaming the Centre.
• Twenty-six recommendations were in progress, under review, supported or had been actioned. They included those relating to improved bail and remand options for children, increased funding and support for the community service order system and youth justice programs, improved early intervention and prevention programs for children at risk of entering the youth justice system, improved diversionary opportunities (including for Aboriginal children), improved access to educational opportunities, improved staff recruitment and training, consistent implementation of standard operating systems and improved support for staff who experience adverse incidents.406

1. Reviews following the death of Craig Sullivan in detention at Ashley Youth Detention Centre

On 25 October 2010, Craig Sullivan died in his room while on remand at Ashley Youth Detention Centre.407 He was 18 years old.408 In the weeks before his death and before his admission to Ashley Youth Detention Centre, Craig was involved in a car accident.409 On 8 October 2010, while at the Centre, Craig was the victim of an assault by another detainee. During this assault, he was punched in the head and subjected to at least one, and possibly two, forceful headbutts.410 In the days before his death, Craig had vomited multiple times and had complained of headaches to other young people detained at the Centre and to a number of staff.411 At the inquest into Craig’s death, there was evidence before the Coroner that staff at the Centre had provided Craig with a mop and bucket, with the ‘somewhat callous’ expectation that he would clean up his own vomit. It appears

that Craig did this the evening before he died.412 After being monitored intermittently by Centre staff through the weekend, Craig was found unresponsive after he failed to come out of his room for breakfast on Monday morning.413

Following Craig’s death, the Department commissioned two reviews—a clinical assessment and a serious incident investigation.414 These reviews were completed and reported before the coronial inquest into Craig’s death. After the coronial inquest, the Coroner considered that all the recommendations of the Clinical Assessment Report and the Serious Incident Investigation Report were appropriate, and therefore adopted them as recommendations for the coronial inquest.415 The Coroner also made additional recommendations.

We summarise the findings and recommendations of the two reports and the Coroner in the sections that follow.

1. Clinical Assessment Report (November 2010)

Following Craig’s death, the Minister for Children requested that the Chief Health Officer undertake a clinical assessment of Ashley Youth Detention Centre’s policies and protocols for health issues.416 The Chief Health Officer’s report, Clinical Assessment of Ashley Youth Detention Centre’s Current Policy and Protocols for Health Issues (‘Clinical Assessment Report’), dated 30 November 2010, listed recommendations including that clinical support and governance arrangements be established with the Department of Health and Human Services’ Correctional Primary Health Services; young people in detention have access to the same standard of health care as the wider community; clinical advice and assessment be available 24 hours a day; standard operating procedures relevant to clinical matters be updated; and clinical staffing levels be increased.417

1. Serious Incident Investigation Report (March 2011)

The Department of Health and Human Services also established a Serious Incident Investigation Committee to examine the specific circumstances of Craig’s death.418

The committee’s report, Serious Incident Investigation Report Ashley Youth Detention Centre—Death of a Youth on Remand (‘Serious Incident Investigation Report’), was issued on 30 March 2011.419 It appears that the report was left in ‘final draft’ form.

Although the committee was primarily tasked with investigating Craig Sullivan’s death, the report included examples of other instances where the health and wellbeing of Ashley Youth Detention Centre detainees were placed at significant risk.420

The committee’s findings, as documented in its report, included that:

• There was a failure to recognise the need for and/or seek further clinical advice after Craig was assaulted.421
• Despite Craig’s long history of engagement with Youth Justice and the Department of Health and Human Services, his specific needs were not addressed in a comprehensive or coordinated way.422
• There was a lack of risk-based decision making by Centre staff.423
• The youth workers at the Centre were unprofessional, with no formal approach to caring for young people in detention.424
• The Centre failed to provide humanitarian conditions to young people.425
• The practices and behaviours at the Centre were in breach of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, which require that ‘every child who is ill or complains of illness … should be promptly examined by a medical officer’.426
• The Centre lacked accessible 24/7 healthcare services or on-call clinical advice.427
• The training provided to Centre staff was inadequate for responding to critical incidents.428
• Not all staff had completed the induction program and there was no ongoing culture of education and training. While there had been some changes to recruitment processes, ‘there is a strong likelihood the pervading cultural norms and practices may be undermining this’ change.429
• Operating protocols, including for emergency response, were not routinely complied with, and ‘a system of “custom and practice” rather than rules based behaviour may exist’.430
• There was a lack of preparedness for a death in custody and foresight that such an event might happen.431
• The physical design of the Centre building created several problems, including that sick children and young people were locked in their cells because there was no space for a sick room or hospital bed. The ability to observe sick children and young people while they were in their cells was very limited.432
• ‘There is a lack of continuity of care or information between teams, units, individuals and shifts that has resulted in key information not being passed on to relevant staff in a timely manner’.433 This included failures in communicating information about Craig’s car accident and the assault.434 There was also no ability for key information or healthcare requirements to be reliably communicated or followed up, and no system for ensuring reliable ongoing communication between health and custodial services.435 Part of this was attributed to communication being paper based.436
• There was a general lack of respect for, or value attached to, communication with families, including parents, of detainees.437
• The provisions for clinical governance and oversight of Centre health and wellbeing services were inadequate.438

The report also documented several specific findings concerning the Ashley Youth Detention Centre Health Service, including:

• The health service was inadequate in the areas of after-hours clinical advice and response; facilities for observing young people who were unwell or sick; clinical assessment and treatment of young people affected by drugs and alcohol on admission; prompt access to necessary medications; contemporary youth health needs assessment, care planning and treatment services; and linkages to external services. The health service ‘readily devolves its responsibility for medical care to untrained people with manifestly inadequate skills and abilities to deliver medical care’.439
• The recommendations from the 2002 health service review at the Centre had not been implemented, and no other review of the adequacy of health services had been completed since then.440
• Health facilities and equipment were inadequate and did not meet Australian General Practitioner Accreditation and Licensing requirements.441
• The Centre’s location in Deloraine reduced young people’s access to health care.442
• ‘Systems in place for medication management are not adequate. Routine medication is primarily delivered by youth workers and not nursing staff. The ability to obtain urgent prescriptions and medications is limited due to the lack of a medical practitioner after hours, which puts at risk any immediate or urgent after-hours medication response’.443
• ‘Management of chronic health conditions such as Insulin Dependent diabetes or asthma is compromised after the nurse has left the facility as there is no on-call procedure’.444

The key recommendations of the Serious Incident Investigation Report included that:445

• the philosophy and model of care for youth detention be reviewed446
• immediate action be taken to address concerns about the culture at the Centre447
• the youth worker role at the Centre be reviewed, including to ensure the role encompasses youth health and wellbeing interventions as well as custodial responsibilities, and includes developing basic clinical assessment and observation skills to support onsite management of ill or injured young people448
• standard operating procedures, and lack of compliance with those standard operating procedures, be reviewed449
• the Centre’s health service be improved, including through implementing the Clinical Assessment Report recommendations450
• communication systems at the Centre be reviewed and improved, including by implementing an effective system of shift handover to ensure timely communication of all relevant information451
• respectful engagement and communication with young people’s parents and significant others be mandated in the policy framework, and operations, of the Centre.452

Professor White, a member of the Serious Incident Investigation Committee between late 2010 and 2011, gave evidence to us about the response of authorities following Craig’s death.453 He characterised the findings of the investigation as ‘damning’ of operations at Ashley Youth Detention Centre ‘on all levels’.454

1. The Department’s response to the Clinical Assessment Report and the Serious Incident Investigation Report

A Department of Health and Human Services report, Ashley Youth Detention Centre Overview Report (‘Overview Report’), dated August 2013, provides commentary on the progress that had been made on implementing the recommendations set out in the Clinical Assessment Report and the Serious Incident Investigation Report.455

It notes that, in April 2011, the former Department of Health and Human Services established two governance bodies to progress the reforms to Ashley Youth Detention Centre recommended after Craig’s death:456

• A Reform Steering Committee, chaired by the Deputy Secretary for Children, was charged with overseeing the implementation of the Clinical Assessment and Serious Incident Investigation Report recommendations.457
• The Review and Monitoring Team was tasked with verifying implementation of the reforms.458 The Reform Steering Committee provided progress reports to the Review and Monitoring Team.459 The Review and Monitoring Team used site visits and a detailed desktop audit to verify progress.460

The Overview Report noted that there had been progress towards implementing the recommendations, but there were still areas requiring action, including to staff training and health assessments, and monitoring to improve the Centre’s emergency management response.461

Professor White was appointed to the Review and Monitoring Team. He explained that, as part of implementing the investigation’s recommendations in 2011 and 2012, the management team at Ashley Youth Detention Centre redesigned and redrafted standard operating procedures, in particular for how vulnerable young people in detention would be identified and supported.462 Professor White told us that the work and purpose of the Review and Monitoring Team in improving Ashley Youth Detention Centre was ultimately undermined by the lack of senior departmental support for substantive change and by the monitoring team’s dissolution.463 He gave evidence that about 18 months after the Review and Monitoring Team was created, its work stopped ‘abruptly’ following the shift of the executive lead in the Department of Health and Human Services, who had oversight of the project, to another area.464 Professor White told us that while it was not communicated to him at the time, he believed there may have been an intention by senior members of the Department of Health and Human Services to end the work of the Review and Monitoring Team.465

When asked whether the Review and Monitoring Team’s role had been completed at the time the team was effectively dissolved, Professor White replied:

No. And, in fact, one of the clear things that—and we were quite keen to keep the monitoring going—one of the clear things was that it had to be a continuous process well into the future, because that was the way to have culture change … you can have a whole bank of new standard operating procedures, but if you don’t do your monitoring and auditing, then they can just be ignored like the previous ones were.466

1. Coroner’s report (November 2013)

The Coroner found that Craig’s death was caused by an abscess rupturing in his brain.467 The Coroner could not conclusively rule out either the car accident or assault in detention as contributing to the abscess, describing their potential contribution as ‘possible, but less likely’ causes than the extension of a sinus infection.468

The Coroner did find that the assault on Craig at Ashley Youth Detention Centre was ‘clearly capable of causing a head injury’.469 The Coroner also found that, based on Craig’s symptoms, he should have been referred for a medical assessment by a doctor the evening before he died.470 The Coroner further found that Craig’s death would likely have been avoided if he had received medical attention before the rupture of the brain abscess.471 As stated in the Coroner’s report, ‘[d]espite evidence that Craig was unwell, particularly during the weekend prior to his death, he was not referred for medical assessment and treatment’.472

When adopting the recommendations of the Clinical Assessment Report and the Serious Incident Investigation Report, the Coroner noted that some of the recommendations had been substantially implemented, while others had ‘not yet been implemented at all’.473

As well as adopting the recommendations from the two reports, the Coroner made a number of other recommendations in November 2013. These included:

• All staff should undertake training to ensure rigorous compliance with the requirement to obtain medical review of children and young people who complain of being or who appear to be unwell. This recommendation was made as a result of the Coroner’s finding that the Operations Coordinator at Ashley Youth Detention Centre at the time of Craig’s death did not understand the relevant standard operating procedure.474
• All matters relevant to a detainee’s health should be recorded in a way that ensures they are communicated and available to the staff responsible for the care and supervision of children and young people and for medical personnel reviewing detainees.475

Barry Nicholson, Group Director, Forensic Mental Health and Correctional Primary Health Services, told us that, immediately following Craig Sullivan’s death, the Chief Health Officer carried out a clinical assessment of policy and protocols for providing health services and the ensuing report contained recommendations, all of which were implemented by November 2013.476 These included transferring the functions of the Ashley Youth Detention Centre Health Service to the former Department of Health and Human Services’ Correctional Primary Health Services, increasing nursing capacity and establishing a healthcare information system to store and share all client information in one place.477

1. Independent Review of Ashley Youth Detention Centre, Tasmania, Heather Harker, Metis Management Consulting (June 2015)

In 2014, the Deputy Secretary, Children and Youth Services commissioned an independent review of Ashley Youth Detention Centre. The purpose of the review was to inquire into a range of resource and operational matters, including increases in workers compensation claims, how to manage absences from work due to sickness (and therefore potentially excessive use of casual staff) and the extent to which these matters affected the Centre’s philosophy and operational model.478 The reviewer, Heather Harker, met with staff, detainees, family members of detainees and other stakeholders, and considered a range of materials including reports and memorandums.479

In her report, Ms Harker commented on the long tenure of staff and found that this had established a certain culture at the Centre. Ms Harker also expressed concern about ‘a lack of governance and management presence, direction and scrutiny in a number of critical areas that have a specific impact on the Centre’s budget and daily operations’.480

The report described a culture that leaned more towards punishment than restoration and rehabilitation, and a preference for using force to manage children and young people in detention rather than techniques taught in training, which focused on de-escalation.481 The report also referred to a culture of ‘passive resistance’ to change.482

Also, Ms Harker found:

• There were poor living conditions for children and young people, along with ‘wholly unacceptable’ visiting facilities.
• There was little meaningful interaction between young people and the youth workers who supervised them.
• There was a lack of visibility and communication from leadership and senior management.
• There were concerns about some staff members’ behaviour towards other staff, visitors and detainees.483

Ms Harker called for a ‘more assertive’ stance to addressing these problems and more active complaints management.484 She made 13 recommendations covering budgetary compliance, staff rostering, management of workers compensation, and leadership and training—this included the need for ‘strong visible leadership’ to achieve ‘accountability for professional practice and daily operations’.485

When the report was released in 2015, a year after its delivery to the Tasmanian Government, the Human Services Minister stated that a cultural change process, as well as additional training on risk management and intervention, had been implemented at the Centre, and that the Government had commissioned a youth detention options paper (discussed in Section 6.6).486

1. Custodial Youth Justice Options Paper: Report for the Department of Health and Human Services, Noetic Solutions Pty Ltd (October 2016)

In 2016, the Tasmanian Department of Health and Human Services engaged Noetic Solutions Pty Ltd (‘Noetic’) to develop an options paper setting out potential custodial youth justice models.487

Noetic undertook extensive research and consulted with the Department of Health and Human Services and external stakeholders, including young people in detention at the time, to understand the current and future needs of the custodial youth justice system in Tasmania.488 One of the issues revealed by consultations was that staff at Ashley Youth Detention Centre were sceptical of a therapeutic approach to managing young people in detention:

Some AYDC staff see a therapeutic approach as an ineffective deterrent for young people, which are considered by them to be less successful than a risk-based approach. These staff see this approach as removing useful strategies for managing young people’s challenging behaviour. For example, staff saw the strategy of using isolation of young people when angry or upset as an effective means of mitigating a potentially unsafe situation.489

After reviewing the existing custodial model at Ashley Youth Detention Centre, Noetic provided four options for a new custodial youth justice model and stated that any model should be underpinned by trauma-informed practice and a therapeutic approach.490 The options were to:

• upgrade the existing Centre
• maintain the Centre and construct an additional, smaller purpose-built facility
• establish a single purpose-built secure detention facility
• establish two purpose-built secure detention facilities.491

Noetic recommended the fourth option—that the Tasmanian Government build two detention facilities—one in Hobart and the other in Launceston. Noetic proposed that each facility have a 12-bed capacity, noting that rates of youth offending and incarceration had recently declined.492 The data available to Noetic showed that between 2008–09 and 2014–15 the number of youth offenders in Tasmania had declined by 47 per cent. Noetic projected that by 2020 there would be 90 young people on community-based supervision orders and six young people in detention at any given time.493

The options paper highlighted:

• Ashley Youth Detention Centre cost more than $9.4 million a year to operate, despite only accommodating about 10 children or young people on any given day.494
• Therapeutic or trauma-informed care was not being practised at the Centre.495
• The average cost of accommodating a young person at the Centre was $3,562 per day, which was 2.5 times the national average of $1,391 per day.496
  • Tasmania’s recidivism rates showed that most children or young people reoffended within 12 months of their release from detention, demonstrating that the existing custodial model did not divert young people from the system.497
  • Key challenges for the Centre were managing the use and scalability of a large facility with fixed costs and providing rehabilitation opportunities to a small number of young people with complex needs.498
  • The Centre’s location made it difficult to provide the full range of services required to support the complex needs of children and young people in detention.499

The Tasmanian Government decided not to proceed with Noetic’s preferred and recommended option, instead announcing in June 2018 that it would commit $7.3 million to upgrading Ashley Youth Detention Centre.500 In commenting on this choice of action, the Minister for Human Services was quoted as saying: ‘We have sought to balance the needs of youth offenders with the importance of the [Ashley Youth Detention Centre] facility and the 60 jobs in the Deloraine community’.501

We note that the Government has now committed to closing Ashley Youth Detention Centre and establishing several new youth justice facilities, although in July 2023 the Government cast doubt on its earlier commitment to close the Centre by the end of 2024.502 We discuss the closure of Ashley Youth Detention Centre in Chapter 12.

1. Reviews of use of force incidents (2016–19)

On 14 and 15 July 2016, a series of incidents occurred at Ashley Youth Detention Centre during which detainees were alleged to have damaged property at the Centre, including kicking doors, breaking windows and wielding pieces of broken glass. While the incidents raised issues with respect to worker safety, there were also concerns in relation to the use of force and isolation by Centre staff in managing the incidents.503 We are aware of three reports prepared in response to the incidents: a Report to the Minister for Human Services (August 2016), a Critical Incident Investigation Report prepared by the Department of Health and Human Services (undated) and a WorkSafe Tasmania report (February 2017).504

Further incidents involving the use of force occurred in November and December 2017, during which detainees were restrained by Ashley Youth Detention Centre staff and one young person was placed in isolation because of a perceived threat that he would assault other young people and staff.505 In 2018, the Department of Health and Human Services initiated an internal review of these incidents.506 In 2019, the Tasmanian Ombudsman completed a preliminary inquiries report into one of the 2017 incidents in response to a complaint received from a young person in detention about the use of force by Centre staff.507

In the following sections, we outline the main findings from these five reports as they relate to the use of force at Ashley Youth Detention Centre.

1. Report to the Minister for Human Services from the Department of Health and Human Services (August 2016)

A report prepared by the Department of Health and Human Services for the Minister for Human Services about the 14 and 15 July 2016 incidents examined the possible use of excessive force, with a particular focus on the actions of one youth worker against children and young people in detention during the incidents.508

The report noted that, while the youth worker had been trained in non-violent crisis intervention, the restraints used were not consistent with the manual.509 The report also noted that the use of force appeared to be ‘excessive to that which might be considered reasonable’, given that the young person was seen calmly sitting before the use of force.510

The report contained the following actions to be undertaken:

• immediate action in relation to the youth worker, including Employment Directions No. 4 and No. 5 processes, appointing an appropriate independent investigator and a request for the worker to be absent from the workplace on full pay511
• a change-management process, including allocating $300,000 to appoint a senior change manager and to develop a training package512
• developing a WorkSafe Corrective Action Plan513
• continuing to roll out a Children and Youth Services review of priority practices and procedures514
• developing a process to ensure timely review of all critical incidents515
• delivering risk assessment training in August 2016516
• developing a proposal to strengthen the use of multidisciplinary teams to support a ‘therapeutic informed approach’.517

The Secretary of the Department referred the conduct of the staff member in question to Tasmania Police, suspended the staff member on full pay under Employment Direction No. 4 and started a formal process pursuant to Employment Direction No. 5, to run in parallel with the Tasmania Police investigation.518 Ultimately, the disciplinary process resulted in counselling, a reprimand and a temporary reassignment of duties.519

1. Critical Incident Investigation Report (undated)

The Department of Health and Human Services prepared a Critical Incident Investigation Report for WorkSafe Tasmania in relation to the incidents on 14 and 15 July 2016.520

The report categorised the events as five separate incidents and it reviewed footage, policy and procedure documents, investigation reports and witness statements.521 It noted difficulties due to delays in receiving statements from staff, inconsistencies between individual statements, lack of closed-circuit television coverage in certain areas in the Centre and lack of audio accompanying the closed-circuit television footage.522

The report’s findings included:

• Despite statements from staff suggesting that they feared for their safety and the detainees were acting in a ‘riotous manner’, no staff member activated their duress alarm or called a ‘code black’ in accordance with the relevant standard operating procedures.523
• The actions of staff were ‘contrary to policy’ and identified an organisational deficiency.524
• The actions of staff highlighted deficiencies in staff training and staff capability in relation to emergency response, risk reduction, de-escalation of violent behaviour and sound decision making to support proactive risk awareness and safety.525
• The closed-circuit television footage did not appear to reveal the use of de-escalation strategies.526
• The restraint used by youth workers did not comply with non-violent crisis intervention training.527

1. WorkSafe Tasmania Investigation Report (February 2017)

WorkSafe Tasmania also conducted an investigation into the 14 and 15 July incidents.528 The investigation report indicated that several factors led to significant deficiencies in Ashley Youth Detention Centre’s safety management system. These factors were ‘training, consultation, resourcing, communication and, particularly, risk identification and effective management and control’.529 The report noted ‘the use of isolation, the use of force, and the provision of a less institutionalised appearance within the facility’ were factors that contributed to the incidents on 14 and 15 July 2016.530

WorkSafe Tasmania indicated that, while it recommended that no prosecution action be taken against any party, the Secretary of the Department of Health and Human Services (Secretary Pervan) was required to provide monthly status reports in relation to the implementation of a remedial corrective action plan and a comprehensive safety management plan.531 The remedial corrective action plan included, as a high priority, to:

... review, evaluate and reinforce the agenc[y’s] culture. Ensuring compliance with the programme, policies and procedures (change-management process identified and approved) [within 12 months].532

1. Department of Health and Human Services Review of Incidents at Ashley Youth Detention Centre (2018)

The Department of Health and Human Services initiated an internal review of the use of force in response to incidents that occurred at Ashley Youth Detention Centre in November and December 2017.533 An Incident Review Committee was established and the committee’s report included recommendations relevant to the use of force and staff practices including:

• Any incident that had a use of force component was to be downloaded from the closed-circuit television footage in its original form and securely stored on a separate drive.534
• More training and information sessions were to be provided on isolation procedures and relevant delegations.535
• There should be greater clarity in the Supervision and Movement of Young People standard operating procedure about the required numbers of staff when moving compliant and noncompliant children and young people in detention.536
• Ashley Youth Detention Centre should be provided with its own training budget; a fixed-term position for a training manager should be created as a matter of urgency; the training manager should undertake a full audit of the training for each staff member; a permanent position for a training facilitator and assessor at the Centre should be created; and the possibility of professional qualifications for all employees at the Centre should be explored.537
• Discussions should be held with onsite management, providing clear guidelines and clarifications about their roles and responsibilities for managing employees, including their ongoing professional development.538
• The Centre Manager must review every incident involving the use of force.539
• Future legislative amendments should consider changing the definition of the word ‘isolation’.540
• All staff were to be trained and undertake regular review training in verbal judo or similar de-escalation techniques and motivational interviewing techniques by suitably qualified people.541
• A Use of Force Review Committee should be established, and a proportion of all incidents should be reviewed by the committee. This committee should have a maximum of four people and include representatives from the following areas:
  • the Centre’s Training Manager or representative from Professional Services
  • Human Resources
  • Workplace Health and Safety
  • Quality Improvement and Workforce Development.542

We understand the Human Resources, Workplace Health and Safety, and Quality Improvement and Workforce Development units were based in the Department of Health and Human Services and not Ashley Youth Detention Centre.

The Department decided that no action would be taken against the staff members involved in these incidents ‘due to gaps in training and procedures’ at the Centre.543

1. The Ombudsman’s preliminary inquiries into the assessment of a use of force incident (December 2019)

In December 2019, the Tasmanian Ombudsman, Richard Connock, provided a preliminary inquiries report to Secretary Pervan after receiving a complaint from a detainee about excessive use of force by staff at Ashley Youth Detention Centre in December 2017.544

In his report to the Secretary, Mr Connock questioned the quality and thoroughness of the Department’s 2018 internal review (referred to earlier), describing it as ‘perfunctory’.545 Among other criticisms of the internal review, Mr Connock stated that the Department had failed to gather basic evidence to inform its assessment of the use of force against the young person who had complained to him, including speaking to that young person about his version of events, detailing any injuries that the young person may have suffered and reviewing what training on the use of force had been provided to youth workers at Ashley Youth Detention Centre.546 Mr Connock also noted that the internal review had not included an assessment of whether the use of force was excessive against criteria in the Youth Justice Act relevant to what constitutes ‘reasonable force’.547

Mr Connock also noted in his report to the Secretary that the Department had been aware for some time that there were gaps in the training of staff members at the Centre in relation to the use of force.548 Mr Connock emphasised that an independent review of Ashley Youth Detention Centre, undertaken in 2015 (refer to Section 6.5), had identified that:

A number of people who are involved in the training of youth workers expressed concerns at youth workers preferring to use physical means of dealing with young people rather than the de-escalation techniques emphasised in the training.549

Mr Connock also emphasised that documentation relevant to a therapeutic change program adopted by Ashley Youth Detention Centre before 2016, known as the ‘Ashley+ Approach’, had included significant investment in training, but that such training was not working:

In December 2016, there was a majority of youth workers and staff [at Ashley Youth Detention Centre] with 10+ years experience in the Centre. The majority of these staff were originally trained for a corrections rather than a therapeutic environment. The training and the transition over recent years from a corrections focus to a rehabilitation and therapeutic focus are often at odds and despite significant training some staff continue to operate from a corrections philosophy.550

Mr Connock highlighted several similarities between the use of force incident in December 2017 and the earlier use of force incident that occurred in July 2016. According to Mr Connock, these similarities included that:

• de-escalation attempts appear to be limited
• the use of force was questionable
• there were no obvious immediate threats to the staff involved.551

Mr Connock questioned why the Department had not sought advice about whether the use of force in December 2017 amounted to an offence, considering that uses of force during the July 2016 incident had been referred to Tasmania Police.552 Mr Connock said that it became apparent to him, when following up the December 2017 incident, that ‘an unwritten reason for not pursuing any formal action in this case was due to concerns about already low staff morale following the prosecution in 2016’.553 Mr Connock characterised this rationale as ‘concerning’, considering that ‘the paramount consideration for the Department should be the safety and care of the vulnerable children in its care’.554

At the end of his report to the Secretary, Mr Connock suggested that the Department implements a formal process to ensure greater oversight of the use of force by Centre staff, namely that the Ombudsman’s office be notified of all future use of force incidents at Ashley Youth Detention Centre.555

1. Memorandum of Advice: Searches of children and young people in custody in custodial facilities in Tasmania, Commissioner for Children and Young People Tasmania (May 2019)

In 2019, the Commissioner for Children and Young People provided a Memorandum of Advice to the Tasmanian Government about personal searches of young people in detention and the promotion of young people’s rights regarding these searches.556 The memorandum was prepared amid media reports of routine strip searches of children in custodial environments, and in light of government data indicating 203 children were subject to an unclothed search at Ashley Youth Detention Centre between 1 June and 30 November 2018, with no contraband found.557

The Commissioner for Children and Young People considered legislation, policies and procedures applicable to children and young people in custody, and the National Royal Commission’s recommendation that jurisdictions review their legislation, policies and procedures, to ensure best practices were in place for strip searches and other forms of physical contact between children and staff.558 The Commissioner for Children and Young People noted that the Tasmanian Government had accepted this recommendation in principle.559

The Commissioner for Children and Young People concluded that the legislative framework appeared to allow routine strip searches of children in custodial environments.560 She also observed that strip searching had the potential to distress, humiliate and traumatise children and young people.561 The Commissioner for Children and Young People concluded that searches in custodial settings were sometimes necessary to ensure safety and stop contraband entering environments; however, given their potential to traumatise, the basis upon which such searches were to be conducted should be clear, consistent and contained in a single document.562

The Commissioner for Children and Young People made eight recommendations, including that the routine practice of strip searches cease, and that legislation be amended to require that searches of children only be conducted ‘when reasonable, necessary and proportionate to a legitimate aim’.563 Recommendations were also made to provide greater accountability for searches of children and young people in custody.564

The Tasmanian Government’s response, dated 24 June 2020, indicated that the Government accepted all the recommendations and had reviewed operational procedures governing the searching of children in custodial settings.565 We note that the Youth Justice Amendment (Searches in Custody) Act 2022, which amended the Youth Justice Act (as previously discussed), reflects the Commissioner for Children and Young People’s recommendations. We discuss searches of young people at Ashley Youth Detention Centre in Chapters 11 and 12.

1. Inspection of Youth Custodial Services in Tasmania, 2018: Custody Inspection Report, Custodial Inspector Tasmania (August 2019)

In 2019, the Custodial Inspector reported findings following a 2018 inspection of Ashley Youth Detention Centre.566 The report covered topics such as admission to custody, infrastructure, security, complaints, transport of young people in detention, use of force, use of isolation and emergency management.567 The report raised concerns about reporting practices and procedures at Ashley Youth Detention Centre (which made it difficult to measure compliance and outcomes), the lack of a broad drug strategy, the use of force against young people in detention and the isolation of young people in detention.568

In responding to the report, the Department stated that in the 18 months since the inspection, ‘many of the issues identified in the report have already been addressed’.569 The response indicated that a review of procedures for searches had occurred, and that the Government had committed $7.28 million to upgrade Ashley Youth Detention Centre, after consultation with the Centre’s management, the Department, the Commissioner for Children and Young People, the Child Advocate and non-government organisations.570 No specific reference was made to any consultation with current or former detainees of the Centre about the upgrade.

The Tasmanian Government expressed its general support for recommendations related to improved reporting and recording systems for incidents and risk assessments; improved complaints mechanisms; young people’s access to private phone calls; staff training, reporting and review of use of force and de-escalation techniques; and reviews of and improved reporting on the use of isolation.571 The Government did not support two recommendations related to physical security at the Centre.572 The Government’s response to another six recommendations in the report was redacted.573

1. Through the Fence and into Their Lives: Ashley Youth Detention Centre Trauma Informed Practice Framework, Discovery Phase, Janise Mitchell, Australian Childhood Foundation (April 2020)

In 2020, Adjunct Associate Professor Janise Mitchell, Deputy Chief Executive Officer, Australian Childhood Foundation, prepared a brief report summarising key learnings from consultations with internal and external stakeholders about developing a trauma-informed operating model for Ashley Youth Detention Centre.574

Consultations explored the strengths and challenges of the existing youth detention model, a needs analysis, and opportunities for ‘further development’ of a trauma-informed operating model.575 Noting that previous efforts to develop trauma-informed models ultimately did not proceed, the report emphasised that ‘a trauma-informed practice framework and operating model will represent a significant paradigm shift for [Ashley Youth Detention Centre] and require a strong and sustained change-management approach’.576 The report found that some staff lacked confidence in therapeutic approaches and were therefore fearful ‘of being critiqued negatively by managers’ if they used such approaches.577

The following key themes emerged from stakeholder consultations:

• There are many factors underlying young people’s offending behaviours, including poor mental health, trauma backgrounds and disabilities.578
• Awareness and understanding of the Ashley Youth Detention Centre Model of Care, which was designed in 2019 and sought to articulate a trauma-informed practice model, was very low, with some staff and stakeholders describing it in unfavourable terms.579
• Support for change from Centre staff was mixed, with a lack of support influenced by ineffective efforts to facilitate change in the past.580
• The culture and practice of Centre staff was characterised by confusion and a lack of safety, including a view that the approach to young people was more punitive than therapeutic.581
• The Centre’s operational environment was reactive, ad hoc and unsafe for staff and young people.582
• The culture at the Centre was ‘risk averse, focused on containment, and punitive in nature’.583
• Minimum qualifications for operational staff were not adequate, and staff with the ‘right attributes’ were needed.584
• The cultural needs of young people were often overlooked.585

The report identified that policies and procedures relevant to searches, the use of mechanical restraint, the use of physical force, personal identity/possessions, the use of isolation and cultural awareness guidelines should be reviewed as a matter of priority.586

The report suggested that the next steps towards establishing a bespoke, fit-for-purpose practice framework for youth detention included consultations with young people about what would be helpful for them.587 The report did not nominate a timeline for this future work.

1. A system in crisis

Although few of the reports noted in this chapter directly considered child sexual abuse at Ashley Youth Detention Centre, they all identified problems affecting the safety of children and young people at the Centre. Broadly, these problems included:

• outdated policies and procedures
• insufficient staff understanding of, and adherence to, legislative and policy requirements relevant to the treatment of children and young people in detention
• a preference among management and staff for punishment rather than rehabilitation, including the use of force, strip searches and isolation techniques
• inappropriate facilities for young people in detention and their visitors
• lack of confidence among staff in management and governance arrangements
• resistance to change among staff and administrators
• limited access to support services for young people
• a lack of monitoring of some spaces
• a lack of access for young people to family, independent representatives or advocates
• poor incident reporting
• inappropriate records management
• inadequate complaints processes
• inadequate human resources support for staff, including oversight of sick leave, a reliance on casual staff and a high number of workers compensation claims.

A common theme in many of the previous reports and inquiries discussed in this chapter is the treatment of children and young people in detention. For example, the independent review of Ashley Youth Detention Centre by Ms Harker in 2015 found there was a culture of punitive responses to children and young people.588 We note that, in describing a ‘punitive’ culture, the reports also raise concerns about the use of force, searches and isolation, a preference for securing compliance over de-escalation strategies and an ideological belief that a therapeutic approach is not a deterrent to recidivism. In our view, the term ‘punitive’ in this context minimises the true extent of the crisis in the treatment of children in Tasmanian youth detention. We consider it is an environment that is harmful to children and perversely increases, rather than decreases, a lack of safety for staff.

A recent Victorian parliamentary report examining youth detention in that state concluded that:

Punitive approaches to the management of youth justice services … are unlikely to resolve the behavioural issues of detainees; instead, they serve to reinforce the sense of mistrust experienced by many children and young people in custody. Without a trauma-informed approach to the management of youth justice centres, at-risk children and young people will continue to face significant obstacles in their paths to recovery and rehabilitation, and staff in youth detention centres will continue to face significant difficulties in managing children and young people in their care.589

As an allied matter, the reports and inquiries show systemic challenges related to staffing at Ashley Youth Detention Centre that appear to contribute to the persistent problems in the culture and treatment of children detained there. These challenges appear to be well recognised, with more evidence provided to our Inquiry confirming they had existed for a long time and persist into the present. The Centre’s isolated location appears to have been a significant contributor to the intractable nature of these systemic staffing challenges, which included:

• difficulties fully staffing the Centre due to challenges in attracting staff, high staff turnover and unplanned staff absences
• difficulties in resourcing, attracting, retaining and training an appropriately skilled and qualified workforce
• the long tenure of a core group of staff who resisted cultural change.

In conclusion, before our examination into institutional responses to child sexual abuse at Ashley Youth Detention Centre, it appeared that successive Tasmanian governments had been made aware of persistent systemic issues in the treatment of children detained at the Centre and had failed to achieve sufficient meaningful change to address those issues.