Date October 2023

Introduction

In this chapter, we make recommendations aimed at preventing child sexual abuse in youth detention and improving responses to such abuse when it occurs. Throughout this chapter, we draw on the seven case studies in Chapter 11, which paint a profoundly disturbing picture of youth detention in Tasmania over the past two decades—an institution where some children and young people experienced systematic harm and abuse. The case studies also highlight longstanding and entrenched problems with culture, leadership, staffing, policies and practices in the youth detention system. The Tasmanian Government has been aware of many of these problems for some time.

Our recommendations

Our recommendations in this chapter are informed by several principles, including the following:

The most effective way to protect children and young people against the risk of sexual abuse in youth detention is to prevent them entering or re-entering detention—this should be achieved by prioritising strategies that divert children and young people from the youth justice system and from detention.
To minimise risks to Aboriginal children and young people in detention, their substantial over-representation in detention and in the broader youth justice system must be urgently addressed through strategies underpinned by Aboriginal self-determination.
Children and young people must be safe in youth detention. The risk of child sexual abuse in youth detention decreases when there is a child safe culture in detention that respects and promotes the rights of children and young people, and for which leadership is accountable.
For children and young people to be safe in youth detention, staff must also be safe and their wellbeing supported. Staff must have the qualifications, attributes and skills to engage constructively with children and young people in detention. There must be enough staff to deliver a therapeutic model of care to children and young people and avoid lockdowns.
If a child or young person experiences child sexual abuse in detention, they should feel able to speak up and know they will be listened to. Their complaints must be taken seriously and acted upon without them suffering any reprisal.

We also consider that an effective youth detention system is one that provides children and young people in detention with timely access to high-quality, developmentally appropriate therapeutic supports, education and health care, as well as support to address the underlying causes of their offending. We consider that these features are necessary to reduce reoffending and promote community safety.

We outline our recommendations below. Several of these recommendations will appear familiar from previous reviews of Ashley Youth Detention Centre and the youth justice system (discussed in Chapter 10). Too often these recommendations have been overlooked or implemented without achieving meaningful or enduring change. At other times they have been implemented through short-term initiatives that have later been discontinued.

System reform is urgently needed. We acknowledge that transforming a youth detention system that has been resistant to change over many years is not straightforward. It requires radical cultural change, strong leadership and a long-term commitment from the Government. It may take time, but we consider it is achievable.

Our recommendations include:

closing Ashley Youth Detention Centre as soon as possible and creating a memorial to victim-survivors who experienced abuse at the Centre
strengthening leadership in the youth detention system and improving governance arrangements for youth detention
developing a participation and empowerment strategy for children in youth detention that includes establishing a new advisory group of children, young people and young adults with previous experience of detention
ensuring staff in youth detention are appropriately qualified, trained and supported to deliver a therapeutic model of care to children in detention, with enough staff to keep children and staff safe
increasing the minimum age of criminal responsibility to 14 years and working towards increasing the minimum age of detention to 16 years
increasing opportunities for diversion and bail, and reducing the number of children and young people on remand
ensuring a collaborative, multidisciplinary approach to meeting the complex needs of children and young people in detention, and providing access to high-quality mental health services and education
establishing an integrated service for children and young people leaving detention to ensure they have safe and stable accommodation, access to physical and mental health support, and help with accessing education and/or employment after their release
working with Aboriginal communities to develop an Aboriginal youth justice strategy, co-design new youth justice facilities and ensure Ashley Youth Detention Centre and any replacement facilities are culturally safe for Aboriginal children and young people
establishing a policy framework to understand, prevent and respond to harmful sexual behaviours in detention, and providing access to timely, expert assessment and a range of appropriate, coordinated interventions, including therapeutic interventions
improving laws, custodial procedures and practices for personal searches of children and young people in detention, isolation and the use of force
ensuring children in detention, their family members and staff have appropriate mechanisms to raise child safety concerns and make complaints, and that all allegations against staff involving child sexual abuse and related conduct (including grooming and boundary breaches), or inappropriate searches, isolation or use of force are referred to the new Child-Related Incident Management Directorate for investigation and response (recommended in Chapter 6 at Recommendation 6.6)
establishing an independent community visitor scheme to give children and young people in detention independent, trusted adults to whom they can speak regularly, with whom they can safely and confidently raise concerns, and who will advocate on their behalf (this scheme is also discussed in Chapter 9)
strengthening and improving monitoring of Tasmania’s youth detention system by giving the new Commission for Children and Young People (recommended in Chapter 18 at Recommendation 18.6) responsibility for inspecting detention facilities and monitoring the safety and wellbeing of children and young people in detention.

Structure of this chapter

This chapter is structured as follows.

Section 2 outlines the Tasmanian Government’s proposed youth justice reforms over the next decade; these give important context for our recommendations.

Section 3 considers the legacy of abuse at Ashley Youth Detention Centre and makes recommendations to close the Centre as soon as possible, establish a memorial to victim-survivors who experienced abuse at the Centre, develop a process to preserve historical records relating to children, young people and staff at the Centre, and audit past claims of abuse.

Section 4 examines the culture at Ashley Youth Detention Centre and considers the changes needed in the areas of leadership, governance, children’s participation and staffing to implement a child safe culture in youth detention where the risk of child sexual abuse is minimised.

Section 5 discusses ways to reduce the number of children and young people entering the youth detention system, including remand, so fewer children and young people are exposed to the risk of child sexual abuse in detention, and community safety is better served.

Section 6 focuses on the improvements needed to create an effective, child-focused detention system that meets the complex needs of children and young people in detention, minimises the risks of child sexual abuse and reduces reoffending.

Section 7 makes recommendations to address the over-representation of Aboriginal children and young people in detention and strengthen cultural safety in detention facilities, with a view to minimising the risk of sexual abuse for Aboriginal children and young people in detention.

Section 8 focuses on harmful sexual behaviours in youth detention (highlighted in Chapter 11, Case study 2) and makes recommendations to prevent these behaviours and significantly improve responses to them when they occur.

Section 9 examines the laws, standards, policies and procedures that apply to personal searches of children and young people in detention, isolation practices (highlighted in Chapter 11, Case study 3) and the use of force (highlighted in Chapter 11, Case study 4)—practices that sometimes involved or were connected to child sexual abuse.

Section 10 considers channels within the Department for Education, Children and Young People through which children and young people in detention, their families and staff of detention facilities can raise concerns or make complaints about child safety, including child sexual abuse, and the Department’s responses to these concerns and complaints.

Section 11 examines independent oversight of the youth detention system and makes recommendations to strengthen independent advocacy for children and young people in detention and systemic monitoring of the youth justice system.

The Government’s youth justice reform agenda

On 9 September 2021, the then Premier, the Honourable Peter Gutwein MP, announced that Ashley Youth Detention Centre would close ‘in around three years’ and be replaced by ‘two new smaller facilities’ because it was ‘time for a major systemic change in our youth justice system’.1 This announcement followed more than a decade of calls from stakeholders to close Ashley Youth Detention Centre.2

In August 2022, the Tasmanian Government reaffirmed its commitment to close Ashley Youth Detention Centre by the end of 2024.3

On 22 November 2022, the Minister for Education, Children and Youth, the Honourable Roger Jaensch MP, announced the Government’s plans for reform of the entire youth justice system, stating that the Government was:

… determined to build a nation-leading approach that engages at-risk young people early, directs them away from the youth justice system and supports young people who come into conflict with the law to become valued and productive members of our community.4

Minister Jaensch stated that, as part of these reforms, the Government would establish new youth justice facilities, including:

a new statewide detention/remand centre in southern Tasmania that would ‘provide intensive intervention and rehabilitation through a therapeutic model of care’
two assisted bail facilities—one in northern Tasmania or the North West, and one in southern Tasmania—to ‘reduce the number of young people remanded to a detention centre’
two ‘supported residential facilities’—one in northern Tasmania or the North West, and one in southern Tasmania—to support ‘transition for young people from detention to independence’.5

We commend the Tasmanian Government for its decision to close Ashley Youth Detention Centre and for acknowledging the need to reform the youth justice system. We discuss the closure of Ashley Youth Detention Centre in Section 3.1.

In this section, we outline three documents the Tasmanian Government gave us towards the end of our Commission of Inquiry that describe the Government’s planned reforms to the youth justice system, including youth detention. We discuss specific elements of these documents throughout this chapter.

Keeping Kids Safe Plan

In late October 2022, the Tasmanian Government gave us a document titled Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (‘Keeping Kids Safe Plan’).6 This document details existing and proposed safeguards for children and young people at Ashley Youth Detention Centre.

According to the Keeping Kids Safe Plan, existing safeguards include:

the Children, Youth and Families Practice Manual (‘Practice Manual’), which provides ‘a comprehensive set’ of policies, procedures and practice requirements relevant to custodial youth justice7
the Ashley Youth Detention Centre Practice Framework, which was developed in 2020 to guide therapeutic approaches at the Centre—this framework ‘utilises a strengths-based approach to assist in building relationships that foster safety, communication, respect and achievement of goals resulting in healthy children and young people and staff’8
a Learning and Development Framework, which ‘sets expectations for learning and skill development of all staff’ at the Centre9
upgrades to the Centre’s facilities between 2019 and 2022 to increase safety and to effect a therapeutic approach to detaining children and young people10
independent oversight of the Centre by the Commissioner for Children and Young People and the Custodial Inspector.11

The Keeping Kids Safe Plan commits the Tasmanian Government to implementing more safeguards through a safety plan comprising 22 actions to meet the following objectives:

increasing safety and security for children and young people
maintaining an appropriate level of staff with the right experience and competencies
delivering a therapeutic service model
implementing practice improvements.12

A working group will oversee the implementation of actions under the Keeping Kids Safe Plan.13

Draft Youth Justice Blueprint 2022–2032

The Government also gave us its Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (‘Draft Youth Justice Blueprint’).14 This document is not yet publicly available, but the Government advised us that it will be finalised after the Government receives our final recommendations.15 We refer to the Draft Youth Justice Blueprint throughout this chapter as the most current outline of the Government’s reform plans for the youth justice system over the next decade.

The overarching goal of the Draft Youth Justice Blueprint is ‘to reduce the involvement of children and young people in the youth justice system’.16 Its key objective is ‘to create a contemporary youth justice system’ that:

prevents children and young people’s contact with the youth justice system
addresses offending behaviour
addresses the over-representation of Aboriginal children and young people in the youth justice system
keeps children and young people in detention safe
‘supports children and young people to re-enter the community through prosocial pathways’
improves community safety.17

Eight principles underpin the Draft Youth Justice Blueprint. These principles emphasise the importance of children and young people’s rights, safety and wellbeing.18 The Draft Youth Justice Blueprint also notes the need to strengthen connection to family, community and culture for Aboriginal children and young people in the youth justice system and ‘includes an increased focus on self-determination of Aboriginal communities’.19

The Draft Youth Justice Blueprint lists the following five strategies:

prioritise prevention and early intervention to reduce engagement with the youth justice system
ensure diversion from the justice system is early and lasting
establish a therapeutically based criminal justice response for children and young people
integrate and connect whole of government and community service systems
provide an appropriately trained and supported therapeutic workforce.20

It also foreshadows the development of a ‘Blueprint Monitoring and Evaluation Plan’.21

The Draft Youth Justice Blueprint was developed in consultation with government agencies, representatives of Tasmania’s Aboriginal communities, the Commissioner for Children and Young People, non-government organisations and children and young people with lived experience of the youth justice system, as well as their families.22 The Government intends to engage with children and young people and Aboriginal communities to implement the Youth Justice Blueprint.23

Several action plans will support the Youth Justice Blueprint.24 We give an overview of the Draft First Action Plan 2023–2025 (‘Draft First Action Plan’) in the following section.

Draft First Action Plan 2023–2025

We received the Department’s Draft First Action Plan, produced in January 2023, which is the first in a series of action plans designed to implement the Youth Justice Blueprint.25

The Draft First Action Plan aims to deliver seven ‘priority’ actions by 2025:

‘Enhance the safety and therapeutic approach’ at Ashley Youth Detention Centre—this action focuses on responding to the public hearings of our Commission of Inquiry.26
‘Develop and implement a Youth Justice Model of Care’ to ‘facilitate therapeutic, trauma informed and culturally safe service delivery to improve the wellbeing of children and young people to reduce their involvement in the youth justice system’.27
Review the Youth Justice Act 1997 (‘Youth Justice Act’)—this action includes legislative changes to implement the Government’s commitment to increase the minimum age of detention from 10 to 14 years.28
‘Implement a range of diversion, bail support and community-based sentencing options’—this action includes developing a ‘Diversionary Services Framework’.29
‘Design and construct new purpose-built youth justice facilities’ to replace Ashley Youth Detention Centre.30
‘Operationalise’ the new youth justice facilities—this action includes defining workforce requirements and recruiting staff.31
‘Develop and implement an alternative education model’—this action involves designing new approaches to meet the needs of children and young people who are at risk of disengaging from education.32

The Department for Education, Children and Young People is the lead agency for all seven actions.33

We turn now to our recommendations for reform.

Addressing the legacy of abuse

In Chapter 11, Case study 1, we describe what we heard about the nature and extent of abuse at Ashley Youth Detention Centre. While it was not possible for our Commission of Inquiry to test the veracity of every allegation outlined in victim-survivors’ accounts, we were struck by the similarities and common themes across these accounts. In Case study 1, we find that, for decades, some children and young people detained at Ashley Youth Detention Centre experienced systematic harm and abuse—that many children were systematically dehumanised, brutalised and degraded while at the Centre. This finding is based on all the evidence we reviewed—from victim-survivors and their families, current and former Centre staff, senior management in the Department, the many prior reports and investigations into the Centre, allegations made through civil and redress scheme claims, and the insights of relevant experts into organisational misconduct. It is a sobering finding.

Child sexual abuse can have a profound and lasting impact on victim-survivors. Case study 1 describes the devastating ongoing trauma that the abuse at Ashley Youth Detention Centre has had on victim-survivors’ mental and physical health. We heard that many victim-survivors have attempted suicide, experience significant mental health conditions, struggle with addictions to drugs and alcohol, have difficulties forming and maintaining relationships and have been incarcerated during their adult lives.

Child sexual abuse in institutions, particularly at the scale we heard alleged at Ashley Youth Detention Centre, also has a profound effect on the people working in those institutions, who may have been colleagues with those who have offended, or against whom allegations have been made. We discuss the impacts on staff in Section 4.7. In this section, we focus on addressing the impacts of abuse of this scale on children and young people in detention.

As noted in Chapter 11, Case study 1, victim-survivors and their family members told us that they wanted an acknowledgment from the Tasmanian Government about what has happened to them. On 8 November 2022, the Tasmanian Parliament delivered an apology to victim-survivors of child sexual abuse in government institutions, in which it:

Expresse[d] its deep, unreserved sorrow on behalf of all Tasmanians, to all victims/survivors of institutional child sexual abuse and apologise[d] for the pain, suffering and trauma they have endured through previous actions and inactions by those in authority.34

The apology did not specifically refer to victim-survivors of abuse at Ashley Youth Detention Centre.

It is essential to ensure the systematic harm and abuse that occurred at Ashley Youth Detention Centre, and the pain, suffering and trauma endured by victim-survivors, are not forgotten. In his apology, the Premier, the Honourable Jeremy Rockliff MP, said:

Over the past eight months throughout this inquiry we have heard about a very, very dark chapter in Tasmania’s history. It is a chapter no-one should ever forget. Today we give a solemn undertaking to all Tasmanians to never allow a repeat of this abuse, of the secrecy and the suppression: to never allow a repeat of the failures that allowed such abuse to occur.35

In this section, we consider the legacy of abuse at Ashley Youth Detention Centre and recommend that the Tasmanian Government:

closes the Centre and creates a memorial to victim-survivors who experienced abuse at the Centre
ensures any person who has previously been detained at Ashley Youth Detention Centre is not detained or imprisoned at any new correctional facility on the same site (unless they so choose)
preserves Ashley Youth Detention Centre records, so they are available for any victim-survivors who may wish to seek redress
commissions an audit of allegations of child sexual abuse arising through state and national redress schemes, civil claims and complaints to ensure children and young people in detention, out of home care and other institutions are protected against any risks of child sexual abuse.

Closing Ashley Youth Detention Centre

Victim-survivors told us that Ashley Youth Detention Centre should be closed.One victim-survivor, Fred (a pseudonym), said:

… just close this place down and start again, because … it’s systemic, it’s grown in that environment. You won’t ever get rid of it by putting in new staff members or changing things: tear the place down and start again, the memories are too—just appalling.36

Similarly, Professor Robert White, Emeritus Distinguished Professor of Criminology, University of Tasmania, said:

I would raze Ashley to the ground. I would destroy the physical infrastructure tomorrow, I wouldn’t wait, and we don’t have three years of transition: I would get rid of it immediately and transfer the children to other places, houses, secure houses or whatever, but I would certainly knock it down.37

As noted in Section 2, the Tasmanian Government has previously announced its intention to close Ashley Youth Detention Centre by the end of 2024. On 13 July 2023, Minister Jaensch cast doubt on this closure date. In evidence to a parliamentary inquiry on adult imprisonment and youth detention, the Minister said:

When we announced our intention to not just replace Ashley with two smaller Ashleys, we also then realised that delivering this more sophisticated, better-practice model may take more time and so whilst we have remained committed to the ambition of closing Ashley as soon as possible, and 2024 is the date that was announced, we believe that is going to need to be updated. Now, what I do not want to do is to issue another political deadline. What I want to do, as soon as possible, and I hope to be able to do in coming months, is once we have confirmed the preferred site for the development of the southern detention facility, which is a critical component of the new facilities delivery model, once we have an actual site that we have locked in, then we can conduct the remaining site investigations, planning and design processes, then we will know how much it will cost and how long it will take to build that and my next step, in terms of clarifying time frames, will be to provide a firm, actual time frame based on those investigations, so I hope to do that in coming months.38

While we acknowledge the Government’s restated commitment to closing Ashley Youth Detention Centre, we are gravely concerned by any suggestion of further delay. The Government must close Ashley Youth Detention Centre as soon as possible. We discuss the future use of the site in Section 3.3.

Recommendation 12.1

The Tasmanian Government should close Ashley Youth Detention Centre as soon as possible.

Creating a memorial to victim-survivors

As discussed in Chapter 15, child sexual abuse can constitute a collective trauma event, requiring a response that promotes community care and the restoration of trust. In acknowledging past wrongs and suffering, and providing space for grief, healing and remembrance, a memorial can be an important part of the response to such an event. The National Royal Commission observed that:

Memorials can provide symbolic reparation and public recognition to victims and survivors in ways that can contribute to healing. Memorials honour those who have suffered and provide opportunities to remember the past and think about the future. They provide a specific place for families and wider society to reflect on the trauma

of survivors and mourn the victims lost. They may also serve to educate future generations about what occurred in a society’s history and provide a space for public awareness and remembrance.39

The National Royal Commission recommended that the Australian Government commission a national memorial for victims and survivors of child sexual abuse in institutional contexts to be located in Canberra and designed in consultation with victim-survivors.40 A design for the national memorial was selected in January 2022.41

Memorials to victim-survivors of abuse have also been recommended in international inquiries on institutional child abuse, including inquiries in Ireland and Jersey.42 In recommending a memorial to victim-survivors of child abuse in institutions, the Irish Commission to Inquire into Child Abuse said in 2009:

It is important for the alleviation of the effects of childhood abuse that the State’s formal recognition of the abuse that occurred and the suffering of the victims should be preserved in a permanent place ...43

The Irish inquiry also recommended that the following words of apology be inscribed on the memorial:

On behalf of the State and of all citizens of the State, the Government wishes to make a sincere and long overdue apology to the victims of childhood abuse, for our collective failure to intervene, to detect their pain, to come to their rescue.44

In 2017, the Independent Jersey Care Inquiry recommended ‘some form of tangible public acknowledgment’ for victim-survivors to ‘allow experiences of those generations of Jersey children whose lives and suffering worsened because of failures in the care system to be respected and honoured in decades to come’.45 That inquiry recommended that the form of this acknowledgment consider the views of victim-survivors.46

As noted, we heard that victim-survivors and their families wanted an acknowledgment of abuse that occurred at Ashley Youth Detention Centre and its devastating effects. As part of its apology to victim-survivors of child sexual abuse in institutions, and in recognition of the protracted, widespread and systematic nature of the abuse at Ashley Youth Detention Centre, we recommend that the Tasmanian Government creates a memorial to victim-survivors who experienced abuse at the Centre.

The Government should consult with victim-survivors to determine the form and location of the memorial—for example, a memorial garden could be established on part of the site, similar to the one established in memory of the 1996 Port Arthur massacre.47 While we acknowledge the Government’s plans to redevelop the Ashley Youth Detention Centre site (discussed in Section 3.3), we do not consider that this precludes creating a memorial at the site.

Recommendation 12.2

Once Ashley Youth Detention Centre is closed, the Tasmanian Government should establish a memorial to victim-survivors who experienced abuse at the Centre. The form and location of the memorial should be decided in consultation with victim-survivors of abuse at Ashley Youth Detention Centre.

Future use of the site—avoiding further trauma

In December 2021, the Honourable Elise Archer MP, Attorney-General and Minister for Corrections, released a statement indicating that the Department of Justice would begin a community consultation process to learn the views of the local community on the future use of the Ashley Youth Detention Centre site.48 This statement revealed that an initial evaluation indicated the site would be ‘well suited for a modern, state-of-the art correctional facility in Northern Tasmania with a rehabilitative focus’.49 According to the Minister, the proposed correctional facility project would ‘create jobs and investment in the North’.50

The Department of Justice is currently undertaking ‘due diligence investigations required as part of the normal statutory planning process’ for redeveloping the Ashley Youth Detention Centre site.51 In particular, the Department of Justice has engaged ‘social planning consultants’ to prepare a social impact assessment for the project—this includes ‘investigating issues raised by the community and … recommend[ing] ways to minimise potential impacts’.52 At the time of writing, the Government had not published this assessment.

The community consultation undertaken by the Department of Justice in 2022 on the future use of the Ashley Youth Detention Centre site does not appear to have specifically sought the views of those who had previously been detained at the Centre.53

Victim-survivor Simon (a pseudonym) described his concerns at the prospect of converting the Ashley Youth Detention Centre facilities into a prison:

Ashley shouldn’t be put into a jail. What about people with memories, they’re going to lay their head down and think they’ve been abused, you know what I mean?54

Media reports also indicate that some community members opposed the plan for a northern correctional facility at the Ashley Youth Detention Centre site during a consultation session held in February 2023.55

We are concerned by the Tasmanian Government’s plans to turn the Ashley Youth Detention Centre site into an adult correctional facility. As discussed in Section 5.1.1, many children and young people detained at Ashley Youth Detention Centre go on to serve a term of imprisonment in an adult prison. We are therefore concerned that victim-survivors of child sexual abuse at Ashley Youth Detention Centre may, as adults, be sent to an adult prison located on the site where that abuse occurred. As Simon indicated, this is likely to be retraumatising.

For these reasons we recommend that the Tasmanian Government ensures no person who has previously been detained at Ashley Youth Detention Centre be remanded or imprisoned at any adult correctional facility at the same site, unless they so choose—for example, to be close to family.

Recommendation 12.3

The Tasmanian Government should ensure no person who has been detained at Ashley Youth Detention Centre is detained or imprisoned in any redeveloped facility at the same site unless the person expresses a preference for this to occur.

Preserving Ashley Youth Detention Centre records

As discussed in Chapter 17 on civil litigation and redress, records are critically important to victim-survivors of child sexual abuse because they can offer important corroborative evidence for redress claims and help victim-survivors understand their past experiences.56 Records can also provide an important evidentiary basis for initiating criminal or disciplinary proceedings. Inadequate records and record keeping contribute to failures in identifying and responding to risks and incidents of child sexual abuse, and exacerbate distress for victim-survivors.57

As discussed in Chapter 11, Case study 7, we heard that record keeping at Ashley Youth Detention Centre was deficient. In particular, we heard that records at the Centre were ‘hard copy’ rather than electronic and were stored in various locations at the Centre, including cabinets, unlabelled boxes and ‘random places’.58 Stuart Watson, Manager, Custodial Youth Justice (‘Centre Manager’), told us that, in 2020, ‘[t]here was an entire room the size of a garage full of paper files that went back for years and years and years’ in the ‘Training Cottage’ at Ashley Youth Detention Centre.59 He indicated that these records and others had since been sent to ‘central archiving’ for electronic filing.60

Mr Watson also told us that ‘[t]here just wasn’t easily accessible information and people didn’t know where information was’, suggesting that records at Ashley Youth Detention Centre were not filed, indexed, catalogued or archived appropriately.61 We heard that some items, such as ‘photographs, maps and rosters’, may not have been understood to be official records and were therefore not filed appropriately.62 The Department advised us that it lacked documented policies and procedures for record keeping.63

As discussed in Chapter 11, Case study 7, we heard that the Department’s poor record-keeping practices contributed to delays in responding to allegations of child sexual abuse.64 In particular, we heard that, because records had not been catalogued or indexed, accessing relevant information to establish facts, timeframes and key events relating to allegations—for example, to determine whether a person was employed at Ashley Youth Detention Centre at the time of the alleged abuse—was time-consuming and labour-intensive.65

Deficiencies in record keeping also meant that victim-survivors experienced difficulties and delays in obtaining their records from Ashley Youth Detention Centre, which caused distress, trauma, pain and frustration.66

The Department acknowledged the poor quality of its record keeping, stating that incident-recording processes at Ashley Youth Detention Centre were ‘likely to have been unreliable for some of the period from 2002–2020’.67

In May 2021, the former Department of Communities initiated the Records Digitisation and Remediation Project to centralise historical records, with an initial focus on Ashley Youth Detention Centre records.68 According to the ‘Project Initiation Document’, ‘[i]nitially, the intent was simply to digitise all hard copy holdings, including those at the Archives office of Tasmania and with off-site storage holders’.69 However, early work revealed more than 8,000 boxes and 150,000 hard copy records, with ‘a large variety and volume of documents in formats that are difficult to digitise and impossible to render text searchable’, which led to the project’s scope being refined.70

The objective of the refined project was to ensure the Department could ‘access its historical records and meet its obligations to the Commission of Inquiry, National Redress [Scheme], victims, and the community’.71 Its scope was described as ‘[s]canning and remediation of relevant or potentially relevant records from 1 January 2000 or relating to alleged incidents lodged after 1 January 2000’.72 Key outputs of the project were described as digitising hard copy records and remediating legacy electronic or hard copy records that were ‘potentially of interest to the Commission of Inquiry or immediately relevant to information requests which have been received’.73

According to the National Royal Commission, ‘[d]igitising archival records can be expected to increase search ability and reduce risk of loss’, but ‘digital technology also presents new challenges and risks, including costs of upkeep and updating, corruption and security of files and technological obsolescence’.74

We commend the Department’s Records Digitisation and Remediation Project and acknowledge the enormity of the task. However, it is not clear to us that the Department has digitised all necessary records. In particular, we note that the project does not include records created before 2000. Also, while we appreciate the need to focus on responding to our Commission of Inquiry and to other information requests received by the Department, we are concerned that important information in other records potentially relevant to future claims from victim-survivors may not have been captured. We are also unaware of what active steps are being taken to preserve records relating to children and young people in out of home care, some of whom may also have experienced youth detention.75

It is also not clear to us what the Department’s plans are for retaining and maintaining the physical records it has digitised. Some physical records may hold tremendous personal significance for victim-survivors of abuse at Ashley Youth Detention Centre. However, we also recognise that adequately maintaining large volumes of physical records for extended periods may be impractical for the Department. Physical files require storage in appropriate conditions to prevent damage or destruction (for example, by fire, floods or vermin).76 The National Royal Commission indicated that ‘[n]ot all records are, or should be, archived and retained in perpetuity, and it may be appropriate that certain records be destroyed’.77

In line with the National Royal Commission’s recommended principle for maintaining records, the Department should, at a minimum, ensure its records are:

… up to date; indexed in a logical manner that facilitates easy location, retrieval and association of related information; and preserved in a suitable physical or digital environment that ensures the records are not subject to degradation, loss, alteration or corruption.78

More specifically, the Department must ensure it keeps records that may be relevant to future allegations of child sexual abuse. As outlined in Chapter 17, the National Royal Commission recommended that the National Archives of Australia and state and territory public records authorities guide government and non-government institutions on identifying records that, it is reasonable to expect, may become relevant to an actual or alleged incident of child sexual abuse, and on retaining and disposing of such records.79

In response to this recommendation, the Tasmanian Office of the State Archivist has outlined, for various institutions, the types of records ‘that may become relevant for National Redress Scheme applicants, or for people taking legal action for abuse suffered when they were children’.80 For youth justice, these records are:

‘Youth offender case files, including investigations, prosecution, sentencing etc’
‘Records of a youth offender’s location, including custodial arrangements, community service activities and transport’
‘Complaints and grievances’
‘Records of at-risk youths’
‘Restorative justice services to child victims of crime’.81

While these descriptions are broad, we consider that there are other records such as staff rosters and the daily roll that may include important information relevant to allegations of child sexual abuse in youth detention.

We recommend that the Department for Education, Children and Young People build on its Records Digitisation and Remediation Project by working with the Office of the State Archivist to establish an approach to preserving historical records relevant to children and young people and staff at Ashley Youth Detention Centre. A similar approach should be taken for records about other children in state care, including children in out of home care, as well as staff and carers connected with state care.

Managing this material will enable the Department to make all necessary reports to Tasmania Police, Child Safety Services, the Registrar of the Registration to Work with Vulnerable People Scheme and the Independent Regulator of the Reportable Conduct Scheme (this is discussed in Section 3.5).

Recommendation 12.4

The Department for Education, Children and Young People should work with the Office of the State Archivist to:

establish a process to identify, recover, restore, collate, digitise, index and catalogue all historical records relating to children and young people and staff at Ashley Youth Detention Centre, and all other children in, or staff or carers connected with, state care
ensure digitised records are searchable, retrievable, secure and protected against corruption or loss
determine which physical records should be retained following digitisation, and maintain these physical records in line with the National Royal Commission’s record-keeping principles
determine protocols and guidance on how people who have been detained at Ashley Youth Detention Centre can access their records.

Undertaking an audit of allegations

The Tasmanian Government holds substantial information about allegations of child sexual abuse by current and former staff of Ashley Youth Detention Centre. As discussed in Chapter 11, Case study 1, this information arises from:

claims made under the Abuse in State Care Program, which the Tasmanian Government ran between 2003 and 2013
claims made under the Abuse in State Care Support Service, which the Tasmanian Government has run since 2013
applications under the National Redress Scheme, run by the Australian Government since 2018
civil claims made against the Tasmanian Government in respect of vicarious liability for the conduct of its staff, or liability for failing to protect a child from abuse
complaints and allegations received by the Government directly from children and young people who are or were detained at Ashley Youth Detention Centre, or from others with knowledge of alleged abuse at the Centre
sworn statements to our Commission of Inquiry from lived experience witnesses who were detained at Ashley Youth Detention Centre.

A significant number of allegations made in claims under the Abuse in State Care Program also concerned abuse by staff and carers in the out of home care system.82 This is discussed in Chapter 8. There were also claims made about abuse in other state institutions, including hospitals and religious organisations.83 Claims under the Abuse in State Care Support Service and the National Redress Scheme and civil claims may also relate to staff and carers in the out of home care system and other state institutions.

As highlighted by Chapter 11, Case study 7, claims made through all these schemes provide important information for a number of state agencies to perform their functions in protecting children. This includes Tasmania Police, Child Safety Services and the Registrar of the Registration to Work with Vulnerable People Scheme.

It is essential that the Department has processes in place to assess this information and to identify and act on any ongoing risks that may be posed by those who are the subject of allegations. We heard that the Government has previously taken steps to review allegations of child sexual abuse for these purposes. These are discussed in the following sections.

The 2020 ‘cross-check’ review

As discussed in Chapter 11, Case study 7, the former Department of Communities undertook a review from September to November 2020 to crosscheck the names of alleged abusers identified in claims under the Abuse in State Care Program with current employees who had been working at Ashley Youth Detention Centre before 2010.84 The review also identified what actions may have been taken where an employee had been named in an Abuse in State Care Program claim.85

The primary purpose of the review was to identify current staff who had been named in Abuse in State Care Program claims. The review did not cover all sources of information held by the Department. In particular:

The review was limited to Abuse in State Care Program records and did not extend to allegations raised through the Abuse in State Care Support Service.86
The Department limited its analysis to current employees who had been working at Ashley Youth Detention Centre before 2010. However, the Abuse in State Care Program ran until 2013 and the Department provided us with a spreadsheet indicating that the period of abuse that was raised in Abuse in State Care Program records spanned from 1995 to 2013.87 This suggests there may have been current staff employed after 2010 who were not captured by the crosschecking exercise, and complainants may have raised allegations against staff members in respect of conduct that occurred between 2010 and 2013.
The review did not include applications under the National Redress Scheme or civil claims.

It also did not consider out of home care system staff or carers, or staff in other government institutions.88

In September 2020, the Department identified that 127 Abuse in State Care Program claims had been made against Ashley Youth Detention Centre staff members (some of whom were named on multiple occasions) and that two current employees had been named as alleged abusers by multiple complainants.89 While we understand that this review concluded in November 2020, it is unclear to us what more information was uncovered during this time.90 Former Department Secretary Michael Pervan told us the review ultimately resulted in the identification of four current employees named in Abuse in State Care Program claims.91

The 2020 spreadsheet

As discussed in Chapter 11, Case study 7, in October 2020, a spreadsheet was prepared and circulated to various people in the Department that contained a list of all Ashley Youth Detention Centre staff named in the Abuse in State Care Program, the National Redress Scheme and in common law (civil) claims.92

We heard that the spreadsheet was then expanded to include allegations from information received from various sources about any alleged sexual, physical or emotional abuse, with the Department for Education, Children and Young People telling us the aim of the spreadsheet was to ‘centralise all complaints/allegations to assist in identifying trends, patterns and cumulative allegations’.93 The information sources included:

allegations from the Abuse in State Care Program against Ashley Youth Detention Centre employees and from the Abuse in State Care Support Service where these were referenced in a National Redress Investigation Report
National Redress Scheme applications and common law negligence claims (where there was an allegation against an Ashley Youth Detention Centre employee, Ashley Youth Detention Centre detainee or out of home care foster carer)
allegations made directly through Ashley Youth Detention Centre (for example, historical records of detainee complaints made directly to Centre management or through the Ombudsman)
a complaint made about an Ashley Youth Detention Centre employee that was made to the Children, Youth and Families Complaints Officer.94

We note that the source material for the spreadsheet did not include:

all Abuse in State Care Program claims
claims under the Abuse in State Care Support Service unless they were referred to in a National Redress Scheme Investigation Report
claims under the National Redress Scheme or civil claims about staff in other government institutions.

We heard that the spreadsheet was held and maintained by the Department’s Legal Services directorate.95 The legal team performed checks through the online Government Directory Service to establish whether a particular person was still employed in the State Service, although concerns were raised that this was not a robust checking mechanism.96 The Department indicated that discussions occurred between Mandy Clarke, former Deputy Secretary, Children, Youth and Families, and others about the employee status of those named in the spreadsheet.97

The Department also told us, in January 2023, that the Tasmanian Government and the Department were ‘actively considering these issues and [would] work collaboratively to ensure that any risk to children is minimised’.98

Given the scope of these reviews and the variable exclusions in each, it appears the Department may not have identified all relevant allegations.

Child Sexual Abuse Joint Review Team

The Tasmanian Government set up the Child Sexual Abuse Joint Review Team in February 2021.99 This team was tasked with ‘conducting a multi-agency review to look for potential perpetrators from where there may be multiple information reports or references relating to an individual’.100 An objective of this review was ‘to identify potential child sex offenders in the community with a view to ensuring all avenues of investigation are exhausted so that offenders can be brought to justice’.101 The Child Sexual Abuse Joint Review Team was led by Tasmania Police and overseen by a high-level steering committee.102

This review relied on data from the police intelligence database (‘Atlas’), the Registration to Work with Vulnerable People database and the former Department of Communities Child Protection Information System and Children’s Advice and Referral Digital Interface.103 The review ‘did not use a list of Officials from Ashley Youth Detention Centre as a base data set in the data matching work that was undertaken’.104

Jonathan Higgins APM, then Assistant Commissioner of Operations, Tasmania Police, told us the Child Sexual Abuse Joint Review Team’s data-matching work involved comparing data and:

... where two or three point matches were identified, the information was reviewed. Reviews may have included individuals who were Officials from Ashley Youth Detention Centre however search parameters did not specifically target those individuals.105

Assistant Commissioner Higgins also stated that the Child Sexual Abuse Joint Review Team was not given separate material in respect of the Abuse in State Care Program.106 As such, the Child Sexual Abuse Joint Review Team did not capture all relevant information pertaining to allegations of child sexual abuse at Ashley Youth Detention Centre or in out of home care (or, indeed, across government institutions).

Former Commissioner of Police Darren Hine AO APM told us the Child Sexual Abuse Joint Review Team reviewed 136,000 people who were registered to work with vulnerable people in Tasmania and ‘did not identify children at current risk due to Tasmania Police or Department of Communities inaction at a point in time’.107

Process for notifying relevant agencies

As discussed in Chapter 11, Case study 7, when the Tasmanian Government receives allegations of child sexual abuse, it is obligated to notify various authorities, including Tasmania Police (about suspected criminal conduct) and the Registrar of the Registration to Work with Vulnerable People Scheme (about ‘reportable behaviour’ under the Registration to Work with Vulnerable People Act 2013).108

The former Registrar of the Registration to Work with Vulnerable People Scheme, Peter Graham, told us that ‘a systemic review of past complaints or investigations’ would likely reveal information that meets the definition of ‘reportable behaviour’.109 Notifying the Registrar of allegations that may constitute reportable behaviour is essential, so the Registrar can take appropriate action in respect of people who hold current registrations to work with children and young people.

There are also mandatory reporting obligations to report to Child Safety Services under sections 13 and 14 of the Children, Young Persons and Their Families Act 1997 (‘Children, Young Persons and Their Families Act’) where there is a risk of child abuse or neglect.

In addition, a notification may be required to the Independent Regulator of the Reportable Conduct Scheme under the Child and Youth Safe Organisations Act 2023 (‘Child and Youth Safe Organisations Act’) about a ‘reportable allegation’.110 A ‘reportable allegation’ is information that leads a person to form a reasonable suspicion that a worker of a relevant entity (including a youth detention facility) has committed ‘reportable conduct’ (including sexual misconduct), regardless of whether the alleged conduct occurred before the commencement of the Act.111 The Reportable Conduct Scheme is discussed in detail in Chapter 18.

We are concerned that notifications to authorities have not always occurred in a timely manner for allegations in National Redress Scheme applications. In Chapter 11, Case study 7, we find that:

the Department of Justice does not have an appropriate process to ensure information in National Redress Scheme applications is shared in a timely manner to protect children
the Department of Communities did not take appropriate steps to make appropriate notifications
Tasmania Police should improve its information-sharing and referral practices to ensure other agencies (including Child Safety Services and the Registrar of the Registration to Work with Vulnerable People Scheme) receive information, where appropriate, to enable those agencies to take steps to protect the safety of detainees.

The National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) permits the disclosure of ‘protected information’ obtained by a government institution if required for the enforcement of criminal law, the safety or wellbeing of children, or investigatory, disciplinary or employment processes related to the safety or wellbeing of children (among other purposes).112 This enables government institutions (such as the Department of Justice) to comply with mandatory reporting legislation and reportable conduct schemes.113

Within the Tasmanian Government, the Department of Justice is often the first recipient of information about National Redress Scheme applications and the holder of the most complete information from those applications available to the Government.

As outlined in Chapter 17 and Chapter 11, Case study 7, the Child Abuse Royal Commission Response Unit in the Department of Justice coordinates the Tasmanian Government’s response to National Redress Scheme applications.114 Ginna Webster, Secretary, Department of Justice, told us that when the National Redress Scheme Operator identifies the Tasmanian Government as potentially responsible for the alleged abuse, the Operator notifies the Tasmanian Government of the application and gives it a limited time in which to provide necessary information in response.115 The Government told us the Department of Justice does not receive the full application from the National Redress Scheme Operator; rather, it receives ‘redacted and curated components of the application’.116

In June 2022, Secretary Webster told us that the Child Abuse Royal Commission Response Unit summarises the application and sends the relevant department a ‘National Redress Scheme – Request for Information’ form, which includes the summary of the application and requests a records search.117 The form has questions about whether the department holds records that document the abuse, whether there are any records of a prior payment to the complainant (for example, an ex gratia payment) and whether there are records that show the alleged abuser is still a government employee or working in a child-related activity.

Secretary Webster told us:

In referrals to an Agency/agencies, [the Child Abuse Royal Commission Response Unit] include[s] details of the alleged abuser to enable the Agency to undertake enquiries as to whether the abuser is a current employee or a continuing risk to children. If the abuser is identified and remains affiliated with the Agency the matter is dealt with through the Agency’s own internal policies.118

The summary of the National Redress Scheme application that is prepared by the Department of Justice’s Child Abuse Royal Commission Response Unit and provided to the relevant department may contain insufficient details for that department to identify whether an allegation involves suspected criminal conduct or reportable behaviour. This includes where there is a lack of sufficient detail within the initial National Redress Scheme application.

In July 2023, the Government told us that, from mid-late 2020, the Department of Justice changed its practice and started providing departments with the ‘full’ National Redress Scheme application that it receives from the National Redress Scheme Operator, rather than a summary.119 The Government also told us that, in January 2021, the Child Abuse Royal Commission Response Unit undertook an audit of National Redress Scheme applications received to date and agency responses ‘to ensure all details were matched’.120 We welcome these initiatives.

In response to our question as to what action the Tasmanian Government takes in relation to information acquired during the National Redress Scheme process beyond responding to the individual application (for example, reporting to Tasmania Police), Secretary Webster told us:121

The Department [of Justice] does not use the information obtained through redress applications for any purpose outside responding to the [National Redress] Scheme Operator save for reporting on de-identified figures in annual reports.122

The Government told us that the National Redress Scheme is responsible for reporting to Australian law enforcement agencies.123 According to the National Redress Scheme’s Operational Manual for Participating Institutions, the National Redress Scheme reports child abuse to police where the applicant consents to such a report being made.124 Consent is sought ‘[d]uring initial contact with the applicant or at any other relevant time during the assessment process’.125

In addition, the National Redress Scheme reports child abuse to police, regardless of the applicant’s wishes, where:

the applicant is under the age of 18 years
the abuse occurred in the last 10 years
there is any other reason that children may be at risk of being abused
the alleged abuser is still working with children, or
the alleged abuser has their own children.126

We note that whether the alleged abuser is still working with children, or there is any other reason that children may be at risk of being abused, are matters that the relevant jurisdiction may be better placed to identify than the National Redress Scheme Operator. This means that, often, the Operator will not have reported to Tasmania Police when the Tasmanian Government is aware of these risks and could make a report.

The Government told us that requiring the Department of Justice to report to Tasmania Police based on the information it receives from the National Redress Scheme Operator would be ‘ineffectual’ because:

the Department could only provide the information that it received from the [National Redress Scheme]—information that Tasmania Police should already [be] in possession of, and likely have been in possession of, for an extended period (that is, several months).127

The Government also told us that requiring the Department of Justice to notify Child Safety Services or the Registrar of the Registration to Work with Vulnerable People Scheme of information from National Redress Scheme applications ‘would have no impact at all as those entities are already in receipt of that information’ following mandatory reporting triggered by the entry of allegations from the National Redress Scheme into Tasmania Police’s intelligence system.128 The Government said:

Tasmania Police provides a broader capacity [than the Department of Justice] for the management of intelligence information (and has data arrangements with the registrar for registered persons).129

However, we note that the system for notifying police and other relevant authorities of information in National Redress Scheme applications has not always operated in the manner described by the Government. For example, in some cases we examined, the Department of Communities reported allegations from National Redress Scheme applications to Tasmania Police before Tasmania Police received the information from the National Redress Scheme Operator (refer to Case study 7).130 We are not confident that the information-sharing framework for the National Redress Scheme is operating as intended.

We are also concerned that relying on other departments (such as the Department for Education, Children and Young People) to make appropriate notifications to relevant authorities may result in delay, which may create unnecessary risks to children and young people in institutions where alleged abusers may be currently employed or engaged, participate in sporting and social clubs with children, or have access to children in a familial context.

We understand the informational constraints under which the Department of Justice receives National Redress Scheme applications from the National Redress Scheme Operator. However, we consider that the Department of Justice should undertake its own reporting from the National Redress Scheme materials it receives (refer to Recommendation 12.5). This reporting should be additional to the existing reporting obligations of the National Redress Scheme Operator and others, and should not be limited by the possibility of duplicate reporting by other entities.131 Such reporting should occur when the information received by the Department of Justice is, on its face, sufficient to meet established reporting thresholds.

Our recommendations

While we commend the Tasmanian Government for its attempts to review allegations of child sexual abuse among its various information holdings, the preceding discussion highlights that these reviews have not been comprehensive. We also heard that not all departments or agencies have undertaken such reviews.132 As a result, we are concerned that there may still be people working with children who are the subject of child sexual abuse allegations.

This highlights the need for a comprehensive historical audit of all relevant records held by the Government to identify all allegations of child abuse, including child sexual abuse. Relevant records for the purposes of this audit should be claims made under the Abuse in State Care Program, the Abuse in State Care Support Service and the National Redress Scheme, and civil claims or complaints in relation to Ashley Youth Detention Centre or the out of home care system.

The purpose of the audit should be to identify all current and former staff in government institutions and carers in the out of home care system, so the Government can take steps to report to external authorities all information relating to current and former staff and carers, and consider disciplinary action for current staff members as well as prioritise the safety of children. This audit is critical to ensuring the safety of children and young people in detention and out of home care.

The audit should be conducted by a person with appropriate experience, legal standing, seniority and no conflict of interest. This may mean appointing a person or body external to government. The person who conducts the audit should be given full access to all necessary systems and information.

Information obtained from the audit on individuals who are the subject of allegations of child sexual abuse should be captured in a single, central location. Secretary Pervan said the Department generally does not track allegations that are not made directly to it because information received through redress schemes and civil claims are not kept on employee files. He noted that this is an area for reform and improvement.133

In Chapter 20 on State Service disciplinary processes, we recommend that the Government maintains a central cross-government register of misconduct concerning allegations of child sexual abuse and related conduct (Recommendation 20.9). This register should contain records of substantiated and unsubstantiated matters, including those that did not proceed to investigation. We consider that information from the audit should be added to this register.

The Government also needs to ensure any reportable behaviour identified through the audit is reported to the Registrar of the Registration to Work with Vulnerable People Scheme and Child Safety Services, any suspected criminal behaviour is reported to Tasmania Police and any reportable conduct is reported to the Independent Regulator of the Reportable Conduct Scheme, so those agencies can take appropriate action.

The Government should also establish processes to monitor and manage allegations arising from future redress claims. In Chapter 17, we recommend that the Tasmanian Government advocates at a national level for the National Redress Scheme to apply to child sexual abuse in institutions experienced on or after 1 July 2018, and, if such an extension does not occur, that the Tasmanian Government itself establishes a redress scheme for victim-survivors of child sexual abuse in Tasmanian Government institutions (Recommendation 17.1).

We consider that the Department of Justice should ensure it meets its obligations to make appropriate notifications to Tasmania Police, Child Safety Services, the Registrar of the Registration to Work with Vulnerable People Scheme and the Independent Regulator of the Reportable Conduct Scheme (despite the fact that the Department of Justice may not be the head of the relevant entity under the Child and Youth Safe Organisations Act).

To assist other departments to identify alleged abusers who may still be working with children, and to take appropriate disciplinary action and make appropriate reports, the Department of Justice should continue to pass on full details of National Redress Scheme applications to other departments, rather than a summary.

In addition, the Government should advocate nationally for a review of the information-sharing framework in the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) and the National Redress Scheme’s Operational Manual for Participating Institutions to ensure information about current risks to children is reported to relevant authorities in the most timely manner and by the most appropriate entity, and to identify the most appropriate point in the process for the National Redress Scheme Operator to seek consent from applicants to share information with relevant authorities.

The Government should also make appropriate supports available to victim-survivors who disclose abuse at Ashley Youth Detention Centre and who come to its attention through any State-based redress scheme, civil claim or complaint. These supports should include warm referrals, with permission, to sexual assault counsellors who have training and experience in working with victim-survivors of child sexual abuse. Warm referrals involve personally assisting victim-survivors to access a service rather than simply providing them with information about how to seek support themselves.

Recommendation 12.5

The Tasmanian Government should:

conduct an audit of allegations arising from
1. claims made under the Abuse in State Care Program, the Abuse in State Care Support Service and the National Redress Scheme
2. civil claims in relation to Ashley Youth Detention Centre or the out of home care system
3. complaints regarding Ashley Youth Detention Centre or the out of home care system

to identify any current or former staff in government institutions or carers in the out of home care system who are the subject of child abuse allegations, including child sexual abuse

ensure the names and details of any staff or carers identified by the audit are added to the cross-government register of misconduct (including unsubstantiated allegations) concerning child sexual abuse (Recommendation 20.9)
ensure all relevant information derived from the audit is provided to Tasmania Police, Child Safety Services, the Registrar of the Registration to Work with Vulnerable People Scheme and the Independent Regulator under the Child and Youth Safe Organisations Act 2023, disciplinary action is considered, and the current safety of children in institutions prioritised
require the Department of Justice to
1. pass on to the Department for Education, Children and Young People and other relevant departments as a matter of urgency the full details (rather than a summary) of any relevant National Redress Scheme application or claim under any future state redress scheme that the Department of Justice administers
2. make appropriate notifications to Tasmania Police, Child Safety Services, the Registrar of the Registration to Work with Vulnerable People Scheme and the Independent Regulator under the Child and Youth Safe Organisations Act 2023 in relation to allegations in National Redress Scheme applications or claims under a future state redress scheme
advocate at a national level to review the information-sharing framework in the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) and the National Redress Scheme’s Operational Manual for Participating Institutions to
1. ensure information about current risks to children is reported to police, child protection authorities, authorities responsible for registration to work with children and administrators of reportable conduct schemes in the timeliest manner and by the most appropriate entity
2. identify the most appropriate point in the process for the National Redress Scheme Operator to seek consent from applicants to share information with relevant authorities
implement systems to enable future monitoring of National Redress Scheme applications, claims under any future state redress scheme and civil claims to identify current staff in government institutions or carers in the out of home care system who are the subject of child abuse allegations, including by adding relevant information to the recommended register of misconduct concerning child sexual abuse (Recommendation 20.9)
make appropriate supports available to victim-survivors who disclose abuse at Ashley Youth Detention Centre, including warm referrals, with permission, to sexual assault counsellors who have training and experience in working with victim-survivors of child sexual abuse
remove any barriers to information sharing that would prevent the implementation of this recommendation.

Cultural change

In Chapter 11, Case study 1, we find that, for decades, some children and young people detained at Ashley Youth Detention Centre experienced systematic harm and abuse. In this section, we examine the organisational culture at the Centre that may have contributed to this abuse. We also describe the significant cultural change that is needed to protect children and young people in detention against the risks of child sexual abuse. As noted in Chapter 3, ‘organisational culture’ consists of the ‘assumptions, values and beliefs, and norms that distinguish appropriate from inappropriate attitudes and behaviours in an organisation’.134

We heard that the problems with the culture at Ashley Youth Detention Centre were profound—they are evident in every case study in this volume. We summarise them in Section 4.2. These problems are not new—they have been brought to the Department’s attention on numerous occasions. Despite this, we heard that there is still a need for effective cultural change at Ashley Youth Detention Centre.

As discussed in Chapter 18, the Child and Youth Safe Organisations Act requires that Child and Youth Safe Standards be implemented in institutions engaged in child-related work, including youth detention.135 These standards require, among other things:

child safety and wellbeing to be ‘embedded in organisational leadership, governance and culture’ in detention136
children and young people in detention to participate in decisions affecting them and to be taken seriously137
staff in detention to be ‘equipped with the knowledge, skills and awareness to keep children and young people safe’.138

Full implementation of the Child and Youth Safe Standards and the creation of a child safe culture in youth detention will require a transformation of the culture into one that respects children’s dignity and human rights, and prioritises child safety. Such a transformation cannot occur without changes to the foundations of the youth detention system. As a former Deputy Secretary of Children and Youth Services told us, the problems in youth detention will not be solved ‘unless you address the culture, the context, the skills and capabilities, the experience and the knowledge base of the staff’.139

We acknowledge that cultural change in detention is a monumental and complex challenge and will take time—experts told us it could take five to 10 years.140 However, it is crucial to ensuring children in detention are safe from ill-treatment and abuse.

Many of the recommendations in other sections of this chapter will support cultural change in detention. However, in this section, we focus on the key areas of leadership, governance, children’s empowerment, children’s participation, staffing, and standards of professional conduct. In particular, we recommend measures to:

strengthen leadership in the youth detention system
improve governance arrangements for youth detention, including establishing means to ensure accountability for cultural change
strengthen children and young people’s participation in detention, including establishing a new advisory group of children, young people and young adults with previous experience of detention
ensure youth workers are appropriately qualified, trained and supported to deliver a therapeutic model of care to children and young people in detention, with enough staff to keep youth workers, children and young people safe
establish a professional conduct policy for all people working in detention facilities that specifies expected standards of behaviour.

Before turning to the evidence of cultural problems in Ashley Youth Detention Centre and our recommendations for change, we outline the specific cultural factors that can heighten the risks of child sexual abuse and ill-treatment in detention environments.

Identifying and addressing cultural risk factors in youth detention

As discussed in Chapter 3, child sexual abuse can occur in any institution, but some institutional contexts and cultures enable sexual abuse.141 ‘Closed’ or ‘total’ institutions such as youth detention—which exercise full control over a child’s day-to-day life and where children are isolated from the outside world and depend entirely on the institution—‘present a high cumulative risk of child sexual abuse’.142 This is, in large part, due to cultural risk factors in youth detention.

As outlined in Chapter 10, the National Royal Commission identified the cultural characteristics of contemporary detention environments that may increase the risk of child sexual abuse.143 These included:

failing to prioritise children’s welfare and wellbeing144
failing to give children the opportunity to communicate their views—this reflects a culture in which children are not listened to and their views are not respected145
disrespecting children—where children are seen as ‘less worthy’, staff may show discriminatory attitudes towards them146
tolerating humiliating and degrading treatment of children—‘[w]hen children are dehumanised, staff can become desensitised to children’s needs, and cease seeing them as children in need of care and protection’147
engendering a strong sense of group allegiance among staff—children are less likely to disclose abuse and less likely to be believed in institutions with strong group allegiance between adults.148

Also, cultural norms not to speak out or ‘snitch’ decrease the likelihood of children making complaints, particularly where they are experiencing harm caused by another child or young person in detention.149

Some of these characteristics echo those identified in a 2015 paper on institutional culture in detention prepared by Penal Reform International, an international non-government organisation, as a resource tool for bodies that monitor places of detention.150 That paper identified aspects of culture in detention facilities that constitute risk factors for torture and other ill-treatment of detainees.151 These factors include:

the view that people deprived of liberty don’t deserve rights
the loss of the detained person’s status as an individual
the view that security is paramount
a culture of violence
an ‘us and them’ attitude between staff and detainees
a culture of impunity, where there is a general tolerance of human rights abuses.152

The case studies in this volume indicate that many of these characteristics have been present at Ashley Youth Detention Centre.

The 2015 Penal Reform International paper listed the components of ‘human rights culture change’ in places of detention, defined as ‘the process of moving an organisation to be more inclusive and to fully respect and accommodate the dignity, worth and rights of all people’.153 These were:

implementing change through participatory processes involving staff, detainees and (where appropriate) members of the community154
ensuring leaders are committed to change155
articulating and communicating a new organisational vision statement or management philosophy that is people-centred and based on human rights principles156
adjusting the operational structure of the detaining organisation to ensure appropriate responsibility and accountability for the detention system157
updating policies and procedures to reflect the wider purpose of the organisation and human rights principles158
implementing a ‘dynamic security’ approach that recognises that ‘positive staff-prisoner relationships combined with fair treatment and positive activities’ enhance security and good order159
changing symbols and language, where there is a need to break with the past—this could include changing the name of an organisation160
improving the physical environment to support the implementation of human rights161
recruiting staff whose skills and experience ‘reflect the values, policies, new operational structures and roles’ of the organisation and ‘dismissing staff who are not suitable for the role or new organisation’162
training staff to ensure they understand the new vision, policies and procedures163
ensuring adequate supervision of staff and reinforcement of changes164
addressing resistance and ‘emphasis[ing] that a human rights culture will be better for everyone’.165

Several of these components are addressed by recommendations in other sections of this chapter. For example, in Section 6, we discuss the physical environment of detention facilities, the relationship between operational staff and children and young people, and implementing a therapeutic model of care in youth detention. In this section, we recommend changes that address the remaining components identified here.

Professor Donald Palmer, an expert on the causes, processes and consequences of wrongdoing in organisations, told us that cultural change to support implementing child safe policies and procedures can be hard to achieve. He said that it:

… requires that attention be given to the complex process through which members of an organisation come to embrace … assumptions about the way the world operates, values and beliefs about what is good and bad, and norms about how people should think and act.166

According to sociologist Dr Samantha Crompvoets, organisational change requires examining power within organisational structures:167

This means understanding how power operates within different levels of the organisation, asking who and what has power, and how does power shape, influence, and obstruct change. To enact organisational change, you cannot rely on the tools, mechanisms and structures already in practice that have been used to oppress the powerless. Organisational structures are comparable to the scaffolding which holds cultures of misconduct and existing power structures in place. To change culture, you need to change the rules that dictate the distribution of power.168

The culture at Ashley Youth Detention Centre

The following discussion identifies problems with the culture at Ashley Youth Detention Centre, including concerns expressed about operational staff. It is important to acknowledge that youth workers at Ashley Youth Detention Centre work in an extremely challenging environment. Many youth workers are deeply committed to supporting the wellbeing of children and young people in detention, many of whom have highly complex needs and challenging behaviours. The following discussion is not intended as a criticism of these youth workers.

Past reviews and recommendations

As noted in Chapter 10, the evidence and material available to our Commission of Inquiry included 17 reports, internal and external reviews and briefings about Ashley Youth Detention Centre since 2003. Many of these documents identified problems with the culture and/or staffing at the Centre.

In summary, we are aware of the following concerns that have previously been raised about the culture at Ashley Youth Detention Centre:

In 2007, a Legislative Council Select Committee examining the youth justice system and longstanding problems at Ashley Youth Detention Centre found that management ‘struggle[d] to maintain a well-trained, professional, and committed staff’ and that ‘from time to time there [were] violent aggressive episodes involving both residents and staff’.169 The committee made 32 recommendations. These included addressing the ‘continuing low morale’ among staff at Ashley Youth Detention Centre.170
In 2011, the Serious Incident Investigation Committee, established by the former Department of Health and Human Services to examine the circumstances of the death of a young person at Ashley Youth Detention Centre, found that: youth workers at the Centre were unprofessional; not all staff had completed the induction program; there was no ongoing culture of education and training; and the training provided to staff was inadequate for responding to critical incidents.171 The committee also found that while there had been some changes to recruitment processes, ‘there [was] a strong likelihood the pervading cultural norms and practices may be undermining this’ change.172 The committee recommended that the youth worker role be reviewed and that immediate action be taken to address concerns about the culture at the Centre.173
In 2015, an independent review of Ashley Youth Detention Centre found that its culture leaned more towards punishment than restoration and rehabilitation, with a preference for using force to manage children and young people rather than the de-escalation techniques taught in training.174 The review commented on the long tenure of staff and referred to a culture of ‘passive resistance’ to change and a lack of visibility and communication from leadership and senior management.175 The review made 13 recommendations, including recommendations aimed at improving leadership and training.176
In 2016, an options paper on potential custodial youth justice models prepared by Noetic Solutions noted that some staff at Ashley Youth Detention Centre were sceptical of a therapeutic approach to managing young people in detention.177
In 2016, a ‘Minute’ prepared by a senior employee of the former Department of Health and Human Services for Secretary Pervan referred to the ‘negative culture’ at Ashley Youth Detention Centre, attributable to multiple reviews of the Centre, uncertainty surrounding its future, an ‘outdated understanding or lack of understanding from some staff that [sub]scribe to a punitive approach in dealing with young people’ and ‘a historical lack of transparent practice’.178 The Minute also identified concerns about governance, leadership, staffing capability and compliance with legislation and human rights obligations and indicated that issues had remained ‘embedded’ at the Centre ‘for a significant period’.179 The Minute noted that a significant number of staff had been at the Centre for many years and recommended a ‘significant change management process’, including ‘profiling of the required skill base … in order to establish staffing needs for the future’.180 This Minute is discussed at length in Chapter 11, Case study 3.
In 2016, a report prepared by the former Department of Health and Human Services to the then Minister for Human Services about violent incidents at Ashley Youth Detention Centre noted an apparent excessive use of force by a youth worker and made several recommendations, including appointing a senior change manager and developing a proposal to strengthen the use of multidisciplinary teams to support a therapeutic approach.181 This report is discussed in detail in Chapter 11, Case study 4.
In 2019, the Ombudsman submitted a report to Secretary Pervan after receiving a complaint about excessive use of force by staff at Ashley Youth Detention Centre against a young person in December 2017. In this report, the Ombudsman noted that ‘the training and the transition over recent years from a corrections focus to a rehabilitation and therapeutic focus [were] often at odds and despite significant training some staff continue[d] to operate from a corrections philosophy’.182
In 2020, the former Department of Communities’ Serious Events Review Team identified ‘a toxic workplace culture at [the Centre] characterised by distrust, suspicion, conflict, and frustration’.183 The review made 17 recommendations, including training and developing a strategy to address workplace culture ‘as a matter of urgency’.184 This review is discussed in Chapter 11, Case study 2.
In 2020, the Australian Childhood Foundation prepared the Through the Fence report, which summarised consultations with a range of stakeholders about developing a trauma-informed operating model for Ashley Youth Detention Centre.185 Consultations indicated that the Centre’s culture was ‘risk averse, focussed on containment and punitive in nature’; the operational environment of the Centre was reactive, ad hoc and unsafe for staff and young people; awareness and understanding of the Ashley Youth Detention Centre Model of Care (introduced in 2019) was very low; and support for change among staff was mixed, with a lack of support influenced by past ineffective efforts to facilitate change.186 The report noted a ‘significant paradigm shift’ would be required to implement a trauma-informed practice framework in detention.187

Despite these reviews and recommendations, meaningful cultural change does not appear to have been achieved. This lack of change is evidenced in the following discussion.

What we heard about the culture in detention

The evidence we heard reflects many of the findings of the earlier reviews outlined in Section 4.2.1.

Security as the paramount consideration

Stuart Watson, the previously mentioned Centre Manager, told us that youth workers at Ashley Youth Detention Centre:

… 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

By contrast, several other witnesses commented on the primary purpose of the youth worker role appearing to be to maintain security and keep children and young people contained. Mark Morrissey, former Commissioner for Children and Young People, observed that, during his time as Commissioner between 2014 and 2017, youth workers at Ashley Youth Detention Centre seemed to be primarily concerned with the custodial rather than the therapeutic aspects of their role.189 Mr Morrissey referred to this as a ‘“detention centre” culture’.190

Professor White, who had extensive exposure to Ashley Youth Detention Centre from 2010 to 2012 as a member of the Serious Incident Investigation Committee (referred to in Section 4.2.1), commented on the inappropriateness of the title ‘youth worker’, given the security focus of the role:

… they were called youth workers but I think … that’s a euphemism … the so-called ‘youth workers’ saw their role [as]… basically to provide security and, in their terms security meant … to make sure that the kids are locked up and that there’s secure movement through the institution … it’s a misnomer to call them youth workers because the usual sense of the word ‘youth worker’ means it’s a professional youth and community worker who works to support children and to address their immediate needs. This is by no means what we mean by youth worker in the case of Ashley.191

Similarly, Mr Morrissey referred to the youth workers as ‘guards’.192

These observations are reinforced by the practices of the Department in engaging private security companies to address staff shortages in the recent past.193

Madeleine Gardiner, who worked at Ashley Youth Detention Centre until 2019 as Manager, Professional Services and Policy, reflected that the ‘operational need [at Ashley Youth Detention Centre] appeared at times to take priority over the rehabilitation needs of the young people’.194 She expressed concern that trauma-informed responses and therapeutic practices were not well understood by some operational staff.195

We heard that prioritising security over therapeutic practices and trauma-informed responses to children and young people contributed to conflict between operational staff and professional services staff in decision-making forums at Ashley Youth Detention Centre. Ms Gardiner said that ‘differences in professional opinion’ about the care and management of young people at Ashley Youth Detention Centre were often the source of conflict between professional services staff and operational staff.196 In Ms Gardiner’s opinion, professional services staff operated from a ‘theory and evidence base’, but operational staff ‘came from a practice of, “This is what we’ve always done and this is what we do to … operate the centre and to keep the centre safe”’.197

In Chapter 11, Case study 2, we observe that there was an apparent prioritising of operational concerns over protecting young people from the risk of harmful sexual behaviours. We also observed that the advice of staff, who had knowledge and experience of harmful sexual behaviours and the management of such behaviours, appears not to have been given as much sway as the concerns and views of operational staff.

A punitive culture

The case studies in this volume detail the extensive evidence we heard about alleged abusive practices by staff at Ashley Youth Detention Centre. As discussed in Chapter 11, Case study 1, we heard about a longstanding corrosive staff culture at the Centre that valued coercive and punitive responses to children and young people, including using force, strip searches and isolation techniques, and enabled abusive practices and human rights violations to occur. Those accounts suggest the culture at the Centre was at odds with a therapeutic model of care that supports trauma-informed responses to the challenging behaviours of children and young people in detention. In Section 6, we make recommendations for implementing such a model of care.

A former manager of Ashley Youth Detention Centre told us that when he first started in his role in the early 2000s, he observed that the Centre worked on a system run by fear and total control by staff and the belief that young people ‘could only be managed through intimidation and coercion’.198

Professor White observed that using punishment, segregation and isolation at Ashley Youth Detention Centre was inconsistent with the care, understanding and mentoring that children and young people typically require when they act out.199 Professor White told us he was particularly struck by ‘the apparent lack of empathy’ some staff showed towards residents, referring to a ‘sense of coldness and indifference’ among those staff.200

Professor White further stated:

… there was no sense of a rehabilitation, welfare or restorative mission. The orientation was towards social control and a lock-up mentality, rather than attempting to make institutional conditions that would foster a more pleasant place in which to live and/or provide opportunities for individual betterment.201

Dr Michael Guerzoni, Indigenous Fellow—Academic Development, University of Tasmania, an expert in criminology and juvenile justice, told us that he understood the culture at Ashley Youth Detention Centre to be ‘punitive’, describing it as a culture that:

… is informed by a view that the children in their care are bad people who do not deserve to be treated well. These views and assumptions are further strained by the difficulties of working in criminal justice, intensifying the default view of children in this context and contributing to a culture that routinely overlooks and disregards policies and procedures.202

Mr Morrissey told us he had observed the ‘heavy handed and excessive’ restraint of children and young people by certain staff when he visited the Centre as Commissioner for Children and Young People.203 He also described verbal abuse from some staff towards children and young people detained at the Centre:

On several occasions I witnessed incidents of verbal abuse and belittling of the young people by certain staff. I reported these incidents to management however was not advised of the outcome. The custodial staff involved in this abuse remained on staff at [Ashley Youth Detention Centre]. It concerned me that such verbal abuse had become normalised ...204

Both Mr Morrissey and Professor White conveyed their astonishment and concern that some staff would engage so openly in poor behaviour towards young people.205

Alysha (a pseudonym), a former Clinical Practice Consultant at Ashley Youth Detention Centre from late 2019 to mid-2020, was critical of some staff at the Centre, describing them as ‘highly punitive’ and ‘often verbally abusive, sometimes physically abusive or excessively forceful’ towards children and young people.206 Alysha recalled ‘many instances of staff going out of their way to humiliate or belittle children’.207 She said that it seemed to her that staff intended to show young people ‘who was in control’.208

Alysha further stated:

I felt like they [staff] … didn’t respect the children; certainly didn’t have—and again, not all staff, but the majority—I’m confident in saying that the majority did not look to meet their needs, did not care about what they could do to best support individual young people in their rehabilitation, how they could best support them; that wasn’t something that entered the conversation.209

Alysha’s impressions of the culture and approach at Ashley Youth Detention Centre largely echoed those of Professor White, despite their experiences at the Centre being several years apart.

Victim-survivors told us about their impressions of youth workers in detention, whom they also called ‘guards’. Simon (a pseudonym), who was detained at Ashley Youth Detention Centre in the early to mid-2000s, said:

I can sit here and tell you right now the guards at Risdon Prison are a lot better than the Ashley Youth Detention Centre ones; they treated people like shit. You shouldn’t be doing that, you know what I mean, they’re children at the end of the day.210

Victim-survivor Warren (a pseudonym), who was detained at Ashley Youth Detention Centre in the mid to late 2000s, told us:

Other guards would bring their bad mood to work. If they didn’t like you, they would be physical with you. If you gave them a little bit of lip, they would restrain you and nearly snap your arm behind your back.211

These comments are consistent with some of the accounts provided in the context of the research we commissioned to understand how children and young people perceived safety in institutional contexts, including youth detention.212 Some young people spoke about being assaulted by staff members, often in the context of being restrained or after a critical incident.213 These accounts are discussed in Chapter 10.

Inconsistent treatment of children and young people

An anonymous professional who worked at Ashley Youth Detention Centre from the mid to late 2010s told us that the Centre’s Behaviour Development System, which assigned colour ratings to children and young people based on their behaviour, was at times misused by staff. They observed that staff ‘favoured’ some young people, with ratings assigned accordingly.214 They also observed that the nature of a young person’s offending or alleged offending often affected how incidents at the Centre were reviewed and ratings assigned—‘a young person on rape charges at times was treated more harshly because staff didn’t like the charges’.215

Similarly, Ms Gardiner told us she ‘was aware that young people felt that some staff were harsher or more lenient on some detainees than others’ in relation to the Behaviour Development System.216 In Chapter 11, Case study 3, we discuss how, at times, the ‘Blue Program’, once a part of the Behaviour Development System, would have resulted in some children experiencing isolation practices as punishment. We discuss the Behaviour Development System and its later iteration, the Behaviour Development Program, in Section 6.3.

Socialisation of new staff into a longstanding culture

As discussed in Chapter 11, Case study 1, the longstanding tenure of many staff at Ashley Youth Detention Centre contributed to entrenching problematic attitudes and normalising the poor treatment of children and young people. Dr Guerzoni told us he understood that ‘the evidence suggests that new workers at Ashley Youth Detention Centre have been socialised into a punitive culture’.217

Mr Morrissey told us that, during his time as Commissioner for Children and Young People, new staff regularly entered Ashley Youth Detention Centre with energy and positive ideas, but were overwhelmed by the existing and longstanding culture:

… I think they often had a choice of adopting the prevailing longstanding culture or moving on. It was a very—culture, as we know, is very critical, but the culture at Ashley was a very powerful culture that was very difficult for just a few people to overcome and change …218

Similarly, victim-survivor Max (a pseudonym), who was detained at the Centre for periods from the late 2010s to the early 2020s, told us that even if a youth worker started with positive intentions, they would soon be socialised into the dominant culture at Ashley Youth Detention Centre:

Like, the new ones, the new ones that they’ve brought, like, what I seen is, like, I don’t know what they’re like now, but after being there a year and that, they normally turn into the same as the other ones … Yeah, it was the best thing when a new one started because they were actually nice and they never used to do any of that, and the youth workers would gradually ease them into it, like, they’d sort of ease them into showing them all this stuff.219

In Chapter 11, Case study 1, we find that some staff likely felt peer pressure to conform to the poor practices of others (for example, in relation to strip searching) and took part reluctantly on this basis but, also, to avoid becoming targets for abusive or bullying behaviour from colleagues (refer to the following discussion). We consider that some of this behaviour reflects a highly traumatised and dysfunctional workforce.

Bullying and unprofessional behaviour

We heard evidence of bullying and unprofessional behaviour among staff at Ashley Youth Detention Centre. Fiona Atkins, Assistant Manager at the Centre, agreed with a suggestion put to her by Counsel Assisting our Inquiry that there was a ‘top-down command and control culture of management’ at the Centre in 2019 when she was in operations and training roles.220 She also said that she had personally been subjected to ‘bullying behaviours’ by some of the management group around this time.221

Mr Watson, who began in the role of Assistant Manager at the Centre in early 2020, told us about difficulties he experienced with a colleague.222 He explained:

[The colleague] didn’t vacate the office for, I think it was four days, and when they did vacate the office they left it really dirty and grotty, and a voodoo doll hanging from the monitor with pins through the heart of the voodoo doll. I was also informed by staff up there that it was [the colleague’s] belief that they could drive me out and then they could assume the position of Assistant Manager, and that that was their intention.223

Mr Watson also stated that, when he started as Assistant Manager, staff felt ‘unsafe’, ‘oppressed’ and ‘bullied’ by members of the management group and people were generally scared to speak up to that group at that time.224

Similarly, Veronica Burton, a former Serious Events Review Team reviewer, told us that staff felt ‘very intimidated to raise issues’ with this management group:225

They described incidences of verbal abuse, being yelled at, being physically assaulted on a couple of occasions by being pushed, and prevented from leaving a room, and being spoken over the top of in meetings when they tried to express concerns about decisions that were being made in meetings.226

Alysha told us that, during meetings of the Centre Support Team (a decision-making forum discussed in Chapter 10 and Section 6.4), some staff engaged in ‘voice raising, swearing, name calling, silencing, excluding, speaking over, belittling, eye rolling, finger pointing or other intimidating gestures’, usually aiming such behaviours at professional services staff.227

A former Manager, Professional Services and Policy (not Ms Gardiner) told us that some staff, particularly those recruited many years ago, were ‘not restrained and guided by professional value sets’.228 Ms Burton described an interaction with a staff member who told her that he had made a comment to some young people in detention about their genitals.229 Ms Burton said she was ‘taken aback’ because:

… it’s not a professional comment to make, it’s not a way that you would talk to another professional from an external service reviewing, you know, the Centre; it just seemed at the very least inappropriate and uncomfortable. And at the worst, I guess, it felt uncomfortable that he would be talking about the boys’ genitals and joking about that.230

Resistance to change

Mr Morrissey said the prevailing culture at Ashley Youth Detention Centre had remained unchanged for decades.231 He referred to a ‘static institutional culture that was by its very nature unable to be forward thinking or offer therapeutic care that was in the best interests of children’.232

The unchanged culture at Ashley Youth Detention Centre may have been related to the lengthy service of some staff members, which we discuss in several case studies in Chapter 11. We heard that several current staff have been working at Ashley Youth Detention Centre since the early 2000s.233

The entrenched culture may also have been reinforced by the fact that many of the staff at the Centre were drawn from the local community, where they were connected through sporting and social clubs.234 As Professor Richard Eccleston, University of Tasmania, stated, strong social and professional connections can result in interdependencies that ‘make it particularly difficult to maintain integrity and a commitment to process and ethical conduct’.235 In Chapter 11, Case study 1, we find that familial and personal connections between some staff created strong social disincentives to challenge, question or report poor behaviour of staff towards children and young people.

Victim-survivor Erin (a pseudonym) commented on this dynamic:

I would describe the staff at Ashley as being like a pack of animals. Some of them had been working there for 30 years. They all went to school together. They were all from [the local area], which was a small country town. They all looked after each other.236

Alysha expressed the view that ongoing failures to implement therapeutic approaches to managing children and young people at Ashley Youth Detention Centre were, in part, due to a general unwillingness among most staff to ‘consider new approaches’ and to change the way in which the Centre operated.237

Similarly, Adjunct Associate Professor Janise Mitchell, Deputy Chief Executive Officer, Australian Childhood Foundation, who authored the Through the Fence report (discussed in Section 4.2.1), referred to the absence of an ‘authorising environment’ to ‘try to do things differently’ at Ashley Youth Detention Centre.238 She also referred to a lack of ‘unity of vision’ among some staff:239

There are the ‘old guard’ as some would call them, and then there’s the new guard. There’s people who are more up for giving something different a go, and then there’s the dyed in the wool, ‘This is the way we’ve always done it, this is the way I’m going to keep doing it, this is what’s going to make a difference’…240

Mandy Clarke, former Deputy Secretary, Children, Youth and Families in the former Department of Communities, told us the attitudes and practices of staff at Ashley Youth Detention Centre may be difficult to shift:

It is possible that [staff] may at times refer to stories of the old days which could be an ongoing challenge for the Centre management in their efforts to redefine a workplace culture characterised by therapeutic practice approaches.241

Secretary Pervan conceded that departmental leadership did not understand the extent of cultural issues at Ashley Youth Detention Centre and acknowledged some staff members’ resistance to change:

In retrospect, those cultural issues are far harder to change … I think myself personally didn’t understand the depth and strength of, if not the culture of the institution, the culture around a group of individuals and their resistance to change.242

Staffing challenges and an unsafe environment for youth workers

As discussed in Chapter 10, longstanding systemic challenges related to staffing at Ashley Youth Detention Centre appear to have contributed to the persistent problems in the culture and in the treatment of children detained there. These challenges include difficulties in fully staffing the Centre due to resourcing, staff turnover and unplanned staff absences, and difficulties attracting, retaining and training an appropriately skilled and qualified workforce to work at the Centre. These challenges have also contributed to creating an unsafe work environment for youth workers, which in turn risks the safety of children and young people.

We received statements from current and former Ashley Youth Detention Centre employees that tell a story of staff trying to do their best in highly challenging operational circumstances. Several staff members told us that on-the-job training was haphazard, poorly attended and did not equip staff to effectively respond to workplace incidents. Sarah Spencer, a youth worker at Ashley Youth Detention Centre since 2011, provided evidence to us in August 2022. She told us:

Staff are assaulted on site regularly, consistently … We’re trying to get more staff: we’re not supported. We don’t get debriefings after critical incidents, we don’t get breaks as I’ve already said. We do not get clinical supervision … We’ve got inexperienced staff who are not trained properly, who are only going to make more mistakes, and then it’s going to be their fault again, and it shouldn’t be.243

Ms Spencer added: ‘We have not had the support, we have not had the care that we have required or the professional training or the professional supervision or anything that we needed’.244 Ms Spencer said that she felt caught up in a persistent cycle of trauma at the Centre, which left little time for ensuring young people got the rehabilitative attention they needed to stop them being detained again.245

Colleen Ray, a youth worker who has been at Ashley Youth Detention Centre since 2002, told us that there had been ongoing staff shortages at the Centre, particularly in the previous four years, and that a significant cohort of staff worked multiple overtime shifts each week.246 Similarly, Ms Spencer said that staff were often required to work long shifts with few or no breaks, to the point where some staff brought spare underwear to work in anticipation of a lack of necessary bathroom breaks.247

Ms Spencer told us that implementing restrictive practices (lockdowns) at the Centre due to staff shortages meant that when young people were eventually released from their rooms or units, they were considerably more difficult to manage, which created more risks to the safety of staff:

Well, when you’re working with staff who can’t restrain aggressive young people, who at the moment due to the fact that we’re in restricted practices, so rolling lockdowns because we don’t have the staff, when they do come out, obviously they’re heightened, and we get that, but we can’t—the few people that were managing them couldn’t manage them, and so, the whole shift was just horrific ...248

In Chapter 11, Case study 1, we find that the highly pressured, stressful and occasionally frightening conditions in which staff sometimes had to work, coupled with inadequate training and professional development for some staff, made it more likely for staff to deviate from best practice when seeking to manage the behaviour of children and young people. We also find that difficult behaviours displayed by children and young people likely contributed to staff holding negative attitudes towards them. We consider that this context would facilitate new staff becoming absorbed into an existing punitive culture.

The risks to staff safety at Ashley Youth Detention Centre appear to be ongoing. In a submission to a parliamentary inquiry into adult imprisonment and youth detention in Tasmania in March 2023, a former police officer who worked for several months at Ashley Youth Detention Centre in late 2022 described the Centre as ‘an abusive and violent working environment where youth workers … are subjected to verbal and physical abuse [from young people] daily’.249 This submission also referred to the prevalence of absenteeism among youth workers and the substantial proportion of youth workers who were suspended or on leave due to workers compensation claims.250

We discuss support for staff, staff shortages and a range of other issues related to staffing in Section 4.7.

Efforts to address cultural problems at Ashley Youth Detention Centre

Ms Gardiner said a ‘change manager’ employed at Ashley Youth Detention Centre in 2018 undertook work to develop a therapeutic approach at the Centre and improve working relationships.251 According to Ms Gardiner, this work was collaborative, staff were receptive to it and ‘there was an energy and an appetite for making some significant improvements in the centre’.252 However, the change manager role was defunded in June 2018.253

Mr Watson expressed the view that the culture at Ashley Youth Detention Centre had changed in recent years:

I believe that at this time at Ashley that [the] culture isn’t as it’s been suggested. I believe that it has been in the past, but the staff changes over the last two years that I’ve been there have been incredible. There’s very few of the staff that were there when I started now.254

In August 2022, Pamela Honan, Director, Strategic Youth Services, told us that the relationship between operational staff and professional services staff had improved, describing it as ‘respectful, supportive, collaborative and equal’.255 Ms Honan attributed the improved relationship to appointing new senior managers in both teams, a ‘shift to a more accountable and collaborative style of leadership and decision making’ supported by the new Ashley Youth Detention Centre Practice Framework (discussed in Section 6.3.3) and increased accountability across all staff for case management, incident reporting and policy compliance.256 Ms Honan said organisational change didn’t ‘happen overnight’, particularly in the context of ‘years and years of a poor culture’.257 However, she believed positive change had begun.258

Similarly, Secretary Pervan told us positive change was already underway at Ashley Youth Detention Centre, although he acknowledged that genuine cultural change would take time:

We’re on the way. It’ll take a decade before what you’ve got there is at least a benchmark facility and service, whether it’s at Ashley or it’s, you know, at the … new facilities. Changing those cultures are not just about changing people’s attitudes; in many respects they’re about changing the people themselves.259

Given the depth of the cultural problems identified in this section, we consider that more significant reform of the youth detention system is required to achieve meaningful cultural change. This should occur immediately, given the number of past reviews that have shown incremental reform to be ineffective.

The Government’s proposed reforms

As noted in Section 2, the Tasmanian Government has announced plans to close Ashley Youth Detention Centre and ‘transition to contemporary therapeutic facilities and models of care by the end of 2024’.260

The Government’s Draft Youth Justice Blueprint, Draft First Action Plan and Keeping Kids Safe Plan each contain proposed reforms that broadly seek to address the cultural problems we have identified.261 For example:

A principle underpinning the Draft Youth Justice Blueprint is to ‘create a culture that fosters child safety and wellbeing across the youth justice system in Tasmania’.262
An aim of Strategy 5 (‘Provide an appropriately trained and supported therapeutic workforce’) of the Draft Youth Justice Blueprint is to develop ‘an ongoing culture of learning, inquiry and continuous improvement, including collaborative opportunities for professional development, supervision, support; and opportunities for best practice to be shared and supported’.263
The Draft First Action Plan refers to an ‘increased culture of safety for staff and children and young people’ and ‘increased professionalism of [the] workforce’ as expected outcomes of Action 1 (‘Enhance the safety and therapeutic approach at [Ashley Youth Detention Centre]’) and Action 2 (‘Develop and implement a Youth Justice Model of Care’).264
The Keeping Kids Safe Plan states that the Department for Education, Children and Young People ‘will continue to focus on delivering practice improvement, professionalisation of centre operations and the workforce, and importantly, culture change’.265

We refer to more specific proposed reforms from these documents throughout this section. We turn now to our recommendations for change.

Strong and active leadership

Strong and active leadership is critical to creating a child safe culture. Leaders should instil a culture that ‘inhibits the perpetration of child sexual abuse, speeds the detection of abuse, and enhances the response to abuse’.266 Professor Palmer stated that leaders ‘demonstrate cultural content’ in several ways—by the people they hire and fire; the behaviour they reward and punish; the matters they focus on; the way they respond to crises; and the attitudes and behaviours they display.267

Leadership roles in youth detention

As outlined in Chapter 10, 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.268

In October 2022, responsibility for youth justice services was transferred from the former Department of Communities to the Department for Education, Children and Young People.269 Since this restructure, the position of Executive Director, Services for Youth Justice, which was created in August 2022, has been responsible for Ashley Youth Detention Centre and broader youth justice services.270 Initially, the Executive Director reported directly to the Secretary; however, the Department has advised us that, since the restructure, the Executive Director reports to an ‘Associate Secretary’.271

The current Executive Director, Services for Youth Justice is Christopher Simcock. In oral evidence, Mr Simcock told us that he has two direct reports—Ms Honan (Director, Strategic Youth Services, sometimes also referred to as the Director, Youth and Family Violence Services) and the ‘Director of Custodial’.272 We understand this to be a reference to the Director, Custodial Operations—a new role that has been ‘filled through a secondment from 5 September 2022 for a 12 month period to focus on additional staff and operational support at [Ashley Youth Detention Centre]’.273

We understand that, since the October 2022 restructure, the Manager, Custodial Youth Justice (‘Centre Manager’), who is based at Ashley Youth Detention Centre, continues to report to the Director, Strategic Youth Services. The Centre Manager is responsible for managing the day-to-day operations of Ashley Youth Detention Centre, the development and leadership of a management team, and providing direction for programs at the Centre.274 As at May 2022, the Centre Manager role was a Band 8 in the Tasmanian State Service and had four direct reports.275

Strengthening leadership

A paradigm shift is required in youth detention in Tasmania to move from a punitive, custodial model to a therapeutic model of care. The Government has outlined a major youth justice reform agenda for the next 10 years, including reviewing the Youth Justice Act, closing Ashley Youth Detention Centre and building new youth justice facilities. Effective and timely implementation of these measures will require active, expert and decisive leaders who are committed to achieving the necessary cultural change to support reform and create a child safe culture in detention.

Adjunct Associate Professor Mitchell stressed the importance of committed leadership in changing an entrenched culture:

Leadership sets the environment within which the work happens. So, if you don’t have leadership that is on board with what you’re trying to achieve operationally, then you are doomed to fail.276

Ms Clarke told us that ‘very, very strong leadership’ was necessary to implement a therapeutic practice framework in youth detention and that such leadership ‘must be grounded in understanding and an absolute commitment to therapeutic practice’.277 Similarly, Ms Burton indicated that leadership in implementing a therapeutic framework in detention was crucial:

… it needs to be a top-down approach to change, otherwise the barriers will remain. If the framework, whatever it ends up being, and the therapeutic service is not embraced by executive, it won’t be successful.278

Objective 2 of the Keeping Kids Safe Plan refers to developing a Youth Justice Services Workforce Strategy (discussed in Section 4.7.2) with ‘a strong leadership focus’.279 The plan also refers to establishing several new leadership positions ‘to manage specific areas’ at Ashley Youth Detention Centre, including Director, Custodial Operations (referred to in Section 4.4.1); Director, Clinical Services; Assistant Manager, Case Management; and Assistant Manager, Security, Risk, Training and Audit.280 We are pleased to see these new leadership roles being introduced. We are unclear whether these roles will be located at the Centre or the Department or both, noting that strong leadership will be necessary in both the Department and Ashley Youth Detention Centre (and any future detention facility).

As noted in Section 4.4.1, the Executive Director, Services for Youth Justice reports to an Associate Secretary, who reports to the Secretary.281 The Associate Secretary’s three other direct reports are Deputy Secretaries.282 We are concerned about this lack of parity in seniority among the leaders in the Department. In such a large department, it is vital that the youth justice leader has enough seniority to represent the significant risk carried by that portfolio involving Tasmania’s most vulnerable children. However, we acknowledge that in a small jurisdiction such as Tasmania it may not be feasible to elevate this role to that of a Deputy Secretary.

At a minimum, we consider that the Executive Director, Services for Youth Justice must have knowledge and understanding of youth justice and therapeutic models of care in youth justice, as well as experience in providing strategic direction and leadership. This is essential to achieving meaningful cultural change in youth detention.

The Executive Director should be an active leader who frequently visits detention and other youth justice facilities to ensure they are aware of and understand the risks to children and young people in those facilities, and are accountable for addressing those risks.

The Executive Director should also be responsible for cultural change at Ashley Youth Detention Centre. Cultural change in youth detention should be included in the Executive Director’s key performance indicators and in those of the Associate Secretary and Secretary. We discuss governance arrangements in Section 4.5.

Also, we consider that the role of Centre Manager should be more senior than it currently is, reflecting the complexity and expectations of the role. As noted, detention is a highly complex and challenging environment. The Centre Manager’s operational responsibilities for the day-to-day care, supervision and safety of children and young people in detention—many of whom have extremely complex needs—as well as for the safety and supervision of staff, are significant. The current classification of this role does not adequately reflect these responsibilities or the risks associated with them. We recommend a reclassification of this role to accurately reflect its responsibilities.

We also recommend that the Centre Manager’s position description and performance measures include implementing cultural change in youth detention.

Recommendation 12.6

The Department for Education, Children and Young People should:

have appropriate processes in place to ensure leaders in youth detention have the knowledge, skills, aptitude and core capability requirements to effectively manage people and to lead a child safe organisation
ensure the person who holds the position of Executive Director, Services for Youth Justice, has knowledge and understanding of youth justice and therapeutic models of care in youth justice, and experience in providing strategic direction and leadership
ensure cultural change in youth detention is included in the key performance indicators of the Secretary, Associate Secretary and Executive Director, Services for Youth Justice
reclassify the position of Manager, Custodial Youth Justice from Band 8 in the Tasmanian State Service Award to at least a Senior Executive Service Level 1
ensure the position description and performance measures for the role of Manager, Custodial Youth Justice include implementing cultural change in youth detention.

Governance

Good governance is essential to creating a child safe culture in youth detention.As discussed in Chapter 9, the National Royal Commission defined ‘governance’ as ‘encompass[ing] the systems, structures and policies that control the way an institution operates, and the mechanism by which the institution, and its people, can be held to account’.283

We consider that good governance for youth detention requires senior leadership to be aware of what is occurring in detention facilities and to be accountable for addressing risks to children and young people in detention. This, in turn, requires transparency from the facility’s management and a clear understanding of what information should be escalated to whom and in what circumstances, particularly about adverse incidents in detention and the use of isolation, force, restraints and searches.

Good governance also requires structures and systems to enable monitoring and evaluation of progress towards clear goals for cultural change and broader system reform.284 Professor White referred to the importance of monitoring reforms, stating:

… 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.285

Dr Crompvoets highlighted the need for ‘tangible accountability’—for a particular role holder with ‘skin in the game’ to be ultimately responsible for implementing change.286

We asked Secretary Pervan to describe the Department’s governance arrangements for Ashley Youth Detention Centre. He told us that:

Senior executives in the Department undertake ‘[a]dministrative, managerial and operational oversight’ of the Centre.287
The Custodial Inspector and the Commissioner for Children and Young People provide external oversight.288
‘Additional “external” resources may be provided for the review of significant incidents’, including activating a Serious Events Review Team to undertake an investigation when a child or young person has experienced a ‘serious event’ (death, serious injury or a ‘near miss’ event).289 The findings of a Serious Events Review Team would be provided to a ‘multi-disciplinary panel of clinical and practice experts’—the Serious Events Review Committee—which includes members from external agencies and advises the Secretary on system-wide recommendations.290

We discuss external oversight in Section 11 and the Department’s responses to critical incidents in detention in Section 10. In those sections, we make recommendations to strengthen independent oversight of youth detention and to improve departmental responses to allegations of child sexual abuse and other serious incidents in detention. In Section 9, we consider how certain incidents are reported in the Department.

Here, we discuss managerial and operational oversight of Ashley Youth Detention Centre by senior executives in the Department and mechanisms for monitoring cultural change and system reform.

A lack of transparency

Counsel Assisting our Inquiry asked Secretary Pervan how he satisfied himself that his delegates were exercising the powers delegated to them appropriately.291 In his answer, Secretary Pervan referred to two processes—‘the reporting line through the Deputy Secretary down to the Director and their reports back to me’ and ‘that assumption of competence and trust going down the line to exercise those delegations in accordance with the policies that are set for the relative power’.292

These processes rely on appropriate reporting by the facility to the Department, so relevant information about the facility can be conveyed to the executive. We heard that this has not always occurred. Ms Honan told us that the relationship between Ashley Youth Detention Centre management and the Department was ‘pretty guarded’ when she took up her role in 2019.293 She described a closed culture at the Centre:

I felt that … the Centre operated as a satellite … it was very inward facing; there wasn’t a lot of connection with, not just the department, but other services in the community. It was very closed, very wary, and defensive, I would say …294

Ms Honan also referred to a lack of trust and transparency in reporting by the Centre Manager to the Department (and external oversight bodies):

My impression was that there was also a high degree of mistrust and selectivity in what and how information was reported by the Manager up to the executive to ensure the operating of the centre was positively regarded. The relationship with independent statutory bodies appeared to be wary and uncooperative.295

Ms Clarke agreed with these assessments.296

In her statement to our Inquiry in August 2022, Ms Honan indicated that transparency at Ashley Youth Detention Centre had improved significantly since 2020 due to a range of measures.297 These include:

improved recording and reporting of information to the executive—Ms Honan told us she received ‘monthly reports pertaining to searches, restraint, isolation or use of force’298
improvements in incident reporting and the recording of information in isolation, restraint and search registers and in case notes—incidents are escalated to the Department if they involve injury or harm to a child or young person or ‘if there is a significant event such as sexual/physical assault, damage to property, disturbance, self-harm, escape’299
‘open and transparent reflection and review of incident management to continuously improve and support best practice’300
the development and implementation of the Ashley Youth Detention Centre Practice Framework301
weekly visits by Ms Honan to the Centre, during which she speaks and listens to staff and children and young people302
appointment of a ‘Senior Business Partner’ (we did not receive more information about this role)303
‘considerable investment in building staff (including managers’) understanding and application of the Agenc[y’s] values and expected workplace behaviours’.304

During the hearings, Ms Honan conceded that other, more significant improvements were needed to fully address the problems at Ashley Youth Detention Centre:

The changes we have put in place are still to some degree not enough. The entirety of reform that needs to happen for Ashley is systems reform. So, what we have managed to do is be more accountable, more transparent, increase the level of safety around children … there are more CCTV cameras, there are better practices, I think people feel more comfortable in discussing things that they have concerns about as opposed to them being suppressed … there is more collaboration around decision making. All of those things help to reduce risk, but they are certainly not reform on the scale that needs to occur.305

We welcome the changes that have been implemented at Ashley Youth Detention Centre to improve reporting to the Department, transparency and accountability. However, we agree with Ms Honan that more improvements are needed to bring about meaningful cultural change in youth detention and create an environment that is safe for children and young people and staff.

The Keeping Kids Safe Plan refers to the Department establishing an ‘Incident Review Committee’ at Ashley Youth Detention Centre in September 2022 to ‘review incidents on a weekly basis for compliance with policy and procedure, follow up actions based on review findings and to identify learning areas to support staff’.306 This committee is chaired by the Director, Custodial Operations, and its members include the Director, Youth and Family Violence Services and the Centre Manager.307 We discuss this committee in Section 9.3.4.

Monitoring of youth justice reforms

The Tasmanian Government has developed a Youth Justice Reform Governance Framework to support youth justice reform in Tasmania.308 This framework ‘recognises [that] a transformed youth justice system requires a whole-of-government, all of service system, and whole-of-community approach’.309 The governance framework comprises:

the ‘Children, Young People and Families Safety and Wellbeing Cabinet Sub Committee’, whose role is to oversee the development and implementation of the Youth Justice Blueprint (among other matters)310
the ‘Youth Justice Reform Steering Committee’, comprising Secretaries and/or Deputy Secretaries of all relevant departments—the role of this committee is to provide advice to the Cabinet Sub Committee and the Youth Justice Reform Project Team311
the multidisciplinary ‘Youth Justice Expert Advisory Panel’, whose role is to provide advice to the Youth Justice Reform Steering Committee on the transition to a therapeutic model and the development of new custodial facilities in Tasmania, and whose members include representatives of relevant departments and non-government organisations—this panel ‘has expertise in key areas relating to youth justice services, child and adolescent development, psychological research, child rights, education, trauma and abuse’312
the ‘Youth Justice Blueprint Community Consultative Working Group’, whose role is to provide advice on implementing the Youth Justice Blueprint and to ‘[a]ssist the Tasmanian Government in monitoring the implementation of the Blueprint and Youth Justice Reform in the community’—members of this group include representatives of ‘key youth at risk/youth justice community service organisations and stakeholders’.313

Also, as noted in Section 2.1, the Keeping Kids Safe Plan states that a ‘Working Group’ has been established to oversee and monitor that plan’s implementation.314 The plan does not specify the membership of this group, nor does it explain the relationship between this group and the governance framework outlined here.

According to the Draft Youth Justice Blueprint, a ‘Blueprint Monitoring and Evaluation Plan’ will be developed to measure progress ‘against the intent of the Blueprint and short and long term outcomes across each of the five strategies’.315 Annual reports will be released providing information on implementation and the effectiveness of actions.316 Also, the Government’s Draft First Action Plan refers to an ‘Outcomes Framework that will increase our ability to track, monitor and report change over the life of the Blueprint’.317

The Draft Youth Justice Blueprint states that some of the indicators of its success will include diversion of children and young people from the criminal justice system and completion of appropriate professional development by staff working in the youth justice system ‘to ensure a children and young person centred, therapeutic and trauma informed response to youth offending’.318

It appears that these governance structures will not continue beyond implementing the youth justice reforms. In our view, ongoing governance structures to monitor the performance and culture of Ashley Youth Detention Centre and any future youth detention facilities are essential.

Accountability for cultural change

Given the history of cultural problems at Ashley Youth Detention Centre, and the continuing need for change in detention to create a child safe culture, we consider that measures are needed to monitor cultural change and to ensure leaders are accountable for change.

In particular, we recommend that the planned monitoring and evaluation of implementation of the Government’s youth justice reforms specifically include monitoring and evaluation of cultural change in detention. As part of the proposed Outcomes Framework under the Draft Youth Justice Blueprint, objective metrics should be identified or developed to measure cultural change. These should include measures relating to adverse incidents in detention (such as assaults and self-harm), staff absences, workers compensation claims, sick leave, staff retention and grievance procedures.

Self-reporting measures such as staff surveys should also be included, but these should not be the sole measures of cultural change, given previously identified barriers to the reporting of concerns in detention. We also recommend that information from exit interviews conducted by independent community visitors with children and young people leaving detention should be used to measure cultural change (refer to Section 11.4 for a discussion of independent community visitors).

The Government should also ensure there is an ongoing governance structure to oversee and monitor the functioning of the youth justice system, including the performance and culture of youth detention, beyond the implementation of the youth justice reforms.

The Centre Manager (and the manager of any future detention facility) should be responsible for driving cultural change in detention and ensuring the environment is safe for children and staff. However, we consider that a position based at Ashley Youth Detention Centre to assist the Centre Manager in this function would be beneficial. As noted in Section 4.2.2, Ms Gardiner told us that when she started working at Ashley Youth Detention Centre in 2018, there was a change manager at the Centre whose work made a positive impact on the culture of the Centre.319 She said that after this position was defunded, ‘[w]ithout someone driving the cultural change and relationship building from a leadership perspective, this cultural change was not maintained’.320

We recommend that the Department immediately appoints a culture change manager at Ashley Youth Detention Centre and that this position be maintained beyond the closure of the Centre for as long as monitoring indicates there is a need for this position.

Recommendation 12.7

The Tasmanian Government should:

develop measures to monitor and evaluate progress towards cultural change in youth detention and include these in the Outcomes Framework under the Youth Justice Blueprint and associated action plans
include monitoring and evaluation of progress towards cultural change in youth detention in the Youth Justice Reform Governance Framework
urgently begin data collection and monitoring of progress towards cultural change
ensure there is an ongoing governance structure to oversee and monitor the functioning of the youth justice system, including the performance and culture of youth detention, beyond the implementation of the youth justice reforms
fund the Department for Education, Children and Young People to immediately appoint a culture change manager at Ashley Youth Detention Centre reporting to the Centre Manager and whose role is to work with and support the Centre Manager to
1. drive cultural change in youth detention
2. create a child safe organisation
3. establish a positive, collaborative and supportive working environment
maintain the culture change manager position or function beyond the closure of Ashley Youth Detention Centre for as long as monitoring indicates there is a need for it.

Empowerment and participation of children and young people in detention

As noted, a child safe culture is one in which children and young people are empowered to express their views about matters that affect them and where those views are taken seriously. In this section, we discuss children and young people’s participation in systemic processes or decision making in youth detention. Children’s participation in individual decision-making processes in youth detention (such as case planning, case management and exit planning) is addressed in Section 6.4.

Principles for children’s participation

Principle Two of the National Principles for Child Safe Organisations requires organisations to ensure ‘[c]hildren and young people are informed about their rights, participate in decisions affecting them and are taken seriously’.321 As noted earlier, the Child and Youth Safe Organisations Act includes an identical principle as a Child and Youth Safe Standard.322

The Victorian Commission for Children and Young People has noted that to comply with the equivalent Victorian standard an organisation must ensure: children and young people are informed about their rights; support from peers and friendships is recognised and encouraged; and organisations have strategies in place to develop a culture that facilitates participation and responds to the input and contributions of children and young people.323

As noted earlier, we commissioned research into children and young people’s perceptions of safety in government funded organisations in Tasmania.324 This research—the Take Notice, Believe Us and Act! report—highlighted the importance of children and young people’s empowerment and participation in institutions. It found that:

To feel confident, children and young people need to be respected, to be affirmed and to be equipped to identify and seek help when they are at risk of harm. This requires them to be informed and educated. It requires organisations to promote cultures that value children and young people and empower them as individuals and as a group.325

The report also found that ‘to feel safe and to have confidence in adults and organisations children and young people need to feel involved’:

Groups of young people can also play a role in identifying the concerns of their peers and providing feedback on an organisation’s approach to preventing and responding to abuse. Fundamental to individual and ‘collective’ engagement is for something to change. For ‘participation’ to be ‘protective’, children and young people must see how their views have been valued, acted on and how adults and organisations have built their appreciation of their needs and embedded them in their child safe strategies.326

Experts who gave evidence to our Commission of Inquiry also commented on the importance of children’s participation in organisations. Professor Palmer stated that children should be explicitly involved in the design of child safety measures and have the same status, in terms of rights and obligations, as adults, particularly the right to be believed.327

As we discuss elsewhere in our report, in 2021, the Victorian Commission for Children and Young People released Empowerment and Participation – A Guide for Organisations Working with Children and Young People.328 According to this guide, the four key elements of participation for children and young people in organisations are:

space—children and young people feel safe when they are in an environment where it is safe to speak up329
voice—children and young people are not always used to being asked about their experience or about what they want, so organisations need to support them to feel comfortable speaking up and provide opportunities to do so330
audience—adults and young people are effectively collaborating when adults in an organisation take young people’s views seriously and allow them to inform the way the organisation works331
influence—for participation to be meaningful, participants should know the intention is to make changes that keep children and young people safe in the organisation.332

The New South Wales Office of the Advocate for Children and Young People published A Guide to Establishing a Children and Young People’s Advisory Group in 2021.333 This guide identifies several principles for children’s participation, including:

Membership of any advisory group should reflect children and young people’s diversity.
Organisations should develop the capacity of children and young people to participate.
Children and young people’s participation must be voluntary and informed.
Participation should bring children and young people no harm—for example, children and young people who become distressed during meetings may need psychological support.
Organisations should anticipate ethical issues that might arise from children’s participation, including keeping any information shared by children and young people confidential.334

We also note Youth Matter: A Practical Guide to Increase Youth Engagement and Participation in Tasmania, published by the former Department of Communities in 2019.335

Participation at Ashley Youth Detention Centre

We identified that Ashley Youth Detention Centre has a procedure about a Resident Advisory Group (‘Resident Advisory Group Procedure’).336 This procedure explains that the Resident Advisory Group is a forum:

… designed to give young people detained at [Ashley Youth Detention Centre] a say about the things that affect them. This includes listening to their views on the physical amenity of the site, detention processes, standard of care, treatment and program options and how safe they feel.337

The purposes of this group include ‘[c]reating safety by ensuring young people’s voices are heard’, ‘[s]upporting quality improvement processes’, ‘[p]roviding input into policy and procedure development’ and ‘[i]nformation sharing around on-site developments’.338

The Resident Advisory Group Procedure states that the group meets every six weeks and is attended by the Centre Manager and two staff from the Department’s Quality Improvement and Workforce Development unit (this unit no longer exists).339 All children and young people are eligible to attend unless a risk assessment undertaken by the Operations Manager indicates otherwise.340 Participation is voluntary.341 A Resident Advisory Group meeting may comprise several small group sessions or, in some cases, a session with an individual child or young person.342

The Resident Advisory Group Procedure contains detailed rules for convening and conducting meetings, ensuring safety for children and young people and staff, and reporting and responding to issues that emerge in meetings.343

In particular:

If a child or young person discloses abuse or neglect, the procedure directs staff to notify Child Safety Services.344
If a child or young person makes a complaint during a meeting, the Centre Manager must instigate ‘the complaints process’ (this is discussed in Section 10.2).345
The Centre Manager must prepare a response to all issues raised and provide this to the Department within five working days of the next Resident Advisory Group meeting.346

The Australian Childhood Foundation’s Through the Fence report recommended strengthening the role of the Resident Advisory Group ‘to ensure that young people have a voice in the [therapeutic practice] model development and within [Ashley Youth Detention Centre] generally’.347 We did not receive any specific evidence about the operation of the Resident Advisory Group, or children and young people’s experiences with this group.

The Draft Youth Justice Blueprint states that the youth justice system should:

… actively engage with, and seek the views of children, young people and their communities and provide ongoing opportunities for children and young people with lived experience to be heard.348

However, it does not specify how this will be achieved for children and young people in detention. None of the Government’s reform documents refer to the Resident Advisory Group or any other participation or consultation mechanism for children and young people in detention.

Strengthening children’s participation in the detention system

It is critical to develop a culture that empowers children and young people in detention and enables them to safely share their views on a range of issues, including policies, procedures, programs, services, system reforms and what makes them feel safe or unsafe. Such a culture should aim to build children and young people’s awareness, skills and knowledge to support their participation.

Given the previous lack of children’s participation at Ashley Youth Detention Centre, we consider that the Department for Education, Children and Young People should develop an empowerment and participation strategy for children and young people in detention, in consultation with the new Commission for Children and Young People (recommended in Chapter 18 at Recommendation 18.6 and discussed in Section 11.3). In our view, the guides to children’s empowerment and participation recently developed in Victoria and New South Wales provide appropriate tools to inform this strategy.

The Resident Advisory Group appears to be a positive way to seek feedback from children and young people in youth detention. However, there are several factors that limit its effectiveness as an ongoing consultation forum for children and young people to express their views. These include the vulnerability of children and young people in detention, the recent history of children and young people feeling unsafe or reluctant to raise concerns or express their views at Ashley Youth Detention Centre and the fact that children and young people may only be in detention for a relatively short period, leading to a lack of stability in the group’s membership.

Accordingly, we recommend establishing a separate advisory group comprising children, young people and young adults up to the age of 25 years with previous experience of detention. While the terms of reference for this group should be set in consultation with young people, it should provide a forum for those with lived experience of youth detention to share their views on measures to empower children and young people in detention and create a child safe culture.

Membership of this advisory group should reflect the diversity of the detention population, and in particular should include Aboriginal people and people with disability. The advisory group should be convened by the Department for Education, Children and Young People and be attended by a senior representative of the Department. However, the group should be chaired by a person who is independent of the Department and has experience in working and consulting with vulnerable young people.

We also recommend a review of the Resident Advisory Group to ensure it conforms with best practice principles for children’s participation and provides a safe forum for children and young people in detention to provide feedback and express their views.

Recommendation 12.8

The Department for Education, Children and Young People should, in consultation with the new Commission for Children and Young People (Recommendation 18.6), develop an empowerment and participation strategy for children and young people in detention, having regard to best practice principles for children’s participation in organisations. The strategy should include:

the establishment of a permanent advisory group that
1. includes children, young people and young adults up to the age of 25 years with previous experience of youth detention in Tasmania, including Aboriginal people and people with disability
2. has clear terms of reference developed in consultation with young people with experience of detention
3. enables its members to participate in a safe and meaningful way and express their views on measures to empower children and young people in detention (including the role and purpose of the Resident Advisory Group) and achieve cultural change in detention
4. meets regularly and is chaired by a person independent of the Department and attended by a senior departmental leader
5. is adequately funded and resourced
a review of the Ashley Youth Detention Centre Resident Advisory Group to ensure it conforms with best practice principles for children’s participation and provides a safe forum for children and young people in detention to express their views, including on measures to achieve cultural change in detention, without fear of reprisal
a consultation forum for children and young people in any youth detention facility that replaces Ashley Youth Detention Centre
mechanisms to ensure children and young people in detention are aware of their rights
regular monitoring and evaluation of the effectiveness of the empowerment and participation strategy.

Staffing

Another key component of cultural change in detention is ensuring youth workers are appropriately qualified, skilled, trained, supported and resourced to engage with and respond constructively to children and young people in detention, and their attitudes and personal attributes align with a therapeutic model of care for youth detention.

As discussed in Section 6, the best-performing youth detention facilities have highly skilled staff who actively engage with children and young people, model positive behaviour and can manage difficult behaviours through trauma-informed responses and de-escalation techniques. In these facilities, staff engagement with children and young people is key to supporting them to address their behaviours.

In Section 6.3.1, we describe models:

in Spain, where the staff who have the day-to-day care of children and young people in secure facilities run by the Diagrama Foundation are known as ‘social educators’—these are specialists qualified to degree level who act as encouraging and supportive role models for children and young people, while setting ‘consistent, clear and fair boundaries to help young people understand the positive and negative consequences of their behaviour’349
in Missouri and elsewhere in the United States, where staff who are responsible for the care and safety of children and young people in secure facilities are known as ‘youth specialists’—these staff undergo an intensive recruitment process to determine whether they are committed to helping children and young people succeed and have the necessary attributes for the role, and are also required to complete 236 hours of training in their first two years, including multiple sessions on youth development, family systems and group facilitation.350

In Section 6.3.4, we recommend that the Government ensures staff in youth detention facilities have the skills needed to undertake trauma-informed, child-centred interventions with children and young people, including the skills to anticipate, de-escalate and respond effectively to challenging behaviours without resorting to the use of force or restrictive practices (Recommendation 12.18).

In the following discussion, we consider the qualifications and professional development necessary for youth workers in Tasmanian detention facilities to meet this standard. We also discuss staff shortages and recruitment.

Staff qualifications and professional development

Youth workers’ qualifications and training

Almost all the previous reviews into Ashley Youth Detention Centre summarised in Section 4.2.1 highlighted problems with youth worker capability, skills and training.

As noted in Section 4.2.2, we heard that most youth workers at Ashley Youth Detention Centre live in the local area. We also heard that many youth workers had minimal relevant qualifications (with a highest level of education of year 10 or year 12), had minimal previous relevant experience other than caring for their own children or being involved in a sporting club, and had found out about the youth worker position through word of mouth.351

According to Dr Guerzoni:

… historically the workforce at Ashley Youth Detention Centre have not been required to hold appropriate qualifications. Further, I understand that they have not been trained in working with juveniles and the facilitation of healthy relationships with children.352

In contrast, we also heard that some youth workers had relevant qualifications and experience when they started working at Ashley Youth Detention Centre. For example, Ms Spencer had a Certificate IV in Youth Justice and had worked at a youth detention centre in another state, while Ms Ray had youth worker qualifications from New Zealand and experience in working with children and young people.353

According to Recommendation 15.8 of the National Royal Commission:

State and territory governments should ensure that all staff in youth detention are provided with training and ongoing professional development in trauma-informed care to assist them to meet the needs of children in youth detention.354

Ms Ray told us that she was meant to have two weeks of training when she started at Ashley Youth Detention Centre (in 2002) but ‘only got four days because there was a riot. So, after day four I got put into a unit with 15 boys and three staff … and 20 minutes later it all kicked off’.355

The Ashley Youth Detention Centre Learning and Development Framework (‘Learning and Development Framework’), introduced in 2020, refers to a ‘Beginning Practice program’ for new staff, to be completed over six weeks, which includes:

Online introduction units, to be completed prior to first day of onsite training
Class based training sessions covering each competency unit
Class based and onsite introduction to the varying roles throughout the centre
Eight days of onsite ‘buddy shifts’ across all shift types working alongside mentors and opinion leaders who have been specifically selected for their practice abilities and leaderships skills (specific training provided to mentors)
Buddy shifts with Ashley Team Support to gain exposure to varying roles within the centre
Individual supervision sessions
Teamwork activities
Group supervision.356

The Learning and Development Framework also specifies several mandatory training requirements for Ashley Youth Detention Centre staff. These include units called ‘Child and Adolescent Development’, ‘Respond Safely to Critical Situations’ and ‘Engagement, De-escalation and Restraint’.357

While we agree with the importance of training and professional development for youth workers, we are also conscious of the fact that many previous reviews have made recommendations for staff training and yet problems have continued to exist. We note, in particular, the Ombudsman’s observations in 2019 that the various reports on Ashley Youth Detention Centre ‘appear to be demonstrating that there has been training provided but that there is an underlying cultural issue affecting its adoption’.358

Qualifications and induction programs in other jurisdictions

In his evidence, Mr Simcock stated that the Department was seeing if it could ‘replicate’ some of the qualifications of the youth justice workforce in the Northern Territory, where he was previously employed.359 In the Northern Territory, youth justice officers do not need to have a qualification before applying for the position, but all officers are employed first through a 12-month contract, during which time they must complete a Certificate IV in Youth Justice, which is funded by the department.360 This was a recommendation of the 2017 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (‘Northern Territory Royal Commission’).361

In May 2022, the Northern Territory Government published its Northern Territory Youth Detention Centres Model of Care.362 This document identifies several personal attributes as essential to enable youth justice centre staff to implement a therapeutic model of care.363 These include:

genuine care and compassion for young people in detention
the belief that young people are in detention to be rehabilitated, not punished
the capacity to build and maintain positive relationships with young people while maintaining professional boundaries
the ability to model and uphold prosocial behaviour
willingness to take a strengths-based approach and actively engage with and take part in all aspects of a young person’s rehabilitation.364

Other jurisdictions adopt a variety of approaches to qualifications and induction programs for youth detention centre staff. For example:

in New South Wales, no substantive qualifications are required to become a youth officer, and new recruits undergo three weeks of full-time training to prepare them for entry-level duties365
in Queensland, no substantive qualifications are required to become a detention youth worker, but ‘a Certificate IV in Youth Justice or a Diploma of Youth Justice are highly desirable’ and new recruits ‘must meet all competencies and standards’ specified in five weeks of induction training before being confirmed in the role366
in Victoria, the Department of Justice and Community Safety provides youth justice worker recruits with ‘eight weeks of fully paid foundational training including a Certificate IV in Youth Justice’ to prepare them for their first day—once they begin service, youth justice workers ‘continue to earn [their] Certificate IV qualifications’367
in South Australia, ‘[i]t is not essential to already have a Certificate IV in Youth Justice’ and the Department of Human Services ‘may be able to support eligible candidates to complete the required training’368
in Western Australia, no substantive qualifications are required to become a youth justice officer, but new recruits must undertake a nine-month full-time training program that includes ‘on-the-job’ and ‘off-the-job’ training, and written and practical assessments.369

Alison Grace, Deputy Centre Manager, Bimberi Youth Justice Centre in the Australian Capital Territory, told us that ‘[i]ndividuals applying for employment do not require any previous training or experience, other than a willingness to work with young people and make a difference’.370 She said that operational staff must complete a seven-week induction program to be eligible for permanent appointment.371 This induction is followed by two weeks of ‘buddy shifts’ before staff start in their role.372

Ms Grace said that a dedicated Training Officer was appointed at Bimberi Youth Justice Centre in March 2020.373 In addition, the ‘Principal Practitioner’ provides training to staff to ensure services are trauma-informed and therapeutic, including mandatory training for all new operational staff on ‘professional boundaries and self-disclosure, self-care and resilience and working with [Child and Youth Protection Services]’.374

Efforts to strengthen youth worker qualifications and skills in Tasmania

The Draft Youth Justice Blueprint and Draft First Action Plan acknowledge that an effective youth justice system requires a ‘highly qualified and trained workforce’, although the Draft Youth Justice Blueprint also notes that Tasmania’s population size creates a challenge to ensuring suitably qualified staff.375

The Draft Youth Justice Blueprint also refers to the goals of ‘[b]uilding capacity within the workforce so that all staff have the required skills and capabilities for their role’ and ‘[s]trengthening professional learning opportunities in trauma-informed and therapeutic approaches to practice’.376 The Draft First Action Plan refers to the ‘[i]ncreased professionalism of [the] workforce’, ‘[i]ncreased staff training and skill development’ and ‘[i]ncreased safety for staff, children and young people’ as expected outcomes of key actions under the plan.377

According to the Keeping Kids Safe Plan, ‘[t]he intent is that all youth workers have appropriate qualifications for the roles they are undertaking, underpinned by a trauma informed therapeutic approach’.378 The plan commits to providing the Certificate IV in Youth Justice, delivered by the Australian Childhood Foundation, to existing staff and ‘any new staff who require the qualification’.379

During the hearings, Professor White observed that:

… usually a Certificate IV is a basic qualification, and often, but not always, it’s a tick and flick exercise … So it’s substantively not particularly onerous and doesn’t really do much more than provide minimal training, but it’s not training as a youth worker, it’s training as a custodial [worker], and there’s a big difference.380

The 2016 Noetic Solutions options paper similarly indicated that stakeholders ‘overwhelmingly suggested’ that the Certificate IV qualification was not sufficient to support young people with complex needs in a custodial setting.381 Professor White emphasised the need for both ‘in-service and pre-service’ education and training for youth workers.382

According to the Keeping Kids Safe Plan, the Department contracted the Australian Childhood Foundation in September 2022 to review the Learning and Development Framework and undertake a workforce analysis, which included examining ‘[m]inimum qualifications of all roles’ and ‘[p]osition descriptions and core capabilities’.383 We have not been provided with the results of this review or analysis.

Before turning to our recommendations on staff qualifications, we discuss staff shortages and recruitment.

Staff shortages and recruitment

Understaffing and resourcing challenges in detention

As noted in Section 4.2.2, we heard extensive evidence about understaffing and resource challenges at Ashley Youth Detention Centre.

Fiona Atkins, who started working at the Centre in 2000, recalled in her evidence that staffing pressures emerged in the early 2000s as a result of reduced funding.384 She explained that, around this time, Ashley Youth Detention Centre began relying more heavily on private security personnel to cover shifts in response to staffing shortages.385

The 2007 report of the Legislative Council Select Committee (referred to in Section 4.2.1) observed that mandated staffing levels at Ashley Youth Detention Centre were not being maintained or were inadequate to ensure the safety and security of young people and existing staff.386

We heard that staff shortages at Ashley Youth Detention Centre have only worsened since then and that understaffing has created unsafe conditions for staff and for children and young people in detention.387

Mr Morrissey told us that, during his time as Commissioner for Children and Young People (2014 to 2017), there were instances where he made unannounced visits to Ashley Youth Detention Centre to check on the children and young people detained there.388 Mr Morrissey recalled there were occasions when he had difficulty accessing the Centre, and left without having spoken to any young people—a situation he assumed to be related, in part, to reduced staffing levels.389 He also told us he was aware of children and young people being locked in their rooms alone for periods of up to two weeks or more due to staffing shortages, which he characterised as a ‘form of torture’.390

Understaffing also inevitably leads to reduced supervision of children and young people by a smaller pool of staff. This increases the vulnerability of children and young people in detention to physical or sexual abuse by staff or other detainees—a fact acknowledged by Lucas Digney, Assistant State Secretary, Health and Community Services Union (Tasmania Branch), during our hearings.391

Victim-survivor Max told us about an incident where he alleged that he was physically abused by another young person while there was only one staff member available to supervise.392 He told us that ‘[h]aving only one worker means that if there is an incident, they can’t do anything other than call a code black and wait for other youth workers to arrive’.393

As noted in Section 4.2.2, Ms Ray referred to ongoing staff shortages over a period of several years before 2022:

… you want the best out of a young person you need to nearly have one-on-one staff ratio to residents … there was always constraints over budget, over staffing, they never did enough recruitment, we couldn’t keep enough people, so for a whole period of four years there was quite a cohort of staff who were working three and four 12-hour shifts a week. Now, under those circumstances, in a 24/7 alert level situation, that’s a lot for the human brain to take on for a long period of time.394

Ms Spencer told us that, at the time of our hearings in August 2022, children and young people were on ‘rolling lockdowns’ due to staff shortages—this meant confining children and young people to their rooms or units for longer than usual and releasing them at staggered times rather than all together.395 We discuss lockdowns in detail in Section 9.2.

Ms Atkins attributed recent staff shortages to several factors: the standing down or suspension of staff in response to allegations made against them; the forthcoming closure of Ashley Youth Detention Centre; COVID-19 restrictions; the perception among some staff that young people at the Centre may make false allegations against them; an increase in workers compensation claims; and negative depictions of Ashley Youth Detention Centre in media reporting.396

Mr Digney identified staff shortages as a management issue caused by under-resourcing, poor working conditions, employment-related injuries and a lack of staff retention.397 He stated:

Staff shortages damage employee morale and heighten workloads. It creates a significant safety risk. This consequentially harms the standard of service which employees can provide to detainees. Further, detainees see it as isolation, which, in the view of [the Health and Community Services Union], it is. This can often make them agitated and more difficult to engage with. It leads to frustration and confrontation between staff and detainees.398

At our hearings, Mr Digney said that, while there had been some recent improvement in the staffing situation at the Centre, the shortages continued, with the Centre relying on staff working overtime to cover the minimum shifts required.399 This continued to place the safety of children at risk.

Secretary Pervan acknowledged that staff shortages had been a longstanding problem at Ashley Youth Detention Centre and referred to several barriers to recruitment:

I do not recall a time when the levels of staff with the necessary skills [were in place] to support the transformation of the [Ashley Youth Detention Centre] service. This is a function of both available funding and our ability to recruit and retain staff with the necessary skills. Since I became Acting Secretary, we have similarly not had staffing numbers to support [Ashley Youth Detention Centre] staff to undertake substantial periods of training away from the workplace without leaving the Centre chronically understaffed. This is the practical reality within which we operate given our budget, the location of the facility, staff turnover levels, the difficulty of these jobs and the high levels of sick leave. It also reflects the financial reality of our State with Government having to determine funding from fixed revenues across intensely competing demands in health, education, justice and so on.400

Secretary Pervan expanded on his comments at the hearings:

In an ideal world you would have sufficient staffing so that you could maintain full safe staffing while you had other staff away from the service undertaking training and development and bringing them up to speed with an emerging area which is therapeutic care. The dynamic at Ashley is that, because of staff turnover, we’ve never actually ever been able to get a full permanent workforce up there so that there has been times, as we all know, when we’ve been unable to maintain full safe staffing without using overtime and double shifts and things like that.401

We understand that, as recently as July 2023, lockdowns related to staff shortages continued at the Centre, with children and young people locked in their rooms or units for up to 23 hours each day.402

Efforts to address staff shortages in detention

In June 2022, a health and safety representative at Ashley Youth Detention Centre issued a Provisional Improvement Notice to the Centre on the basis that the Department was not taking enough action on staff shortages and there was an ‘imminent risk to [union] members’ health and safety’.403 In August 2022, Mr Digney stated that there had been no support from the safety regulator WorkSafe Tasmania on this issue, nor had the Department provided immediate contingency staff.404

Correspondence from Mr Digney in June 2022 to Jacqueline Allen, former Acting Executive Director, People and Culture in the Department of Communities, stated that staffing at Ashley Youth Detention Centre was at a point where it was ‘dangerous for workers and young people alike’.405 In her response to this email, Ms Allen indicated that a number of measures were being implemented, including recruiting new youth workers, support from other service areas, health and wellbeing support and ‘appropriate restrictions on movement of young people’ in recognition of the current staffing levels.406 The reference to ‘restrictions on movement of young people’ appears to be a reference to lockdowns.

The Draft Youth Justice Blueprint refers to the aim of ‘maintaining staffing levels with experienced and competent staff’.407 Similarly, the Draft First Action Plan states that it aims to maintain an ‘adequate staffing complement’ and identifies ‘[i]ncreased staffing’ as one of its intended outcomes.408

Objective 2 of the Keeping Kids Safe Plan is to maintain ‘an appropriate level of staff with the right experience and competencies’ at Ashley Youth Detention Centre.409 This includes the following action items:

developing and implementing a ‘Youth Justice Services Workforce Strategy’, to be implemented by January 2023410
appointing a Director, Custodial Operations for 12 months from September 2022 (referred to in Section 4.4.1)411
seconding five youth workers from the Northern Territory for 12 months from October 2022 to supplement staffing at the Centre412
employing retired police officers from September 2022 to assist youth workers in a ‘support and mentor capacity’413
making a concentrated effort to recruit more youth workers414
restructuring the workforce at the Centre from the end of 2022 to ‘ensure all relevant roles are geared to a strong trauma informed and therapeutic service delivery approach’415
appointing more leadership positions at the Centre from the end of 2022.416

In February 2023, Timothy Bullard, Secretary, Department for Education, Children and Young People, advised us that:

two Assistant Managers, one Operations Manager and 13 youth workers had been appointed for 12 months ‘to provide an immediate boost’ to the workforce417
in terms of ongoing recruitment, 10 youth workers had been appointed in October 2022 and had completed a five-week induction course in January 2023, with another 25 applicants to be interviewed ‘shortly’418
since 13 December 2022, Ashley Youth Detention Centre had been ‘sufficiently staffed to cease restrictive practices, enabling school attendance and full daily programs for young people’.419

We have not been advised whether other pending action items under Objective 2 of the Keeping Kids Safe Plan have been completed.

On 12 July 2023, the Commissioner for Children and Young People, Leanne McLean, informed us that, since August 2022, there had been a deterioration of conditions for children and young people in detention, with ‘isolation practices and unit-specific lockdowns, operating outside an accepted policy framework, and restrictive practices for operational reasons’ continuing to be used at Ashley Youth Detention Centre.420 She advised that, over the previous six months, her office had observed (among other practices):

An increase in incidents involving extensive damage to property (e.g., flooding cells, lighting fires, activating fire sprinklers) and/or self-harm (e.g., swallowing batteries, cutting) during extended periods of lockdown; and
Young people’s access to the school, programs, fresh air, exercise, medical treatment, contact with their legal representatives and visits being restricted due to lockdowns.421

Commissioner McLean also said that ‘[t]he promotion of children’s human rights is trumped time and time again by staff shortages or workplace health and safety considerations, euphemistically referred to as “operational reasons”’.422 This information is extremely concerning.

We note that Commissioner McLean has previously called on the Government to ‘urgently establish a rapid response crisis team on the ground at Ashley Youth Detention Centre, inclusive of specialist leadership skills and child safe practitioner expertise’, which should focus on ‘the wellbeing of detainees and the wellbeing of the staff who remain at the centre’.423

In response to Commissioner McLean’s July 2023 comments, the Government acknowledged that, despite the employment of additional staff at Ashley Youth Detention Centre, the Centre ‘continue[d] to experience critically low staff numbers turning up to work on some days’.424 Secretary Bullard stated that restrictive practices:

are implemented only when absolutely necessary and are structured to ensure young people at [Ashley Youth Detention Centre] have continued access to education, phone calls and health appointments.425

Secretary Bullard also said that the Government was continuing to work on measures to address staff shortages at the Centre, including commencing another recruitment round for youth workers, exploring the reasons for high rates of absenteeism and recruiting additional leadership roles into the Youth Justice portfolio.426

Support for staff

Institutional child sexual abuse has profound effects on the staff of an institution, who have been colleagues with those who have offended or against whom allegations have been made, and who have worked within the culture of the institution that enabled the abuse. The impact on staff is particularly acute in the context of Ashley Youth Detention Centre, where there are numerous staff who are the subject of allegations (refer to Chapter 11, Case studies 1 and 7).

Counsel Assisting our Inquiry asked Ms Honan what supports had been put in place for staff at Ashley Youth Detention Centre in response to the serious allegations against their colleagues.427 Ms Honan said there was a health and wellbeing officer on site, staff had been accessing counselling and support services, and Ms Honan had also increased her presence on site to be available to speak to staff.428

As discussed in Chapter 15, the sexual abuse of a child in an institution, particularly by a staff member who has worked in that institution for an extended period, can be understood as a critical incident. In that chapter, we recommend that the Department of Health develops and implements a critical incident response plan for human-caused traumatic events, including incidents relating to child safety such as child sexual abuse (Recommendation 15.19). Among other matters, this plan should:

identify who is responsible for leading the response to a critical incident and set out the applicable reporting arrangements
provide for early communication of information about the incident
provide psychological first aid to affected people and extra support from skilled psychologists on an ‘as needs’ basis
facilitate communication and support among affected people as a means of social support
provide for critical incident debriefing facilitated by a neutral and trained expert where appropriate
provide for a review of the Department of Health’s response to the critical incident
provide for an evaluation of any actions to be implemented as part of the Department’s response to the critical incident.

We note that the Department already has procedures for responding to incidents in detention, which we discuss in Sections 9.3 and 10.2. However, we consider that aspects of Recommendation 15.19 should be adapted to ensure staff at Ashley Youth Detention Centre dealing with the ramifications of extensive allegations of abuse against colleagues and their subsequent suspensions (and actual or potential terminations) receive the necessary support.

Our recommendations

As noted throughout this chapter, most children and young people in detention have highly complex needs and challenging behaviours. The practice of employing youth workers at Ashley Youth Detention Centre with limited qualifications or experience in working with vulnerable children and young people has, without doubt, contributed to many of its cultural problems. Failing to equip unqualified staff with the skills needed to provide appropriate care and support for children and young people in detention has clearly exacerbated these problems.

Staffing is a critical component in implementing meaningful cultural change in youth detention—change cannot occur if youth workers resist it. As we have seen time and again, reviews and recommendations have failed to result in effective change to the culture at Ashley Youth Detention Centre. As Dr Crompvoets observed:

Sometimes an organisation needs a complete reset, and there are definitely examples across the world where an organisation or a part of an organisation are actually completely shut down and rebuilt from the ground up to be fit for purpose …429

Staff who work with children and young people in detention must be appropriately qualified and trained, and have the necessary attributes, attitudes and skills to build positive relationships with children and young people and create a child safe culture. In our view, this cannot be achieved in Tasmania without a thorough review of current staffing qualifications, personal aptitudes, capabilities and training.

To this end, we recommend that the Department initiates a change management process that includes identifying the aptitudes, attitudes and capabilities expected of youth workers, and requires all current staff to reapply for their positions. We consider that such a process is essential to change the culture in youth detention. It will also enable staff who are reappointed to clearly identify themselves as being a part of Tasmania’s future youth detention system, rather than its past. The Government should consider whether the change management process should also apply to other staff at Ashley Youth Detention Centre.

As noted, the Australian Childhood Foundation is undertaking a workforce analysis in respect of Ashley Youth Detention Centre, which includes examining the minimum qualifications of all roles, position descriptions and core capabilities.430 We welcome the Department’s initiative to provide a Certificate IV qualification for youth workers. However, we are concerned that this qualification does not provide the right degree of skill to provide a therapeutic response to children with complex needs. Nevertheless, we accept that it may not be feasible at present to require all youth workers to hold a higher qualification.

In our view, youth workers should hold or be supported to obtain a relevant Certificate IV as a minimum qualification. The Department should also support youth workers to undertake further education such as a diploma or bachelor-level qualification, graduate certificate or micro-credentials. Youth workers who complete higher qualifications should be eligible for promotion to a new role of senior youth worker, with a higher level of remuneration. Senior youth workers must also have consistently demonstrated the attributes, attitudes and skills to build positive relationships and a commitment to rehabilitation and working therapeutically with children and young people in detention.

Existing staff reapplying for a youth worker position through the recommended change management process should not be required to hold a Certificate IV, but the Department should support reappointed youth workers to obtain such a qualification within 12 months of reappointment as a condition of continuing employment.

We also recommend adopting a more rigorous method of recruitment for youth workers that considers a person’s attributes (such as empathy, care, compassion and listening skills), attitudes to children and young people in detention, and relationship-building skills.431 As Adjunct Associate Professor Mitchell advised, relationship building is a critical skill for a youth worker:

… a relationship-based approach would be part of a practice framework. It says to the youth workers or the custodial staff: Your job is not to stand back and watch; your job is to be engaged with and use your relationship as a vehicle for change; your job is not to stand back and do nothing until you have to intervene to de-escalate something. So it sets the tone and the orientation for how change happens, for how learning happens and how we set goals and measure success.432

We also welcome the Department’s review of the Learning and Development Framework. Induction programs and ongoing training and professional development for youth workers should reflect best practice in youth detention. They should focus on children and young people’s human rights, particularly in relation to the use of isolation, force and personal searches, with training in all custodial policies and procedures. However, they should also include approaches to setting fair, clear and firm boundaries for children and young people’s behaviour. Youth workers should also benefit from supervision from qualified professionals and opportunities for reflective practice.

Newly recruited youth workers should not be eligible to start work until they have satisfactorily completed the induction program. This should be followed by two weeks of ‘buddy shifts’ before starting in their role.

Also, to support ongoing cultural change in youth detention, the Department should develop a clear policy on the appropriateness of providing training, counselling or direction to detention centre staff members who have repeatedly demonstrated resistance to change.

We recommend that the Department maintains a sufficient level of youth workers to implement the therapeutic model of care in youth detention discussed in Section 6.3 (Recommendation 12.18) and to support a child safe culture in detention. In particular, this level of staffing should be high enough to:

ensure children and young people’s human rights are respected (including their right not to be subjected to unlawful isolation or unnecessary lockdowns) and their health, cultural and educational needs are met
support the safety and wellbeing of youth workers, including allowing time for rest breaks, reporting, debriefs on critical incidents and handovers
enable youth workers to undertake ongoing professional development.

We also recommend that the Department undertakes an ongoing biannual recruitment process to maintain adequate staffing levels.433

We acknowledge that these recommendations, which are aimed at long-term reform, may not meet the urgent need to address immediate and ongoing staff shortages. We also acknowledge that our recommendation for a change management process may add to pressure on staffing levels in the short term. The Government must urgently develop a staffing contingency plan for youth detention to ensure children and young people in detention are not subjected to unnecessary lockdowns and that their rights are not trumped by ‘operational’ considerations.

The Government should also consider other ways to attract youth workers, such as a salary allowance or loading that reflects the regional location of Ashley Youth Detention Centre and the current high-risk environment of youth detention.

We also recommend strengthening the Department’s support for staff at Ashley Youth Detention Centre in dealing with the fallout of the allegations of abuse against their colleagues and the intense scrutiny of the Centre arising from our Commission of Inquiry. More broadly, we recommend extra support for youth workers and other staff at detention facilities following critical incidents in detention, including riots, assaults, attempted suicide and self-harm. This should include providing psychological first aid, additional support from skilled psychologists on an ‘as needs’ basis and, where appropriate, critical incident debriefing facilitated by a neutral and trained expert.

Recommendation 12.9

The Department for Education, Children and Young People should:

initiate a change management process that includes identifying the aptitudes, attitudes and capabilities expected of youth workers, and requires all current youth workers to reapply for their positions
ensure individuals recruited to the youth worker role hold a relevant Certificate IV qualification before starting or complete such a qualification within a year of starting, and have appropriate attributes, attitudes and skills to build positive relationships and work therapeutically with children and young people in youth detention
create incentives for ongoing professional development by supporting youth workers to complete higher qualifications and providing for operational career progression to a senior youth worker role
maintain a sufficient level of youth workers to implement a therapeutic model of care in youth detention and to ensure the safety and wellbeing of children, young people and staff
establish an ongoing biannual recruitment process for youth workers
ensure the induction program and continuing professional development for youth workers are based on best practice principles and include
1. expected standards of behaviour in interacting with children and young people
2. a focus on children and young people’s human rights, particularly in relation to isolation, force, restraints and personal searches
3. approaches to setting fair, clear and firm boundaries for children and young people’s behaviour within a therapeutic, trauma-informed framework
4. training in all custodial policies and procedures
ensure newly recruited youth workers are not eligible to start work until they have satisfactorily completed the induction program, followed by two weeks of ‘buddy shifts’
develop a clear policy on the appropriateness of providing training, counselling or direction to detention centre staff members who have repeatedly demonstrated resistance to change
urgently develop a staffing contingency plan to ensure children and young people in detention are not subjected to lockdowns caused by staff shortages
consider introducing mechanisms to attract more youth workers, such as an allowance or loading that reflects the regional location of Ashley Youth Detention Centre and the current high-risk environment of youth detention
implement other supports for Ashley Youth Detention Centre staff in relation to allegations of child sexual abuse against their colleagues and strengthen support for youth workers and other detention centre staff following critical

incidents in detention, such as riots, assaults, attempted suicide and self-harm, by providing psychological first aid, additional support from skilled psychologists on an ‘as needs’ basis and, where appropriate, critical incident debriefing facilitated by a neutral and trained expert.

A professional conduct policy

The National Royal Commission identified an increased risk of institutional child sexual abuse when expectations of conduct between staff and children are not clear or consistently enforced.434 This clarity and consistency can be achieved through a code of conduct for staff. As part of an institution’s governance framework, a code of conduct can contribute to creating a child safe culture and facilitate child safe outcomes for the children in an institution.435

As discussed in Chapter 20, the State Service Code of Conduct, contained in section 9 of the State Service Act 2000, and the State Service Principles, found in section 7 of that Act, establish standards of behaviour and conduct that apply to all State Service employees. In her evidence, Ms Allen acknowledged that one of the limitations on the People and Culture team’s ability to investigate complaints or take disciplinary action was the absence of provisions in the State Service Code of Conduct relating directly to child safety or child abuse.436

In Chapter 20, we recommend that each Head of Agency whose department provides services to children develops a professional conduct policy for the department’s employees (Recommendation 20.2). This policy should:

explain what behaviours are unacceptable, including concerning conduct, misconduct or criminal conduct
define and prohibit child sexual abuse, grooming and boundary violations
acknowledge the challenge of maintaining professional boundaries in small communities and provide clear identification of, instructions about, and examples of how to manage conflicts of interest and professional boundaries in small communities
provide guidance on identifying behaviours that indicate child sexual abuse, grooming and boundary violations relevant to the particular organisation
outline behaviours that must be reported to authorities, including what behaviours should be reported to Tasmania Police, Child Safety Services, the Registrar of the Registration to Work with Vulnerable People Scheme, the Independent Regulator of the Reportable Conduct Scheme or other relevant agencies
provide that not following reasonable directions is a breach of professional standards
provide that a failure to report a breach or suspected breach of the policy may be taken to be breach of the policy
outline the protections available to individuals who make complaints or reports in good faith
provide and clearly outline response mechanisms for alleged breaches of the policy
specify the penalties for a breach, including that a breach of the policy may be taken to be a breach of the State Service Code of Conduct, without needing to assess whether a separate provision of the Code has been breached, and may result in disciplinary action
refer to any other policies, procedures and guidelines that support, inform or otherwise relate to the professional conduct policy, for example, complaints handling or child protection policies, or other codes of conduct relevant to particular professions.

The professional conduct policy should also be:

easily accessible to everyone in the agency and communicated by a range of mechanisms
explained to, acknowledged and signed by all employees
accompanied by a mandatory initial training session and regular refresher training
communicated to children and young people and their families through a range of mechanisms, including on the agency’s website.

There appears to be no professional conduct policy that applies to staff at Ashley Youth Detention Centre. There is also no mention of a code of conduct or professional conduct policy in the Draft Youth Justice Blueprint, Draft First Action Plan or Keeping Kids Safe Plan.

In implementing Recommendation 20.2, the Department should ensure it develops a separate professional conduct policy for staff who have contact with children and young people in youth detention and other residential youth justice facilities. This professional conduct policy may specify general standards of behaviour as well as those specific to particular roles such as youth workers, education staff or health staff working in youth detention or other youth justice facilities.

The professional conduct policy for youth detention should specify expectations outlined in other relevant custodial policies and procedures, including those regarding personal searches of children and young people in detention and the use force and isolation (discussed in Section 9).

Recommendation 12.10

The Department for Education, Children and Young People, in developing a professional conduct policy (Recommendation 20.2), should ensure:

there is a separate professional conduct policy for staff who have contact with children and young people in detention facilities and other residential youth justice facilities
the professional conduct policy for detention facilities and other residential youth justice facilities, in addition to the matters set out in Recommendation 20.2, specifies expectations outlined in other relevant custodial policies and procedures, including those on the use of force, isolation and personal searches of children and young people in detention
the professional conduct policy for youth detention and other residential youth justice facilities spells out expected standards of behaviour for volunteers, contractors and sub-contractors
the Department uses appropriate mechanisms to ensure compliance by volunteers, contractors and sub-contractors with the professional conduct policy.

Reducing the number of children in youth detention

Children and young people in youth detention facilities are at increased risk of child sexual abuse by adult abusers and children and young people engaging in harmful sexual behaviours.437 An important mechanism to minimise this risk is to reduce the number of children and young people entering detention. This requires a range of strategies to prevent children and young people becoming involved with the youth justice system, divert those who come into contact with police away from formal criminal justice processes, and ensure children and young people who do face criminal proceedings are supported to address their offending behaviour in the community rather than in detention.

As noted in Section 2, the Draft Youth Justice Blueprint and Draft First Action Plan emphasise prevention, early intervention and diversion. The broad directions of the Government’s youth justice reform agenda are positive, but many of the proposed reforms are yet to be developed in detail.

Accordingly, in this section, we recommend specific measures to reduce the number of children and young people entering detention by:

raising the minimum age of criminal responsibility to 14 years and working towards raising the minimum age of detention to 16 years
updating the principles of the Youth Justice Act
increasing opportunities for pre-court diversion
improving access to bail for children and young people and reducing the number of children and young people on remand
ensuring detention is a sentence of last resort for children and young people.

While these measures would apply to all children and young people who come to the attention of the criminal justice system, our view is that the heightened risk of child sexual abuse in youth detention justifies us making recommendations to keep children and young people out of detention.

Age-appropriate responses to children and young people

Minimum age of criminal responsibility

The minimum age of criminal responsibility in Tasmania is 10 years.438 This means children as young as 10 can be arrested, questioned, searched, detained by police, charged, subjected to forensic procedures, remanded in custody, convicted of an offence and sentenced to a range of dispositions, including detention. While the legal presumption of doli incapax (meaning ‘incapable of crime’) applies to children under the age of 14 years, as it does across Australia, the Victorian Commission for Children and Young People has observed that this is an ineffective safeguard for children aged 10 to 13 years against the harmful effects of criminal justice processes.439

According to data published by the Australian Institute of Health and Welfare in March 2023, there were five children aged 10 to 13 years in detention and seven children aged 10 to 13 years under community-based youth justice supervision in Tasmania during the 2021–22 year.440 Ms Atkins told us that, in August 2022, at least one child as young as 11 was being held on remand.441

Research indicates that detaining children and young people is damaging, has a criminalising effect and does not reduce reoffending.442 According to Vincenzo Caltabiano, former Director of Tasmania Legal Aid:

An incredibly high number of children who are detained at Ashley Youth Detention Centre find themselves back at Ashley Youth Detention Centre within a relatively short period of time. Over half of children aged 10–16 years return to supervised detention within 12 months of release. The general experience is that, if a child goes to Ashley Youth Detention Centre and spends any length of time there, their odds of staying in the system increase dramatically.443

There is a growing consensus among legal, human rights, medical and health organisations—in particular Aboriginal organisations—that such a low minimum age of criminal responsibility is harmful and unacceptable.444 According to the Law Council of Australia:

The current low minimum age of criminal responsibility is out of step with international human rights standards and the most recent medical evidence on child cognitive development. It also ignores the large body of social research highlighting the harmful effects of early contact with the criminal justice system, including entrenchment and recidivism, and a correlation with being less likely to complete education or find employment. Further, it ignores the social determinants that lead to certain cohorts, such as First Nations children, children in out-of-home care, and children with significant health issues, being disproportionately represented in the criminal justice system.445

In its 2021 inquiry into the over-representation of Aboriginal children and young people in the Victorian youth justice system, the Victorian Commission for Children and Young People found that Victoria’s low minimum age of criminal responsibility—also 10 years—disproportionately harms Aboriginal children.446 It recommended that Victoria’s minimum age of criminal responsibility be increased to 14 years, without exceptions.447

This followed other Australian children’s commissioners, including Tasmania’s Commissioner for Children and Young People, recommending, in 2019, an increase in the minimum age of criminal responsibility to at least 14 years.448 Tasmania Legal Aid and the Tasmanian Aboriginal Legal Service have also advocated implementing this change in Tasmania.449

Also in 2019, the United Nations Committee on the Rights of the Child recommended that the Australian Government raise the age of criminal responsibility to the ‘internationally accepted level … of 14 years’.450 The former Council of Attorneys-General formed a working group to develop a nationally consistent approach to this issue and, in 2021, agreed to develop a proposal to raise the age of criminal responsibility from 10 to 12 years.451 In December 2022, the Australian Government released a draft report prepared by the working group in 2020 for the Council of Attorneys-General that recommended the Commonwealth, state and territory governments raise the age of criminal responsibility to 14 years without exception, noting that jurisdictions did not reach consensus on this issue.452

Some jurisdictions have not waited for a national consensus to be reached. In November 2022, the Northern Territory Parliament passed legislation to increase the minimum age of criminal responsibility in the Northern Territory to 12 years.453 In April 2023, the Victorian Government announced that Victoria would raise the minimum age of criminal responsibility to 12 years by late 2024, and to 14 years by 2027.454 In May 2023, a Bill was introduced to the Australian Capital Territory Legislative Assembly, which was then referred to a committee inquiry, to raise the minimum age of criminal responsibility to 12 years upon commencement, and to 14 years by July 2025.455

The Tasmanian Government has committed to increasing the minimum age of detention to 14 years by the end of 2024 (discussed in Section 5.1.2), but has said that it will continue to consider the minimum age of criminal responsibility through the national Meeting of Attorneys-General, given the Tasmanian Government’s preference for a nationally consistent position on this issue.456

In response to a request for advice from the Commissioner for Children and Young People, in April 2022, the Tasmania Law Reform Institute published a research paper examining the law reform considerations associated with raising the minimum age of criminal responsibility in Tasmania.457 Among other questions, the Law Reform Institute considered what additional law reform would be required to ensure community safety and to promote the wellbeing of children under the minimum age of criminal responsibility who exhibit harmful behaviours.458 The Law Reform Institute’s recommendations included expanding the definition of when a child is ‘at risk’ under the Children, Young Persons and Their Families Act, so a child protection approach could be taken to children under the age of criminal responsibility who are engaging in ‘serious or persistent “offence like” conduct’ and/or whose behaviour ‘generates a risk’ to the child or other people.459

In our view, children under the age of 14 years who are engaging in harmful or antisocial behaviour should receive a child protection or a health system response rather than a criminal justice system response. Criminalising children in this age group increases the likelihood they will ‘become entrenched in the youth justice system’.460 It also increases the likelihood they will serve a custodial sentence in adult prison.461 Increasing the age of criminal responsibility to 14 years would help protect younger children against these risks and the increased risk of sexual abuse as a result of that exposure to the youth justice system.

In relation to exceptions for children under the age of 14 years who engage in certain categories of harmful behaviour, we note that the United Nations Committee on the Rights of the Child has indicated it:

… is concerned about practices that permit the use of a lower minimum age of criminal responsibility in cases where, for example, the child is accused of committing a serious offence. Such practices are usually created to respond to public pressure and are not based on a rational understanding of children’s development. The Committee strongly recommends that States parties abolish such approaches and set one standardized age below which children cannot be held responsible in criminal law, without exception.462

We agree with this approach.

Minimum age of detention

As noted in Section 5.1.1, the Tasmanian Government has committed to increasing the minimum age of detention to 14 years, with ‘[e]xceptions for serious crimes, and in the interest of community safety’, to be identified during development.463 As part of this commitment, the Government has indicated that it will develop new bail and sentencing options for children under 14 years, and that as ‘new initiatives are developed and implemented, we will be able to remove detention as an option for this younger, more vulnerable cohort’.464

The United Nations Committee on the Rights of the Child recommends that:

… no child be deprived of liberty, unless there are genuine public safety or public health concerns, and encourages State parties to fix an age limit below which children may not legally be deprived of their liberty, such as 16 years of age.465

Tasmania Legal Aid and the Tasmanian Aboriginal Legal Service both support an increase to the minimum age of detention to 16 years in Tasmania.466 In 2021, the Victorian Commission for Children and Young People also recommended that the minimum age of detention in Victoria be increased to 16 years.467

We agree with this approach, but note the need for alternatives to detention—for example, inpatient mental health or drug and alcohol treatment (discussed in Section 6.5.2)—to be developed for children aged 14 and 15 years who commit serious offences against the person before such a change can be implemented.

Recommendation 12.11

The Tasmanian Government should:

introduce legislation to increase the minimum age of criminal responsibility to 14 years, without exception
develop and provide a range of community-based health, welfare and disability programs and services that are tailored to meet the needs of children and young people under the age of 14 years who are engaging in antisocial behaviour, and to address the factors contributing to that behaviour
work towards increasing the minimum age of detention (including remand) to 16 years by developing alternatives to detention for children aged 14 and 15 years who are found guilty of serious violent offences and who may be a danger to themselves or the community.

Updating the principles of the Youth Justice Act

The Government has committed to reviewing the Youth Justice Act as a priority under its Draft Youth Justice Blueprint, with a Bill to be delivered by 2025.468 The purpose of the review is to ‘realign the legislation to a public health approach to youth justice and to be reflective of contemporary youth justice practice’.469 The review will consider the following issues (among others):

aligning the legislation with key human rights and youth justice principles
adopting a trauma-informed, child-focused approach
reflecting the importance of restorative justice and rehabilitation
increasing the focus on early intervention and diversion away from the youth justice system
expanding the range of community sentencing options.470

The review will also consider the legislative changes needed to increase the minimum age of detention to 14 years (as discussed in Section 5.1).471

We support the proposed review of the Youth Justice Act to achieve these purposes. We consider the review to be an opportunity to modernise the Act and include updated principles that emphasise rehabilitation, treatment and age-appropriate responses to children in the youth justice system.

Section 5 of the Youth Justice Act contains general principles that are relevant to the exercise of powers under the Act (refer to box).

Youth Justice Act 1997, section 5: General principles of youth justice

The powers conferred by this Act are to be directed towards the objectives mentioned in section 4 with proper regard to the following principles:
1. that the youth is to be dealt with, either formally or informally, in a way that encourages the youth to accept responsibility for his or her behaviour;
2. that the youth is not to be treated more severely than an adult would be;
3. that the community is to be protected from illegal behaviour;
4. that the victim of the offence is to be given the opportunity to participate in the process of dealing with the youth as allowed by this Act;
5. guardians are to be encouraged to fulfil their responsibility for the care and supervision of the youth and should be supported in their efforts to fulfil this responsibility;
6. guardians should be involved in determining the appropriate sanction as allowed by this Act;
7. detaining a youth in custody should only be used as a last resort and should only be for as short a time as is necessary;
8. any sanctioning of a youth is to be designed so as to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;
9. any sanctioning of a youth is to be appropriate to the age, maturity and cultural identity of the youth;
10. any sanctioning of a youth is to be appropriate to the previous offending history of the youth.
Effect is to be given to the following principles so far as the circumstances of the individual case allow:
1. compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
2. family relationships between a youth, the youth’s parents and other members of the youth’s family should be preserved and strengthened;
3. a youth should not be withdrawn unnecessarily from his or her family environment;
4. there should be no unnecessary interruption of a youth’s education or employment;
5. a youth’s sense of racial, ethnic or cultural identity should not be impaired;
6. an Aboriginal youth should be dealt with in a manner that involves his or her cultural community.

The current youth justice principles recognise, to some extent, that children are to be treated differently from adults in the criminal justice system, that responses to children must consider a child’s age and that children’s relationships with family members are important. However, we agree with Tasmania Legal Aid that the principles also place ‘a heavy emphasis on sanction and punishment, rather than rehabilitation, restoration, and reintegration’.472

We consider that an updated Youth Justice Act should include principles that reflect contemporary understandings of effective youth justice systems. For example, in New Zealand, the Oranga Tamariki Act 1989 (NZ) (‘Oranga Tamariki Act’) includes general principles that apply to care and protection proceedings and youth justice proceedings.473 These principles are closely aligned with international human rights instruments covering children and include the following:474

The wellbeing of a child or young person must be at the centre of decision making that affects them.
The child or young person’s rights must be respected and upheld and the child or young person must be treated with dignity and respect at all times.
The child or young person’s need for a safe, stable and loving home should be addressed.
A child or young person must be encouraged and assisted, wherever practicable, to participate in and express their views about any proceeding, process or decision affecting them, and their views should be taken into account.
A holistic approach should be taken that sees the child or young person as a whole person, including their developmental potential, educational and health needs, cultural identity, gender identity, sexual orientation, age and any disability.
The primary responsibility for caring for and nurturing the wellbeing and development of the child or young person lies with their family and cultural group and, wherever possible, those relationships should be strengthened and maintained.
The child or young person’s place within their community should be recognised and the impact of a decision on the stability of a child or young person (including the stability of their education and of their connections to community) should be considered.475

The Oranga Tamariki Act also lists additional principles to be applied in exercising youth justice powers.476 These include:

Unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter.
A child or young person who commits an offence or is alleged to have committed an offence should be kept in the community so far as that is practicable and consonant with the need to ensure the safety of the public.
A child or young person’s age is a mitigating factor in determining whether to impose sanctions in respect of offending by a child or young person and the nature of any such sanctions.
Any sanctions imposed on a child or young person who commits an offence should take the least restrictive form that is appropriate in the circumstances and take the form that is most likely to promote their development within their family and cultural group.
Any measures for dealing with offending by a child or young person should, as far as practicable, address the causes underlying their offending.477

In addition, the Oranga Tamariki Act requires a court or person exercising powers in relation to youth justice to weigh four ‘primary considerations’—these are the wellbeing and best interests of the child or young person, the public interest, the interests of any victim, and the accountability of the child or young person for their behaviour.478

We consider that the updated Tasmanian youth justice legislation should include similar principles that reflect contemporary understandings of child development, children’s antisocial behaviour and children’s needs. These principles should apply to the exercise of any power under the new legislation, including sentencing, which is discussed in more detail in Section 5.5.

Recommendation 12.12

The Tasmanian Government should ensure legislation to replace or amend the Youth Justice Act 1997 contains updated general principles of youth justice that reflect contemporary understandings of child development, children’s antisocial behaviour and children’s needs.

Expanding opportunities for pre-court diversion

In this section, we focus on diversionary processes that are available in Tasmania once a child or young person comes into contact with police, although we agree with the Tasmanian Commissioner for Children and Young People that:

Greater attention must be given to recognising that the concept of diversion … can and should begin before contact with police and before an offence or harmful behaviour has occurred … There are a range of non-government organisations that do, and can, play an important role in providing diversionary options for children and young people in this area. This needs to be better recognised and appropriately resourced.479

According to the United Nations Committee on the Rights of the Child:

Measures that divert children from the formal criminal justice system (and avoid resorting to judicial proceedings) ‘should be the preferred manner of dealing with children in the majority of cases’ because such measures avoid stigmatising children, produce positive results for them, are cost-effective and are ‘congruent with public safety’.480
‘Opportunities for diversion should be available as early as possible after [initial] contact with the [criminal justice] system, and at various stages throughout the process’.481
‘States parties should continually extend the range of offences for which diversion is possible, including serious offences where appropriate’.482

Currently, a child or young person who is alleged to have committed an offence in Tasmania may be eligible for diversion from the criminal justice system under the Youth Justice Act by means of an informal caution, a formal caution or a community conference.483 We discuss each of these mechanisms in the following sections. There is also a school-based process for ‘informal diversion for unlawful occurrences on school grounds within the behaviour management response of schools’.484

A child or young person who is alleged to have committed a ‘prescribed offence’ under the Youth Justice Act is not eligible for diversion.485 Prescribed offences are offences in respect of which the Magistrates Court (Youth Justice Division) does not have jurisdiction, and which are instead determined by the Supreme Court or the Magistrates Court’s adult jurisdiction.486 A child or young person found guilty of a prescribed offence by an adult court can be sentenced under the Sentencing Act 1997—including to a term of imprisonment—or the Youth Justice Act.487

For all children and young people, murder, manslaughter and attempted murder are prescribed offences.488 Also:

for children or young people aged 14 years or older, prescribed offences include rape, aggravated sexual assault, persistent sexual abuse of a child, armed robbery and aggravated armed robbery489
for young people aged 17 years, prescribed offences also include driving offences such as negligent driving causing death or serious injury, reckless driving, drink driving, drug driving and offences for excessive noise or smoke for vehicles and racing a vehicle.490

We note that this is an extensive list of offences, not all of which can be described as serious. For example, the offence of operating a vehicle ‘in a manner that emits unnecessary and unreasonable noise’, ‘in an unnecessary execution of speed’ or ‘in a race against another vehicle’ is punishable by a maximum penalty of imprisonment for three months and/or a fine.491 It is unclear why a young person alleged to have committed this offence should be automatically excluded from diversion.

For eligible offences—that is, non-prescribed offences—a child or young person can only be diverted under the Youth Justice Act where they admit to committing the alleged offence.492

Informal caution

Where a police officer believes that a matter ‘does not warrant any formal action’ under the Youth Justice Act (and the child or young person admits to committing the offence), the officer may informally caution the child or young person against further offending, and no more proceedings may take place in respect of the matter.493

The Tasmania Police Manual states that children and young people must not be informally cautioned for ‘any assault’.494

Formal caution

Where a police officer believes that a matter warrants a more formal action than an informal caution, the officer may require that the child or young person be formally cautioned against further offending.495 The main difference between an informal caution and a formal caution is that the police officer may require the child or young person to enter an undertaking as part of a formal caution (described below), whereas this is not available for informal cautions.496

The Youth Justice Act specifies various procedural requirements that must be met before a formal caution may be issued—these include a requirement that the police officer explains to the child or young person that they are entitled to legal advice and to have the matter dealt with in court.497 A formal caution cannot be administered unless the child or young person agrees to the caution.498

Where the child or young person to be cautioned is Aboriginal, the formal caution must, ‘if practicable’, be administered by an Elder of an Aboriginal community or a representative of a ‘recognised Aboriginal organisation’ in the presence of an authorised police officer.499

As part of a formal caution, the police officer may require the child or young person to enter into an undertaking to apologise to the victim, perform community service, pay compensation, make restitution or ‘do anything else that may be appropriate in the circumstances’.500

Police keep a record of formal cautions and a formal caution may be treated as evidence of the commission of an offence by a police officer, community conference or court if the child or young person has to be dealt with for a subsequent offence.501

Community conference

Where a police officer believes that a matter warrants a more formal action than an informal caution, the officer may, as an alternative to a formal caution, require the Secretary of the Department for Education, Children and Young People to convene a ‘community conference’ to deal with the matter.502 A community conference cannot be convened unless the child or young person signs an undertaking to attend the conference.503

A community conference includes a facilitator, the child or young person and their guardians, any relative or other person with a close association to the child or young person who may be able to participate usefully in the conference, any victim(s) of the offence, the police officer who initiated the conference and a youth justice worker.504 Where the child or young person is Aboriginal, an Aboriginal Elder or another representative of the child or young person’s community must be invited to attend the conference.505

The Youth Justice Act does not specify the purpose or aim of a community conference, but it would appear to be to decide ‘an appropriate sanction’ for a child or young person.506 A community conference may impose one or more sanctions on the child or young person, including:

requiring the child or young person to apologise to the victim, perform community service or pay compensation to the victim for any injury suffered or any damage to property
administering a caution to the child or young person, or
requiring the child or young person to ‘enter into an undertaking to do anything else that may be appropriate in the circumstances’.507

A child or young person cannot be prosecuted for the offence if they perform their obligations arising from the undertakings decided by the community conference.508

Declining rates of diversion in Tasmania

Data published by the Productivity Commission in its Report on Government Services indicates a downward trend in the use of diversion in Tasmania.509 Overall, youth diversions (including informal cautions) as a proportion of alleged youth offenders aged 10 to 17 years fell from 52 per cent in 2012–13 to 43.3 per cent in 2021–22.510 For Aboriginal children and young people, youth diversions as a proportion of alleged offenders decreased substantially from 45 per cent in 2012–13 to 22.5 per cent in 2021–22.511 The Productivity Commission does not provide data on separate categories of diversion.

In 2021, the Sentencing Advisory Council reported that data from Tasmania Police showed a reduction between 2010–11 and 2018–19 in the proportion of youth files diverted, with reductions in the use of informal cautions and community conferences, and a corresponding increase in the proportion of briefs sent to prosecution.512

The Sentencing Advisory Council identified the following possible reasons for the decline in diversions over time:

the involvement of schools for lower-level offending behaviour (presumably resulting in fewer low-level matters reaching the attention of police)513
a decline in the overall number of young offenders, together with ‘a corresponding concentration on a smaller cohort of more frequent youth offenders’, meaning that matters escalated through the system more quickly514
a ‘“class” factor’, whereby the response of young people to police, and parental attitudes and support, may influence the use (or non-use) of diversion by police515
the perception among some children and young people with knowledge of the youth justice system that there were likely to be ‘harsher results’ from the undertakings imposed through formal cautions and community conferences than from outcomes in the Magistrates Court516
the absence of diversion programs across Tasmania.517

In relation to parental support for diversion, Commissioner McLean has observed that:

… the current model assumes a support network exists around the child or young person that is resourced to be able to support the child to lead a different lifestyle. For many children and young people, this is simply not their reality … a family which has multiple risk factors may find it very difficult to support a young person through a diversionary process without strong support.518

Children and young people who do not have a family support network—for example, children and young people under the guardianship of the State—may not be able to access diversion for these reasons.

Commissioner McLean has also noted that the discretionary nature of diversion under the Youth Justice Act ‘can result in variation between individual police officers, and regions’.519

The need for more diversion programs

The 2016 Custodial Youth Justice Options Paper produced by Noetic Solutions found that Tasmania did not have the ‘breadth or depth’ of diversionary services required to address the complex needs of children and young people.520 More recently, Tasmania Legal Aid has advocated for diversionary programs to be made available in rural and regional areas of Tasmania, and for the development of ‘universal programs’ to ‘avoid the postcode injustice that flows from a patchwork of options around the State’.521

In its 2021 report on sentencing young offenders, the Sentencing Advisory Council referred to a range of programs Tasmania Police uses to support diversion by way of caution or community conference.522 These include prescribed courses at the Brain Injury Association of Tasmania, the ‘Junior Fire Lighter Intervention Program’ (through the Tasmanian Fire Service), the ‘bike rebuilding program’, Men’s Shed programs and the First Tee program through the Police Citizens Youth Club.523

However, Mr Caltabiano told us that Tasmania does not have structured pre-court diversionary programs for children that apply uniformly across the State.524 Children should be able to access effective diversionary programs regardless of where they live in Tasmania.

Youth justice reforms

The Draft Youth Justice Blueprint includes a significant focus on diversion. One of its principles is to ‘divert children and young people from the youth justice system wherever possible’ and Strategy 2 is to ‘ensure diversion from the justice system is early and lasting’.525 The Draft Youth Justice Blueprint describes diversion as aiming to ‘provide pathways through which children and young people with limited or no criminal history and who have committed low level offences can be directed away from the justice system’.526

The Tasmanian Government’s diversion strategy aims to reduce the involvement of children and young people in the youth justice system by (among other commitments):

providing a range of developmentally appropriate responses for children and young people under the minimum age of criminal responsibility, who are exhibiting behaviours that would otherwise be considered an offence
providing a range of diversionary options and programs for children and young people who come into contact with the justice system
ensuring Aboriginal children and young people have access to Aboriginal-led diversionary services
ensuring children and young people have access to services to address their mental health, disability and alcohol and other drug dependence needs.527

Action 4 under the Government’s Draft First Action Plan includes commitments to:

review current diversionary options to ‘identify what is working, what needs strengthening to ensure maximum impact and where there are service gaps’528
develop a Diversionary Services Framework to ‘guide and support the delivery of a range of diversionary programs across the continuum in Tasmania’529
engage with Aboriginal communities to ensure a range of appropriate, culturally safe and Aboriginal-led services for Aboriginal children and young people530
deliver new diversion programs by 2025.531

In February 2023, Secretary Bullard advised us that the Department for Education, Children and Young People had begun researching diversion programs in other jurisdictions.532 We note that research indicates:

While there is no ‘one size fits all’ approach to preventing youth offending, programs that have a strong theoretical basis, consider the individual needs of young people, are culturally sensitive to Indigenous Australians where relevant, and reflect on practice through iterative evaluation will be best placed to address the underlying causes of offending.533

Our recommendations

We note with concern the decreasing rates of diversion in Tasmania, particularly for Aboriginal children and young people. In Section 7.1, we recommend developing an Aboriginal youth justice strategy to examine and establish evidence-based, Aboriginal-led diversion programs for Aboriginal children and young people in contact with police (Recommendation 12.27).

We commend the Department for committing to create a Diversionary Services Framework and new diversion programs. In our view, this presents an opportunity to carefully examine the effectiveness of existing diversion processes to ensure opportunities for pre-court diversion in Tasmania can be maximised. In particular, the Government should examine the use of police discretion in referring children and young people to diversion and the use and effectiveness of undertakings imposed with formal cautions and sanctions imposed by community conferences.

The Government should also reconsider the current list of prescribed offences to ensure opportunities for pre-court diversion can be maximised. In addition, the Government should ensure prescribed offences do not exclude children engaging in harmful sexual behaviours from broader therapeutic and diversionary opportunities. We discuss other diversionary mechanisms in Chapters 16 and 21.

We note that the Commissioner for Children and Young People has advocated for repealing prescribed offences from the Youth Justice Act, so ‘all types of offences including serious offending [can] be dealt with in a trauma informed, child centred way that is consistent with best practice’.534 We discuss court specialisation for children and young people in Section 5.5.4.

Recommendation 12.13

The Tasmanian Government, in reviewing current diversion processes and developing a Diversionary Services Framework, should:
1. examine the exercise of police discretion to determine whether opportunities for cautioning and community conferencing are being maximised, particularly for Aboriginal children and young people, and children and young people without a strong family support network
2. commission research to examine the effectiveness of formal cautions imposed with undertakings and the sanctions imposed by community conferences, to ensure they are proportionate to the alleged offending and not unnecessarily onerous
3. introduce legislation to widen the range of alleged offences in respect of which diversion may be pursued and create a presumption in favour of pre-court diversion for children and young people.
The Tasmanian Government should begin statewide delivery of new diversion programs under the Diversionary Services Framework by 2025.

Increasing access to bail for children and young people

A child or young person whom police do not consider suitable for diversion may be arrested and charged with an offence. Police must release the child or young person on bail ‘unless there is reasonable ground for believing that such a course would not be desirable in the interests of justice’.535 If police refuse bail, the child or young person must be brought before a magistrate or a justice of the peace ‘as soon as practicable’.536

During business hours, the child or young person will appear before a magistrate for a bail hearing. After hours, the child or young person will generally be brought before a ‘bench justice’—a justice of the peace who is rostered by the Chief Magistrate to deal with out of hours bail hearings (among other matters)—although magistrates can also sit out of hours at the discretion of the Chief Magistrate.537 A child or young person who is refused bail by a justice of the peace is remanded into youth detention until they can be brought before the Magistrates Court (Youth Justice Division).538

A child or young person who is refused bail by a magistrate is also remanded into youth detention until the criminal charge against them is heard in court. A child or young person may also be remanded after they have been found guilty of an offence, while awaiting sentencing.

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.539 In August 2022, Ms Atkins told us that 10 of the 11 children and young people held at the Ashley Youth Detention Centre at the time were on remand.540 Ms Atkins described this proportion of remanded children and young people as ‘a regular occurrence’.541 Other Australian jurisdictions have similarly high proportions of children and young people on remand.542 In 2021–22, children and young people who were unsentenced (on remand) spent an average of 57.5 days in detention in Tasmania.543

We note that, more recently, there has been a substantial increase in the number of children and young people in detention in Tasmania. In June 2023, Commissioner McLean told us that, as at 5 June 2023, there were 21 children and young people held at Ashley Youth Detention Centre, of whom 18 were on remand.544

According to Tasmania Legal Aid, ‘it is commonly the case’ that once the charges against a child who has been remanded are heard, ‘the child is released without serving any further time in custody’.545

Research has demonstrated that remand is disruptive and harmful to children and young people and has little rehabilitative benefit.546 According to the Victorian Sentencing Advisory Council, for children and young people, remand:

… can lead to separation from family and community, disruption to education and employment, association with sentenced young offenders, being held in inappropriate facilities, being unable to access therapeutic programs, having an increased chance of being placed on remand if arrested again, and having an increased chance of receiving a custodial sentence compared with young people who are granted bail.547

Drivers of remand

We heard from victim-survivors, lawyers and policy experts that the absence of safe accommodation and support options was a key reason that children and young people were being denied bail and remanded.

Professor White referred to the ‘longstanding issue’ in Tasmania of remanding children and young people ‘mainly due to lack of adequate housing or alternative places to put kids’.548 Similarly, Mr Caltabiano told us that magistrates often wished to include a condition of bail requiring the child or young person to reside at a specific address, and that where accommodation was not available, bail was harder to obtain.549

In its submission to the former Department of Communities on proposed reforms to the youth justice system, Tasmania Legal Aid stated that:

Children in Tasmania are often refused bail because of problems with accommodation that are outside their control. This could include situations where the child is homeless, is under the care of child safety and without effective supervision, or because of mental health or drug problems.550

Hannah Phillips, a lawyer with experience working with youth in the Tasmanian justice and child safety systems, told us that children and young people with substance misuse, undiagnosed mental illness or with disability may be remanded because there were no available treatment facilities for children and young people in Tasmania.551

We also heard that whether a child or young person is granted bail may depend on whether they appear before a justice of the peace or a magistrate. Mr Caltabiano observed that children and young people refused bail by a justice of the peace at an after-hours bail hearing were ‘commonly’ granted bail when they appeared before a magistrate the following business day.552 He indicated that this may be ‘due to the Magistrates’ broader understanding of the legislative framework and greater experience dealing with young people’.553

Similarly, research undertaken by the Australian Institute of Criminology on bail and remand for children and young people in Australia described some Tasmanian stakeholders as suggesting that the bail decisions of justices of the peace tended to be ‘more punitive and risk averse in response to community attitudes towards youth crime’.554 That research acknowledged that, in some jurisdictions, a more detailed case may be presented to a magistrate than to a justice of the peace and, while decisions by justices of the peace may seem punitive, it could be the case that magistrates are simply provided with more and better information with which to make decisions.555 However, some stakeholders pointed to the need to educate justices of the peace on the role of bail in the criminal justice system and using detention as a last resort for children and young people.556

We also heard about the importance of legal representation for children and young people in bail hearings to minimise the risk of remand. Ms Phillips described a situation where the Tasmanian Aboriginal Legal Service appeared out of hours for an Aboriginal young person who was on a child safety order and had multiple bail conditions across several matters:

If I had not been there, the young person would have had to argue for their own bail, with only the Justice of the Peace, prosecutor, and a representative of Youth Justice present. Child Safety Service were not present at Court for the young person. The young female was ultimately bailed, but it was late at night and she had no way of getting home. If we were not there to advocate for this young person, it was highly likely she would have been remanded at Ashley Youth Detention Centre for the night … This highlights two things; the first is the importance of representation in out of hours Court but also the need to ensure guardians or parents are actively present for young people, when possible, in out of hours Court, in this instance Child Safety Service.557

The Tasmanian Aboriginal Legal Service is not funded to appear out of hours for Aboriginal children and young people, but does appear on occasions if it is ‘particularly concerned for a young person’s welfare and [has] capacity to assist’.558

Mr Caltabiano told us that there was only one after-hours duty lawyer service (for adults and children) operating in Tasmania—this service is funded by Tasmania Legal Aid from funding allocated by the Tasmanian Government and is provided by the Hobart Community Legal Centre at the Hobart Magistrates Court on Friday evening, Saturday and Sunday.559 The Tasmanian Government’s 2021–22 State Budget allocated $320,000 over four years to provide children and young people appearing in court after hours in Burnie, Devonport and Launceston with access to a duty lawyer.560

Bail support programs

Commissioner McLean has referred to a lack of appropriately resourced bail support programs for children and young people in Tasmania.561

Non-government organisation Save the Children provides the statewide ‘Supporting Young People on Bail’ program—a voluntary program where youth workers support children and young people aged 10 to 17 years on bail ‘to achieve their recreational, educational and vocational/employment goals during their bail period and beyond’ and to avoid further interaction with the youth justice system.562 In its submission to the former Department of Communities on the proposed youth justice system reforms, the Tasmanian Aboriginal Legal Service described the positive experience of an Aboriginal young person in this program, who was taken fishing on several occasions by a youth worker while on bail, which allowed them ‘to create a bond and gave the young person something to look forward to’.563

Although it is a voluntary program, a magistrate may order a mandatory meeting of the child or young person with Save the Children workers, who create a bail support plan for the child or young person.564 In her 2022 submission on the proposed youth justice reforms, Commissioner McLean indicated that, in some instances, young people had been remanded for several weeks to enable bail support plans to be prepared, in circumstances where a sentence of detention may not have been imposed—a practice that she noted appeared to be contrary to the aim of using detention as a last resort.565

Previously, the Save the Children bail support program was not available for children and young people with child protection involvement, but it is not clear whether this is still the case.566 Bail support programs should be widely available to children and young people, regardless of their involvement with other service systems.

The Commissioner for Children and Young People, Tasmania Legal Aid and the Tasmanian Aboriginal Legal Service have all advocated to expand bail support programs in Tasmania.567 Commissioner McLean and Tasmania Legal Aid have indicated that this should include bail support workers who can coordinate support services and access brokerage funds for accommodation.568

Conditions of bail

Section 24B of the Youth Justice Act provides that a magistrate, justice of the peace or police officer who intends to admit a child or young person to bail must consider the youth justice principles in section 5 of the Act (extracted in Section 5.2) in deciding whether to impose any conditions of bail.569

Despite this provision, Commissioner McLean has drawn attention to the difficulties for many children and young people in complying with bail conditions requiring them to:

submit to a curfew—such conditions can be particularly problematic for young people who are couch surfing, living in unstable accommodation or are otherwise at risk of homelessness
not attend particular venues or locations—such conditions may restrict young people’s access to essential areas such as bus terminals and supermarkets
report to police or youth justice workers—such conditions can pose difficulties for young people due to a lack of transport and other practical challenges.570

Similarly, the Tasmanian Aboriginal Legal Service has indicated that children and young people on bail may have difficulty keeping a mobile phone charged or maintaining mobile phone credit, which can be a barrier to accessing support services:

In many instances, our lawyers are aware referrals have been made to support services for a young person but then they are non-contactable, leading to the referral being closed. This can mean little progress is made during adjournment periods in court to support and rehabilitate young people … [which] ultimately increase[s] the chance of young people ending up in detention.571

In the absence of coordinated and consistent support, such as support to get to appointments, children and young people may breach their conditions of bail and be remanded in custody.

Child-specific bail laws

With the exception of section 24B of the Youth Justice Act (outlined in Section 5.4.3), children and young people in Tasmania are essentially subject to the same legislation as adults in terms of bail.

Mr Caltabiano advocated for Tasmania adopting child-specific bail laws similar to those in Victoria.572 Section 3B of the Bail Act 1977 (Vic) states that, in making a determination under the Act, a bail decision maker must take into account:

the need to consider all other options before remanding the child in custody
the need to strengthen and preserve the relationship between the child and the child’s family, guardians or carers
the desirability of allowing the living arrangements of the child to continue without interruption or disturbance
the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance
the need to minimise stigma to the child resulting from being remanded in custody
the likely sentence should the child be found guilty of the offence charged
the need to ensure the conditions of bail are no more onerous than are necessary and do not constitute unfair management of the child.573

The Bail Act 1977 (Vic) also provides that:

‘bail must not be refused to a child on the sole ground that the child does not have any, or any adequate, accommodation’574
where a bail decision maker has to consider the ‘surrounding circumstances’, this must include ‘any special vulnerability of the accused, including being a child or an Aboriginal person, being in ill health or having a cognitive impairment, an intellectual disability or a mental illness’.575

We note that, despite these provisions, the number of children and young people on remand on an average day in Victoria doubled between 2010 and 2019.576 While child-specific bail laws alone are not sufficient to prevent or address concerningly high numbers of children and young people on remand, we see them as an important part of reducing remand numbers.

In 2021, the Tasmanian Government consulted on a draft Bail Bill, which did not include child-specific provisions for making bail determinations.577 The Commissioner for Children and Young People expressed concerns about the likely impact of the Bill on children and young people in Tasmania.578 At the time of writing, the Bail Bill 2021 had not been introduced into the Tasmanian Parliament.

Youth justice reforms

The Draft Youth Justice Blueprint:

acknowledges that appropriate bail support options, including accommodation options, are needed to avoid unnecessary detention579
acknowledges that all other states and territories have some form of statewide bail assistance program, which includes three common key components—an after-hours support service, bail supervision and accommodation support580
indicates that the Government aims to reduce the number of children and young people re-entering the youth justice system by ‘delivering effective support that meets the individual needs and circumstances of children and young people on bail through a range of assisted bail options’.581

As noted in Section 2, the Government has committed to establishing two assisted bail facilities to:

… provide safe stable accommodation, assistance managing bail conditions and support to address underlying issues that are contributing towards harmful, antisocial or offending behaviours.582

Information released by the Government on the proposed assisted bail facilities indicates that they will:

be managed by the Government or a non-government organisation
be ‘semi secure to encourage compliance noting that [the] young person is not legally bound to stay there unless [this is a] condition of bail’
have individual self-contained units, with one support and administration unit for staff and ‘some recreational spaces’
be targeted at young people who are ‘likely to have no suitable bail address and/or require support for mental health, drug and alcohol, etc.’, with charges for offences ‘likely to be non-violent/lower seriousness’, and who are unlikely to receive a custodial sentence if found guilty
be available to a young person who is granted bail by a magistrate or a justice of the peace, including in situations where the young person has previously been remanded, and where the young person would otherwise not have been remanded but ‘the extra support is warranted’
have ‘24/7 onsite support provided by Government or [a non-government organisation]’.583

The Government advised us that ‘the use of the term semi-secure in the proposed facilities model refers to the need to limit those who enter the facility to ensure the safety of all people onsite’.584 We note that this is not entirely consistent with the above reference to ‘encourag[ing] compliance’.

In February 2023, Secretary Bullard told us that planning consultants had been engaged to identify suitable sites across the State to accommodate all of the proposed new youth justice facilities (including the assisted bail facilities) and that an action plan for delivering the new infrastructure had been developed, with ‘visioning’ workshops scheduled for February 2023.585

Our recommendations

The high proportion of children on remand in Tasmania is extremely concerning. Remand should only be used in the most serious cases, where the child or young person poses an immediate danger to others, ‘and even then only after community placement has been carefully considered’.586 It must only be used as a measure of last resort and for the shortest possible period.587

We commend the Government for its intention to establish assisted bail facilities that will involve 24-hour onsite support for children and young people, including mental health and drug and alcohol support. We recommend that these facilities:

have the capacity to deal with children and young people with complex needs
include wraparound services such as health, education and employment
engage specialist, therapeutically trained bail support workers to help children and young people attend programs and services, and to comply with conditions of bail.

Also, these facilities must be culturally safe for Aboriginal children and young people (cultural safety is discussed in Section 7.3).

To ensure they do not become de facto remand centres, children and young people should not be prevented from leaving the assisted bail facilities (subject to any conditions of bail).

The size of the proposed assisted bail facilities has not yet been specified, but they are unlikely to accommodate every child or young person on bail who needs support. While we did not receive any evidence about the statewide Supporting Young People on Bail program run by Save the Children, we note that the Tasmanian Aboriginal Legal Service is supportive of this program. As part of its youth justice reforms, the Government should examine the effectiveness of this program, consider the appropriateness of its eligibility criteria, and determine whether it needs increased funding, so more children and young people can be assisted with more intensive support, or whether additional bail support programs should be established.

The fate of a child or young person should not depend on whether their bail hearing occurs during business hours or after hours, or whether they appear before a magistrate or a justice of the peace. We recommend that the Government establishes a statewide 24-hour bail system for children and young people with bail decision makers (whether magistrates or justices of the peace) who have received specialist training in child development, trauma and disability (including communication deficits), and the issues faced by many Aboriginal children and young people, to ensure a consistent, trauma-informed and child-focused approach to decision making. Specialist training should contribute to ensuring bail conditions for children and young people are not unnecessarily onerous.

Children and young people should have access to legal representation in after-hours bail hearings. The bail system should also include access to bail support services after hours.

In Chapter 9, we recommend that, for children in out of home care, their child safety officer or another departmental representative with knowledge of the child attends any criminal proceedings involving the child in their role as the child’s legal guardian, responsible for the child’s care and protection (Recommendation 9.27). This should include bail hearings.

Finally, we recommend introducing child-specific bail laws that clearly outline the relevant considerations for bail decision making for children and young people.

Recommendation 12.14

The Tasmanian Government, to maximise opportunities for children and young people to be admitted to bail and minimise the number of children and young people on remand, should:

introduce legislation to
1. require bail decision makers to consider the matters specified in section 3B of the Bail Act 1977 (Vic) when determining bail for a child, as well as the child’s age (including their developmental age at the time of the alleged offence), Aboriginal status and any previous experience of trauma or out of home care
2. prohibit the refusal of bail to a child on the sole ground that the child does not have any, or any adequate, accommodation
examine the effectiveness of the existing bail support program with a view to expanding its capacity and funding additional bail support programs
establish and fully resource a statewide 24-hour bail system for children and young people with
1. specialised and trained decision makers who have knowledge of children and young people, Aboriginal children and young people, and the impact of trauma
2. access to corresponding bail support services
3. access to legal representation for children and young people
ensure its proposed assisted bail facilities
1. are small, homelike and, subject to bail conditions, do not place restrictions on the movements of children and young people
2. have the capacity to deal with children and young people with complex needs
3. are designed to include wraparound services, such as health, education and employment
4. are culturally safe for Aboriginal children and young people
5. include specialist, therapeutically trained bail support workers to help children and young people attend programs and services, and to comply with their conditions of bail.

Ensuring detention is a sentence of last resort

According to the Committee on the Rights of the Child, youth justice laws:

… should contain a wide variety of non-custodial measures and should expressly prioritize the use of such measures to ensure that deprivation of liberty is used only as a measure of last resort and for the shortest appropriate period of time.588

Tasmania’s sentencing framework

If a child or young person is found guilty of an offence by the Magistrates Court (Youth Justice Division), the court must sentence the child or young person under the Youth Justice Act, defer sentencing or make an order that the child or young person attend a community conference convened by the Secretary of the Department for Education, Children and Young People.589

Section 47 of the Youth Justice Act lists sentencing orders that the court may impose. These are not expressed or described as a hierarchy. The court can:590

dismiss the charge and impose no further sentence591
dismiss the charge and ‘reprimand’ (formally warn) the child or young person592
dismiss the charge and require the child or young person to enter into an undertaking to ‘be of good behaviour’—this is a form of conditional, unsupervised release where the child or young person undertakes to do or refrain from doing acts specified in the undertaking for a period of no more than six months593
release the child or young person and adjourn the proceedings on conditions—sentencing is postponed for a period of no more than 12 months on conditions set out by the court that must be ‘reasonable in the circumstances’594
impose a fine—maximum amounts vary depending on the age of the child or young person595
make a probation order—this is an order supervised by a youth justice worker requiring the child or young person to report to, receive visits from and obey the instructions of the youth justice worker, and to comply with any ‘special conditions’ specified in the order, including attending school or rehabilitation programs, abstaining from drinking alcohol or using drugs, residing at a specified address, submitting to a curfew and undergoing drug counselling and treatment596
make a community service order—this is an order requiring the child or young person to perform a ‘community service activity’ approved by the Secretary and assigned by a youth justice worker, and to comply with special conditions like those available for probation orders597
make a detention order not exceeding two years—the court may also order that part or all of the period of detention be ‘suspended’ (enabling the child or young person to be released), subject to conditions including reporting to a youth justice worker, attending programs directed by the worker, submitting to drug and alcohol testing, as well as any special conditions that the court imposes598
in the case of a family violence offence, make a rehabilitation program order—this is an order to attend and take part in a rehabilitation program and comply with the reasonable directions of a person employed or engaged to conduct such a program599
adjourn the proceedings, grant bail to the child or young person and defer sentencing until a date specified in the order, for the purpose of assessing the capacity of the child or young person and their prospects for rehabilitation, allowing them to participate in an ‘intervention plan’ or for other purposes.600

Alternatively, as noted, instead of sentencing the child or young person, the court can order that the child or young person attends a community conference convened by the Secretary.601 The procedure for the community conference is similar to the procedure for pre-court diversionary community conferences (discussed in Section 5.3.3).602 If the child or young person fulfils all the undertakings entered into at the community conference, the court will dismiss the charge against the child or young person.603

In determining what sentencing order to make, the court must:

ensure the rehabilitation of the child or young person is ‘given more weight than is given to any other individual matter’604
consider all the circumstances of the case, including the nature of the offence, the child or young person’s age, any sentences or sanctions previously imposed on them and the ‘impact any orders made will have on the youth’s chances of finding or retaining employment or attending education and training’605
not impose a sentence that is more severe than would be imposed on an adult who committed the same offence.606

Sentencers must also consider the ‘general principles of youth justice’ contained in section 5 of the Youth Justice Act (set out in Section 5.2 of this chapter). While most of these principles are potentially relevant to sentencing, we note in particular the following:

Detention should only be used as a last resort and only for as short a time as necessary.607
Any sanctioning is to be appropriate to the age, maturity and cultural identity of the child or young person.608
Any sanctioning is to be designed to give a child or young person an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways.609

The Youth Justice Act does not explicitly require sentencers to consider any trauma or disadvantage experienced by the child or young person, although one of the objectives of the Act is to ensure that, ‘whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that takes into account the youth’s social and family background’.610 Trauma-informed sentencing is discussed in Section 5.5.3.

Sentencing children and young people in Tasmania

In October 2021, the Tasmanian Sentencing Advisory Council published a report on the sentencing of children and young people in Tasmania between 2014–15 and 2019–20.611 The Sentencing Advisory Council found that, during this period:

90.7 per cent of sentencing orders made under the Youth Justice Act were non-custodial612
the most frequently used sentencing order was ‘release on conditions’ (26 per cent)613
supervised orders (probation and community service orders) accounted for 24 per cent of all sentencing orders614
detention or suspended detention accounted for 9 per cent of sentencing orders.615

Data published by the Australian Institute of Health and Welfare indicates that there were 57.3 children and young people aged 10 to 17 years under community-based youth justice supervision in Tasmania on an average day in 2021–22, compared with 8.1 children and young people aged 10 to 17 years in youth detention on an average day in the same period.616

The number of children and young people under community-based youth justice supervision in Tasmania has decreased since 2012–13, when there were 144.9 children and young people aged 10 to 17 years under community-based supervision on an average day.617 Despite this reduction, Tasmania has the fourth-highest rate of children and young people under community-based youth justice supervision after the Northern Territory, Queensland and Western Australia.618

According to Mr Caltabiano, ‘[i]t is a small step to go from a formal supervisory order to detention’.619 This comment may refer to the fact that a child or young person who breaches a supervised sentencing order is at risk of being resentenced to detention.

Former Noetic Solutions consultant, Anthony McGinness, who has expertise reviewing youth justice systems nationally, told us that when the Tasmanian Government commissioned him to examine the custodial youth justice system in Tasmania in 2016, he observed the absence of a ‘graduated model’ in sentencing (which would give young people opportunities to be diverted from detention).620 Mr McGinness referred instead to a ‘blunt jump’ between the sentencing options available and detention:

From my experience working in youth justice, an ideal model would involve incremental steps in sentencing – however, young people at Ashley Youth Detention Centre were less likely to have been given these diversionary options, and more likely to quickly progress from warnings to custody. There are complex factors behind this, and it was not the primary focus of our analysis, but this is likely contributed to by the availability of alternatives and options, and practice by police and the justice system.621

We did not receive any specific evidence on the use of non-custodial sentencing orders under the Youth Justice Act, or the operation of Community Youth Justice (the area of the Department responsible for diversion and rehabilitation programs for young people under youth justice supervision in the community).622 However, we note that the Youth Justice Act lists a range of community-based sentencing options for children and young people, all of which appear to be in use.623 Without an analysis of the sentencing histories of individual children and young people, it is difficult to assess whether Mr McGinness’s comment about the ‘blunt jump’ to detention is accurate. Nevertheless, we consider that there is scope to amend the Youth Justice Act to make it clearer that detention must be an option of last resort.

Also, we note that the Sentencing Advisory Council referred in its 2021 report to the absence of services to support conditions attached to community-based sentencing orders:

In stakeholder consultations, concern was raised about the lack of services to support the conditions made in orders imposed by the court. There may not be the appropriate services at all or wait lists may be too long to allow the young person to access the program or service in a timely way.624

An effective youth justice system must deliver targeted therapeutic services to support community-based sentencing, including community-based education programs. An example is the Ignatius Learning Centre in Melbourne—a Catholic specialist secondary school operated by Jesuit Social Services for young men aged 15 to 17 years who are involved in the youth justice system and are disengaged, or at risk of disengaging, from education.625 This program is available to young men who are being considered for a supervised community-based sentencing order (such as a youth supervision order or a youth control order) under the Children, Youth and Families Act 2005 (Vic) or who are on remand and facing a custodial sentence.626 Attendance at the Ignatius Learning Centre may become a condition of the sentencing order.627 The Ignatius Learning Centre ‘provides a safe, holistic and therapeutic learning environment’ and supports its students to complete the Victorian Certificate of Applied Learning.628

As well as the need for therapeutic services, the Commissioner for Children and Young People has, as discussed in Section 5.4.3, expressed concerns about attaching curfew conditions, reporting conditions and non-attendance conditions to bail orders. We note that similar concerns could apply to the conditions of community-based sentencing orders.

Trauma-informed sentencing

Between June 2019 and June 2020, the Victorian Sentencing Advisory Council published three reports on ‘crossover kids’, whom it defined as children who have been sentenced or diverted through the justice system and are also known to the Victorian Child Protection Service.629 This research identified that children known to child protection were substantially over-represented among sentenced and diverted children, and Aboriginal children were ‘substantially over-represented at the intersection of the child protection and youth justice systems’.630

These findings are broadly consistent with research published by Tasmania Legal Aid in its 2021 Children First report.631 Tasmania Legal Aid found that, while only 10 per cent of its child clients who had a child safety file also had a youth justice file (defined in the report as ‘crossover children’), crossover children accounted for 24 per cent of all youth justice files, and each crossover child had close to twice as many youth justice files as other children in the youth justice system.632 Fifteen per cent of crossover children identified as Aboriginal.633 Forty-one per cent of children first charged with an offence before the age of 14 years were crossover children.634 In Chapter 9, we discuss the substantial crossover between children in out of home care and children in detention in Tasmania.

In its third report on crossover children, the Victorian Sentencing Advisory Council considered the sentencing of children who have experienced trauma, finding that:

There is now broad consensus that trauma can affect children’s neurological, psychological and even physical development. Children are particularly vulnerable to the effects of trauma: their brains are still developing, and trauma can interrupt or alter that process. In this context, trauma becomes a particularly relevant factor to consider in sentencing. It affects children’s culpability, their ability to comply with court-ordered conditions and their capacity to be rehabilitated …635

In light of its research, the Victorian Sentencing Advisory Council suggested a range of other matters which courts should consider in sentencing children and young people in Victoria.636 These included the child’s experience of trauma; any child protection involvement; removal of the child from their family of origin (including siblings, extended family, culture and community); disruptions to the child’s living situation or education; any experience of out of home care; mental illness, neurological difficulties and developmental issues arising from, or exacerbated by, experiences of trauma; and the child’s chronological age and developmental age at the time of sentencing.637

The Victorian Sentencing Advisory Council also suggested other considerations relevant to sentencing Aboriginal children, namely the consequences of intergenerational trauma; historical discriminatory policies; general and systemic racism; and any relevant cultural factors such as previous culturally inappropriate responses to Aboriginal children that may have worsened the effects of trauma.638

In addition, the Victorian Sentencing Advisory Council proposed several practical measures to reduce the over-representation of crossover children in the Criminal Division of the Children’s Court and ‘to strengthen the capacity of sentencing courts to be fully appraised of a child’s [child] protection history and experience of trauma’.639 These measures included:

strengthening information sharing between the Family Division (which deals with child protection matters) and the Criminal Division of the Children’s Court
introducing a ‘crossover list’ in the Children’s Court that would deal with the child protection and criminal matters of children involved in both systems
providing dedicated child protection workers in the Criminal Division to facilitate access to reports about a young person’s child protection history
empowering the Criminal Division to compel child protection case workers to attend court and/or support a child in cases where the Secretary of the Department of Health and Human Services has parental responsibility for the child.640

As noted, in Chapter 9, we recommend that, in its role as guardian of a child in care responsible for the child’s care and protection, the Department for Education, Children and Young People ensures a child safety officer or other departmental representative with knowledge of the child attends any criminal proceedings against the child in the Magistrates Court to support them in court and to inform the court of the child’s background and child protection history (Recommendation 9.27). For the purposes of sentencing, this would give the court an understanding of any previous trauma the child has experienced. We consider court specialisation in the following section.

Court specialisation for children and young people

According to the United Nations Committee on the Rights of the Child, the ‘continuous and systematic training of professionals in the child justice system is crucial’ to uphold the guarantees in the Convention on the Rights of the Child that every child receives a fair trial.641 Such professionals should be ‘well informed about the physical, psychological, mental and social development of children and adolescents, as well as about the special needs of the most marginalized children’.642

As noted, the Youth Justice Division of the Magistrates Court deals with most criminal charges against children and young people. A single magistrate in each registry hears all youth justice matters.643 Also, the Youth Justice Division maintains a ‘specialist list’ of cases involving children and young people ‘with alcohol and drug abuse, mental health problems, or any other particular problem or combination of problems where the Court might appropriately intervene’.644 According to the Sentencing Advisory Council, the Youth Justice Division adopts a therapeutic, strengths-based, collaborative and ‘largely non-adversarial’ approach, with coordination and cooperation between the various agencies involved in the youth justice system.645

The Children’s Division of the Magistrates Court, also referred to as the ‘Children’s Court’, deals with child protection matters.646 Professor White told us that there were two magistrates who are designated as Children’s Court magistrates and who are ‘essentially specialist magistrates’.647 However, Commissioner McLean told us that she is not aware of any specialisation in respect of the Children’s Division, and that—other than those magistrates who may be recused (unable to hear a matter) due to a conflict of interest—all magistrates deal with Children’s Division matters statewide.648

The Magistrates Court does not appear to have a specific ‘crossover list’ for children and young people with criminal matters who also have child protection involvement. Commissioner McLean told us that where a child or young person is the subject of both child protection and youth justice proceedings:

… different magistrates, in different courtrooms, may deal with each matter, which results in low confidence that the courts have a shared or consistent view on how best to address the offending behaviour and child protection needs of the young person.649

As noted in Section 5.3, charges for prescribed offences against children and young people are dealt with in the Supreme Court or the Magistrates Court’s adult jurisdiction, and sentencing for such offences may occur under the Sentencing Act 1997 rather than the Youth Justice Act. In 2021, the Sentencing Advisory Council observed that:

The low number of youth offenders sentenced in the Supreme Court has [a] bearing on infrastructure provision as well as the level of specialist knowledge of judges in dealing with young people.650

Some stakeholders consulted by the Sentencing Advisory Council expressed the view that ‘the process in the Supreme Court generally treats children as “mini adults”’.651

Professor White said he would value ‘more therapeutic oriented judges and magistrates in Tasmania who are specially trained, fostered by specialist court divisions that could support this’.652

Despite the existence of a Children’s Division and a Youth Justice Division in the Magistrates Court, Tasmania Legal Aid has described Tasmanian courts as ‘imposing, adult environments’ where ‘[i]t is common for children to be waiting for their case in the same area with adults charged with criminal offences’.653 Tasmania Legal Aid has advocated for establishing a separate, standalone Children’s Court in Tasmania to deal with youth justice and child protection matters.654 Mr Caltabiano said that a specialist Children’s Court should be physically designed for children and staffed by dedicated magistrates.655

The Commissioner for Children and Young People has also indicated that ‘serious consideration should be given to establishing a standalone Children’s Court in Tasmania with jurisdiction to hear all matters involving children and young people’, including charges for prescribed offences.656 As noted, charges for prescribed offences are currently excluded from the jurisdiction of the Youth Justice Division of the Magistrates Court. We note that, before establishing the Youth Justice Division of the Magistrates Court in 1997, Tasmania had a separate Children’s Court.657

We consider that a specialist Children’s Court in Tasmania would significantly benefit children and young people. While separate court facilities for children and young people are ideal, we acknowledge that these may be impractical in Tasmania given its population size. In Section 5.5.6, we recommend establishing a new specialist division of the Magistrates Court to deal with child protection matters and criminal charges against children and young people.

Youth justice reforms

Strategy 3 of the Draft Youth Justice Blueprint is to ‘establish a therapeutically based criminal justice response for children and young people’ that ‘provides a range of interventions and support options that address criminogenic needs, target the driving factors behind offending behaviours and build upon strengths’.658 This includes ‘[e]nsuring the availability of graduated sentencing options’ to reduce the number of children and young people re-entering the criminal justice system.659

Action 4 of the Draft First Action Plan is to ‘[i]mplement a range of diversion, bail support and community based sentencing programs’.660 In his February 2023 update, Secretary Bullard advised that work had begun on:

researching community-based sentencing programs in other jurisdictions
implementing a pilot program within Community Youth Justice ‘to trial an intensive care team support program with a small number of children and young people who are engaged with the youth justice system and have complex needs’.661

Our recommendations

The Government’s proposed review of the Youth Justice Act offers an opportunity to reconsider the suite of sentencing options available for children and young people and to clarify the sentencing hierarchy. As well as the updated youth justice principles recommended in Section 5.2 (Recommendation 12.12), the new Youth Justice Act should include sentencing principles that identify rehabilitation as the primary purpose of sentencing. In determining an appropriate sentence for a child or young person, courts should be required to consider factors related to a child or young person’s trauma background and their child protection and out of home care history.

In developing new community-based sentencing orders, the Government should ensure children and young people on such orders have access to appropriate rehabilitation programs and are supported to comply with the conditions of their orders.

To increase court specialisation for children and young people, we recommend establishing a new specialist division of the Magistrates Court to hear and determine child protection matters (currently heard by the Children’s Division) and criminal matters against children and young people (currently heard by the Youth Justice Division). This new division should be constituted by at least three dedicated, full-time specialist magistrates—one based in Hobart, one in Launceston and one in Devonport and Burnie—drawn from the existing pool of magistrates. The specialist magistrates should have an understanding of child and adolescent development, trauma, child and adolescent mental health, children’s cognitive and communication deficits, and Aboriginal cultural safety.

The Government should support the Magistrates Court to arrange for the new specialist children’s division to be independently evaluated after three years to examine the adequacy of its resourcing.

The Government should also ensure any future redevelopments of Tasmanian court facilities consider modifications to make those facilities less formal and intimidating, and more child-friendly.

Finally, we recommend that the Government funds professional development for judicial officers in adult jurisdictions hearing criminal charges against children and young people.

Recommendation 12.15

The Tasmanian Government should:

ensure any legislation designed to amend or replace the Youth Justice Act 1997 provides that
1. rehabilitation is the primary purpose of sentencing a child
2. the list of sentencing options is a hierarchy and a sentencer can only impose a sentence at a particular level of the hierarchy if satisfied that it is not appropriate to impose a sentence that is ‘lower’ in the hierarchy
3. a sentence imposed on a child should be the minimum intervention required in the circumstances
4. a custodial sentence must only be imposed as a last resort and for the minimum period necessary
5. in sentencing a child the court must consider the child’s experience of trauma, any child protection involvement or experience of out of home care, disruptions to the child’s living situation or education, any mental illness, neurological difficulties or developmental issues experienced by the child, and the child’s chronological age and developmental age at the time of sentencing
6. in sentencing an Aboriginal child, the court must consider additional factors including the consequences of intergenerational trauma, historical discriminatory policies, general and systemic racism, and any previous culturally inappropriate responses that may have worsened the effects of trauma on the child
7. there is a presumption against imposing restrictive conditions (such as curfews and non-association conditions) with community-based sentencing orders, which may increase a child’s likelihood of breaching a sentencing order and being sentenced to detention
ensure children who are sentenced to a supervised community-based order receive adequate support to comply with the conditions of the order from therapeutically trained, culturally competent staff
assist and support the Magistrates Court to establish a new division of the Court to hear and determine both child protection matters and criminal charges against children and young people, which should be constituted by at least three dedicated full-time magistrates with specialist knowledge and skills relating to children and young people
support the Magistrates Court to arrange for the implementation and operation of the Court’s new specialist division to be independently evaluated after three years
fund the Magistrates and Supreme Courts to provide professional development for judicial officers hearing matters involving children and young people in the adult jurisdiction, in areas including child and adolescent development, trauma, child and adolescent mental health, cognitive and communication deficits, and Aboriginal cultural safety.

Creating a child-focused youth detention system

As discussed in Section 4.1, youth detention environments that deprive children and young people of their liberty, dislocate them from family and community, and impose strict rules, discipline and punishment expose children and young people to ‘a unique set of factors that may heighten their risk of being sexually abused’.662

The case studies in this volume reveal the cruel, inhumane and degrading environment and culture at Ashley Youth Detention Centre, where some children and young people were subjected to human rights violations, violence, abuse and neglect, including child sexual abuse. In Section 3, we discuss measures to acknowledge this abuse. Here, we focus on measures to protect against such abuse occurring in the future.

In Section 4.2, we note stakeholder views that Ashley Youth Detention Centre resembles an adult correctional facility rather than a youth justice facility focused on rehabilitating children and young people. Former Commissioner for Children and Young People Mark Morrissey told us of a commonly held view among Centre staff that ‘their role was to be custodians first and foremost, akin to prison officers’, with rehabilitation ‘very much a lower order priority’.663

We also heard evidence from multiple experts across the areas of law, psychology, social work and criminology that children and young people in detention have complex needs arising from cognitive disability, exposure to family violence, neglect, abuse, trauma, mental illness, substance misuse issues, homelessness, involvement in the child protection system, disrupted education and significant socioeconomic disadvantage.664

A detention environment that responds to such needs with punishment, bullying and intimidation—through isolation, force, restraints and unnecessary searches—rather than with trauma-informed, therapeutic care risks further traumatising and marginalising already vulnerable children and young people. It also significantly increases their risk of experiencing child sexual abuse in detention.665 Such an approach is also ineffective in reducing offending and enhancing community safety.666

As noted in Section 5, to minimise the risk of child sexual abuse in detention, every effort must be made to divert children and young people from remand and custodial sentences.667 However, where a child or young person cannot be, or is not, diverted from remand or a custodial sentence, it is essential that they receive the support and care they need while in detention to turn their life around and avoid returning to detention. This is necessary to protect children and young people against the continuing risk of child sexual abuse in detention, to reduce the risk that they will eventually enter adult prison and to increase community safety by reducing the likelihood of recidivism.668

The United Nations Convention on the Rights of the Child states that:

Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.669

In this section, we consider the reforms required in Tasmania to achieve a fundamental shift from a punitive, correctional approach to youth detention to an effective, humane, child-focused system that recognises that children and young people are developmentally different from adults and have the unique potential for rehabilitation, given the right support. The Draft Youth Justice Blueprint describes this as a ‘therapeutic approach’ that ‘frames children and young people as vulnerable and in need of support and healing, as opposed to punishment or fear’.670

The Northern Territory Royal Commission examined international best practice for youth detention facilities and identified the following key features of effective systems, where violent incidents were rare and recidivism rates were low:

small, ‘normalised’ facilities that reflect a residential design671
intensive therapeutic services that address the immediate causes of a young person’s offending and the problems in a young person’s life, such as drug and alcohol misuse and homelessness, that make offending more likely672
high-quality education (including vocational training) as a central part of the facility’s operations673
structured, full days and a wide range of activities to keep children and young people busy674
highly skilled staff who actively engage with children and young people, model positive behaviours and can manage difficult behaviours675
security that is achieved primarily through relationships between children and young people and staff, rather than through ‘the use of fences, locks, isolation and restraints’676
community involvement in the day-to-day operation of the facility677
strong leadership from senior managers who are ‘committed to the vision of reform’678
evidence-based decision making in youth justice reform, noting that ‘the evidence often points the opposite way to what many people intuitively assume is the best approach’.679

As outlined in Section 2, the Tasmanian Government has announced a substantial youth justice reform agenda, encapsulated in its Draft Youth Justice Blueprint, Draft First Action Plan and Keeping Kids Safe Plan.680 This reform agenda follows several earlier reviews and unsuccessful attempts at youth justice system reform (outlined in Chapter 10), including attempts to implement a therapeutic model of care in youth detention in 2017 and 2018 via the ‘Ashley Model’ and the ‘Ashley+ Model’ (also referred to as the ‘Ashley+ Approach’).681

Given that we did not undertake a full inquiry into the youth detention system, we do not make detailed recommendations on all aspects of youth detention. Instead, we focus primarily on the issues that stood out in the evidence we received as the most relevant to preventing child sexual abuse while a child or young person is in detention. Our recommendations in this section address:

the design of the detention facility intended to replace Ashley Youth Detention Centre
measures to increase safety for children and young people in detention through the use of closed-circuit television cameras, body-worn cameras and viewing panel swipe readers
the need for highly skilled staff who can apply a trauma-informed and therapeutic model of care
implementing a multidisciplinary approach to meeting the needs of children and young people in detention
access to health care for children and young people in detention
children and young people’s access to high-quality education in detention
promoting connections between children and young people in detention and their families and communities
effective exit planning and support for children and young people after their release from detention
the process for transferring children and young people from youth detention to adult prison facilities.

Our recommendations to ensure youth detention in Tasmania is culturally safe for Aboriginal children and young people are in Section 7.3. We discuss leadership in the youth detention system in Section 4.4.

Designing a contemporary, best practice detention facility

As outlined in Section 2, the Government has announced that it intends to replace Ashley Youth Detention Centre with several new facilities, including one ‘detention/remand centre’ in southern Tasmania.682 According to the Government’s Draft First Action Plan, this facility will be ‘purpose-built’ and will ‘provide the opportunity for intensive intervention and rehabilitation through a therapeutic model of care’.683

We note that international human rights instruments require children and young people on remand to be separated from children and young people who have been convicted and sentenced.684 We acknowledge that if the total package of our recommendations was implemented as intended, there would be a very small group of older children whose danger to the community could not be managed in community settings, who would be remanded in custody. Although it is undesirable for children on remand to be detained with children who have been sentenced, we recognise that the small numbers involved may make separating these groups impractical and could effectively result in isolation.

Physical design

According to the United Nations Committee on the Rights of the Child, children deprived of liberty should be ‘provided with a physical environment and accommodation conducive to the reintegrative aims of residential placement’.685 As noted, the most effective youth detention facilities are those that have ‘moved away from the institutional prison model … towards more normalised, home like facilities’.686 This is in part because physical design affects behaviour. In a facility based on a residential design, young people and staff perceive themselves and others more positively than in an institutional design, and as a result, the atmosphere is calmer, stress is reduced and behaviour improves.687

Elena Campbell, Associate Director, Research, Advocacy and Policy at the Centre for Innovative Justice, referred positively to the approach of the Diagrama Foundation in Spain, which runs 35 centres for children and young people remanded or sentenced to custody.688 According to a report prepared by the Diagrama Foundation for the Northern Territory Royal Commission:

As far as possible we make our centres feel like a normal environment with young people engaged in their decoration, upkeep, gardening; with everyday furniture rather than ‘prison’ furniture and a daily rhythm that is appropriate to the age of the young person – a normal 9:30 or 10:00pm bedtime. This provides young people with greater opportunities to learn and they go to bed tired and sleep better. We also have fewer problems caused by the frustration of boredom or loneliness. All of the above contributes to making our centres feel like safe, normal environments where disruptions and use of force are low. Young people can focus on their progression and build skills for successful life in the community.689

While the Diagrama Foundation report refers to six months as being the ‘minimum time recommended’ in its centres, it notes that ‘even for young people who are with us for short periods, however, we expect some degree of progression towards developing positive behaviours’.690 Its approach is therefore not inconsistent with an approach that also seeks to ensure detention is for as short a time as possible.

Anthony McGinness, former Noetic Solutions consultant, cited the example of the ‘Missouri Model’, which has been adopted in several United States jurisdictions and has recidivism rates as low as 15 per cent.691 This model uses small, homelike secure facilities that are ‘designed to look like schools rather than prisons’ and incorporate pets and live plants.692

In recommending new secure facilities for Darwin and Alice Springs, the Northern Territory Royal Commission concluded that:

Each facility should be designed on a campus model that has facilities for the accommodation, education, training and basic service delivery for the detained population within a secure perimeter. The facilities should be built and finished to a standard that would be considered acceptable in a new fee-for-service boarding school.693

The Victorian Commission for Children and Young People has also emphasised the importance of secure youth justice facilities closely resembling a home, where children and young people have ready access to communal spaces, including a kitchen, lounge area and outdoor spaces, and where soft furnishings, artwork, books and games contribute to a homelike environment.694 We agree with these approaches.

Also, the physical design of the new facility should address the needs of girls and young women, gender diverse children and young people, and children and young people with disability. We discuss the needs of Aboriginal children and young people in detention in Section 7.

The new facility should also incorporate features that keep children and young people safe from sexual abuse. The National Royal Commission recognised that building and design features, such as the location of closed-circuit television cameras, could improve the observation of children’s interactions with each other, as well as interactions with staff.695 An expert in harmful sexual behaviours told us that there are design strategies available in various institutions to reduce the opportunity for harmful sexual behaviours—for example, positioning toilets in a central area where everyone can see who is entering and exiting, and locating staff near high-risk areas such as bathrooms or bedrooms.696

We discuss harmful sexual behaviours in detention in Section 8. We discuss closed-circuit television cameras and related issues in Section 6.2.

Size

The best-performing youth detention facilities tend to be small.697 The largest secure facility in Missouri has 36 beds, while the Diagrama Foundation’s centres range from small 12-bed facilities to larger facilities for around 70 young people.698 The Northern Territory Royal Commission rejected any suggestion that a large facility be built ‘for the sake of having spare capacity in case of an unexpected increase in the number of young people committed to detention’.699 It recommended a total capacity of 46 beds across two proposed facilities (in Darwin and Alice Springs), with ‘an additional 13 beds available to accommodate for higher than average days’.700 It also recommended that each facility have small accommodation units with four to six bedrooms each.701

As noted in Section 5.4, on an average day in 2021–22, there were eight children and young people aged 10 to 17 years in detention in Tasmania.702 Ashley Youth Detention Centre has 40 beds.703 This is too large. Even with the more recent increase in remand numbers (outlined in Section 5.4), Tasmania’s small youth detention population lends itself to establishing a smaller secure facility.

In Section 5.1, we recommend that the Government increases the minimum age of criminal responsibility to 14 years and works towards increasing the minimum age of detention (including remand) to 16 years (Recommendation 12.11). In that section, we also recommend adopting diversionary and sentencing processes to reduce the number of children and young people entering detention. The combined effect of these measures would be that, even in the short term, only young people aged 14 to 17 years would be eligible for remand or a custodial sentence, and the detention population would be smaller than at present.

As outlined in Section 5.1.2, the Tasmanian Government has committed to increasing the minimum age of detention to 14 years, although it will not do this until ‘new bail and sentencing options [are] developed to better support children and young people under the age of 14’.704 This is likely to take time because it appears to be intended to form part of the Government’s proposed review of the Youth Justice Act.705 Until such changes are implemented, children as young as 10 could continue to be remanded or sentenced to detention. Nevertheless, this does not alter our view that any new detention facility should be small.

Location

In March 2023, the Government announced that two sites had been shortlisted for the new detention facility, identified due to their:

… substantial size, separation from major residential areas, their proximity to Hobart, the limited visibility (or with capacity for screening) from surrounding properties and their appropriate zoning under the relevant planning scheme.706

At the time of writing, a site for the new detention facility had not been selected. We note that one of the shortlisted sites is in Risdon. The Northern Territory Royal Commission said that new secure youth detention facilities should not be located on, or close to, adult prison precincts.707 We agree. Locating youth detention facilities near adult prisons risks undermining the distinctive approach of effective youth detention systems, which focus on rehabilitation and recognise that children and young people have unique needs based on their age and stage of development.

We note that locating a new detention facility in or near Hobart will have the effect of dislocating some children and young people from their communities and families. As discussed in Chapter 10, in 2016, Noetic Solutions recommended establishing two new purpose-built detention facilities to replace Ashley Youth Detention Centre to keep detained children and young people closer to their families and communities.708

However, we also note that the small Tasmanian youth detention population may not justify multiple detention facilities and that locating a single new facility in Hobart has the advantage of providing improved access to services and being more likely to attract a larger pool of professional staff than a regional location.709 In Section 6.7, we discuss the need to support families to visit children and young people in detention.

Recommendation 12.16

The Tasmanian Government should ensure its proposed new detention facility (and any future detention facilities) are small and homelike and incorporate design features that reflect best practice international youth detention facilities. This includes features that:

promote the development of trusting and therapeutic relationships between staff and children and young people
facilitate and enhance trauma-informed, therapeutic interventions for children and young people
minimise stigma to children and young people
facilitate and promote connections between children and young people, and their families and communities
protect children and young people against the risks of child sexual abuse (including harmful sexual behaviours)—for example, by enabling line-of-sight supervision as far as possible, without infringing on children and young people’s privacy.

Security measures to increase children’s safety in detention

If therapeutic interventions are to be effective, children and young people in detention must feel safe. As noted, in best practice youth detention facilities, security—and therefore feelings of safety—are achieved primarily through positive relationships between staff and young people and through constant, active supervision by staff, rather than through security features such as surveillance that are common in adult prisons (refer to the discussion in Section 6.3.1). However, establishing such an approach in Tasmania is likely to take time, particularly in a system that has previously adopted a highly punitive approach to youth detention.

Surveillance cameras in youth detention facilities enable internal and external oversight of interactions in the facility, improve staff accountability and help to prevent potential abuses of power.710 According to the Northern Territory Royal Commission, ‘[t]he availability of video evidence of use of force incidents provides the best objective evidence of what has occurred’.711 It recommended that:

closed-circuit television cameras cover all parts of youth detention centres other than bathroom facilities712
all closed-circuit television camera footage be retained for at least 12 months713
body-worn video cameras that record both video and sound be introduced in youth detention centres.714

As described in Chapter 11, Case study 1, several victim-survivors who had been detained in Ashley Youth Detention Centre told us they had been sexually abused in parts of the Centre where there were no surveillance cameras; they advocated strongly for extra cameras to keep children and young people safe. Some victim-survivors also told us that staff had watched them while they were showering through ‘viewing panels’ designed to enable observation of a child or young person at risk of suicide or self-harm.715

The Government’s Keeping Kids Safe Plan commits it to making the following improvements to security and safety at Ashley Youth Detention Centre:

updating closed-circuit television coverage and installing more cameras to cover blackspots716
installing a closed-circuit television control room with trained personnel to monitor coverage717
developing and implementing a security risk management plan with supporting policies and procedures718
investigating the use of body-worn cameras and ‘viewing panel swipe readers’, requiring an access control card to be read on a reader before the viewing panel can be opened719
moving from paper records to an electronic records management system.720

Most of these actions were due to be completed by December 2022. Recommendations from the investigation into body-worn cameras were due to be implemented by July 2023.721 In February 2023, Secretary Bullard advised us that the security risk management plan had been completed and that all other actions were ‘underway’.722

In June 2023, the Department told us that although it has explored installing closed-circuit television across Ashley Youth Detention Centre, it has been advised that it is not possible to implement coverage across the entire current site.723 The Department said it is investigating other forms of video and audio surveillance and that ‘[a]ppropriate surveillance will be a key consideration in the design of the new youth detention facilities’.724 It is not clear to us why it is not possible to implement closed-circuit television coverage across the entire current site, nor what other forms of video and audio surveillance the Department may be exploring.

While we are encouraged by the Department’s commitments and activities in relation to security at Ashley Youth Detention Centre and the proposed detention facility, we are concerned that there are still parts of Ashley Youth Detention Centre that are not covered by surveillance cameras. The Department must ensure all public areas of the Centre are subject to effective electronic surveillance. This should not include children’s rooms, bathrooms or other parts of the Centre where children’s privacy may be infringed, such as spaces where children may be viewed undergoing a partially clothed search (although surveillance should cover staff who conduct the search).

We support introducing viewing panel swipe readers at Ashley Youth Detention Centre. We also support the introduction of body-worn cameras at the Centre to supplement closed-circuit television cameras because body-worn cameras have the advantage of recording sound, which we consider will provide more information on incidents, improve staff accountability and strengthen oversight of youth detention.

In recommending these security features, we are persuaded by the voices of victim-survivors who told us that more cameras were needed to keep children and young people in detention safe. However, we do not consider that such security features should be necessary indefinitely. We are mindful of the fact that a strong focus on surveillance is not consistent with the best practice approach of achieving security in youth detention facilities primarily through constructive relationships between staff and children and young people.

Therefore, we recommend that the continuing use of surveillance cameras in youth detention be the subject of regular annual reviews by the new Commission for Children and Young People (recommended in Chapter 18, Recommendation 18.6). These investigations should seek the views of children and young people in detention about whether surveillance cameras make them feel safe, and whether such mechanisms should be used in the proposed new detention facility intended to replace Ashley Youth Detention Centre.

Footage from surveillance cameras needs to be properly managed to support effective oversight. We note that the Keeping Kids Safe Plan does not address the issue of management or retention of closed-circuit television camera footage.

The Ashley Youth Detention Centre procedure on ‘CCTV Surveillance Cameras’ states that the primary function of surveillance cameras is ‘to provide recorded footage that may be viewed in the event of an incident or allegation’ and that ‘[f]ootage will be reviewed, recorded and stored securely by the [Fire, Safety and Security Coordinator] on a regular basis’.725 The procedure also indicates that footage of incidents required for investigation will be ‘downloaded to disc’ and ‘retained footage will be transferred to portable hard drive on a regular basis’.726 These requirements should be clarified and strengthened.

The National Royal Commission recommended that institutions that engage in child-related work implement a series of principles for record keeping, including creating and keeping full and accurate records of all incidents affecting child safety and wellbeing, and maintaining those records appropriately.727 The National Royal Commission also recommended that public records authorities guide institutions on identifying records that may become relevant to an actual or alleged incident of child sexual abuse and on retaining and disposing of such records (Recommendation 8.3).728

In 2019, in response to Recommendation 8.3, the Tasmanian Office of the State Archivist issued a notice of a ‘disposal freeze’ on records relating to children.729 The stated basis for the freeze was ‘the complexity of identifying records that may be relevant for future disclosures of child abuse’, noting that some children and young people take time to disclose abuse, and the State should ensure all relevant records are retained.730

The disposal freeze requires all organisations and agencies providing services to children to ‘keep all records that contain the best information about children, services provided to them, and employees that provide the service, until 2029’.731 We consider that this would include footage from surveillance cameras and body-worn cameras in youth detention. The Office of the State Archivist will review the disposal freeze before the National Redress Scheme ends.732

Recommendation 12.17

The Tasmanian Government, to enhance the safety of children and young people in Ashley Youth Detention Centre and any new detention facility, should:
1. ensure all public areas of the facility are subject to electronic surveillance
2. introduce viewing panel swipe readers
3. introduce body-worn cameras, supported by comprehensive policies and procedures for their use by staff
4. develop and implement a policy for managing and retaining surveillance footage that
  1. takes account of the record-keeping principles identified by the National Royal Commission and the disposal freeze on records relating to children issued by the Office of the State Archivist
  2. promotes transparency of staff conduct and enables regular audits of staff performance to be undertaken
  3. requires footage to be made available on a timely basis on the lawful request of a government department or oversight body.
The Commission for Children and Young People (Recommendation 18.6) should annually review the use of electronic surveillance in detention to determine whether it increases children and young people’s feelings of safety in detention and should continue to be used. The initial review should seek the views of children and young people at Ashley Youth Detention Centre on whether electronic surveillance should be deployed in the proposed new detention facility.

Highly skilled staff applying a therapeutic model of care

Best practice

As noted, the best-performing youth detention facilities have highly skilled staff who actively engage with children and young people, model positive behaviour and can manage difficult behaviours through trauma-informed responses and de-escalation techniques.

At secure centres run by the Diagrama Foundation, highly qualified specialist staff known as ‘social educators’ work to ‘build warm, parenting relationships’ with young people by acting as encouraging and supportive role models, while setting ‘consistent, clear and fair boundaries to help young people understand the positive and negative consequences of their behaviour’.733 This reflects a model of care that is ‘centred around the themes of relationships and emotions, cognition, behaviour and progression’.734

‘Progression’ in this context refers to a system of rewards and privileges used in Diagrama facilities that ‘encourages young people to progress through a five-staged model from induction through to autonomy’.735 Rewards include opportunities to work, study and socialise in the community. Young people can lose these privileges and then have to re-earn them.736

The Diagrama Foundation states that social educators ‘genuinely care about the young people they work with’ and support them throughout every aspect of their day.737 Each Diagrama centre has separate security staff who ‘act as a last resort in incident management’ and ‘stay in the background’ as far as possible—they are not involved in the day-to-day care of children and young people.738

According to the Diagrama Foundation, its secure centres are:

… stable and orderly places where young people feel safe and there are very low levels of disruptions. Therefore use of restraint and force are uncommon in our centres: in 2018, only 9.51% of young people across our centres were restrained and only 6.85% committed a serious incident [including verbal abuse and threatening behaviour] beyond their first two months in custody.739

In the Missouri Model, staff in detention facilities are known as ‘youth specialists’, who are responsible for the ‘safety, personal conduct, care and therapy’ of children and young people.740 Staff undergo an intensive recruitment process to determine whether they are committed to helping children and young people succeed and have the necessary attributes for the role, such as good listening skills, empathy and an ability to create respect.741 Youth specialists must complete 236 hours of training in their first two years, including multiple sessions on youth development, family systems and group facilitation.742

Youth specialists engage in constant, active, ‘eyes-on, ears-on’ supervision of children and young people—talking to them, engaging in activities with them and noticing any changes in their facial expressions and body language or in group dynamics that may indicate that intervention is required.743 Youth specialists are also extensively trained in conflict management and techniques ‘designed to defuse potential trouble and foster a safe environment’.744

We discuss the recruitment of a highly skilled workforce for Tasmanian youth detention facilities in Section 4.7.

Our evidence

In contrast with the approaches outlined in Section 6.3.1, the case studies in Chapter 11 describe the culture that existed at Ashley Youth Detention Centre, where we heard that some staff used threats of physical violence against children and young people, subjected them to unnecessary strip searches and sometimes placed them in forms of isolation, often as punishment and sometimes using force or restraints (refer also to Sections 4.2 and 9). As noted in Chapter 11, Case study 1, such practices may have further traumatised and criminalised children and young people.

In Chapter 10 and Chapter 11, Case study 3, we also describe the ways in which the Behaviour Development System—an incentive-based behaviour management protocol that allocated ‘benefits’ or ‘restrictions’ to a young person based on a colour ranking—and in particular the ‘Blue Program’, were used to punish and isolate children and young people. The Blue Program created another ranking that was lowest on the behaviour management spectrum and reserved for the children and young people displaying the most challenging behaviours. It took various forms over many years, but, in 2019, it was described as involving a young person being ‘fully segregated from Ashley School, daily programs and activities, other young people in their Unit (subject to risk assessment) and the normal routine of the Centre’.745

Restrictions on the ‘red’ level in the Behaviour Development System included a bedtime of 7.30 pm (compared with a bedtime of 10.00 pm for a young person on the ‘green’ level), with young people confined to their rooms until breakfast at 8.00 am the following day.746

As discussed in Section 4.2.2, we heard concerns from staff that some children and young people were singled out by staff for unfavourable treatment through the Behaviour Development System because they were disliked.747

Also, as described in Section 4.2.2, we heard that some operational staff at Ashley Youth Detention Centre saw themselves as being akin to prison guards. Professor White told us that, in his view, formed while taking part in an investigation into the death of a young person at Ashley Youth Detention Centre in 2010, the operational staff were:

… basically “lockup people”. Their role is essentially a prison guard role, and that role is reflected in both their approach and their training … It is not tied directly to the rehabilitation or restoration ideals which are commonly associated with youth justice.748

Our case studies illustrate that this observation is still relevant to more recent practices. Former Ashley Youth Detention Centre staff member Alysha (a pseudonym) indicated she did not observe in ‘any way, shape or form’ a culture at the Centre that valued rehabilitation and restorative practices.749 We also heard that operational staff have historically not been required to hold appropriate qualifications.750 We discuss the practices, qualifications, training, recruitment and impact of operational staff in Section 4.7.

Practice improvements

The Ashley Youth Detention Centre Practice Framework (‘Practice Framework’)—developed in 2020, with implementation starting in 2021—describes itself as a ‘therapeutic, evidence-based framework’ to guide how staff ‘work in a therapeutic way with young people in detention’.751 It includes a section on ‘therapeutic and trauma-informed practice’, which refers to the importance of staff working in ways that acknowledge children and young people’s experiences of trauma, recognise their responses and provide opportunities to learn new responses and behaviours.752

The Practice Framework has six practice principles that emphasise building healthy and positive relationships, creating an environment where young people and staff feel safe and secure, providing opportunities for young people to connect with their families and communities, and giving young people a voice in decisions that affect them.753 The Practice Framework is supported by the Centre’s Learning and Development Framework, which specifies mandatory professional development requirements for staff.754

Pamela Honan, Director of Strategic Youth Services, said that implementation of the Practice Framework was in its ‘early stages’ and acknowledged that, without the appropriate skill set to work with children and young people demonstrating challenging behaviours, staff may fall back on punitive practices.755 The Government has contracted the Australian Childhood Foundation to review the Practice Framework and the Learning and Development Framework.756

In 2021, Ashley Youth Detention Centre revised the Behaviour Development System and renamed it the Behaviour Development Program.757 According to Ms Honan, the revised program was piloted and a new procedure for its use finalised in June 2022.758 Secretary Pervan told us that the new Behaviour Development Program was ‘a more positively focused and less punitive system’.759

The Government has also:

contracted the Australian Childhood Foundation to deliver training for the Certificate IV in Youth Justice for staff at Ashley Youth Detention Centre who do not already have qualifications in youth work (refer to Section 4.7.1)760
engaged an external provider to deliver training for all staff at Ashley Youth Detention Centre in ‘positive behaviour support’, ‘positive approaches to behaviour and safer de-escalation’ and ‘physical intervention’ by June 2023.761

In addition, the Government has committed to developing and implementing standard operating procedures for security, including a review of existing procedures for using handcuffs.762 The Department has also updated its procedure on personal searches of children and young people in detention in light of legislative changes to the requirements for searches in December 2022—these issues are discussed in Section 9.1.

More broadly, the Government has committed to developing a ‘Youth Justice Model of Care’ by 2025 to outline its approach to caring for children and young people across the youth justice system (not just in detention) and to establish an operating philosophy, service objectives and service standards based on therapeutic, trauma-informed care.763

Our recommendations

As noted, Tasmania’s youth detention system needs to undergo a fundamental shift from a punitive approach to one that is centred on rehabilitation. Staff are central to this change. Operational staff must be equipped with the skills needed to undertake trauma-informed, culturally safe, child-centred interventions with children and young people, including the skills to anticipate, de-escalate and respond to challenging behaviours without resorting to force.

The Government’s practice improvements described in Section 6.3.3 are positive, but more needs to be done. In Section 4.7.3, we recommend several changes to ensure staff at Ashley Youth Detention Centre and any new detention facility are appropriately trained and qualified, and have the right skills and attitudes to work positively and effectively with children and young people in detention.

Also, in Section 7.3.5, we recommend that staff be equipped with the knowledge and skills to provide a culturally safe environment for Aboriginal children and young people, including through trauma-informed and culturally safe responses to children and young people engaging in self-harm or other challenging behaviours.

To support these recommendations, we consider that the Youth Justice Model of Care should include a specific custodial operating philosophy that is centred on rehabilitation and non-punitive, child-focused, therapeutic practice, and that recognises that this is the most effective strategy to support children and young people to make lasting behavioural changes, and thereby ensure community safety.

The Youth Justice Model of Care should also directly address the use of force, restraints and isolation in detention to ensure these tools are used minimally and only where other strategies in response to challenging behaviours have not worked. These tools should never be used as a punishment. This is discussed in Section 9.

Further consideration is needed on behaviour management programs in youth detention. As outlined in Section 6.3.2, the Behaviour Development System was used in a punitive way and does not appear to have been effective in promoting positive behaviour. We are not convinced that its replacement, the Behaviour Development Program, is different enough to warrant its continued use in Ashley Youth Detention Centre, or its use in any future youth detention facility.

However, we are also aware that carefully designed behaviour management systems based on incentives and rewards are in use in youth justice systems in jurisdictions with best practice detention facilities, such as those run by the Diagrama Foundation. We also note that the Northern Territory Royal Commission recommended that a ‘continuum of behaviour management tools’ be developed for youth detention ‘to ensure that staff have a range of measures available to them to respond to inappropriate behaviour by young people without the use of force’, including an incentive system designed to encourage responsible behaviours.764 It indicated that behaviour management tools should be simple, fair and clear to staff and to children and young people, and that any incentive system should not restrict a young person’s access to rehabilitation programs, education or physical exercise.765

We note that the Inspection Standards for Youth Custodial Centres in Tasmania include standards for behaviour management programs.766 We recommend that these standards be reviewed in light of international best practice and research on age-appropriate responses to children and young people with trauma backgrounds and emotional regulation challenges.

Recommendation 12.18

The Tasmanian Government should ensure:
1. use of the Behaviour Development Program is discontinued in Ashley Youth Detention Centre and not adopted in any new detention facility
2. the Youth Justice Model of Care planned to be developed by 2025 includes a specific operating philosophy, service objectives and service standards for detention facilities that are based on non-punitive, child-centred, trauma-informed, culturally safe practice and reflect international best practice in youth justice
3. staff in youth detention facilities have the skills needed to undertake evidence-based, trauma-informed, child-centred interventions with children and young people, including the skills to anticipate, de-escalate and respond effectively to challenging behaviours without resorting to force or restrictive practices
4. implementation of the Youth Justice Model of Care and updated Practice Framework for youth detention is monitored by the governance structure outlined in Recommendation 12.7.
The Custodial Inspector, or the body responsible for inspection standards for youth detention centres in Tasmania, should review standards and guidelines on the appropriate use in youth detention of behaviour management programs that incorporate incentives and rewards, having regard to international best practice and research on effective responses to children and young people with trauma backgrounds and emotional regulation challenges.

A collaborative, multidisciplinary approach to meeting children’s needs

As noted, we heard that most children and young people in detention have highly complex needs arising from cognitive impairment, exposure to neglect or abuse, trauma and mental illness. Most also have drug and alcohol misuse issues.767 Many have a history of involvement with the child protection system.768 As discussed in Section 7, Aboriginal children and young people are over-represented in youth detention because of the impacts of colonisation and intergenerational trauma, and have distinct cultural needs.

We also heard that, over the past decade, the needs of children and young people in the youth justice system in Tasmania and elsewhere have become greater and more complex, and their offending has become more serious.769 Professor James Ogloff AM, University Distinguished Professor of Forensic Behavioural Science, told us that youth justice systems across Australia have not kept pace with this changing cohort.770

An effective youth detention system must address the complex needs of children and young people, as well as the factors contributing to their offending behaviour.771 This requires comprehensive assessments on admission, child-centred case planning and case management, and delivery of individualised therapeutic services that address health, wellbeing and criminogenic needs, including interventions to address offending behaviour. Such work requires a multidisciplinary approach.

Adjunct Associate Professor Mitchell told us that it is essential to look at ‘the whole child’ and adopt a common language and approach across all professionals (or disciplines) working with children in detention:

If we … brought all of the key stakeholders (justice, disability, mental health, education and so on) together to support these kids in a way that is coordinated and collaborative, we will get better outcomes than if we try to work separately. These young people have complex needs across every domain of their life and it’s going to require a concerted, comprehensive and sustained approach to guide them through the next chapter of their life if we want to change the trajectory from them ending up in adult prison.772

In Spain, each Diagrama secure facility has a ‘technical team’—comprising teachers, psychologists and social workers—which is responsible for developing and delivering an individualised plan for each child or young person.773 These plans are tailored to the child or young person’s offending behaviour and include interventions that are a mix of one-on-one counselling, ‘follow-up after an emotional outburst’ and group work.774

Multidisciplinary approaches and case management at Ashley Youth Detention Centre

Secretary Pervan told us that Ashley Youth Detention Centre ‘operates as a multi-disciplinary centre’ and that operational and other staff ‘work collaboratively through multidisciplinary teams, weekly review meetings, and program meetings’.775

We heard about professionals, teams and policies that might have been able to support a multidisciplinary approach and case management at Ashley Youth Detention Centre, including:

the ‘Professional Services Team’, whose role was to provide ‘therapeutic supports and services to young people in detention’, including developing case and care plans, arranging restorative case conferencing, making referrals to other services and advising operational staff on behaviour management strategies776
a Case Management Officer or Case Manager who was part of the Professional Services Team777
the ‘Multi-Disciplinary Team’, whose role was to provide ‘clinical assessment, review, case planning and referral of the complex needs of young people in custody’778
the ‘Centre Support Team’ (or, since 2022, the ‘Weekly Review Meetings’), which met weekly to assess children and young people against the Behaviour Development Program, consider incidents at the Centre, make placement decisions and consider requests from young people779
Case Management Guidelines, dated 2014, which outline that each child or young person must undergo, among other things, a ‘Case Management Assessment’ within two working days of admission, to be completed by the ‘Case Manager’.780

It was not clear to us how these different roles, teams and policies operated in practice to achieve a multidisciplinary approach to meeting the needs of children and young people in detention. The extent to which children and young people experienced a highly skilled, professional, multidisciplinary response as part of their daily routine was also unclear.

We heard that the Multi-Disciplinary Team had previously not worked effectively.781 Ms Honan told us that, before 2021, meetings of the Multi-Disciplinary Team consisted mostly of operational staff, with limited representation from the Professional Services Team, and that, as a result, ‘operational pressures dominated decision making and appear to have “trumped” the therapeutic needs of young people’.782 Similarly, Ms Gardiner told us that, during her time at the Centre in 2018, meetings of the Multi-Disciplinary Team ‘rarely made any therapeutic recommendations’.783

Ms Honan also referred to tensions between the operational and professional services staff on the Multi-Disciplinary Team:

There was a noticeable lack of professional regard and collaboration between the two streams with little to no external involvement from stakeholders in Multi-Disciplinary Team (MDT) meetings. Because of this dynamic and the dominance of operational staff represented at MDT, the multi-disciplinary process was ineffective. Practices had become punitive resulting in the moving or containment of residents in response to incidents, rather than understanding and responding in a trauma informed way to triggers and escalating behaviours. The two streams were philosophically opposed and silo[ed]. I would describe much of the workforce as disempowered.784

Secretary Pervan told us that a Multi-Disciplinary Team meeting must be held in respect of each young person at Ashley Youth Detention Centre every four weeks, at minimum.785 While this requirement was stated in an earlier version of the Multi-Disciplinary Team’s terms of reference, it does not appear in the current terms of reference.786 Rather, the current terms of reference only require that a young person be discussed at a Multi-Disciplinary Team meeting on admission ‘if behavioural or concerning behaviours are identified’ and three weeks before their release.787 The Multi-Disciplinary Team’s terms of reference do not explain what kind of behaviours might give rise to the need for such a discussion. The nature of this multidisciplinary response appears very different from the multidisciplinary approach to working with children and young people in Spain’s Diagrama model (discussed previously).

According to Ms Honan, the Centre Support Team also did not work as effectively as it should have, with ‘therapeutic interventions competing with operational pressures’ and documentation relating to decisions and actions poorly recorded or not recorded at all.788 Ms Honan acknowledged that the Centre Support Team had previously operated in a punitive manner.789 Ms Gardiner observed that the Centre Support Team was ‘driven by the agenda’ of operational staff and did not consider or incorporate the views of the Multi-Disciplinary Team.790

The Ashley Youth Detention Centre Case Management Guidelines provide for the participation of children and young people in case management processes in the following terms:

Young people are encouraged to participate in all Case Management processes. They should be included in decision-making forums and processes and the development, implementation and review of their Case Plans and casework strategies.791

Despite this, it is not clear to us that children and young people were given the opportunity to participate in case management processes at Ashley Youth Detention Centre.

Practice improvements

Ms Honan said that when she began in her role in October 2019, there was a ‘tense divide’ between the Professional Services Team and operational staff, which was ‘exacerbated by the command and control management style of senior managers’.792 However, at the time of her statement to our Commission of Inquiry in August 2022, she described the relationship between the two teams as ‘respectful, supportive, collaborative and equal’.793 Ms Honan attributed the changes in the relationship to a range of factors, including implementing the Practice Framework, appointing new senior managers in both teams and ‘the shift to a more accountable and collaborative style of leadership and decision making’.794

Ms Honan also told us that, following a review of its terms of reference in 2021, the Multi-Disciplinary Team became more broadly representative and was well attended by staff from the Ashley Youth Detention Centre School, the Department of Health and the then Department of Communities.795

In February 2023, the Department advised us that it:

had contracted the Australian Childhood Foundation to provide ‘clinical review and support services, including specialist clinical services for young people covering emotional regulation, trauma-informed counselling and therapeutic supports’796
was establishing a multidisciplinary Clinical Services Team to deliver ‘therapeutic clinical services for assessment, support and rehabilitation of young people in contact with the youth justice system, with a strong initial focus’ on detention.797

These are positive steps, but it is not clear to us how the Clinical Services Team will fit within and work with existing groups at Ashley Youth Detention Centre—particularly the Professional Services Team, the Multi-Disciplinary Team and the Weekly Review Meetings.

Services for children and young people on remand

As discussed in Section 5.4, children and young people on remand make up a large proportion of the youth detention population in Tasmania. In that section, we make several recommendations aimed at increasing opportunities for bail and diverting children and young people from remand. We also recommend that the Tasmanian Government works towards increasing the minimum age of detention, including remand, to 16 years. Implementing these recommendations would significantly reduce the number of children and young people on remand in Tasmania.

Nevertheless, following these changes, there may still be a small number of young people who would be denied bail and remanded due to the complexity of their needs and their high risk of offending while on bail. While we acknowledge the practical challenges associated with providing services to children and young people who may only be on remand for a short period, in our view, remand presents an opportunity for therapeutic intervention that should be seized wherever possible. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (referred to as the ‘Beijing Rules’) require that children and young people on remand:

… receive care, protection and all necessary individual assistance—social, educational, vocational, psychological, medical and physical—that they may require in view of their age, sex and personality.798

However, it is also important to note that, while all children and young people who are on remand have been charged with an offence, those whose charges have not yet been determined have not been found guilty of an offence and are therefore entitled to the presumption of innocence. Professor Ogloff referred to the need to ensure children and young people on remand can openly discuss their behaviour with clinicians without incriminating themselves.799

The 2017 review of the Victorian youth justice system undertaken by Professor Ogloff and Penny Armytage considered the issue of services for children and young people on remand.800 The review report noted that, despite introducing education for children and young people on remand in Victoria, there remained ‘a concerning lack of activity and programs’ delivered to remandees, which, combined with the lack of an effective custodial operating model and daily routine, had ‘led to a largely unsettled and tense environment for all young people—on remand and sentenced alike’.801

The Victorian review described the reluctance to address offending behaviour while young people were on remand as ‘a missed opportunity to deal early and effectively with criminogenic risk and needs’ and observed that programs could be delivered that address offending behaviours without needing to explicitly address offence types.802 It recommended that rehabilitation programs and interventions be offered to children and young people on remand, with legislative protections to prohibit using disclosures made during such programs or interventions as evidence of guilt at trial.803 We agree with this approach.

Our recommendations

An effective youth detention system requires a coordinated, multidisciplinary, child-centred approach to meeting the needs of each child or young person in detention, including—to the extent practicable—those on remand. All children and young people in detention should experience highly skilled, professional, multidisciplinary supports as part of their daily routine. A multidisciplinary approach must bring together all the services necessary to fully support each child or young person and must not allow operational concerns to trump rehabilitation and therapeutic interventions. It must also provide genuine opportunities for each child or young person to participate in the decision making that affects them.

While we are encouraged by the Government’s recent and proposed practice improvements, we are concerned that case management processes are unclear. The large number of teams involved in the care and management of each young person in detention creates scope for confusion and disagreement. A clearer, simpler approach is needed.

We also recommend developing a memorandum of understanding between all key stakeholders across justice, health, education, child protection and disability support services to enshrine a therapeutic approach to caring for children and young people in detention. We note that there is an existing memorandum of understanding between departments, but it is limited to delivering health services to children and young people in detention.804

The new memorandum of understanding should set out each agency’s role and responsibilities and should address assessment, case planning, case management and exit planning (discussed in Section 6.8). It should also address processes for reporting incidents, managing complaints (including those involving child sexual abuse) and resolving disputes.

Recommendation 12.19

The Tasmanian Government should:

establish clear processes and guidelines for assessment, case planning and case management for children and young people in detention, to enable the delivery of tailored, multidisciplinary, therapeutic responses to each child and young person as part of their daily routine, which meet their health and wellbeing needs and address the factors contributing to their offending behaviour
implement a collaborative, multidisciplinary approach to responding to each child and young person in detention that includes all relevant service providers and, to the greatest extent possible, the child or young person’s family
develop a memorandum of understanding between agencies involved in delivering services to children and young people in detention, including child protection, health, disability support and education that
1. describes the roles and responsibilities of each agency in case planning and case management
2. commits to agencies adopting a collaborative, child-centred approach
3. contains clear protocols for record keeping, information sharing, incident reporting and dispute resolution
ensure each child or young person in detention (and/or their representative) is given the opportunity to participate in case planning and case management processes, express their views and have those views given due weight
ensure each child and young person on remand has access to therapeutic services and supports, with statutory protections that prohibit using disclosures made during interventions and programs on remand as evidence of guilt.

Health services for children in detention

As discussed in Chapter 10, the death of a young person at Ashley Youth Detention Centre in 2010 triggered several reviews and inquiries into the Centre, including a coronial inquest. These reviews and inquiries identified problems with access to health care at Ashley Youth Detention Centre at the time and resulted in the Department initiating several positive, health-related reforms. In this section, we identify other changes that should be made to improve children and young people’s access to health care in detention.

Current health services

Barry Nicholson, Group Director, Forensic Mental Health and Correctional Primary Health Services, told us that recommendations made after the death in detention were implemented by November 2013.805 The recommendations included transferring the functions of the Ashley Youth Detention Centre health service to the then Department of Health and Human Services’ Correctional Primary Health Services, increasing nursing capacity and establishing a health care information system to store and share all client information in one place.806

Mr Nicholson described the health services currently available to children and young people at Ashley Youth Detention Centre.807 Under the supervision of a Nurse Unit Manager who is based at the Centre, Correctional Primary Health Services provide:

an initial health assessment of a child or young person on admission to the Centre to determine the level of health care they will need while in detention808
management of ‘active health problems including review of medications, treatment of existing conditions, drug and alcohol issues and mental health assessments’809
drug and alcohol detoxification and relapse prevention, and management of injections, injuries and other conditions requiring low- to medium-level health care810
outpatient allied health service referrals, including forensic mental health, physiotherapy, dental and optometry services811
sexual health education, drug and alcohol education, immunisation and other preventive health programs.812

Nurse-led clinics staffed by 3.5 full-time-equivalent nursing staff are available from 7.00 am to 7.00 pm each day, and nurses are available on-call outside these hours.813 A doctor, who also has responsibilities outside Ashley Youth Detention Centre, is available twice weekly and is on-call outside these sessions.814

Also, the Alcohol and Drug Service provides support, counselling and harm minimisation education for children and young people wanting to address their substance use.815 Mr Nicholson told us that, at the time of his statement in August 2022, there was ‘no [alcohol and drug service] coverage due to shortages’ in the service.816

A forensic psychologist is based full-time at Ashley Youth Detention Centre to ‘address young people’s criminogenic needs and provide therapy’.817 The forensic psychologist also ‘provides risk assessments for suicide and self-harming ideation’ and ‘education on prosocial attitudes and behaviour modification’.818 In his statement, Mr Nicholson told us that this position had been vacant since November 2021.819 In oral evidence, he acknowledged the challenges of recruiting to such a position—including the various employment options available to psychologists and the negative media coverage of conditions at Ashley Youth Detention Centre—but indicated that an August 2022 recruitment process for the position had been successful.820

A child psychiatrist attends Ashley Youth Detention Centre one day a month to assess, diagnose, treat and review children and young people.821

Increasing access to mental health services

We consider the level of children and young people’s access to mental health services while at Ashley Youth Detention Centre to be insufficient.

Professor Ogloff told us that, while not all children and young people in detention had ‘conventional psychiatric illness’, they all had ‘significant behavioural or mental health problems or cognitive problems that required professional intervention’.822 Mental health challenges among children and young people in the youth justice system commonly co-occur with other complex health and social problems.823

The former Head of Department for Statewide Forensic Mental Health Services highlighted the importance of having a specialist child and adolescent psychiatrist and psychologist at Ashley Youth Detention Centre:

These mental health professionals have specific training, knowledge, skills and experience regarding normal childhood development and the complexities encountered in children and adolescents with mental health conditions in addition to their offending behaviours. This includes … specialty knowledge of mental illness, co-morbid Substance Use Disorders, +/- Intellectual Disabilities +/- Specific Learning Difficulties and trauma histories.

They are best placed to assess a young person within their developmental stage, identify their specific risk factors for problematic behaviours, and assist the [Multi-Disciplinary Team] develop and implement specific management plans to mitigate these identified risk factors and minimise problematic behaviours. These interventions are targeted at treating and managing their complex mental health conditions, comorbidities and subsequent behaviours; the focus being on attempting to change their trajectory so that they do not become involved with the Adult Criminal Justice System.824

Professor Ogloff said that psychologists at Ashley Youth Detention Centre were ‘often poorly trained’ to manage the complex needs of children and young people in detention.825 As noted in Section 6.5.1, we heard that the position of forensic psychologist at Ashley Youth Detention Centre had been vacant for some time.826

Professor Ogloff also referred to the limited psychiatric care available at Ashley Youth Detention Centre.827 The Nurse Unit Manager at Ashley Youth Detention Centre similarly commented that:

More psychiatry services at [Ashley Youth Detention Centre] would improve service delivery. [The psychiatrist] is funded for sessional work. By the time we have hand over and she goes through clinic notes it does not leave a lot of time. If she has court reports to complete as well this encroaches on her clinic time. [The psychiatrist] often has to write her clinic notes in her own time once she returns to Victoria. Fortnightly clinics would be beneficial.828

In 2018, the Custodial Inspector recommended that Ashley Youth Detention Centre ‘increase the dedicated psychiatry time for young people in detention and links to external psychiatry services to assist young people on release’ and ‘increase the dedicated clinical psychology time for young people in detention’.829

The Director of Nursing, Statewide Forensic Mental Health Services, told us that children and young people in detention can be transferred to a psychiatric facility from Ashley Youth Detention Centre.830 Under section 134A of the Youth Justice Act, the Secretary may direct that a detainee who, in the opinion of a medical practitioner or psychologist, appears to be suffering from a mental illness be removed from a detention centre to a ‘secure mental health unit’ if this is in the best interests of the detainee, other detainees or staff, or if the detainee has requested to be moved to a secure mental health unit.831 The Secretary must have considered a report of the Chief Forensic Psychiatrist before making such an order.832

Tasmania has one secure mental health unit—the Wilfred Lopes Centre.833 This is a specialised mental health facility for adults involved with the criminal justice system (including remandees, prisoners and those found not guilty by reason of being unfit to plead), with 35 beds located near Risdon Prison.834 The Wilfred Lopes Centre does not provide specialist child and adolescent mental health treatment. It is highly problematic and inconsistent with human rights standards to send children and young people from detention to a facility accommodating adult prisoners.835

Hannah Phillips, a lawyer with experience working with youth in the Tasmanian justice and child safety systems, indicated that the absence of a dedicated mental health facility for children and young people in Tasmania means youth detention is instead being used to manage children and young people with mental health problems who are engaging in offending behaviours that risk community safety.836

Professor Brett McDermott, Statewide Specialty Director, Child and Adolescent Mental Health Service, told us that proposed reforms to the Child and Adolescent Mental Health Service included establishing a dedicated adolescent and youth inpatient facility and day hospital.837 The 2020 Child and Adolescent Mental Health Services Review undertaken by Professor McDermott recommended a ‘discrete mental health inpatient unit for children and adolescents’ as part of Stage 3 of the Royal Hobart Hospital redevelopment.838

According to the review, the new mental health inpatient unit for children and adolescents should be ‘for consumers who have severe and complex mental health challenges, who often present with an acute risk to themselves or others’.839 It is not clear whether this new unit would have the capacity to receive children and young people from detention under section 134A of the Youth Justice Act.

Victoria has a Custodial Forensic Youth Inpatient Unit that is a three-bed ward located on the grounds of Footscray Hospital in Melbourne, providing ‘acute inpatient services through a range of therapeutic interventions and programs to young people in custody’.840 This service is delivered by Orygen Youth Health.841 We consider that the proposed mental health inpatient unit for children and adolescents in Hobart should similarly provide for children and young people in custody.

More broadly, we heard that there have ‘traditionally been many barriers to accessing mental health services for young people involved in the youth justice system’.842

Professor McDermott told us that, as part of the proposed reforms to child and adolescent mental health services in Tasmania, a dedicated specialist Youth Forensic Mental Health Service would be created for children and young people under the age of 18 years who are involved in the youth justice system, or are at risk of becoming involved in this system.843 This was also a recommendation of the 2020 Child and Adolescent Mental Health Services Review.844

The new Youth Forensic Mental Health Service would ‘offer specialist mental health assessment, treatment and support at multiple stages of a young person’s journey via a number of avenues’ and would comprise the following three elements delivered by a multidisciplinary team:

a youth forensic ‘consultation and liaison service’ to provide services where the Magistrates Court (Youth Justice Division) exercises its power under the Youth Justice Act to adjourn a criminal proceeding to enable a child or young person who appears to be suffering from a mental illness to be ‘observed and assessed’ (among other situations)845
a specialised multisystemic therapy program
‘in reach assessment and treatment for youth in or exiting youth detention’.846

It is important that services provided by the proposed Youth Forensic Mental Health Service take account of any existing mental health plan that a child or young person may have.

In oral evidence, Professor McDermott told us that the ‘in reach’ services for children and young people in youth detention would address neurological as well as psychiatric issues:

For instance, the rate of things like fetal alcohol syndrome in detention populations is actually very high. The rate of some types of genetic presentation are actually very high. The rates of … speech and language issues and the need for remedial education are high. So, the input to [detention] will be sort of neuropsychological as well as psychiatric, and hopefully the two arms of this service will talk to each other. For instance, you could get some assessment and work in detention and then be discharged to [a community-based multisystemic therapy] team.847

Professor McDermott indicated that a pilot Youth Forensic Mental Health Service would be in operation by December 2022.848 At the time of writing, we had not received any information on whether this service had begun operating.

We are encouraged by these proposed reforms to mental health support for children and young people in detention and in the youth justice system more broadly, which we consider will offer another layer of protection for children and young people who are at risk of sexual abuse in those settings.

Recommendation 12.20

The Tasmanian Government should ensure:

there are appropriate mechanisms and pathways for children in contact with the criminal justice system to be diverted to the mental health system for assessment and treatment
the proposed Youth Forensic Mental Health Service provides timely referral and access to mental health treatment, care and support for children and young people when appropriate, whether they are under community-based supervision, in detention or not yet sentenced (including on remand)
children and young people in detention have daily access to an onsite child and adolescent psychologist and fortnightly access to an onsite child and adolescent psychiatrist
the proposed mental health inpatient unit for children and adolescents in Hobart provides for children and young people in detention.

Recommendation 12.21

The Tasmanian Government should ensure children and young people in detention (including on remand):

receive a mental and physical health assessment on admission to the detention facility, and when needed while in detention
have access to 24/7 medical care
have a say in their mental and physical health care.

Education in detention

According to the Beijing Rules, the objective of detention facilities should be to ‘provide care, protection, education and vocational skills, with a view to assisting [children and young people] to assume socially constructive and productive roles in society’.849 As noted, the best-performing youth detention facilities make education and training a central feature of their operating models and provide a full, structured day to keep children and young people busy. This reduces boredom, which can ‘exacerbate negative outcomes and increase [the] likelihood of negative behavioural incidents occurring’.850 We also consider that engaging in education in detention is likely to be a protective factor against the risk of child sexual abuse in detention.

Ashley School

In Tasmania, most children and young people in detention have experienced significant disruptions to their schooling, with some having completely disengaged from education.851 Many have a diagnosed learning disability or other learning difficulties.852

Ashley School, which is a Tasmanian Government school on the Ashley Youth Detention Centre site, opened in 1999.853 School classes run from 9.00 am to 2.30 pm each weekday, and there is an expectation that children and young people will attend classes if they can.854 Each class has a maximum of four students, usually with one teacher and one teacher assistant (another teacher may attend depending on availability or the needs of students on a given day).855

Samuel Baker, Principal of Ashley School, told us that the curriculum at the school is based on the curriculum in mainstream Tasmanian schools, with literacy and numeracy making up about 30 per cent of each student’s classes, and the remaining time used for specialist classes such as woodwork, cooking, physical education, health, ‘fit gym’ (weights and conditioning), art, Aboriginal studies and ‘STEM’ (science, technology, engineering and mathematics).856

Mr Baker told us that each school day has a physical education component ‘to negate the confines of unit life, promote a healthy lifestyle … [and] develop social connections, team work and regulation’.857 Ashley School offers no extracurricular activities outside standard school hours.858

We did not hear any evidence about vocational training programs offered to young people at Ashley School. The Custodial Inspector’s 2019 Families, Community and Partnerships Inspection Report indicated that Ashley Youth Detention Centre had previously obtained ‘start up’ training from TasTAFE—such as Certificate I and II in Kitchen Operations courses—at no cost, but that these were no longer provided.859 In his statement, Mr Baker referred to supporting vocational qualifications such as barista training or Responsible Service of Alcohol training for young people who did not wish to return to mainstream school after leaving detention.860

According to Mr Baker, teachers at Ashley School use a range of strategies to support student learning and create a calm and predictable classroom environment—these include individual student learning plans, high ratios of teachers to students and ‘highly differentiated and individualised learning tasks’.861

Mr Morrissey described Ashley School during the time he was Commissioner for Children and Young People as ‘an exemplar of high-quality teaching staff achieving good outcomes for highly disadvantaged and traumatised young people’ and said that young people consistently told him ‘how much they valued the school’.862 Ms Phillips told us she had ‘not had negative reviews about the schooling at Ashley Youth Detention Centre’ from children and young people, and suggested that this was:

… largely because the learning is at their level, they are around other young people who have low literacy and [low] previous education outcomes, and that they do not feel put in the back corner or ‘different’.863

The current Commissioner for Children and Young People, Leanne McLean, has observed that, while Ashley School provides a positive experience for children and young people in detention, ‘many positive educational gains that are made while a young person is detained … invariably end when they leave’ because there are few or no links to education outside Ashley Youth Detention Centre.864 Commissioner McLean indicated that any new custodial model must include detailed consideration of how young people can be supported to stay engaged with education once they leave detention, suggesting that much could be learned from Victoria’s work on this issue (discussed in Section 6.6.3).865

Restrictions on access to education

We heard that there were restrictions on children and young people’s access to some classes depending on their colour rating under the Behaviour Development Program. For example, Mr Baker told us that children and young people who were assessed as being on ‘green’, ‘yellow’ or ‘orange’ levels in the Behaviour Development Program were allowed to take part in ‘Team Sport’ on Fridays, whereas children and young people on ‘red’ were excluded from this activity.866

According to Mr Baker, for children and young people on ‘red’:

There is the option to engage in a work pack from school if that’s what they’d like to do. It’s not any more punitive other than they miss out. So, certainly there’s no other punitive measures put in place for that young person; they still would engage with their workers back there; that could be social games, it could be some kind of sport in their courtyard, it could be table tennis, it could be lots of other things that interest that particular person individually.867

Mr Baker also stated that children and young people on ‘red’ were not entitled to attend woodwork, art or ‘fit gym’ due to ‘the availability of equipment that could be used as a weapon’.868 Where students were excluded from these classes, there was alternative work available for them to do in their unit with educational staff, but Mr Baker told us that students rarely take this up.869 Mr Baker acknowledged that children and young people on ‘red’ would not receive as many hours of educational programming as those on other levels.870

As noted in Section 6.3.2, we also heard that children and young people on the Blue Program under the previous Behaviour Development System were ‘fully segregated from Ashley school’.871 This is discussed in detail in Chapter 11, Case study 3.

Also, a child or young person may be excluded from school if a significant incident has led to the child or young person being assessed as ‘not safe to attend’ school for part of that day.872 Mr Baker described this as ‘a last resort and not a punishment but an essential mitigation strategy to keep everyone safe and ensure students are regulated and able to access learning’.873

We heard that access to face-to-face schooling for children and young people at Ashley Youth Detention Centre was significantly reduced in 2022 due to staff shortages and ‘rolling lockdowns’.874 During that period, Ashley School allocated staff to units for one-on-one sessions with each young person, normally for only 45 minutes or an hour per day, which is significantly less than the legal requirement that young people attend school for the whole of each school day.875 Depending on the availability of youth workers to supervise in-unit schooling, Ashley School staff were sometimes only present in one unit at a time.876

We also heard that during staff shortages the allocated time for education overlapped with the limited time that young people had outside of their rooms each day. As a result, Ashley School staff could not deliver the core curriculum to some young people at all and instead engaged them in social games or specialist work in art and other areas, or left the young person alone.877 Mr Baker agreed with the assertion that even if a young person engaged in schooling for the 45 minutes to an hour available during staff shortages, this was not enough to deliver the curriculum.878

Ms Phillips told us that it was her understanding that the schooling provided to young people during the staff shortages was ‘nowhere near sufficient’ and she suspected many young people in detention cannot read or do not have the capacity to learn in their units on their own.879

As noted in Section 4.7.2, lockdowns related to staff shortages continued to occur at Ashley Youth Detention Centre in July 2023, with children and young people locked in their rooms or units for up to 23 hours each day.880 We discuss staff shortages in more detail in Section 4.7.2 and lockdowns in Section 9.2.

Other models of education in detention

At the secure facilities operated by the Diagrama Foundation, children and young people have a full day of education and activities every day:

Young people are involved in learning in every aspect of their day – how to get ready for the day, how to share meals together, play sports together, how to care for and decorate their environment – not just at formal classes and workshops. Supported by social educators, qualified teachers and vocational (VET) instructors there is vocational education and training as well as classes, daily sports, and constructive leisure activities – music, art, gardening, animal husbandry and cultural activities.881

Ms Campbell also referred positively to Parkville College, the school for children and young people in Victorian youth justice centres, which:

… provides education by qualified teaching staff and makes education the predominant focus within the facility. The college’s foundational principles take a strengths-based approach to supporting education, with all teachers trained in trauma-informed approaches. The college delivers the Victorian Certificate of Education and Victorian Certificate of Applied Learning, which the majority of its students undertake. It also has auspice arrangements to provide vocational training.882

Parkville College also delivers the Victorian Pathways Certificate, an inclusive year 11 and 12 standards-based certificate for students who require flexibility in their educational experiences, and the Victorian Certificate of Education—Vocational Major, a vocational and applied learning program designed to be completed over a minimum of two years, which provides students with a senior secondary certificate and notes that their educational pathway was centred around vocational learning.883

Parkville College students have six hours of structured classes each weekday, including literacy, numeracy, personal development skills, physical education, art and music.884 On Friday afternoons, Saturdays and during term breaks, Parkville College operates an intensive vocational education and training timetable.885

Parkville College has developed the ‘Parkville College Model’, which it describes as:

… a pedagogy underpinned by trauma theory, trauma-informed practice, attachment theory, culturally responsive practice, and an extensive research-base of knowledge about effective instructional practices. At the heart of the model is a critically conscious independent learner.886

The Parkville College Model articulates five practice principles that emphasise staff self-awareness and growth; strong, secure relationships and culturally safe spaces; responsive instructional practice; student empowerment and voice; and connection to community and culture.887

The Parkville Youth Justice Precinct also includes the ‘STREAT café’—a partnership between Parkville College, the STREAT social enterprise and the Victorian Department of Justice and Community Safety—which delivers hospitality training and employment pathways for young people in the youth justice system.888

In addition, Parkville College has a Transitions Team, which is responsible for education transition planning for children and young people leaving detention.889 This team seeks school records for each young person in detention, alerts their last known school that they are in detention, works with the young person and their parents or carers to establish educational goals, develops a student plan and an individual education plan for the young person, and engages with the young person’s destination school, including alerting it of the young person’s release date.890

Parkville College also operates ‘O-Street’, a flexible learning centre in the community that can support children and young people who have left detention to transition into mainstream schooling.891

Proposed reforms in Tasmania

As part of its recent commitments to prioritise prevention, early intervention and diversion of children and young people from the criminal justice system, the Tasmanian Government has committed to developing and implementing an ‘alternative education model’ for children and young people whose educational needs are not being met.892 Alternative approaches to be explored may include ‘continued emphasis on needs assessments and learning plans, flexible education models and vocational pathways’.893

According to the Draft First Action Plan, ‘new alternative education programs’ will be developed by 2024.894 There is no discussion of whether these programs will also be delivered in detention, or what the Government’s plans for education in its proposed new detention facility are more broadly.

Our recommendations

Education for children and young people in detention, including those on remand, is a right, not a privilege.895 It should be the central feature of a young person’s experience in detention.

While we acknowledge that the safety of students and educational staff is essential, we are concerned that access to education for some children and young people at Ashley Youth Detention Centre has been unnecessarily limited by disciplinary measures imposed in response to challenging behaviours.

As discussed in Section 6.3.2, the Behaviour Development System was applied in a punitive manner, and we consider that the replacement Behaviour Development Program should not continue to be used (Recommendation 12.18). We also agree with the Northern Territory Royal Commission that any new behaviour management program or incentive system that may be adopted in future should not restrict children and young people’s access to education, physical exercise or rehabilitation programs.896

We are also highly concerned about restrictions on children’s access to education because of lockdowns relating to staff shortages. We discuss recruitment of staff in Section 4.7.2 and lockdowns in Section 9.2.

We also consider that more work is needed to support children and young people who leave detention to remain engaged with work, training or study. This is discussed in Section 6.8 in the context of exit planning and support after release from detention.

Recommendation 12.22

The Department for Education, Children and Young People should:

ensure the Youth Justice Model of Care emphasises the central importance for children and young people in detention of access to high-quality education and vocational training that is tailored to their individual learning needs and that includes learning life skills
make education programs and other structured activities accessible to all children and young people in detention (including on remand)
ensure a child or young person’s access to educational programs or physical exercise in detention is not linked to, or limited by, their ranking in behaviour management programs
develop and establish partnerships with community organisations to create employment and training opportunities for children and young people leaving detention.

Facilitating links to family and community

Every child deprived of liberty has the right to stay in contact with their family and with the wider community.897 Children and young people in detention need to be supported to maintain or build connections to their families and communities because such connections can provide important prosocial factors to help children and young people stop offending after they are released from detention.898 It is particularly important for Aboriginal children and young people in detention to maintain connections with family, community and culture—this is discussed in Section 7.3.

As noted, many children and young people in detention have a history of involvement with the child protection system. Some have been removed from their families of origin by court order and may no longer be in contact with them. For such children and young people, contact with extended family and other trusted adults while they are in detention is particularly important. Support for rebuilding connections with immediate family should also be provided, where appropriate.

The primary mechanisms to enable children and young people in detention to stay connected to their families and communities are visits, temporary leave and phone calls.

Visits

Standard Operating Procedure No. 9 for Ashley Youth Detention Centre states that:

all children and young people have the right to regular contact with identified family members, ‘significant others’ such as partners and children, members of the community and professionals such as lawyers899
management can refuse a visit if it believes that the ‘security, safety or good order of the Centre or the health or well-being of the young person may be adversely affected by allowing the visit’900
when visits are not approved, the young person must be advised of the situation, including the reasons for non-approval901
visits last 45 minutes and must be supervised closely by staff at all times unless approval has been given for an alternative form of supervision.902

The Inspection Standards for Youth Custodial Centres in Tasmania state that visits must not be ‘withheld as a sanction as part of any behaviour management regime’.903

The Custodial Inspector’s 2019 Families, Community and Partnerships Inspection Report found that, although Ashley Youth Detention Centre staff did not actively ‘pursue’ families and friends to visit children and young people in detention or review the frequency of visits to individual children and young people, the Centre’s facilitation of visits by family and friends was ‘commendable’.904 However, the Custodial Inspector also observed that the visit room was ‘sparse’ and there were no outside facilities for visits or play areas for young children, recommending that the visiting facilities be updated to ‘make visits more relaxed and family friendly’.905

The Department told us of infrastructure upgrades to Ashley Youth Detention Centre since the Custodial Inspector’s 2019 report was published, which have resulted in a ‘softening’ of the visitors’ entrance and a new purpose-built visit room with an adjacent covered outdoor area with a barbecue.906

We heard of two occasions in 2019 where Aboriginal young people in detention were denied visits that were therapeutically important for them (discussed in Section 7.3.3).907

The Custodial Inspector’s 2019 report stated that ‘there was nothing to indicate to the inspection team that visits are ever withheld, or used as a tool to manage the young person’s behaviour’.908

As discussed in Chapter 10, Ashley Youth Detention Centre is in a location that is not accessible for many families. Upon induction to the Centre, children and young people are advised that if their family cannot afford to travel to Ashley Youth Detention Centre to visit, management can help with travel costs.909 We did not hear whether families had been provided with such support in practice.

Temporary leave

Temporary leave can be used to ease a child or young person’s transition into the community after release by enabling ‘visits to specialist service providers within the community, and activities to maintain their connection to family’.910 Exit planning is discussed in Section 6.8.

Standard Operating Procedure No. 22 provides for temporary leave from Ashley Youth Detention Centre for children and young people.911 It states that all temporary leave applications must undergo a thorough risk assessment and be approved by the Centre Manager.912 Risk factors to be considered include the nature of the young person’s offending, the young person’s ‘behaviour and attitude at or near the time of the proposed leave’, any history of threats or attempts to abscond, and the young person’s ‘recent and current colour status’ under the Behaviour Development Program.913

Phone calls

As part of their induction to Ashley Youth Detention Centre, children and young people are told that they are allowed to make seven phone calls each week.914 Phone calls are no longer than 10 minutes long.915 Children and young people are entitled to extra calls if they achieve ‘yellow’ or ‘green’ status in the Behaviour Development Program.916

In 2019, the Custodial Inspector recommended that the (former) Department of Communities consider ‘implementing video visits for young people at [Ashley Youth Detention Centre] by means of communication tools such as Skype and FaceTime to further facilitate family and community contact’.917 On our site visit to Ashley Youth Detention Centre we were told that there was no FaceTime in the visitors’ room and families often did not use Zoom. We also observed a small screen on the wall in the visitors’ room at a height that would have been uncomfortable for either sitting or standing. We were also told that there were problems with internet connectivity at the Centre.

Practice improvements

One of the practice principles in the Ashley Youth Detention Centre Practice Framework is to ‘provide opportunities for young people, their families and communities to connect and support to heal and strengthen relationships’.918 As noted in Section 6.3.3, the Practice Framework is under review.

According to the Keeping Kids Safe Plan, the Government has (as noted in Section 6.7.1) ‘soften[ed]’ the entrance to Ashley Youth Detention Centre, created a new reception area for visitors and improved visitor and family spaces.919

In June 2023, the Department informed us that it had ‘recently procured mobile phones for young people within Ashley Youth Detention Centre’, which would give them ‘the ability to make personal and professional calls from the privacy of their bedrooms or the Centre’s outside spaces or meeting rooms, outside of school hours’.920 The mobile phones were expected to be provided to children and young people in July 2023.921 We welcome this initiative. However, we did not receive information or guidelines on the proposed use of the mobile phones by children and young people in detention.

Our recommendations

More needs to be done to enable children and young people in detention to build and maintain connections with their families and communities. This is ‘a key aspect of a therapeutic model of care’.922 In our view, the Department should develop a policy on supporting children and young people in detention to remain connected to their families and communities via visits, temporary leave and phone and video calls. There should be no restrictions on contact between children and young people and their families arising from security classifications or rankings in behaviour management systems.923

We consider that, overall, moving the detention facility to Hobart will increase accessibility for family and friends. However, there will still be challenges for some families (such as those living in very remote areas) to visit children and young people in detention. In these circumstances, the Government should help family members or Aboriginal community members to visit children and young people in detention.

We also recommend in Section 6.1 that any new youth detention facility in Tasmania be designed to facilitate and promote connections between children and young people, and their families and communities (Recommendation 12.16).

We consider technology-facilitated family contact to be a practical suggestion to enhance children and young people’s connection with their families. We recognise that children and young people in detention are more likely to have complex family structures such as separated parents and siblings living away from one or both parents, including in out of home care. Unlimited technology-facilitated access to family is an important aspect of any strategy designed to maintain and strengthen family connection for children and young people in detention.

Finally, we note Mr McGinness’s suggestion that there may be opportunities for families and communities to become involved with service delivery in youth detention.924 We agree that this should be explored.

Recommendation 12.23

The Department for Education, Children and Young People should:

develop and implement a policy that recognises the importance to children and young people in detention of maintaining or building connections with their family and community and
1. specifies ways to promote such connections, including through visits, temporary leave and phone or video calls
2. clearly states that entitlements to visits, temporary leave and phone or video calls cannot be denied on the basis of a child or young person’s behaviour
provide reasonable assistance (including financial help) to members of a child or young person’s family or Aboriginal community to enable them to visit the child or young person frequently, where families or Aboriginal community members have barriers to accessing the youth detention facility.

Exit planning and support after release

Effective youth justice systems prioritise exit or transition planning and continuity of care following a young person’s release from detention, often referred to as ‘throughcare’ services. The Northern Territory Royal Commission observed that:

A well-planned and supported transition from detention can be the circuit-breaker in a cycle of reoffending. Without adequate planning for release, the system is [setting a young person up to fail]. Without post-release support, the likelihood of failure inevitably increases.925

The Northern Territory Royal Commission recommended establishing ‘an integrated, evidence-based throughcare service’ for children and young people in detention in the Northern Territory to deliver:

adequate planning for release—including safe and stable accommodation, access to physical and mental health support, access to substance abuse programs and assistance with education and/or employment—with planning to start on entry into detention
improved post-release services to be made available to all children and young people detained more than once or for longer than one week
a comprehensive wraparound approach facilitated by cross-agency involvement.926

Mr McGinness similarly endorsed the notion of commencing exit planning ‘from the moment a young person comes into custody’, creating links to community-based service providers and families, and actively supporting young people in their transition back into the community.927 He also referred to the benefits of an ‘integrated model’ that would allow:

… caseworkers and youth justice personnel to assist [young people] in building connections with educators outside the youth justice system, so that the young person can maintain this relationship once they leave detention. The same concept applies to health services, such as psychologists and occupational therapists. Integrated Through Care delivered under a therapeutic justice model ensures continuity of care when a young person’s detention ends.928

Exit planning and post-release support in Tasmania

Ashley Youth Detention Centre has a procedure on exit planning for children and young people that provides that:

Wherever possible, exit planning must begin six weeks before the young person’s earliest release date, and where this is not possible, it must begin ‘with sufficient time to engage all relevant stakeholders and develop a formal plan’.929
Exit planning meetings must identify services and supports that ‘may enhance the young person’s capacity to reintegrate into the community and reduce the risk of reoffending’ and set out ‘appropriate goals and case planning strategies to assist the young person reduce the risk of reoffending’.930
While exit planning is to be coordinated by Ashley Youth Detention Centre case management staff, a Community Youth Justice worker must take part in exit planning meetings. Their role is to ‘assist in the exit planning process’.931
If the young person is subject to a child protection order, ‘a Child Protection Worker’ must be invited to take part in exit planning.932
The young person’s nominated parent, carer or guardian must be contacted and invited to attend exit planning meetings. Where this is not possible or appropriate, the young person’s case manager and nominated Community Youth Justice worker must ‘endeavour to identify and engage an appropriate and meaningful adult to support and assist the young person through the exit planning process and upon release from custody’.933

The exit planning procedure also states that, when a young person is not released under community supervision, ‘every effort will be made in the exit planning process to connect the young person to a community organisation for support upon release’.934

The exit planning procedure does not indicate how the various other services required to support a child or young person in the community are to be involved in the exit planning process. We also note that the procedure requires ‘a Child Protection Worker’—rather than the young person’s current child protection worker, or one who knows the young person and their circumstances—to be ‘invited to participate’ in exit planning, suggesting that their attendance is not strictly required. This is problematic, given that some young people are released from detention without stable accommodation, which increases their risk of returning to detention.935

We heard that there was a lack of effective throughcare support for children and young people leaving detention in Tasmania.936 Vincenzo Caltabiano, former Director, Tasmania Legal Aid, told us that children and young people needed more help to re-establish their lives following release from detention, as many find themselves returning there within 12 months of release.937

Similarly, Adjunct Associate Professor Mitchell told us that children and young people face various challenges on release from detention, noting that ‘anecdotally … a lot of kids will offend again to get back to Ashley, because it’s the closest thing to a bed and food that they have’.938 We heard similar comments from participants in our consultations with Aboriginal communities, which we discuss in Section 7.4 on the lack of post-release support for Aboriginal children and young people.

Commissioner McLean has advocated for continuity of support for detained children and young people who are involved in the out of home care system. She has noted that:

… there are some contractual arrangements that can prevent the provision of supports being continued by non-government providers once a young person is on a detention order and housed at [Ashley Youth Detention Centre].939

Also, as outlined in Section 6.6.1, Commissioner McLean has observed that substantial work needs to occur in Tasmania to ensure children and young people who leave detention stay connected to education.

Save the Children’s Transition from Detention program is a voluntary mentoring program for children and young people leaving detention in Tasmania that ‘bridges the gap between the detention centre and outside services that are not funded or are unable to provide services within the centre’.940 According to Commissioner McLean, children and young people leaving detention ‘value being able to participate in pro-social activities as part of this program’, but current resourcing for the program has limited the ability of youth workers to attend Ashley Youth Detention Centre and engage with young people there.941

In its submission to the Tasmanian Government on the proposed youth justice reforms, Save the Children advocated for service providers to be granted greater access to detention centres throughout a young person’s period in custody, ‘so they can build trust and commence sustainability planning as early as possible’.942

Practice improvements

Strategy 4 of the Draft Youth Justice Blueprint is to ‘integrate and connect whole of government and community service systems’.943 An aim of this strategy is to achieve:

… a throughcare approach for children and young people that facilitates and supports transition between services, facilities and the community in a responsive and children and young person-centred manner.944

The Draft Youth Justice Blueprint adopts a broader approach to ‘throughcare’ than one focused solely on leaving detention:

A throughcare approach that commences service planning at the earliest possible opportunity and follows the young person’s engagement with youth justice services can provide stability for the young person. Consistent case management and client centred planning across the continuum, as well as ongoing access to support services with whom the young person is engaged enables the development of rapport and stability that is not dependent upon the young person’s place within the continuum i.e., detention.945

Also, as noted in Section 2, the Tasmanian Government has announced it will establish two supported residential facilities as part of the suite of facilities that will replace Ashley Youth Detention Centre.946 One pathway into this type of facility will be where the child or young person has left detention on a supervised release order with a condition to ‘attend’ the supported residential facility.947 It would appear that the Government anticipates these facilities could serve as temporary or transitional accommodation for children and young people released from detention.

As noted in Section 6.6.4, the Government has also committed to developing new alternative education programs by 2024.948 It is possible that these could be accessed by children and young people following their release from detention, but the Government’s documentation does not specifically address this.

Our recommendations

The Government’s proposed reforms to support children leaving detention are welcome. The proposed supported residential facilities are also promising, but more detail is needed about how they will operate to support children and young people after their release.

There is an immediate and urgent need for housing, mental health, education and other support for children and young people leaving detention. As discussed in Section 7.4, there is a particularly urgent need for post-release support for Aboriginal children and young people. We consider that the Government should prioritise developing effective, coordinated exit planning and post-release support services for children and young people leaving detention. This should be addressed in the Youth Justice Model of Care

for detention recommended in Section 6.3.4 (Recommendation 12.18). Throughcare support services must be culturally safe for Aboriginal children and young people and respond to their needs (refer to the discussion in Section 7.4).

We agree with Save the Children’s call for community-based post-release service providers to have greater access to detention centres throughout a young person’s period in custody to build trust with the young person and start planning for post-release as early as possible.

Providing exit planning and post-release services for children and young people should be supported by a comprehensive exit planning procedure and a memorandum of understanding that specify clear requirements for how the various services required to support an individual young person in the community must work together to ensure the young person has stable accommodation, links to education or work, and ongoing support for mental health, disability and other needs.

There is a particularly urgent need for coordination and collaboration with child protection services. Alison Grace, Deputy Centre Manager, Bimberi Youth Justice Centre in the Australian Capital Territory, referred to the model of ‘single case management’ provided by Child and Youth Protection Services, whereby children and young people under the guardianship of the state have the same case manager in the youth justice system, whether under community-based supervision or in custody.949 She said this provided ‘a consistent voice and seamless service delivery to young people throughout their involvement in the youth justice system’.950 We consider that such an approach could have considerable benefit in Tasmania.

Considerable work is also needed to meet the educational needs of children and young people following their release from detention. In this respect, we note the benefits of schools such as Parkville College in Victoria (discussed in Section 6.6.3), whose Transitions Team supports children and young people to move from education in detention to education in the community, and the Berry Street School—a specialist independent school with four campuses across Victoria that offers a flexible and individualised learning approach and a transition program for students who have been excluded from education and who need support to re-engage.951 We consider that engagement in education is a protective factor against child sexual exploitation in the community.

Recommendation 12.24

The Tasmanian Government should:

establish an integrated throughcare service for children and young people in detention that
1. begins exit planning as soon as possible after a child or young person enters detention for the provision of safe and stable accommodation, access to physical and mental health support, and assistance with education or employment after release to facilitate their reintegration into the community
2. provides increased access to the detention facility for staff of community-based providers of post-release services
3. adopts a collaborative, child-centred, cross-organisation approach involving child protection, housing, health, disability support and education services, supported by a memorandum of understanding and clear policies and procedures
4. involves the child or young person and, to the greatest extent possible, their parent, guardian or other significant adult in exit planning
5. includes post-release wraparound support services for children and young people
6. is culturally safe for Aboriginal children and young people
deliver community-based schooling options for children and young people with complex behavioural challenges, including those who are or have been involved in the youth justice system, to provide appropriate learning environments for children to transition to when they leave detention.

Transfers to prison

Children and young people may be detained in an adult prison facility or transferred from Ashley Youth Detention Centre to an adult prison facility in certain circumstances. The Youth Justice Act states that a child or young person under the age of 19 years who is refused bail can be detained in an adult prison facility if the Secretary of the Department for Education, Children and Young People determines it is not practicable to detain them in a youth detention centre.952

In this section, we focus on the transfer of children and young people from Ashley Youth Detention Centre to the adult prison system. While we have not examined the use of the Secretary’s discretion under the Youth Justice Act to detain a young person in an adult prison facility at the time they are refused bail, we encourage the Government to consider our recommendation in relation to transfers broadly and implement it consistently in relation to all avenues by which children and young people may be detained in adult facilities.

The Youth Justice Act does not specify a process for transfers; rather, they are managed administratively under a memorandum of understanding between the former Department of Health and Human Services and the Department of Justice.953 The Manager of Ashley Youth Detention Centre can make a request to the Director of the Tasmania Prison Service to transfer a child or young person to a Tasmania Prison Service facility.954 The Director may agree to accept the child or young person for a specified period.955

According to the memorandum of understanding, a transfer to prison may be appropriate for a child or young person requiring a ‘high level of secure care’, where:

Secure care relates to the level of security required as a result of the low level of pro social behaviour demonstrated by the youth. These youths may be described as high risk/high needs.956

Under the memorandum of understanding, grounds for transferring a child or young person from detention to prison include:

that the child or young person represents a high risk to the safety and security of themselves, other children and young people, staff, visitors, the facility or ‘day to day management and operations of the site’957
‘special reasons’ listed in Schedule 2—these include ‘[v]iolence, disruptive behaviour or behaviour issues unable to be treated on site’, ‘escape attempts and actual escape’ and ‘serious detention centre offences’958
that the child or young person requires specialist assessment or treatment not available outside major urban areas.959

Where a child or young person is transferred to prison for more than 14 days, a ‘Transfer Assessment Panel’ is convened to review the transfer and determine whether it should be continued.960 This panel includes representatives of the Tasmania Prison Service, Youth Justice Services (including professional services staff from Ashley Youth Detention Centre) and Correctional Primary Health Services, but it does not include an oversight body or anyone who is independent of government.961

A transfer to prison may be continued where the Transfer Assessment Panel classifies the child or young person as ‘[n]ot benefiting from the Behavioural Development Program and [Ashley Youth Detention Centre] case management model’ and as being ‘not suitable for detention’ at the Centre, having regard to several criteria.962 These include age, gender, cultural background, ‘security and safety assessment’, ‘level of social responsibility’, the number and nature of incidents the young person has been involved in, and whether their behaviour indicates they are ‘likely to create a serious management problem’ at the Centre.963 The criteria do not include the best interests of the child or young person.

This process can be contrasted with the process for transferring children and young people from youth detention to an adult prison in other jurisdictions. For example, in Victoria, the Children, Youth and Families Act 2005 (Vic) gives the Youth Parole Board the power, on the application of the Secretary of the Department of Justice and Community Safety, to direct that a young person who has been sentenced to detention in a youth justice centre be transferred to a prison.964 The Youth Parole Board is chaired by a judge of the County Court of Victoria and includes two people with ‘experience in matters relating to child welfare’.965

In determining whether to make a direction to transfer a young person, the Victorian Youth Parole Board must consider ‘the antecedents and behaviour of the person’, their age and maturity, as well as a report from the Secretary that sets out the steps that have been taken to avoid the need for the transfer to prison.966 The Youth Parole Board must also be satisfied that the young person has ‘engaged in conduct that threatens the good order and safe operation of the youth justice centre’ and ‘cannot be properly controlled in a youth justice centre’.967

In Victoria, only young people aged 16 years or older can be transferred to prison, unlike in Tasmania, where there do not appear to be any age limits on the transfer of children and young people.968

We did not request or receive any evidence on the frequency of transfers from Ashley Youth Detention Centre to adult prison facilities. However, in Chapter 11, Case study 2, we find that Ashley Youth Detention Centre was not equipped to meet the complex needs of children and young people, resulting in at least one being transferred to adult prison.

Housing children and young people with adults in the criminal justice system is contrary to international human rights instruments (discussed throughout this chapter). Children and young people with challenging behaviours and complex needs—particularly cognitive disabilities—are highly vulnerable to abuse, including child sexual abuse, in prison.

We are deeply concerned that children and young people can be transferred from youth detention to adult prison in Tasmania without any oversight from a court, tribunal, parole board or other independent body. We are also concerned that a child or young person can be transferred solely for operational reasons, or based on the young person’s complex and difficult behaviours, without considering their best interests or the likely impact on them of being transferred to prison. This approach fails to recognise the effects of trauma on children and young people’s ability to regulate their emotions and behaviour. It risks children and young people who have been abused or who have experienced neglect or other adverse childhood experiences feeling as though others consider they are beyond help. It may have the effect of punishing them for the failure of the youth justice system to support them to address their challenges.

As discussed in Section 6.3, we do not consider the Behaviour Development Program to be an appropriate or effective tool for responding to children and young people’s complex behaviours in detention. A child or young person’s failure to ‘benefit’ from this program is therefore not an appropriate basis upon which to transfer them to prison or to decide to keep them in a youth detention facility. We recommend that this program be discontinued in youth detention (Recommendation 12.18).

We recommend that the Tasmanian Government adopts a new process for managing transfers from youth detention, requiring approval from a body that is independent of government. Given Tasmania does not have a youth parole board, we recommend that the Department for Education, Children and Young People be required to seek approval from the Magistrates Court for any transfers. In Section 5.5.6, we recommend establishing a new specialist division of the Magistrates Court to hear child protection matters and children’s criminal matters. Applications for transfers from detention to prison should be made to a magistrate of this new division, and until this division is established, to a magistrate of the Youth Justice Division.

Transfer applications should only be made in respect of young people aged 16 years or older. In determining whether to approve a transfer, the Magistrates Court should be required to consider (among other matters):

what steps the Department has taken to avoid the need for the transfer
whether the transfer is in the young person’s best interests
the views of the new Commission for Children and Young People (Recommendation 18.6) on the appropriateness of the transfer.

The Department should be required to notify the Commission for Children and Young People of any proposed transfer.

Also, we are concerned about the transfer to prison of young people aged 18 years or older who are serving their sentence in youth detention. Young adults are extremely vulnerable in prison. The Victorian Ombudsman has noted that ‘young prisoners are at significant risk of post-traumatic stress disorder arising from the conditions of their detention, and at high risk of rape and assault from older prisoners’.969

In a 2019 report on the sentencing of young adult offenders, the Victorian Sentencing Advisory Council stated that:

… holding young adults in adult prisons can be counterproductive to their treatment and rehabilitation. It can expose them to harms (such as risks to their safety from older adults) and can restrict their participation in mandatory prosocial, constructive activities that are typically available in youth-focused facilities (such as improved educational opportunities, targeted programs and specialist transition resources). This poses risks to the community, which is better served by approaches that maximise the potential for an offender’s rehabilitation.970

The Tasmanian Government should consider allowing vulnerable young people aged 18 years or older who are serving their sentence in youth detention to stay in detention rather than being transferred to an adult prison. This would be consistent with broader trends to increase the age limit on services for vulnerable young people beyond 18 years—for example, extending out of home care services to the age of 21 years.971

Recommendation 12.25

The Tasmanian Government should introduce a new process for approving transfers of young people from youth detention to an adult prison facility that:

limits transfers to young people aged 16 years or older
requires the Department for Education, Children and Young People to notify the Commission for Children and Young People (Recommendation 18.6) of any proposed transfer
requires the Department to apply to the Magistrates Court (Youth Justice Division) or the new specialist children’s division of the Magistrates Court (Recommendation 12.15) for approval to transfer
requires the Magistrates Court, in determining whether to approve the transfer, to consider, among other matters, the steps the Department has taken to avoid the need for the transfer, whether the transfer is in the young person’s best interests and the views of the Commission for Children and Young People on the appropriateness of the transfer.

Auditing custodial periods

In 2016, the Tasmanian Government issued a media release stating that prisoners had been released from Risdon Prison on the incorrect date on seven occasions due to ‘administrative errors when dealing with and interpreting warrants issued by the Courts’.972 These errors were said to be ‘the result of long-term process issues within the Justice system’, ‘a heavy reliance on paper based forms used in Court operations’ and the manual calculation of release dates by the Tasmania Prison Service.973

In 2021, a media report indicated that, in the preceding four years, nine prisoners had been released from Risdon Prison before or after their release dates.974 We heard of similar concerns about youth detention from a former employee of the Department.975

In June 2023, the Department informed us that magistrates now calculate each young person’s ‘earliest release date’.976

We would be extremely concerned if children and young people were being detained for longer than is required by their custodial orders. The Government should take steps to ensure this is not occurring.

Recommendation 12.26

The Auditor-General should undertake an audit of the length of custodial stays at Ashley Youth Detention Centre to determine whether they align with sentencing orders.

Aboriginal children in youth detention

Aboriginal children and young people are vastly over-represented in Tasmania’s youth justice system, particularly in youth detention. We understand this to be a direct and continuing impact of colonisation. As one participant in our consultations with Aboriginal communities told us, youth detention creates lasting damage for Aboriginal children and young people:

A very high percentage of our young people have been to Ashley. Those young people then started getting into trouble as adults. Once they came out [of Ashley Youth Detention Centre], they should have been proud of who they are and have aspirations of what they want to do, but they were so mistreated in there. It’s another layer of abuse—layer upon layer upon layer.977

According to data published by the Australian Institute of Health and Welfare, on an average day in youth detention in Tasmania in 2021–22, Aboriginal children and young people aged 10 to 17 years accounted for 44 per cent of the detention population (sentenced and unsentenced) in that age group, despite constituting 10 per cent of all Tasmanian children and young people aged 10 to 17 years.978 This figure is broadly consistent with what we heard in evidence.979

Aboriginal children and young people are similarly over-represented in the remand population. On an average day in youth detention in Tasmania in 2021–22, 42 per cent of children and young people aged 10 to 17 years on remand were Aboriginal.980

Aboriginal children and young people are also over-represented among children and young people who are known to the child protection and youth justice systems—known as ‘crossover children’.981 As noted in Section 5.5.3, Tasmania Legal Aid’s 2021 Children First report—which examined how many of its clients had both a child safety file and a youth justice file—found that 15 per cent of children in this category identified as Aboriginal.982

According to the National Royal Commission, research shows that the over-representation of Aboriginal children and young people in youth detention in Australia is a result of ‘historical factors, systemic racism, policing practices and a range of socioeconomic factors’.983

Similarly, in its 2021 Our Youth, Our Way inquiry report, the Victorian Commission for Children and Young People found that the over-representation of Aboriginal children and young people in Victoria’s youth justice system stemmed from colonisation, dispossession, the forced removal of children from their families, broken connection to Country and culture, intergenerational trauma, over-policing, systemic racism in service systems and ongoing government intervention in Aboriginal people’s lives.984 These factors can cause Aboriginal families to experience poverty and socioeconomic disadvantage, housing instability, low educational attainment, mental illness, drug and alcohol misuse, family violence and intergenerational cycles of child protection involvement, each of which increases the risk that a child will enter the youth justice system.985

The National Royal Commission observed that, while Aboriginal children were not inherently more vulnerable to child sexual abuse in institutions than non-Aboriginal children, Aboriginal children were:

… more likely to encounter circumstances that increased their risk of abuse in institutions, reduced their ability to disclose or report abuse and, if they did disclose or report, reduced their chances of receiving an adequate response.986

Reducing the number of Aboriginal children and young people in Tasmania’s youth justice system is essential to minimising the risk they will experience child sexual abuse in detention. The 2020 National Agreement on Closing the Gap aims to reduce the rate of Aboriginal children and young people in detention by at least 30 per cent by 2031 (Target 11).987 The Tasmanian Government has committed to two actions to meet this target: a focus on police diversion and building partnerships with Aboriginal people. But much more needs to be done.988

The Draft Youth Justice Blueprint (outlined in Section 2.2) is promising in its references to prevention, early intervention and diversion as strategies to ‘change[e] the pathways for children and young people at risk of, or who are engaged in offending behaviours’.989 However, there is scope for a greater focus on the specific needs of Aboriginal children and young people in this blueprint.

In Section 5, we make several recommendations covering all children and young people in detention that would contribute to achieving Target 11, namely:

increasing the minimum age of criminal responsibility to 14 years and working towards increasing the minimum age of detention to 16 years (Recommendation 12.11)
increasing pre-court diversion opportunities for children and young people (Recommendation 12.13)
strengthening the bail system to increase the likelihood that children and young people charged with criminal offences will receive bail and comply with their bail conditions, and to reduce the number of children and young people on remand (Recommendation 12.14)
ensuring sentencers have an appropriate hierarchy of community-based sentencing options, so detention is an option of last resort (Recommendation 12.15).

Further, in Chapter 9, we recommend changes to reduce the number of Aboriginal children entering the out of home care system, including more investment in Aboriginal-led targeted early intervention and prevention services for Aboriginal families (Recommendation 9.15). Improved support for Aboriginal families will also help reduce the number of Aboriginal children and young people entering the youth justice system.

In this section, we also recommend that the Tasmanian Government develops an Aboriginal youth justice strategy to ensure its proposed reform of the youth justice system includes a strong focus on the needs of Aboriginal children and young people and their families. This strategy should be founded on the principle of self-determination, and it should commit to actions that will prevent Aboriginal children from entering the youth justice system and divert them from detention.

For Aboriginal children who experience youth detention, the National Royal Commission recommended that state and territory governments consider strategies that would provide for their cultural safety, including:

recruiting and developing Aboriginal staff to work at all levels of the youth justice system, including in key roles in complaints-handling systems
ensuring all youth detention facilities have culturally appropriate policies and procedures that facilitate connection with family, community and culture, and reflect an understanding of, and respect for, cultural practices in different clan groups
employing, training and professionally developing culturally competent staff who understand the particular needs and experiences of Aboriginal children, including the specific barriers that Aboriginal children face in disclosing sexual abuse.990

The Tasmanian Government is yet to fully implement this recommendation. On the contrary, the evidence we received raises our concerns about cultural safety for Aboriginal children and young people in Ashley Youth Detention Centre. We heard that some Aboriginal children and young people received little or no cultural support in detention and, in some cases, were denied contact with family or community members.991

The Tasmanian Government has made announcements about the facilities that will replace Ashley Youth Detention Centre, but it has given little attention to the needs of Aboriginal children and young people in these announcements.992 Similarly, the Keeping Kids Safe Plan does not refer to Aboriginal children and young people or include any specific plans to ensure their safety.993

It is important that any new facilities be co-designed with Aboriginal communities to ensure they are culturally safe and enable Aboriginal children and young people to connect with family, community and culture. However, Ashley Youth Detention Centre also needs to be culturally safe while it continues to operate.

Accordingly, in this section, we make recommendations for improving the cultural safety of Aboriginal children and young people who are remanded or sentenced to youth detention, covering:

cultural support for Aboriginal children and young people in detention, including regular contact with family and community members, and access to cultural programs
the recruitment of Aboriginal staff to support Aboriginal children and young people in detention
appropriate professional development for staff of youth detention facilities to ensure they are aware of the unique experiences and needs of Aboriginal children and young people.

We also discuss support for Aboriginal children and young people leaving detention.

An Aboriginal youth justice strategy

As noted, Aboriginal children and young people are more likely than non-Aboriginal children and young people to encounter circumstances that increase their risk of abuse in institutions, including youth detention. It is therefore incumbent on the Tasmanian Government to take active steps to limit Aboriginal children and young people’s entry into youth detention. This requires a commitment to prevention, early intervention and diversion strategies focused on Aboriginal children and young people and their families. As one participant in our consultations with Aboriginal communities told us:

What about diversion programs rather than going to detention? To me it was pivotal that I went to a diversion program with Aboriginal Elders, instead of going to Ashley for 12 months. If I had been in there it would have changed my life in terrible ways, instead I got to stay with community and it helped me.994

As described in Section 2.2, the Draft Youth Justice Blueprint identifies five strategies of focus from 2022 to 2032. They are to:

prioritise prevention and early intervention to reduce engagement with the youth justice system
ensure diversion from the justice system is early and lasting
ensure a therapeutically based criminal justice response for children and young people
integrate and connect whole of government and community service systems
provide an appropriately trained and supported ‘therapeutic workforce’.995

Some of these strategies include specific goals for Aboriginal children and young people. For example, the Draft Youth Justice Blueprint aims to:

support Aboriginal communities to develop programs that promote wellbeing and sustain connectedness with community and culture996
ensure Aboriginal children and young people have access to Aboriginal-led diversionary services997
provide Aboriginal children and young people with therapeutic responses that meet their needs998
increase ‘cultural competence across the youth sector to enable staff to identify and work in culturally appropriate ways’ to support and respond to the needs of Aboriginal children and young people in the youth justice system.999

These goals are positive. However, they are general and do not identify specific actions to achieve them.

The Draft First Action Plan acknowledges that the approach to diverting Aboriginal children and young people from the youth justice system may be different from general diversionary processes. It states that engagement with Aboriginal children, young people and communities will be essential to ensure culturally safe, Aboriginal-led diversion services.1000 The Draft First Action Plan also indicates that the proposed Youth Justice Model of Care (discussed in Section 6.3) will be co-designed with Aboriginal communities.1001

In February 2022, the Victorian Government published Wirkara Kulpa, Victoria’s Aboriginal youth justice strategy, whose development was led by Victoria’s Aboriginal Justice Caucus.1002 The strategy is underpinned by Aboriginal self-determination and has a series of guiding principles, which are to:

amplify the voice and participation of Aboriginal children and young people, and promote and protect their rights
value the strengths of Aboriginal children and young people
support child- and family-centred approaches
embed trauma-informed healing approaches
centre Aboriginal cultural values and connection.1003

Wirkara Kulpa identifies five key priorities or ‘domains’ for 2022 to 2032—including diverting Aboriginal children and young people from the youth justice system, addressing over-representation and working towards Aboriginal-led justice responses—and commits to more than 70 actions across these domains.1004

In its Our Youth, Our Way inquiry report, the Victorian Commission for Children and Young People found that services designed, controlled and delivered by the Aboriginal community have the greatest potential to produce the best outcomes for Aboriginal children and young people.1005 Aboriginal communities in Tasmania told us that Aboriginal input into services for and decisions about Aboriginal children and young people is essential.1006

We consider that the Tasmanian Government should build on the commitments in its Draft Youth Justice Blueprint by developing an Aboriginal youth justice strategy in partnership with Aboriginal communities. In its submission to our Commission of Inquiry, the Tasmanian Aboriginal Legal Service recommended creating such a strategy.1007 A carefully and collaboratively developed Aboriginal youth justice strategy would help the Tasmanian Government to achieve its goal of reducing Aboriginal over-representation in youth detention in line with Target 11.

The development of the Aboriginal youth justice strategy must be led by Aboriginal communities across Tasmania and underpinned by the principle of self-determination in the youth justice system, whereby Aboriginal communities have authority in respect of Aboriginal children and young people. We note that the Draft Youth Justice Blueprint refers to an ‘increased focus on self-determination’ and commits to partnering with Aboriginal communities to determine the most appropriate responses to address Aboriginal over-representation in the youth justice system.1008 The Tasmanian Government should ensure Aboriginal communities and organisations are supported and resourced to participate in developing the Aboriginal youth justice strategy.

The Aboriginal youth justice strategy should identify actions that will prevent Aboriginal children and young people entering the Tasmanian youth justice system, enable early intervention for Aboriginal families whose children are engaging in antisocial behaviour, and divert those children and young people who are already in contact with police away from the youth justice system and, in particular, from detention. This should include:

strategies to increase the use of cautions for Aboriginal children and young people
the development of more pre-court diversion programs for Aboriginal children and young people, delivered by Aboriginal organisations
strategies to minimise the number of Aboriginal children on remand through culturally safe supported bail accommodation and other bail assistance programs
support for Aboriginal children and young people on community-based orders, aimed at helping them comply with the conditions of their orders and avoid escalation into custodial sentences.

In Chapter 9, we recommend an expanded role for ‘recognised Aboriginal organisations’ in child safety decision making under the Children, Young Persons and Their Families Act. In particular, we recommend that the Tasmanian Government partners with Aboriginal communities to develop models for transferring child safety decision-making authority for Aboriginal children to recognised Aboriginal organisations, and create a statutory framework to facilitate such transfer (Recommendation 9.15).

To enable this to occur, we recommend in Chapter 9 that:

the new Executive Director for Aboriginal Children and Young People in the Department for Education, Children and Young People promotes and facilitates the establishment of recognised Aboriginal organisations (Recommendation 9.7)
the Tasmanian Government invests in capacity building to ensure recognised Aboriginal organisations are fully resourced and their workforces fully equipped and supported to participate in child safety and out of home care decision-making processes for Aboriginal children, and to manage any transfer of decision-making authority (Recommendation 9.15).

Recognised Aboriginal organisations also have a role under the Youth Justice Act, namely to administer formal cautions to Aboriginal children or young people where requested by authorised police officers (we discuss cautions in Section 5).1009 However, as noted in Chapter 9, the Tasmanian Government does not appear to have declared any organisations to be ‘recognised Aboriginal organisations’ for the purposes of the Children, Young Persons and Their Families Act (or, consequently, the Youth Justice Act). In that chapter, we recommend that the Tasmanian Government partners with Aboriginal communities to promote and support the establishment of recognised Aboriginal organisations.

We consider there could be a broader role for recognised Aboriginal organisations in youth justice processes in respect of Aboriginal children and young people. This could include delivering local diversionary programs for Aboriginal children and young people, leading conferencing under the Youth Justice Act, and designing and administering community-based youth justice options, including alternatives to custody for Aboriginal children and young people. These options should be examined under the auspices of the proposed Aboriginal youth justice strategy.

Recommendation 12.27

The Tasmanian Government, to protect Aboriginal children and young people against the risk of sexual abuse in youth detention, should urgently develop, in partnership with Aboriginal communities, an Aboriginal youth justice strategy that is underpinned by self-determination and that focuses on prevention, early intervention and diversion strategies for Aboriginal children and young people. Aboriginal communities should be funded to participate in developing the strategy.
The strategy should consider and address, among other matters:
1. legislative reform to enable recognised Aboriginal organisations to design, administer and supervise elements of the youth justice system for Aboriginal children and young people
2. capacity building and funding for recognised Aboriginal organisations to participate in youth justice decision making in relation to Aboriginal children and young people, and to deliver youth justice services to Aboriginal children and young people
3. the use of police discretion in the investigation and processing of Aboriginal children and young people, including cautioning, arrest, custody, charging and bail
4. alternative pre-court diversionary options for Aboriginal children and young people
5. mechanisms to increase the likelihood of Aboriginal children and young people receiving bail and minimise the number of Aboriginal children and young people on remand, including culturally responsive supported bail accommodation and other bail assistance programs, and legislative reform to require bail decision makers to consider a child’s Aboriginal status
6. mechanisms to support Aboriginal children and young people to comply with the conditions of community-based youth justice orders, to minimise their likelihood of breaching conditions and entering detention.

Design of new youth justice facilities

As outlined in Section 2, the Government intends to replace Ashley Youth Detention Centre with a ‘detention/remand centre’, two assisted bail facilities and two supported residential facilities for children and young people leaving detention on a supervised release order (among other pathways in).1010 The supporting documentation for these facilities does not indicate how they will meet the specific needs of Aboriginal children and young people.

Participants in our consultations with Aboriginal communities told us that, as a general principle, there should be institutions specifically for Aboriginal children, run by Aboriginal communities:

We need our own Aboriginal people involved with a system to handle our Aboriginal children. Or at least have some Aboriginal Elders on these groups who can have some input. Trained professionals that have a cultural understanding and not just a textbook understanding—we need those people to guide and make and create those places.1011

One participant suggested establishing an alternative to Ashley Youth Detention Centre where children and young people are guided by Elders in a homelike environment:

… where children are treated with respect, and treat us with respect … they need to be with their people … in a place where they are safe mentally and emotionally.1012

Another participant referred to a system where Aboriginal children and young people are ‘sent to “healing” places for Aboriginal people rather than jail’.1013 Other participants highlighted the need for an alternative to Ashley Youth Detention Centre, where Aboriginal children and young people can be ‘reconnected with their culture’.1014

Some participants referred to an earlier program for Aboriginal children and young people that was run by the Tasmanian Aboriginal Centre on Lungtalanana/Clarke Island in Bass Strait.1015 There were mixed views among Aboriginal community members about this program. Heather Sculthorpe, Chief Executive Officer, Tasmanian Aboriginal Centre, told us that there were challenges in managing this program:

… we got funding so that kids didn’t have to go to Ashley, kids didn’t have to get sent away. In the end the State defunded that because not enough kids were using it, and we tried to say, well, we can’t just put people on that island to look after kids. When Ashley decides to let a kid leave, we can’t just find people then, we have to have them all the time and equipped to look after the children who are there. There’s also some difficulty in young people not wanting to be isolated there and wanting to spend time with their mates, so it was not well attended but it was certainly not well funded: I think it got $140,000 a year.1016

In 2007, a Select Committee of the Tasmanian Parliament recommended that the Government assess the ‘efficiency and benefits of alternate strategies such as the diversion of Aboriginal youth to Clarke Island-based programs’.1017 In its response to the Select Committee’s report, the Government noted that retaining and developing programs such as those on Clarke Island was ‘extremely important’.1018

Ms Sculthorpe indicated that after the Clarke Island program ended, the Tasmanian Government began sending Aboriginal children to the Many Colours One Direction program in the Northern Territory, which was highly problematic.1019 That program is discussed in Chapter 9.

In its Our Youth, Our Way inquiry report, the Victorian Commission for Children and Young People found that Victoria’s youth justice centres were harmful, often unsafe environments for Aboriginal children and young people.1020 It examined best practice youth justice facilities internationally and concluded that small, homelike residences could:

reduce young people’s stress, improve their behaviour and increase the likelihood that they will engage in rehabilitation
allow staff to build relational security rather than relying on physical restraints, resulting in fewer adverse incidents
provide the opportunity to place children and young people closer to their families
enable flexibility for community members to be part of the daily life of the residence
give children and young people more opportunities to build social skills and connections that could improve their chances of successfully returning to the community.1021

The Victorian Commission for Children and Young People recommended that, as a step towards having no Aboriginal child or young person in custody, the Victorian Government should work with Aboriginal communities to establish three small, homelike facilities for Aboriginal children and young people serving custodial sentences.1022 The recommended facilities should each have no more than six beds and allow for Aboriginal children and young people to connect with their culture and community.1023

The facilities would need to provide therapeutic, trauma-informed care, including mental health support and drug and alcohol treatment, as well as access to education.1024 They should also employ Aboriginal staff who are trained to resolve conflict through restorative justice approaches.1025

The Victorian Commission for Children and Young People indicated that, while there should be Aboriginal community involvement in setting up and managing these facilities—possibly via a ‘joint government and community management model’—it was not aware of an Aboriginal community or Aboriginal organisation in Victoria that wanted to fully manage a closed facility for sentenced Aboriginal children and young people.1026

The Victorian Commission for Children and Young People separately recommended establishing two small, homelike, non-secure facilities to provide therapeutic and culturally appropriate care for Aboriginal children and young people with highly complex needs who were likely to be refused bail based on their high risk of further offending.1027 These facilities would be based on the Oranga Tamariki remand homes in New Zealand.1028

In Chapter 9, we recommend that the Tasmanian Government works with Aboriginal communities to establish fully resourced, Aboriginal-led, therapeutic residential programs for Aboriginal children who have been removed from their families under the Children, Young Persons and Their Families Act, and for whom an appropriate placement with an Aboriginal carer cannot be found (Recommendation 9.15). Such residential programs should be separate from any facilities designed for Aboriginal children who are on remand or serving a custodial sentence.

We acknowledge that creating residential facilities specifically for Aboriginal children and young people in the youth justice system may be impractical in a jurisdiction such as Tasmania, where the custodial sentenced and remand populations are small. There is a risk that Aboriginal children and young people would feel ‘siloed’ in such facilities. We also note that it may not be appropriate for an Aboriginal organisation to manage a secure facility for sentenced Aboriginal children and young people in Tasmania. These issues require more consideration, in partnership with Aboriginal communities.

Regardless of whether a detention or remand facility specifically for Aboriginal children and young people is established, it is important to ensure any new facilities are culturally safe and designed to meet the specific needs of Aboriginal children and young people.

Cultural safety (discussed in Section 7.3) is affected by the physical design of custodial facilities—well-designed indoor and outdoor cultural spaces can ‘provide opportunities for education, reflection, sharing stories and mentoring’ and promote strong connection to culture for Aboriginal children and young people.1029 Such connection is essential for the wellbeing of Aboriginal children and young people and is a protective factor against child sexual abuse.

Poorly designed spaces can have the opposite effect. An Aboriginal Elder told us that when she visited Ashley Youth Detention Centre, she was not given a culturally appropriate space (for example, outdoors) to spend time with Aboriginal young people, describing the environment as ‘too institutionalised’.1030

Cultural safety for Aboriginal children and young people in detention also requires:

the availability of cultural programs delivered by Aboriginal organisations
regular and consistent access to family and community members
the presence and support of Aboriginal staff.

These issues are discussed in more detail in Section 7.3.

The Tasmanian Aboriginal Legal Service has recommended that:

Tasmania’s Aboriginal communities be included as co-designers of facilities, infrastructure, programs and intended outcomes for replacement(s) for the Ashley Youth Detention Centre in order to ensure that facilities are culturally safe for Aboriginal children and young people as well as trauma- and sexual-abuse-informed and sensitive to other specific needs including disability and drug and alcohol problems.1031

We agree, and recommend that these issues be examined in the context of the Aboriginal youth justice strategy recommended in Section 7.1.

Recommendation 12.28

The Tasmanian Government should ensure:

any new facilities intended to replace Ashley Youth Detention Centre are co-designed with Aboriginal communities and include culturally enriching environments for Aboriginal children and young people that promote connection to family, community and Country
the Aboriginal youth justice strategy (Recommendation 12.27) considers whether a small, homelike facility that has Aboriginal staff, provides trauma-informed care and enables Aboriginal children and young people to connect with culture through the involvement of local Aboriginal communities, should be established specifically for Aboriginal children and young people who are remanded or serving a custodial sentence. Careful consideration should be given to the most appropriate management model for such a facility.

Cultural safety in youth detention

According to SNAICC – National Voice for our Children, and the Victorian Aboriginal Child Care Agency, ‘cultural safety’ is:

… the positive recognition and celebration of cultures. It is more than just the absence of racism or discrimination and more than ‘cultural awareness’ and ‘cultural sensitivity’. It empowers people and enables them to contribute and feel safe to be themselves.1032

A culturally safe environment for Aboriginal children and young people is one where they are supported to connect with their culture and develop their identity.1033 As one participant in our consultations said:

Culture is the way to come out of it. That’s what makes me feel safe. I believe that culture is the answer.1034

The Take Notice, Believe Us and Act! report we commissioned found that most Aboriginal children and young people interviewed for the report did not know what cultural safety was, which suggests that it is not embedded in the organisations with which they interact.1035 That report concluded:

Organisations need to foster environments that promote cultural safety and recognise the ways that culture and connection can be protective and act to empower children and young people from Aboriginal and culturally and linguistically diverse backgrounds.1036

As noted in Chapter 9, for Aboriginal children and young people, connection to culture through family and community can increase protective factors against the risk of sexual abuse by helping to develop identity and a sense of belonging and by fostering high self-esteem, emotional strength and resilience.1037

Conversely, Aboriginal children and young people who are disconnected from their family, community and culture are ‘at great risk of psychological, health, developmental and educational disadvantage’ and ‘suffer as children and later as adults from the grief and loneliness of not belonging’.1038 This includes Aboriginal children who are disconnected from their families, communities and culture when they are remanded or sentenced to detention.

It is therefore essential that Tasmania’s youth detention facilities support Aboriginal children and young people to maintain or build connections to family, community and culture while they are detained. For Aboriginal children and young people in youth detention who have previously been removed from their immediate families by the child protection system, connection to extended family, kin and Aboriginal community members is vital.

Identifying Aboriginality

For youth detention facilities to be culturally safe for Aboriginal children and young people, staff must accurately identify the Aboriginal status of those in detention.

As discussed in Chapter 9, in almost every meeting we had with Aboriginal communities, participants raised concerns about how Aboriginal status is determined in Tasmania and who is responsible for determining it. Ms Sculthorpe of the Tasmanian Aboriginal Centre also raised these issues in her evidence.1039 In Chapter 9, we note that it is beyond the scope of our Inquiry to make recommendations on these questions.

However, it is within our terms of reference to address the increased risk of sexual abuse that Aboriginal children and young people face in youth detention due to their over-representation in the youth justice system. To provide adequate protection and support to Aboriginal children and young people in detention in relation to the risk of sexual abuse, it is important to ensure the Aboriginal status of children and young people in detention is accurately identified and recognised, so all Aboriginal children and young people in detention can be supported to stay connected to family, community and culture.

The Department’s written procedure for admitting a child or young person into detention states that if the person is known to Community Youth Justice, their Aboriginal status must be collected from the Youth Justice Information System, and this information must be added to the ‘Admissions Checklist’.1040 The former Department of Health and Human Services had a department-wide procedure that required all staff of Children and Youth Services to determine a client’s Aboriginal status every time the client ‘commence[d] an involvement with’ Children and Youth Services.1041 This procedure continues to apply to children and young people being admitted to youth detention.1042

Secretary Pervan told us that the ‘admission and induction process ask[s] direct questions concerning [A]boriginality’.1043 He also told us that Aboriginal status is recorded at Ashley Youth Detention Centre through self-identification and ‘may be updated throughout a young person’s involvement with Youth Justice, which results in data that is changeable over time’.1044

The Commissioner for Children and Young People has previously observed about the out of home care system that children’s Aboriginal status is not always consistently identified or recorded.1045 Secretary Pervan told us that the former Department of Communities was ‘improving collection and completion of Aboriginal status for children at the Advice and Referral Line and Child Safety Service’.1046

Nevertheless, we recommend in Chapter 9 that the Tasmanian Government ensures the Aboriginal status of all Aboriginal children in contact with Child Safety Services is accurately identified and recorded at the earliest opportunity (Recommendation 9.15). We anticipate that this would also result in better identifying Aboriginal status for children and young people entering youth detention.

Secretary Pervan told us that the induction assessment at Ashley Youth Detention Centre identifies a young person’s:

… background, physical and mental health, literacy, drug use, disability, indigenous status, familial and personal relationships and the young person’s identified gender and sexuality (as identified by them). The assessment then allows for meaningful supports to be put into place that address their specific needs, and that they are stable and informed about their rights and routine before moving into a unit with other young people.1047

He also said that ‘connection with community [E]lders’ is sought for Aboriginal children and young people.1048

Where a child identifies as Aboriginal, the custodial case management guidelines require admissions staff to contact the Tasmanian Aboriginal Centre within 12 hours of the child’s admission into detention.1049 However, the guidelines do not specify what role the Tasmanian Aboriginal Centre is to perform in respect of case management for the child, nor do they contemplate the possibility of the child wanting to be supported by an Aboriginal organisation other than the Tasmanian Aboriginal Centre.

We understand that, in some cases, a worker from the Tasmanian Aboriginal Centre has been involved in case management meetings, conferencing and exit planning for Aboriginal children and young people at Ashley Youth Detention Centre, but we did not receive detailed evidence on this.1050

The admission procedure and custodial case management guidelines should be updated to require custodial staff to:

ask children and young people who identify as Aboriginal whether they would like the support of an Aboriginal organisation (whether a recognised Aboriginal organisation or otherwise) or an Aboriginal community member while they are detained
notify the relevant organisation or individual within 12 hours of the child or young person’s admission
facilitate the involvement of the child or young person’s nominated representative in case planning, case management and exit planning in respect of the child or young person.

Cultural support and programs

Several of the children and young people interviewed for the Take Notice, Believe Us and Act! report indicated that they were Aboriginal, but none identified ways in which organisations were taking steps to ensure their cultural safety.1051

Victim-survivor Charlotte (a pseudonym), who is Aboriginal and was detained in the 2000s, told us she did not receive any cultural support when she was in Ashley Youth Detention Centre (refer to Chapter 11, Case study 1).1052 Participants in our consultations with Aboriginal communities told us that the cultural needs of Aboriginal children and young people in Ashley Youth Detention Centre were not being met.1053 One community member said:

All the kids in jail are lost. They have lost their culture and community, and there is nothing for them to connect with when they are feeling low.1054

During our visit to Ashley Youth Detention Centre in August 2021 (discussed in Chapter 2), we observed only a few small signs or symbols to celebrate or recognise Aboriginal culture compared with the youth detention facilities we visited interstate, which had large, landscaped cultural outdoor areas and Aboriginal artwork and posters.

The Department provided us with a copy of its Guidelines for Working with Young Aboriginal People and Other Young People from Culturally and Linguistically Diverse (CALD) Backgrounds, dated August 2010.1055 According to this document:

case management staff will ‘take responsibility for including any cultural needs in a young person’s case plan and ensure that appropriate programs/practices are implemented and monitored’
case management staff will ‘seek and pay particular notice of cultural advice from family and the cultural community of the young person’
a young person’s cultural needs will be clearly conveyed to the unit staff responsible for day-to-day management and relayed to staff if the young person is transferred to another unit.1056

However, beyond a requirement to notify the Tasmanian Aboriginal Centre of the child’s admission to custody, this document does not include any detail on how to meet the cultural needs of Aboriginal children in detention.1057 In particular, it does not require staff to determine whether an Aboriginal child or young person already has a cultural support plan, nor does it provide any guidance on how to identify the cultural support needs of an Aboriginal child in detention.

Also, by including children and young people from culturally and linguistically diverse backgrounds and referring broadly to ‘cultural needs’, these guidelines fail to acknowledge or identify the unique experiences and needs of Aboriginal children and young people in detention.

Counsel Assisting our Inquiry asked Secretary Pervan to describe the extent to which there were programs at Ashley Youth Detention Centre to meet the needs of Aboriginal children and young people.1058 In response, Secretary Pervan said:

My understanding is that it actually depends on the child and which particular community they are from. The involvement and engagement of some community-controlled organisations is at a higher level and more direct, particularly for some young people; with others it’s less so; it depends on the engagement and capability of the community organisation that’s most representative of the young people in Ashley. It’s something that we have invited, it’s something that we’re very keen to increase, and is part of our commitment through the Closing the Gap national agreements.1059

Secretary Pervan did not offer any more detail on the cultural support provided to Aboriginal children and young people in detention—for example, on specific cultural programs that are being or have been run. We also note that the Custodial Inspector’s 2019 Equal Opportunity Inspection Report on Ashley Youth Detention Centre failed to discuss this issue in any detail, finding that ‘for the most part, young people at [Ashley Youth Detention Centre] are treated fairly and equitably’.1060

Dr Michael Guerzoni, Indigenous Fellow—Academic Development, University of Tasmania, told us that it is important for Aboriginal children and young people in detention to receive cultural immersion and cultural support, and for ‘their Indigeneity [to be] encouraged and supported’.1061

Participants in our consultations with Aboriginal communities also told us that connection with culture for Aboriginal children and young people in detention is essential.1062 Several Elders indicated that they used to visit Aboriginal children and young people in Ashley Youth Detention Centre as part of various programs, with one commenting:

I loved seeing the kids at Ashleys. They could just be themselves, have a yarn. Your heart broke when you left.1063

The Department did not provide us with any information about these programs, although it did provide a copy of a 2021 Ashley Youth Detention Centre newsletter that refers to ‘[c]ultural story sharing with … an Aboriginal Elder’, which would ‘lead to the design of a yarning circle [and] bush tucker garden to be developed in the outdoor area’.1064

Cultural programs such as visiting Elders programs are an important way to support cultural connection for Aboriginal children and young people in detention. In our consultations with Aboriginal communities, we also heard that on-Country programs can help Aboriginal children and young people ‘feel proud of themselves, release emotions and learn about themselves’.1065 However, participants also referred to the absence of cultural programs, such as men’s or women’s ‘sheds’ in some areas, noting that some earlier programs had been discontinued.1066

Connection to culture for Aboriginal children and young people in detention could also be facilitated through a mentoring program. The Victorian Commission for Children and Young People has highlighted the benefits of cultural mentors for Aboriginal children and young people who are in contact with the youth justice system, particularly where programs use mentors with lived experience of the youth justice system, who can be ‘credible messengers’ in providing support to Aboriginal children and young people.1067 Mentoring programs for children and young people in contact with the youth justice system have also been shown to reduce offending behaviour.1068

The Tasmanian Aboriginal Legal Service has referred to the potentially ‘huge impact’ of positive role models with lived experience of the youth justice system acting as mentors for Aboriginal children and young people in contact with the system.1069

Participants at one of our consultations with Aboriginal community members referred to the positive contributions of an Aboriginal worker based in an Aboriginal organisation who has lived experience of the youth justice system and has developed a strong rapport with Aboriginal children and young people in detention.1070 Madeleine Gardiner, former Manager, Professional Services and Policy at Ashley Youth Detention Centre, also referred to this ‘respected Aboriginal mentor’ who performs positive work in Ashley Youth Detention Centre.1071

Visits, temporary leave and phone calls

Visits, temporary leave and phone calls are also important means of enabling Aboriginal children and young people in detention to stay connected to family, community and culture.

As discussed in Section 6.7, children and young people at Ashley Youth Detention Centre:

have the right to regular contact with family members through personal visits, but management can refuse a visit if it believes that the ‘security, safety or good order of the Centre or the health or well-being of the young person may be adversely affected by allowing the visit’1072
can apply for temporary leave from the Centre—applications must undergo a thorough risk assessment, including consideration of the young person’s ‘behaviour and attitude at or near the time of the proposed leave’, any history of threats or attempts to abscond, and the young person’s ‘recent and current colour status’ under the Behaviour Development Program1073
can make seven phone calls each week and are entitled to extra calls if they achieve ‘yellow’ or ‘green’ status in the Behaviour Development Program.1074

Ms Gardiner described two occasions where Aboriginal young people were denied visitation rights in circumstances where the visits were therapeutically important for these young people.1075 The first occasion involved an Aboriginal young person being refused a visit from his brother in 2018, with no valid rationale apparent to Ms Gardiner.1076 Ms Gardiner successfully appealed this decision.1077

In the second case, in 2019, Ms Gardiner’s team had organised for a mentor from an Aboriginal organisation to visit Ashley Youth Detention Centre and sit with an Aboriginal young person while he viewed video footage from his father’s funeral, which he had earlier been denied permission to attend.1078 Although the mentor’s visit was initially approved, Ms Gardiner later discovered that it had been cancelled by Ashley Youth Detention Centre management, without consultation, on the day it was scheduled to occur.1079 The reason provided to Ms Gardiner for the cancellation was that there were not enough staff to supervise the visit.1080 She described these decisions as ‘not child-focused’ and ‘very insensitive’.1081

Were these situations to occur in future, we hope they would be approached with awareness of and sensitivity to the cultural needs of Aboriginal children and young people in detention on the part of Ashley Youth Detention Centre management and staff. Attendance at funerals can be an important way to maintain family connection and fulfil cultural obligations.1082 Where this is not possible, every effort must be made to enable Aboriginal children and young people to take part in important cultural rituals in alternative ways.

We are also concerned that custodial policies allow the denial of an application for temporary leave to attend a family funeral based on a child or young person’s recent behaviour and status in the Behaviour Development Program. The behaviour of a child or young person whose family member has recently died may be exacerbated by grief and trauma, and this should not be a reason to deny them access to their family.

We did not hear any evidence specifically about the ability of Aboriginal children and young people to make or receive phone calls from Ashley Youth Detention Centre. However, we consider that it is problematic to link a child’s right to contact their family or community with the child’s behaviour.

In Section 6.7.5, we recommend that the Department:

develops and implements a policy on the importance to children and young people in detention of maintaining or building connections with their family and community that specifies ways to promote such connections and clearly states that entitlements to visits, temporary leave and phone or video calls cannot be denied on the basis of a child or young person’s behaviour
provides reasonable assistance (including financial help) to members of a child or young person’s family or Aboriginal community to enable them to visit the child or young person frequently in detention (Recommendation 12.23).

Recruitment of Aboriginal staff

As noted, the National Royal Commission recommended that governments consider strategies for recruiting and developing Aboriginal staff to work at all levels of the youth justice system.1083 Despite the substantial over-representation of Aboriginal children and young people in youth detention in Tasmania, the staffing structure for Ashley Youth Detention Centre provided to us by Secretary Pervan does not include any role(s) dedicated specifically to the wellbeing of Aboriginal children and young people in detention, such as an Aboriginal liaison officer.1084

Victim-survivor Charlotte (a pseudonym) told us that there was no one in Ashley Youth Detention Centre in the 2000s who helped her to feel culturally safe.1085 She said that it would have made a difference while she was in the Centre if she had been supported by an Aboriginal worker to whom she could have disclosed the abuse she had experienced:

There was none at that stage for anyone that was Aboriginal. I’ve been to [adult] jails in the past, like after that, and the Aboriginal support, like, the support workers that help, they do so much for people. Like, they need more of it and they definitely needed someone like that in [Ashley Youth Detention Centre], like, that you could go to tell stuff like that.1086

In its 2021 Our Youth, Our Way inquiry report, the Victorian Commission for Children and Young People found that Aboriginal liaison officers in Victoria’s youth justice centres played an important role in supporting the cultural needs of Aboriginal children and young people in detention by contributing to the work of care teams, making sure Aboriginal children’s voices are heard in decision making about them and generally supporting them.1087 The Our Youth, Our Way report quotes the lead consultant forensic psychiatrist for Victoria’s youth justice centres on the positive contribution that Aboriginal liaison officers make to therapeutic treatment for Aboriginal children and young people:

Having [Aboriginal liaison officers] there completely changes the therapeutic results. The Aboriginal clients suddenly open up and the [Aboriginal liaison officers] do a ton of work explaining to the young person how it’s going to work and that it’s just a chat. If I was designing the perfect service, we would have one-on-one support for every Aboriginal young person.1088

However, the Victorian Commission for Children and Young People also found that, despite the value placed in Aboriginal liaison officers by the youth justice system, these roles were overloaded and experienced high turnover.1089 It recommended that the Victorian Department of Justice and Community Safety review the Aboriginal liaison officer program to assess how it could best meet the competing needs and demands placed on it.1090

Participants in our consultations with Aboriginal communities similarly told us that Aboriginal liaison officers in schools were overloaded and not adequately resourced, and that more training and support was needed for people to take on these and similar roles.1091

We consider that there would be considerable benefit in establishing an Aboriginal liaison officer role or roles in Ashley Youth Detention Centre and any replacement detention facilities. The primary function of the Aboriginal liaison officer should be to support Aboriginal children and young people in detention. This should include involvement in case management and exit planning, and facilitating cultural support for Aboriginal children and young people. Aboriginal liaison officers should be identified positions.

In establishing these roles, the Tasmanian Government should ensure appointees are not overloaded and that they receive professional development, including training, in working with children and young people who have experienced trauma.

In Chapter 9 and Section 11.4 of this chapter, we recommend establishing an independent community visitor scheme for children and young people in out of home care and youth detention (Recommendations 9.34 and 12.36). This scheme would involve independent community visitors appointed by the new Commission for Children and Young People (Recommendation 18.6) undertaking weekly (or more frequent) visits to children and young people in detention, building trusting relationships with them, listening to any of their concerns about their treatment in detention and advocating on their behalf (this is discussed in Section 11.4). We recommend that, wherever possible, Aboriginal children and young people have access to an Aboriginal independent community visitor (Recommendation 12.36).

While Aboriginal liaison officers and independent community visitors would each be responsible for developing trusting relationships with Aboriginal children and young people in detention, we consider that their functions are different and that there is an important role for both. Aboriginal liaison officers would be employed by the Department and would be involved with Aboriginal children and young people on a day-to-day basis, providing them with cultural and other support. In contrast, independent community visitors would offer an external oversight mechanism for the safety and wellbeing of Aboriginal children and young people in detention and, where needed, advocate on their behalf to help to resolve their concerns.

Professional development for custodial staff

As noted, the National Royal Commission pointed to the need for culturally competent staff in custodial facilities who understand the needs and experiences of Aboriginal children in detention.1092

The Ashley Youth Detention Centre Learning and Development Framework (discussed in Section 4.7.1) indicates that staff undergo mandatory ‘Aboriginal Cultural Awareness’ training, and that ‘[c]ultural awareness will be embedded in all learning and development opportunities’.1093 The evidence we heard (detailed in this section) indicates this training has not resulted in a culturally safe environment that responds to the specific experiences and needs of Aboriginal children and young people.

As discussed in Section 6.3, staff in detention facilities need to be equipped with the skills to undertake trauma-informed, evidence-based interventions with all children and young people in detention—many of whom have experienced significant trauma and may be engaging in challenging behaviours—without resorting to the use of force or isolation. However, to provide such interventions for Aboriginal children and young people, custodial staff also need to understand the nature and impacts of intergenerational trauma experienced by Aboriginal communities; the effects of dislocation from family, community and Country on Aboriginal children’s wellbeing; and the need for Aboriginal children to be connected to culture while in detention.1094 The training Ashley Youth Detention Centre staff receive does not appear to be equipping them with this knowledge or these skills.

Research indicates that, nationally, Aboriginal young people aged between 15 and 24 years are more than five times more likely to self-harm than non-Aboriginal young people and that the risk of self-harm is compounded for Aboriginal children and young people in detention, where there is also a high prevalence of self-harming behaviour.1095

The Ashley Youth Detention Centre Suicide and Self-Harm Prevention Procedure has only one reference to Aboriginal children and young people.1096 This occurs in the context of discussion about the ongoing therapeutic management of a child or young person who has been the subject of a ‘suicide and self-harm notification’.1097 The procedure states that the ‘risk intervention team’ must discuss and agree on the type and level of interaction that the young person should have with parents, residents, staff members and other support people, noting that ‘increased access to family may be an important protective factor’ for Aboriginal children and young people.1098

In its Our Youth, Our Way inquiry report, the Victorian Commission for Children and Young People found that Aboriginal children and young people were substantially over-represented in incidents involving attempted suicide and self-harm in Victoria’s youth justice centres, possibly indicating that Aboriginal children and young people were experiencing high levels of distress at being incarcerated.1099 The Commission for Children and Young People recommended that the Victorian Department of Justice and Community Safety develop a strategy to provide consistent and therapeutic responses to children and young people at risk of suicide or self-harm in detention, including specific elements to ensure a culturally safe response to Aboriginal children and young people.1100

The Draft Youth Justice Blueprint refers to the need for the youth justice workforce to be:

… culturally competent so it can support and respond to the needs of Aboriginal children and young people in the youth justice system and work with Aboriginal communities across the continuum to help them support their children and young people.1101

Also, as outlined in Section 6.3.3, the Keeping Kids Safe Plan states that the Australian Childhood Foundation Centre for Excellence in Therapeutic Care started a review of the Learning and Development Framework in September 2022.1102 This review was due to be completed by 31 January 2023.1103 In June 2023, the Department advised that the review was progressing and was anticipated to be completed by 30 June 2023.1104 We have not been provided with the review’s findings or recommendations.

In updating the Learning and Development Framework, the Tasmanian Government should ensure the framework is designed to equip staff with the knowledge and skills to provide a culturally safe environment for Aboriginal children and young people, including responding in trauma-informed and culturally safe ways to Aboriginal children and young people who are engaging in self-harm or other challenging behaviours.

Recommendation 12.29

The Tasmanian Government should take steps to ensure Ashley Youth Detention Centre and any replacement facilities are culturally safe for Aboriginal children and young people. These steps should include:

updating admission procedures and case management guidelines to require staff to
1. ask children and young people who identify as Aboriginal whether they would like the support of an Aboriginal organisation or an Aboriginal community member while they are detained
2. notify the nominated organisation or individual within 12 hours of the child or young person’s admission
3. facilitate the involvement of the child or young person’s nominated representative in case planning, case management and exit planning in respect of the child or young person
updating relevant guidelines and procedures to require staff to consult with an Aboriginal child or young person’s community to determine how best to provide individual cultural support to the child or young person while they are in detention
working with Aboriginal communities to establish ongoing cultural programs for Aboriginal children and young people in detention, such as visiting Elders programs, on-Country programs and cultural mentoring programs
ensuring the new policy on supporting children and young people in detention to maintain connections to their families and communities (Recommendation 12.23) emphasises the central importance of connection to family, community and culture for the wellbeing of Aboriginal children and young people in detention
establishing the role of Aboriginal liaison officer in youth detention to support Aboriginal children and young people, including by facilitating cultural support and becoming involved in case planning, case management and exit planning
ensuring the updated Ashley Youth Detention Centre Learning and Development Framework is designed to equip staff with the knowledge and skills to provide a culturally safe environment for Aboriginal children and young people, including providing trauma-informed and culturally safe responses to children and young people engaging in self-harm or other challenging behaviours.

Support for Aboriginal children leaving detention

As discussed in Section 6.8, we heard about a lack of effective support for children and young people leaving detention (‘throughcare support’) in Tasmania.1105 Many participants in our consultations with Aboriginal communities commented on the absence of support for Aboriginal children and young people who are released from Ashley Youth Detention Centre.1106 Some referred to the lack of safe and stable homes for Aboriginal children to return to:

I remember one kid who couldn’t go home afterwards because his dad and pop were on the drugs. There was nothing you could do.1107

Many participants commented that the absence of throughcare support for Aboriginal children and young people created a high risk that they would engage in further offending and return to detention:

When our kids are in Ashleys, they’ve got nowhere to go, nothing to do, no follow up … that’s a really big problem. They reoffend and go back in there again.1108

Another participant said:

If they come out and go back to the same community, then what happens? They just go back to where they were before, and then end up back in Ashleys.1109

One Aboriginal community member suggested that, for some Aboriginal children and young people, the relative stability provided by Ashley Youth Detention Centre was preferable to their circumstances following release:

… some kids would get themselves in trouble so they could go back there, because they don’t have anywhere else to go, they just go home to drugs and abuse … for some of them it’s a roof over their heads, it’s meals three times a day.1110

These comments raise serious concerns about the Tasmanian youth justice system and related service systems, most notably the housing, child protection and out of home care systems. There is clearly an urgent need to address the lack of support for Aboriginal children and young people leaving detention in Tasmania.

Participants in our consultations with Aboriginal communities felt that support for Aboriginal children and young people following their release from youth detention should include housing, cultural support, drug and alcohol services and educational support.1111

As outlined in Section 6.8.2, the Draft Youth Justice Blueprint refers to the commencement of service planning at the earliest opportunity for a young person in contact with the youth justice system.1112 This is welcome, but it is concerning that the Draft Youth Justice Blueprint does not refer to throughcare support specifically for Aboriginal children and young people, given the substantial over-representation of Aboriginal children and young people in detention.

We also welcome the Government’s proposed supported residential facilities as temporary or transitional accommodation for children and young people released from detention (refer to Section 6.8.2). However, again, we note that the limited information provided about these facilities does not include any detail on how they will meet the particular needs of Aboriginal children and young people.1113

The North Australian Aboriginal Justice Agency provides a throughcare program for Aboriginal children and young people in youth detention in the Northern Territory.1114 Case managers in this program support Aboriginal children and young people preparing to leave detention to ‘help young people and their families develop strong and holistic post-release plans that address their goals, risks and transitional needs’.1115 The program provides case management support following release for as long as the young person wants to remain involved, and there is an identified need.1116

The Victorian Aboriginal Child Care Agency manages the Youth Through Care program for Aboriginal children and young people aged 10 to 17 years in detention in Victoria. This program is funded by the National Indigenous Australians Agency.1117 The program works to reduce reoffending by supporting Aboriginal children and young people through an ‘intensive, holistic, client-centred, culturally appropriate and trauma-informed model with strong connection to family and Country’.1118

Youth Through Care program workers provide individual case management that starts from an Aboriginal child’s or young person’s entry into detention and continues for up to 24 months following their release.1119 Post-release support can include helping children and young people attend Centrelink appointments, providing transport to and from drug and alcohol services, and visiting them in residential care or at home to provide social and emotional wellbeing support.1120 Program workers may also provide outreach to the families of Aboriginal children and young people where the child or young person has not had recent contact with their family or if the worker has concerns about the welfare of a parent or carer of the child or young person.1121

We recognise the significant benefits of these programs but acknowledge that in a small jurisdiction such as Tasmania it may not be feasible to establish a separate throughcare support service for Aboriginal children and young people. In Section 6.8.3, we recommend that the Government establishes an integrated throughcare service for children and young people in detention that starts exit planning as soon as possible after a child or young person enters detention. This service should plan for safe and stable accommodation, access to physical and mental health support and help with education and employment after release to facilitate children and young people’s reintegration into the community (Recommendation 12.24). This service must be culturally safe for Aboriginal children and young people, and responsive to their needs.

Harmful sexual behaviours in youth detention

Harmful sexual behaviours are highlighted as a concern in several chapters of our report. In Chapter 6 on education and Chapter 9 on out of home care, we explore the need for appropriate prevention and intervention responses for harmful sexual behaviours in those settings. In Chapter 21, we discuss the need for a statewide approach to therapeutic interventions for children who have engaged in harmful sexual behaviours.

As discussed in these other chapters, harmful sexual behaviours are generally considered to be:

… sexual behaviours displayed by children and young people that fall outside what may be considered developmentally, socially, and culturally expected, may cause harm to themselves or others, and occur either face to face and/or via technology. When these behaviours involve another child or young person, they may include a lack of consent, reciprocity, mutuality, and involve the use of coercion, force, or a misuse of power.1122

Harmful sexual behaviours are a known risk in youth detention and there must be measures in place to address this risk.1123 In this section, we consider the significant improvements that must be made for Ashley Youth Detention Centre and any future detention facilities to better prevent and respond to harmful sexual behaviours among children and young people in these facilities.

We recommend that the Department develops a clear policy for preventing and responding to harmful sexual behaviours in youth detention. This policy must consider the full range of harmful sexual behaviours that may occur in those settings, so all children and young people involved can receive assistance. While we focus on youth detention in this section, the policy should also apply to other residential youth justice facilities such as the Government’s proposed assisted bail facilities (discussed in Section 5.4) and supported residential facilities (discussed in Section 6.8).

National Royal Commission

The National Royal Commission found that harmful sexual behaviours can often occur as a result of trauma, which many children in youth detention have experienced.1124 The National Royal Commission also identified an increased risk of harmful sexual behaviours in youth detention, noting:

The risk of children sexually abusing other children may be high in youth detention because children who have harmful sexual behaviours or have engaged in criminal or antisocial behaviour are disproportionately clustered in youth detention institutions, and placement decisions involving highly complex children with serious backgrounds of offending are challenging for administrators. Many children with harmful sexual behaviours may also model their behaviour on how they see adults or older children behave in institutions.

Research also suggests that many children with harmful sexual behaviours act impulsively rather than in a premeditated manner. They may also be motivated by exerting power over or perpetrating violence towards other children.1125

The National Royal Commission made several recommendations relevant to harmful sexual behaviours in youth detention, including:

Institutions need policies and procedures to understand, prevent and respond to harmful sexual behaviours.1126
Children and young people should be assessed for risk for vulnerability to engaging in, or being subject to, harmful sexual behaviours before being placed in a detention centre. Placement decisions and supervision should be informed by these risk assessments to ensure the safest possible placements are provided for children.1127
Children and young people who have displayed harmful sexual behaviours should have access to timely, expert assessment and a range of appropriate, coordinated interventions, including therapeutic interventions.1128
Staff should receive training and ongoing professional development in trauma-informed care, including identifying and responding to harmful sexual behaviours and the needs of children and young people at risk of engaging in, or being subject to, harmful sexual behaviours.1129
The facility should incorporate building and design features that reduce opportunities for harmful sexual behaviours to occur and monitor interactions between children and young people without infringing on children’s privacy.1130
Child-focused measures should exist to assist disclosure of harmful sexual behaviours such as children and young people having access to ‘maximum contact’ with trusted adults such as family, friends and community, and access to effective internal and external complaints-handling systems.1131

We discuss some of these issues—such as building design, increased access to trusted adults and effective complaints processes—in other sections of this chapter, as they relate to reducing the risk of all types of child sexual abuse in youth detention. In this section, we focus on recommendations specifically related to preventing and responding to harmful sexual behaviours in this setting.

We consider it useful to move beyond the National Royal Commission recommendations on risk assessments for harmful sexual behaviours to differentiate between screening assessments to accurately identify harmful sexual behaviours and clinical assessments for harmful sexual behaviours where risk is one component of the assessment. We elaborate on this approach in Section 8.4.2.

Harmful sexual behaviours at Ashley Youth Detention Centre

In her hearing evidence, the Director of Strategic Youth Services in the former Department of Communities acknowledged that Ashley Youth Detention Centre has had a longstanding problem with harmful sexual behaviours and has failed to address these behaviours through appropriate responses.1132

Since those hearings, the issue has remained a difficult one to address. In a submission to a parliamentary inquiry on adult imprisonment and youth detention, a staff member who worked at Ashley Youth Detention Centre between September and December 2022 stated that harmful sexual behaviours were commonplace and were directed at other young people as well as staff.1133 The staff member described young people in the Centre as dismissing these incidents as ‘just playing, joking around’, with no complaints being made by the young people who experienced the behaviour.1134

In Chapter 11, Case study 2, we discuss several accounts of harmful sexual behaviours at Ashley Youth Detention Centre of which we were made aware. We identified systemic problems that contributed to the risk of harmful sexual behaviours among young people at the Centre, such as:

a lack of assessment of the risk of harmful sexual behaviours for young people entering the Centre
tensions between staff or teams within the Centre who held different views about how to manage the safety of young people
staff lacking the knowledge to identify and respond appropriately to harmful sexual behaviours
not always having a skilled investigative team available to the Centre when serious incidents occur.

Many of these problems are addressed by our recommendations in Section 8.5.

Clinical leadership

We consider that the therapeutic and wellbeing needs of the children and young people involved in harmful sexual behaviours are most likely to be given priority if professional staff with clinical expertise in harmful sexual behaviours are involved in assessing, monitoring and managing harmful sexual behaviours and in placement decisions.

This is a successful approach at Bimberi Youth Justice Centre in the Australian Capital Territory, where the Principal Practitioner, a clinical psychologist, oversees and is involved in decisions about risk, support needs and therapeutic interventions provided to children and young people at that centre.1135

Some progress has been made towards increasing clinical input at Ashley Youth Detention Centre. We heard that the Centre’s Practice Manager had started meeting weekly, from 18 May 2022, with a Sexual Assault Support Service clinician to discuss any incidents or concerns about harmful sexual behaviours of children and young people in detention.1136 The Practice Manager position has also been upgraded in pay classification in recognition of its specialised clinical role.1137 The role includes ‘clinical supervision’ with operational staff to ensure they respond to disclosures of child sexual abuse in alignment with the advice provided by the Sexual Assault Support Service.1138

In its Keeping Kids Safe Plan, the Department stated that it had engaged a Senior Advisor from the Australian Childhood Foundation to provide a range of clinical review and support services for staff at Ashley Youth Detention Centre.1139 We hope these services relate to harmful sexual behaviours as well as other risk and safety issues, and that this move precipitates a more cooperative relationship between those with clinical expertise and operational staff, as we recommend in Section 6.4.

To achieve greater clinical leadership on harmful sexual behaviours, staff in detention facilities and other residential youth justice facilities need to have ready access to harmful sexual behaviours specialists. In Chapter 9, we recommend establishing a Harmful Sexual Behaviours Support Unit in the new Office of the Chief Practitioner (refer to Recommendations 9.17 and 9.28).

The Harmful Sexual Behaviours Support Unit should support best practice responses in youth detention and other residential youth justice facilities through:

tele-consults with staff at the facility to assist them in confirming the level of risk posed by behaviours and/or to assist the facility in developing a response plan for inappropriate or concerning sexual behaviours that can be addressed through a local area response without clinical intervention
assistance in responding to critical incidents involving harmful sexual behaviours, including guidance on reporting, record keeping, clinical assessments and safety planning (including placement and supervision plans)
support in accessing therapeutic treatment for children displaying harmful sexual behaviours, where this is clinically assessed as appropriate.

Given the unique characteristics of youth detention and the youth justice system, detailed youth justice-specific policies, protocols and practice guidance will be required.

The Harmful Sexual Behaviours Support Unit should support or lead development of these policies, protocols and guidance.

Allied health professionals working on site in youth detention and other residential youth justice facilities could support local clinical leadership in responding to harmful sexual behaviours. In Chapter 9, we recommend that more advanced professional development offerings be made available to relevant staff in the Child Safety Service, schools and youth justice (Recommendations 9.11 and 9.28).

Preventing harmful sexual behaviours

A proactive approach to sexual safety

Adolescence is a significant period in a child’s sexual development. During puberty, adolescents are developing their sexual identity, which often involves consensual sexual exploration with peers. As noted, however, several factors increase the risk of inappropriate and harmful sexual behaviours in youth detention facilities.1140 At the same time, children in detention are disproportionately likely to have experienced extensive school absenteeism or to have disengaged from education and are consequently less likely to have engaged in sexual health, respectful relationships and sexual safety education in schools.1141

These circumstances mean it is essential for youth detention to provide sex education tailored to the needs of a high-risk population. We heard that young people receive the ‘Consent is a conversation’ program through Ashley School, which promotes ‘healthy, respectful intimate relationships’.1142 We consider, however, that the National Royal Commission’s observations indicate that sex education for children and young people in detention should go further. Similar to our recommendation for children and young people in out of home care (refer to Recommendation 9.28), sex education for children and young people in detention should be tailored to that setting and cover issues such as consent and what constitutes sexually abusive behaviours by adults and other children, as well as pornography and its impacts on children’s views about relationships, sexuality and gender.1143

Further, we consider that a proactive approach for staff and young people in detention should form part of the Department’s policy on harmful sexual behaviours in residential youth justice facilities.1144 As discussed in our out of home care volume (Chapter 9), ‘Power to Kids’ is an example of a program designed for residential out of home care that could be adapted for use in detention and other residential youth justice facilities. Power to Kids is a multifaceted program proven to reduce the risk to children in residential care of sexual abuse in the form of harmful sexual behaviours, child sexual exploitation and dating violence.1145 The Power to Kids model includes respectful relationships and sexuality education for the whole facility, including staff and young people, and guidance about responding appropriately to harmful sexual behaviours when they occur.1146 Such strategies support a shared understanding of appropriate behaviours and a culture that reduces the likelihood that harmful sexual behaviours will occur.1147

Identification and assessment

The Government’s Fifth Annual Progress Report and Action Plan on implementing the recommendations of the National Royal Commission (‘Fifth Annual Report’) describes ‘new admission practices’ whereby children and young people entering Ashley Youth Detention Centre ‘undertake the admission induction program in their first week of custody in which a full risk and needs assessment is carried out’.1148 The Government stated that ‘[s]afety is ultimately the deciding factor for each individual unit and program placement’ and that sexual and physical safety is taken into account during the risk assessment.1149

However, the Centre’s current admission process does not include a screening assessment for harmful sexual behaviours.1150 What is needed is a screening assessment based on an accepted contemporary model of harmful sexual behaviours that admission staff can use—in conjunction with proper training—to identify children and young people who may be likely to engage in harmful sexual behaviours. Those children and young people should immediately be referred to clinical staff for a clinical assessment to understand the child’s risks and needs and inform placement decisions, safety planning and therapeutic interventions. The ‘Assessment Intervention Moving on (AIM)’ assessment framework currently used by the Sexual Assault Support Service is an example of a clinical assessment.1151

Also, given the heightened risks of harmful sexual behaviours in youth detention populations, policies and practices need to go beyond an initial assessment and instead provide a framework for recognising and responding to inappropriate and harmful sexual behaviours young people may display throughout their time in detention. The Hackett Harmful Sexual Behaviours Continuum, True Relationship Traffic Lights continuum or Paton and Bromfield Layered Continuum are examples used in Australia that provide a framework for understanding children’s sexual behaviours and recognising where those behaviours have the potential to be harmful to the child displaying the behaviours or others.1152

Placement decisions

The National Royal Commission recommended that state and territory governments ensure placement decisions in youth detention are informed by an assessment that includes a child’s vulnerability to sexual abuse or displaying harmful sexual behaviours.1153 It identified that children and young people were more at risk from harmful sexual behaviours in youth detention when they were placed with older children and young people or when female children and young people were housed in a predominantly male environment.1154

The National Royal Commission acknowledged how challenging placement of children and young people in youth detention centres can be, particularly where there are limited accommodation options, such as having only one detention centre or one that is very small.1155 We also acknowledge that staff shortages and high detainee-to-staff ratios can complicate placement decisions.

On 31 May 2022, the Department introduced a new Unit Commissioning, De-Commissioning and Allocation to a Young Person Procedure (‘Unit Placement Procedure’).1156 The Unit Placement Procedure acknowledges that decisions about unit placement are ‘critical, as placement decisions can affect a young person’s health and wellbeing by either increasing or decreasing the risk of immediate or future harm’.1157 The following ‘critical requirements’ are identified in the Unit Placement Procedure ‘in order to ensure the safety of young people’:

All new arrivals will be housed in the admission induction unit.

Male and female detainees will be housed separately. Detainees that identify as transgender will guide their unit placement.

If deemed safe, young people from Aboriginal and Torres Strait Islander backgrounds should room share.

Placement decisions about young people must be made in the best interests of all young people at the Centre.1158

The Unit Placement Procedure describes the responsibility of the ‘Risk Assessment Process Team’ to consider ‘the best interests of all affected young people’ when determining placements for children and young people in the Centre.1159 While the team must generally consider ‘[s]afety and security needs or risks’, and gender and ‘[r]elationship dynamics in the Unit’, the Unit Placement Procedure does not mention the risk of harmful sexual behaviours.1160 We also consider that the Unit Placement Procedure lacks clarity on what ‘operational considerations’ may influence decisions about unit placement and who will make and review such decisions.

As acknowledged in the Fifth Annual Report, safety considerations should outweigh operational needs in making decisions about the placement of children and young people within detention facilities.1161 As discussed, we consider that a screening and assessment process that informs the approach to unit and program assignments should occur at admission to minimise risk of the child experiencing or displaying harmful sexual behaviours.

Supervision

The National Royal Commission found that inadequate supervision in youth detention facilities provided more opportunity for harmful sexual behaviours.1162 Poor supervision was a factor that contributed to a number of the incidents of harmful sexual behaviours in Ashley Youth Detention Centre described in our case studies, especially where other risk factors were present—such as younger children being left unsupervised with older children, or a girl being left unsupervised with boys.1163

Installing closed-circuit television cameras could be an alternative to in-person supervision. However, a number of the instances of harmful sexual behaviours described in the case studies occurred in the presence of closed-circuit television cameras, which may indicate that this form of supervision is less effective at deterring harmful sexual behaviours and should not be relied on as a preventive practice in preference to in-person staff supervision. In Section 4.7, we discuss staffing shortages at Ashley Youth Detention Centre and make recommendations for staff recruitment.

Responding to harmful sexual behaviours

There must be a clear process for responding to incidents of harmful sexual behaviours when they occur in youth detention or other residential youth justice facilities.

The National Royal Commission stated that an institution’s response to an incident of harmful sexual behaviour should involve:

monitoring the safety and wellbeing of the children and young people involved as well as any children and young people who witnessed the incident
complying with reporting obligations
communicating with the children and young people involved and their carers
documenting and sharing information where necessary.1164

We discuss each of these elements of a good response to harmful sexual behaviours in the following sections.

In its Fifth Annual Report, the Tasmanian Government said ‘work has been undertaken to ensure that a risk sensible approach is applied to sexualised behaviours onsite with these behaviours not normalised’ in Ashley Youth Detention Centre.1165 It is not clear from that report what specific actions the Tasmanian Government has taken to ensure that outcome.

We note that sexualised behaviours occur on a continuum and, therefore, the response should be appropriate to the severity and chronicity of the behaviour.1166 Lower-level behaviours such as sexualised talk and simulated masturbation in public settings can be managed by staff redirecting and reminding young people of what is appropriate behaviour. In so doing, staff support a norm for the culture of the facility that discourages young people from displaying more harmful sexualised behaviours.1167 However, more serious behaviours require a more therapeutic response for the young people involved. The following principles should guide the response.

Child wellbeing

We heard that when Erin (a pseudonym) was sexually assaulted in Ashley Youth Detention Centre by a group of young people, she received no therapeutic response to the trauma.1168 Children and young people who have been affected by harmful sexual behaviours—whether they engaged in, experienced or witnessed the behaviours—need to have timely, clinically supervised access to appropriate support for their wellbeing following an incident.1169 As discussed in Chapter 21, there are many benefits associated with sexual assault counselling and therapeutic interventions for harmful sexual behaviours being delivered to children in detention by community-based services. For example, with effective treatment, children’s risk of continuing to display harmful sexual behaviours is significantly reduced.1170

Secretary Pervan told us that, following evidence from the Sexual Assault Support Service at our hearings in May 2022, senior staff from Ashley Youth Detention Centre established a formal arrangement for consulting with the Sexual Assault Support Service ‘to provide recommendations for identifying, preventing and responding to harmful sexual behaviour, and child sexual abuse more generally’.1171 He said that ‘the Sexual Assault Support Service is now available to support young people who were victims or witnesses’ of harmful sexual behaviours in the Centre and that a private psychology practice provides three hours per week of psychology services to those young people via a digital platform.1172 He told us that a child who has experienced harmful sexual behaviours would receive therapeutic support from the private psychology practice, the Centre’s nurse and the visiting doctor.1173

While this information is promising, we remain cautious. Renae Pepper, Senior Practitioner and Psychologist, Sexual Assault Support Service, expressed concern that the punitive approach at Ashley Youth Detention Centre (discussed in Section 4.2.2) was at odds with a therapeutic approach to responding to harmful sexual behaviours.1174 This tension must be resolved if children and young people in detention are to receive appropriate interventions for harmful sexual behaviours.

Ideally, where longer-term sexual assault and harmful sexual behaviours clinical supports are required, they should be provided by clinical specialists outside the facility, who can continue to provide treatment following the young person’s release from detention. This is important given the need to develop a therapeutic relationship for successful intervention and given that many young people are in detention for relatively short periods.1175

Communicating with children, young people and their carers

As discussed in Section 10, a child-focused complaints process involves the child and keeps them informed of the outcome.1176 Furthermore, parents and guardians should also be kept informed of the wellbeing of their child in detention or another residential youth justice facility. The harmful sexual behaviours policy should outline how staff at such facilities will communicate with parents, carers or guardians of the children involved.1177

Reporting obligations

The current procedure for reporting incidents at Ashley Youth Detention Centre directs staff to record the incident and report it through the Centre Support Team and to the Centre Manager for more serious incidents.1178 The procedure instructs only the Centre Manager to ‘make notifications to relevant parties’, although it does not specify the parties involved.1179 However, as discussed in Section 10.2.7, the Department’s Reporting Concerns fact sheet advises staff of their mandatory obligations to report suspected child abuse or neglect to the Advice and Referral Line under the Children, Young Persons and Their Families Act.1180 The fact sheet specifically includes harm that can occur ‘between children and young people in any setting’ as reportable to the Advice and Referral Line, and ‘[i]f the concerning behaviour is criminal in nature, then it must also be reported to Tasmania Police’.1181

To ensure incidents of harmful sexual behaviours are reported, the harmful sexual behaviours policy should include how mandatory reporting requirements are to be fulfilled. This should be aligned with the role and responsibilities of different agencies in responding to harmful sexual behaviours outlined in the statewide framework for preventing, identifying and responding to harmful sexual behaviours, which we recommend in Chapter 21 (Recommendation 21.8). These requirements should then be reinforced through staff training and professional development. However, as neither the Advice and Referral Line nor Tasmania Police are likely to have cause to respond in all situations of harmful sexual behaviours, a facility-led, clinically directed response is also required. The detailed policy, protocols and guidance on harmful sexual behaviours in youth detention and other residential youth justice facilities should describe this response.

Also, there should be appropriate departmental oversight of responses to harmful sexual behaviours in detention and other residential youth justice facilities. We recommend that management of the facility reports all incidents of harmful sexual behaviours to the Harmful Sexual Behaviours Support Unit to access advice, support and guidance from the unit and to enable data on harmful sexual behaviours in residential youth justice facilities to be included in the Department’s monitoring and oversight of harmful sexual behaviours through the new Quality and Risk Committee (refer to Recommendation 9.5 in Chapter 9).

Given the history of inadequate responses by previous departments to such incidents, independent oversight is also required. In Chapter 18, we recommend establishing a new Commission for Children and Young People, which will oversee youth detention and the youth justice system. We consider that the Secretary of the Department for Education, Children and Young People should notify the new Commission for Children and Young People of incidents involving harmful sexual behaviours in detention and other residential youth justice facilities, and of the Department’s responses. The new Commission for Children and Young People should have the power to compel the Department to provide information on its responses to such incidents.

Staff training and professional development

Staff in a residential youth justice facility need to understand trauma-informed care, how to identify and prevent harmful sexual behaviours, and how to respond to the needs of children and young people in that setting who have displayed or experienced inappropriate and harmful sexual behaviours.1182

We heard from former clinical staff that Ashley Youth Detention Centre staff lacked understanding of what constituted normal, inappropriate or harmful sexual behaviours among children and young people.1183 We heard that staff relied on personal opinion to decide whether a behaviour was concerning, leading to an instance of harmful sexual behaviour being dismissed as ‘locker room’ behaviour and not serious.1184 Consequently, children and young people at the Centre have not always received the help they needed in relation to harmful sexual behaviours, which increases the risk of future harmful sexual behaviours.1185

We were told that there had been no training for staff about harmful sexual behaviours until after the beginning of our Commission of Inquiry in late 2021, when the Sexual Assault Support Service provided some training sessions and consultations to Ashley Youth Detention Centre staff through its newly funded ‘Prevention, Assessment, Support and Treatment’ program.1186 Feedback from staff at that time was that the training did not translate appropriately to a custodial environment.1187

We are pleased to hear that staff at Ashley Youth Detention Centre have now received training in harmful sexual behaviours. However, based on the feedback reported to the Sexual Assault Support Service, we remain concerned about how this training has been received or how effective it has been. We agree with Ashley Youth Detention Centre staff that training in harmful sexual behaviours needs to be tailored to the detention population and context. To be most effective, such training should be part of a wider strategy to create a child safe culture in youth detention, including transitioning to a therapeutic, child-focused youth detention system (refer to Section 6) and implementing measures to address staff culture and resistance to change (refer to Section 4.7).

Policy and procedures

A former Manager, Professional Services and Policy at Ashley Youth Detention Centre advised that during her time at Ashley Youth Detention Centre (2017 to 2019), the Centre did not have any policies or procedures to guide staff responses to harmful sexual behaviours.1188 She told us that notifications of incidents to Tasmania Police or the Advice and Referral Line were not supported and she did not believe that ‘officials in [Ashley Youth Detention Centre] were clear on [their mandatory reporting] obligations’.1189

Secretary Pervan told us that Ashley Youth Detention Centre ‘does not have a policy specifically concerning child sexual abuse or harmful sexual behaviours’ but that the ‘existing practices and policies concerning incidents and reporting cover instances of harmful sexual behaviour’.1190 The Department told us that the Practice Framework and the Learning and Development Framework are the policies underpinning the Centre’s approach to harmful sexual behaviours.1191

These documents indicate that trauma-informed care is to be provided to children and young people in Ashley Youth Detention Centre. However, they do not address understanding and responding to harmful sexual behaviours. As noted in Section 6.3.3, the Australian Childhood Foundation is reviewing the Practice Framework and the Learning and Development Framework.1192

As discussed in Section 10.2.4, the purpose of the AYDC Incident Reporting Procedure is to outline the steps that staff must take ‘following an incident that has arisen from the behavior/s of a young person or multiple young people’.1193 A central focus of this procedure is determining whether any young person involved in the incident has committed a ‘detention offence’ under the Youth Justice Act.1194 We do not consider the AYDC Incident Reporting Procedure to be appropriate to guide responses to prevent and respond to harmful sexual behaviours.

Harmful sexual behaviours were a well-known risk for children and young people in institutional settings before the National Royal Commission and became even more clearly recognised after that Commission published its final report in 2017. It is concerning, however, that training for Ashley Youth Detention Centre staff on harmful sexual behaviours did not begin until August or September 2021 as discussed above, well after the start of our Commission of Inquiry. Children and young people in detention deserve protection from other children and young people who have displayed harmful sexual behaviours. Moreover, children and young people in detention who have displayed harmful sexual behaviours need and deserve access to interventions to help them change.

The absence of a clear policy on harmful sexual behaviours at Ashley Youth Detention Centre reflects the Tasmanian Government’s general lack of a coordinated approach and response to harmful sexual behaviours (as discussed in Chapter 21 on therapeutic services). This omission needs to be rectified as a matter of priority to protect children and young people in detention and for children and young people who have displayed harmful sexual behaviours to receive appropriate treatment and support. In detention, attention must be paid to fundamentally shifting the culture from normalising and minimising harmful sexual behaviours to assuming responsibility for preventing and responding therapeutically to harmful sexual behaviours.

This changed culture should be supported by a comprehensive policy, protocols and practice guidance on addressing harmful sexual behaviours in youth detention that complements the child-focused, therapeutic model of care for detention that we recommend in Section 6.3.4.

Policies and procedures should include processes:

for operational staff to screen young people for harmful sexual behaviours during their induction to the facility, identifying those young people who need further assessment and referring them for clinical assessment
for clinical staff to assess young people identified during screening for their risks and needs in relation to harmful sexual behaviours, and develop a management plan that includes safety planning and therapeutic responses
by which placement decisions and supervision requirements are informed by clinical assessment and safety planning in relation to harmful sexual behaviours.

Policies will need to balance the safety of young people in detention with the risks of imposing restrictive practices on the young person who has displayed harmful sexual behaviours (refer to Section 9 of this chapter for more information about restrictive practices).

Recommendation 12.30

The Harmful Sexual Behaviours Support Unit (Recommendation 9.28) should develop detailed youth justice-specific policies, protocols and practice guidelines to support best practice responses to harmful sexual behaviours in youth detention and other residential youth justice facilities.
All incidents of harmful sexual behaviours in youth detention or other residential youth justice facilities should be reported to:
1. the Harmful Sexual Behaviours Support Unit to enable data on harmful sexual behaviours in youth detention and other residential youth justice facilities to be included in the Department for Education, Children and Young People’s monitoring and oversight of harmful sexual behaviours through the new Quality and Risk Committee (Recommendation 9.5)
2. the Commission for Children and Young People (Recommendation 18.6).
The Department should explore the potential to implement Power to Kids (or another program or approach with comparable components) in youth detention and other residential youth justice facilities as a supplementary strategy to address the heightened risk of harmful sexual behaviours in those settings and take a proactive approach to prevention.
The Tasmanian Government should ensure measures are in place to facilitate timely access to specialist therapeutic interventions for children in youth detention displaying or harmed by harmful sexual behaviours. Where treatment is likely to extend beyond their custodial sentence this should be provided by a clinician external to the detention centre who can continue the treatment after the child is released from detention.

Searches, isolation and use of force in youth detention

As highlighted throughout this volume, the National Royal Commission referred to the ways in which closed institutions such as youth detention facilities can become ‘alternative moral universes’, whereby norms and rules are established and maintained wholly within the institution.1195 Where the institution fosters a culture of tolerance for humiliating and degrading children and young people, routinely using force or violence, or otherwise normalises aggression, acts of sexual abuse against children and young people are more common.1196 Research also reveals that in institutions where the routine use of force or violence against children and young people is permitted, staff can become desensitised, making it easier for them to minimise or tolerate ongoing harm, including sexual harm, to children and young people.1197

As described in Chapter 11, Case studies 1, 3 and 4, it was apparent that the inappropriate and, possibly unlawful, use of searches, isolation and force at Ashley Youth Detention Centre occurred as part of a broader culture that enabled abuse, including sexual abuse, of children and young people in detention. We heard from victim-survivors that searches, isolation, use of force and child sexual abuse rarely occurred discretely; rather, two or more of these practices were often part of the same interaction with a child or young person. As identified in victim-survivor accounts outlined in the case studies:

Strip searches described to us were, at times, a form of sexual abuse.
Strip searches were often conducted prior to a child or young person being isolated and during their isolation.
Force and restraints were used on children or young people when conducting strip searches and to isolate them.
Force and restraints were used to disable a child or young person, so they could be sexually abused.
Isolation and violence were threatened if a child or young person refused to comply with staff directions, including directions to submit to sexual abuse.
Isolation and violence were threatened or used as punishment of a child or young person if they reported sexual or physical abuse.

These case studies suggest that the powers to search, isolate or use force against a child or young person in detention—which may be legitimately exercised in narrow and clearly defined circumstances—can be abused if the culture in detention enables it, staff do not have the necessary skills to avoid restrictive practices, oversight is impeded or lacking, children and young people feel unable to complain about mistreatment, and authorising laws and procedures do not include adequate safeguards.

Recommendations in other sections of this chapter are designed to achieve cultural change in youth detention (Section 4), ensure staff have the necessary skills to engage with children and young people constructively (Sections 4 and 6), improve complaints mechanisms and the Department’s responses to incidents affecting children’s safety in detention (Section 10) and strengthen external oversight of practices in detention (Section 11). In particular, we recommend changes to:

ensure youth workers are appropriately qualified, trained and supported to deliver a therapeutic model of care to children and young people in detention, with enough staff to keep children and young people safe (Recommendation 12.9)
ensure staff in youth detention facilities have the skills needed to undertake trauma-informed interventions with children and young people, including the skills to anticipate, de-escalate and respond effectively to challenging behaviours without resorting to force or other restrictive practices (Recommendation 12.18)
establish an independent community visitor scheme for children and young people in detention (Recommendations 9.34 and 12.36)
strengthen leadership in the youth detention system (Recommendation 12.6).

In addition, in Section 4.6.3, we recommend that the Department develops an empowerment and participation strategy for children and young people in detention that includes mechanisms to ensure children and young people in detention are aware of their rights (Recommendation 12.8). This should include awareness of their rights in relation to searches, isolation and use of force.

The regulatory framework for searches, isolation and use of force comprises the Youth Justice Act, the Inspection Standards for Youth Custodial Centres in Tasmania (‘Inspection Standards’) and custodial policies and procedures issued by the Department. In this section, we examine this framework, together with practices in relation to searches, isolation and the use of force in youth detention. We recommend measures to:

clarify and strengthen relevant legislative provisions and custodial procedures
improve reporting and oversight of searches, isolation and use of force
ensure staff who use these practices and those who monitor and oversee their use have a strong understanding of relevant legislative, procedural and practice requirements.

As noted in the introduction to Volume 5, the Order establishing our Commission of Inquiry directed us to inquire into responses to allegations of child sexual abuse at Ashley Youth Detention Centre. However, we note that children and young people are also detained in adult custodial facilities that have been declared to be youth detention centres, including Hobart Reception Prison, Launceston Reception Prison and Risdon Prison.1198 Children and young people can also be transferred from Ashley Youth Detention Centre to an adult prison facility or otherwise detained in an adult prison facility in certain circumstances (this is discussed in Section 6.9). We also note that the provisions of the Youth Justice Act in relation to searches of children and young people apply to prisons, reception prison watch-houses and police watch-houses, as well as detention centres.1199

Children and young people detained in custodial facilities other than Ashley Youth Detention Centre are subject to procedures and practices relating to searches, isolation and the use of force that may carry the same risk of abuse as in the Centre.1200 While we have not inquired into the treatment of children and young people in adult custodial facilities, many of the issues raised in this section 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.

We consider searches, isolation and use of force in turn.

Searches of children and young people

This section considers searches of children and young people in detention. It does not consider other searches carried out in detention, such as searches of children and young people’s rooms.

As noted in Chapter 10, we sometimes use the term ‘strip search’ in this volume because this is the phrase victim-survivors commonly use 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. We also refer more broadly to ‘personal searches’ in our discussion of current custodial procedures.

What we heard about strip searches in detention

As outlined in Chapter 11, Case study 1, victim-survivors told us about their experiences of strip searches at Ashley Youth Detention Centre. These experiences included:

being routinely strip searched on admission to the Centre
being strip searched while in isolation or while restrained
being threatened with strip searches to ensure compliance with staff commands
female detainees being strip searched by male staff
staff inserting their fingers into the anus of young people during a strip search
strip searches contributing to long-term adverse effects on a young person’s mental health and wellbeing.

As noted in Chapter 11, Case study 1, many of these practices amount to child sexual abuse.

We received evidence from the Commissioner for Children and Young People, Leanne McLean, that, in the six-month period from 1 June 2018 to 30 November 2018, there were 203 strip searches conducted on children and young people detained at Ashley Youth Detention Centre.1201 Despite this alarmingly high number of strip searches, no contraband was recovered from any of the searches.1202

The Custodial Inspector completed an inspection of youth custodial services in Tasmania in 2018.1203 The Custodial Inspector’s report recommended that the (former) Department of Communities:

consider installing metal detectors and x-ray machines at the Admissions Unit to prevent contraband entering Ashley Youth Detention Centre and to minimise the need for personal searches
carry out unclothed searches of children and young people on the basis of a rigorous risk assessment rather than on a routine basis.1204

Youth Justice Act

As outlined in Chapter 10, the Youth Justice Act contains provisions relevant to searches of children and young people in detention.

Before December 2022, the Youth Justice Act allowed a detention centre manager to submit a child or young person to a search for prohibited items as soon as possible after admission or return after a temporary leave of absence from the detention facility, and at any other time when there were reasonable grounds to believe that the child or young person 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.1205 As a result of December 2022 amendments to the Youth Justice Act, references to searches being conducted on admission or after temporary leave have been removed.1206

Under the new provisions, a ‘search officer’ (a person authorised to conduct a search) must not conduct a search of a child or young person unless the search officer believes on reasonable grounds that the search is ‘necessary for a relevant search purpose’ and the type and manner of search are proportionate to the circumstances.1207

The Youth Justice Act defines a ‘relevant search purpose’ as follows:

to ensure the safety of the child or young person or another person
to obtain evidence relating to the commission of an offence or to prevent the loss or destruction of evidence relating to an offence
to ascertain whether the child or young person has possession of a concealed weapon, or another article capable of being used as a weapon, to inflict injury or to aid in escape from custody
to ascertain whether the child or young person has possession of drugs or prohibited items, or
for a clothed search, to remove into safe keeping any articles in the possession of the child or young person.1208

The Youth Justice Act now includes the following ‘hierarchy’ of searches, from the least to the most intrusive:

a search (which may be a search by way of a scanning device) that involves no touching of a child or young person or of clothing they are wearing
a search that includes ‘minimal touching’ of the child or young person or their clothing
a search that includes removing some clothing
a search that includes more than minimal touching of the child or young person or their clothing
an ‘unclothed search’, which is defined as a search that requires the child or young person’s torso or genitals to be exposed to view, or their torso or genitals, clothed only in underwear, to be exposed to view.1209

A ‘body cavity search’ is not permitted.1210

The Youth Justice Act provides that a search officer must not conduct an unclothed search of a child or young person unless the ‘relevant authorising officer’ (the Secretary

or the detention centre manager) has authorised the search.1211 A relevant authorising officer must not authorise an unclothed search unless they believe on reasonable grounds that:

the search is necessary for a relevant search purpose
the type of search, and the manner of search, are proportionate to the circumstances
despite being the most intrusive type of search, an unclothed search is necessary and reasonable to achieve a relevant search purpose
the search is to be conducted in the least intrusive manner that is necessary and reasonable to achieve a relevant search purpose.1212

The Youth Justice Act also includes principles for carrying out searches. Among other matters, the search officer must ensure:

the search is conducted in a manner that is consistent with retaining the child or young person’s dignity and self-respect, and that minimises any trauma, distress or harm
the search is the least intrusive type of search and is conducted in the least intrusive manner necessary and reasonable to achieve a relevant search purpose for which the search is conducted
the search is completed as quickly as is reasonably possible
the search is conducted in circumstances that allow reasonable privacy for the child or young person
they do not remove, or require the child or young person to remove, more clothing than is necessary and reasonable.1213

The Youth Justice Act now also requires that a search involving touching or the removal of any clothing be conducted by a search officer of the same gender as the young person, or if the youth is transsexual, transgender or intersex, a person of the gender requested.1214 For unclothed searches conducted in the presence of another person (an observer), the same gender requirements apply to that observer.1215 The only exception to these requirements is where it is ‘not reasonable or practicable’ for them to apply ‘because of the urgency with which the search is required in order to address the risk of harm or trauma to the youth or another person’.1216

The Youth Justice Act permits a search officer to use force to conduct the search, but only where this is ‘the only means, in the circumstances, by which the search can reasonably be conducted’.1217 The officer must ensure that, if force is used, it is the least amount of force that is reasonable and necessary to enable the search to be conducted.1218

Under the 2022 amendments to the Youth Justice Act, a record of each search must be kept in a search register established and maintained by the Secretary, with details including the degree of the intrusiveness of the search and any force used to conduct the search.1219 The register must be made available for inspection by the Ombudsman, the Custodial Inspector and any approved or prescribed person or body (of which there are none currently).1220

Inspection standards on searches

Following the 2022 amendments, the Youth Justice Act now more closely reflects the Inspection Standards on searches. According to these standards:

Searches of a young person must be conducted safely and ‘only when reasonable and necessary’, and they must be proportionate to the situation.1221
Pat searches and searches using metal detectors should be undertaken first. Unclothed searches should be a last resort, and cavity searches should never be conducted.1222
Unclothed searches should not 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.1223
Staff should be appropriately trained to conduct unclothed searches.1224
The staff member conducting the unclothed 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.1225

Custodial procedures on searches

The Department’s Personal Searches of Young People Detained at AYDC Procedure (‘Search Procedure’), effective from February 2023, sets out requirements for ‘personal searches’ of children and young people in detention.1226 This procedure replaced an earlier procedure on searches dated September 2019, which in turn replaced a procedure introduced in 2012.1227 We acknowledge that there have been several significant changes to search procedures since 2012, many of which occurred in 2019—these included introducing the requirement for ‘reasonable grounds’ for a search, prohibiting fully unclothed searches and requiring modesty gowns for children and young people if they are asked to remove clothing.1228 Nevertheless, here we focus on the current procedure.

One of the purposes of the Search Procedure is to ensure that, ‘when required, searches of young people are conducted in a safe and least intrusive manner, while maintaining the privacy, dignity and rights of the young person’.1229 The Search Procedure recognises

that ‘[a] search is an infringement on a person’s right to privacy’ and that a search that does not comply with legal and procedural requirements ‘has the potential to be considered trespass and/or assault’.1230

The Search Procedure defines a ‘personal search’ as:

a metal detector search, which involves a child or young person walking through a large metal detector while fully clothed and does not require them to be touched1231
a wand search, which involves using an approved hand-held metal detector on a fully clothed child or young person and does not require them to be touched1232
a pat search, which involves ‘the careful patting down of a young person’s clothed body after the removal of outer garments (such as a coat or jacket) and shoes and socks’ to feel for any hidden items1233
a partially clothed search, which involves ‘visual examination of the upper body after removal and searching of upper garments, followed by visual examination of the lower body after return of the upper garments and the removal of lower garments’.1234

The Search Procedure:

prohibits ‘[f]ully [u]nclothed’ searches, defined as asking a child or young person to remove all their clothing at the same time1235
prohibits cavity searches, defined as ‘a visual, manual or instrument inspection of a young person’s body cavities including mouth, ears, vaginal, or anal orifices’1236
prohibits any personal search being undertaken ‘automatically’, instead requiring all personal searches to be based on ‘reasonable grounds’1237
specifies that the type of search undertaken ‘must be the least intrusive in accordance with the risk posed’1238
states that partially clothed searches ‘must only be undertaken as a last resort, in circumstances where all reasonable grounds indicate that the young person is carrying a prohibited and/or unauthorised item’ and can only occur with approval from the Director, Custodial Youth Justice1239
enables force to be used to undertake a search, but only as a last resort, where ‘all other strategies, such as negotiation, have failed’, and subject to ‘prior approval of the Director with sufficient intelligence to support the request’.1240

The Search Procedure requires operational staff to take the following steps:

Assess whether reasonable grounds exist for a personal search—in undertaking this assessment, staff must consider ‘the history, behaviour and situational factors associated with the young person’, including their age and gender, their behaviour or demeanour on admission and whether they have a history of drug or alcohol use.1241
‘[C]onsider the level of risk’ associated with the search—this is ‘a matter of professional judgement made on a case-by-case basis’ and involves using a ‘hierarchy of risk assessment tool’ (we were not provided with this tool).1242
Determine the most appropriate type of search to be conducted based on the risk—as noted, this must be ‘the least intrusive that is necessary and reasonable in the circumstances’.1243
Seek approval for the search from the ‘relevant Delegate’—for partially clothed searches, this is the Director, Custodial Youth Justice, and for other personal searches this is the ‘Youth Worker, Operations Coordinator’.1244
Inform the young person of the intent to conduct a search and the reasons for the search, explain how the search will be undertaken and offer an opportunity for the young person to ask questions.1245
Carry out the search ‘in a location and manner that maintains the young person’s dignity’ and meets specified requirements—for example, two staff must be present for all searches.1246
Record information about the search, including the grounds for the search, the type of search based on the risk assessment, and approval for the search in ‘the Search Register located in each unit folder on O: Drive’, which is presumably a shared drive.1247

The requirements in the Search Procedure about the gender of the staff members carrying out or observing a search do not entirely reflect the requirements in the Youth Justice Act. For example, for partially clothed searches, the Search Procedure provides that:

Every effort should be made to ensure that two staff of the same gender [as the young person] are available. In exceptional circumstances, the Observer may be of the opposite sex if two same-sex officers are not available.1248

The Search Procedure does not define ‘exceptional circumstances’.

In contrast, as noted in Section 9.1.2, the Youth Justice Act requires an observer to be of the same gender as the young person (or of the gender requested if the young person is transsexual, transgender or intersex), subject only to a limited exception based on the urgency of the need for the search ‘in order to address the risk of harm or trauma’ to the young person or another person.

According to the Department’s Keeping Kids Safe Plan, Ashley Youth Detention Centre provides the search register to the Commissioner for Children and Young People and the Custodial Inspector on a monthly basis.1249

The Keeping Kids Safe Plan also states that, once updated, the Search Procedure would be implemented with staff.1250

Understanding and implementation of search procedures in detention

We asked managers and staff at Ashley Youth Detention Centre about their understanding of procedures and practices in relation to searches of children and young people at the Centre, noting that the procedures have changed over time.

Former Centre Manager Patrick Ryan told us that when he first started working at Ashley Youth Detention Centre in 2017, the policy on strip searches was ‘prescriptive’ and required children and young people to be strip searched ‘when they’re coming in from Police custody, they’d had a visitor, when they’d been off site’.1251 Mr Ryan commented that ‘the policy was too rigid’; that is, staff ‘were strip searching residents too often’.1252

We asked the Assistant Manager at Ashley Youth Detention Centre, Fiona Atkins, about the changes introduced in 2019 for strip searches at Ashley Youth Detention Centre (outlined in Section 9.1.4). She responded:

One major change was in relation to requiring reasonable cause to perform a search of young people instead of automatically searching young people. For example, in respect of a new admission, you would have to provide a reason for the search such as a history of contraband. The other major change was the introduction of the vanity gown for searches and ensuring that young people were asked if they wanted to use it if a search was required.1253

Consistent with this, Centre Manager Stuart Watson, who started in the role in 2020, told us that ‘searching is something that is evidence-based or information-based, or there’s got to be a reason. Searching is not mandatory, it’s something that is not routine’.1254

When queried about the safeguards in place at Ashley Youth Detention Centre to protect young people from being subjected to searches that were not authorised, Mr Watson told us that if a child or young person at the Centre was subjected to an unauthorised search, ‘[t]hey can pick up the phone pretty much at any time and ring the Commissioner [for Children and Young People] directly’.1255 He explained that a young person can also complain to the staff members conducting the search, the Operations Coordinator or other members of Ashley Youth Detention Centre staff.1256 Mr Watson told us that ‘[e]nsuring that a young person has multiple avenues for complaining about an inappropriate or unauthorised search is an important part of a system of checks and balances on searches’.1257

Mr Watson also said that ‘if staff see something that’s not appropriate, they can complain’.1258

We also received evidence from current and former Ashley Youth Detention Centre staff about their understanding of strip searches. A staff member told us that although reference to modesty gowns was included in the procedure introduced in 2019, the gowns were not available to children and young people until 2021.1259

A Department of Communities issues briefing to the then Minister for Children and Youth, unsigned but noted as ‘cleared’ by Secretary Pervan in December 2021, referred to the following allegation raised by the then Leader of the Tasmanian Greens Party, Cassy O’Connor, in December 2020 regarding strip searches at Ashley Youth Detention Centre:

A PIN [Provisional Improvement Notice] should go to WorkSafe, when breaches occur. Policy is when children are searched, modesty gown must be used (re Children’s Commissioner recommendation). Workers lodged a PIN because there are no gowns (in last 12 months).1260

The briefing stated that, in January 2020, an Ashley Youth Detention Centre Health and Safety Representative had lodged a Provisional Improvement Notice about concerns that the security of the Centre and the safety of staff were ‘potentially at great risk as a new search procedure [had] allegedly [been] implemented without adequate consultation or training’.1261 According to the briefing, the Health and Safety Representative withdrew the notice following a meeting with Mr Watson ‘where additional strategies were agreed to address any training concerns’.1262

In his statement to our Commission of Inquiry, Mr Watson told us that modesty gowns were not being used when he started working at the Centre in January 2020 but that he later ensured staff were trained and the gowns were used.1263 In May 2022, a staff member told us she had ‘only recently’ been informed by the ‘legal team in Hobart’ that her interpretation of the procedure introduced in 2019 was not correct and that a modesty gown was to be given to a young person to put on, so they could undress and dress again under it. This staff member stated that ‘[u]ntil then scrutiny from the legal department had been amiss’.1264

In October 2022, Secretary Pervan confirmed that routine strip searching of children and young people in detention had ceased and referred to funding for new technology to conduct searches:

Searches are sometimes required for safety and security reasons to prevent harmful items such as drugs and weapons from entering custodial facilities. The practice of routine strip searches of youth has already ceased in all custodial facilities in Tasmania. Changes to the Youth Justice Amendment (Searches in Custody) Bill 2022 formalises reform on searches of children. The Government is also investing in alternative security strategies such as body scanners that will minimise the reliance on more invasive search types. $1.3 million was allocated in the 2022–23 State Budget to implement this technology in Tasmanian correctional facilities, including Ashley Youth Detention Centre.1265

Improving search practices in detention

We welcome the 2022 amendments to the Youth Justice Act and the recent changes to the custodial procedure on searches of children and young people in detention. We note that the Search Procedure includes some safeguards that are not contained in the Youth Justice Act—in particular, the requirement for authorisation for a partially clothed search to be sought from the Director, Custodial Youth Justice, rather than from the Centre Manager. While we consider that the higher level of approval is appropriate at this time, it may be that as the culture of Ashley Youth Detention Centre changes, it would be appropriate for authorisation for partially clothed searches to be provided by the Centre Manager. In Section 4.4.2, we recommend that the Centre Manager role be reclassified to at least a Senior Executive Service Level 1 (Director level) in the Tasmanian State Service (Recommendation 12.6). For these reasons, we do not recommend that the Youth Justice Act be amended to require the higher level of approval required by the Search Procedure.

The Search Procedure also includes a prohibition on fully unclothed searches, which we recommend be included in the Youth Justice Act.

We consider that the Search Procedure should be strengthened by: defining fully unclothed searches as a form of child sexual abuse; explicitly outlining a hierarchy of search options; aligning gender requirements for staff who conduct or observe searches with requirements in the Youth Justice Act; and specifying reporting requirements for searches (discussed below). The Search Procedure should also be made publicly accessible on the Department’s website.

We welcome the Government’s investment in body scanner technology to facilitate less intrusive searches of children and young people in detention. In implementing this technology at Ashley Youth Detention Centre or any future detention facility, the Government should ensure its use is balanced against respect for children and young people’s privacy and dignity.

We also welcome the use of a ‘hierarchy of risk assessment tool’ to help operational staff assess the level of risk associated with a proposed search and to determine the least intrusive type of search necessary and reasonable in the circumstances. Staff must be properly trained in how to use this tool and it should be included in the Department’s Practice Manual.

We are concerned about the lack of understanding of search procedures among staff, particularly in view of significant changes to procedures in and since 2019. It was not clear to us that staff had been properly trained on earlier updates to the procedure to ensure consistent understanding and practice for searches. We also note that, despite references to providing modesty gowns in the 2019 updates to the procedure, in practice, these were not provided until concerns were raised. In Section 9.4, we recommend joint training on searches for Ashley Youth Detention Centre staff, staff at any new detention facility and relevant staff of the Youth Justice Services directorate of the Department for Education, Children and Young People, to ensure a shared understanding across detention facilities and the broader Department of laws, policies and procedures.

We consider that care should be taken not to place the onus on young people to complain after an unlawful or inappropriate search (although this option should always be available to them—refer to Section 10); rather, the onus must be on the Department and facility management to ensure searches are carried out lawfully and in line with custodial procedures, and to take prompt action if they are not.

Departmental and independent oversight of searches of children and young people in detention is essential. In Section 4.5.1, we discuss the previous lack of transparency in Ashley Youth Detention Centre’s operations, which limited the Department’s ability to monitor the safety of children and young people in detention.

We recommend that Ashley Youth Detention Centre (and any future detention facility) provides a monthly report to the Secretary on searches of children and young people in detention.

In Chapter 9, we recommend that the Department establishes a Quality and Risk Committee that is chaired by the Secretary and has monitoring functions for the out of home care system (Recommendation 9.5). We consider that this committee should also have some monitoring functions for youth detention and should receive quarterly reports on searches. These reports should include enough information to enable the Quality and Risk Committee to analyse and monitor trends in searches and identify any concerns in the treatment of children and young people. This should include the number of searches carried out, the type and purpose of each search, the grounds for each search, the risk assessment associated with each search, information on search authorisations and identification of any items recovered from the search.

We welcome the legislative requirement to maintain a search register that must be made available to oversight bodies. As noted, the Department provides the search register on a monthly basis to the Commissioner for Children and Young People and the Custodial Inspector. In Chapter 18, we recommend establishing a new Commission for Children and Young People, with monitoring and oversight functions for youth detention—we discuss these functions in Section 11.6 of this chapter. We recommend that the search register be provided to the Commission for Children and Young People, at a minimum, on a monthly basis to enable it to monitor searches of children and young people in detention.

Recommendation 12.31

The Tasmanian Government should introduce legislation to amend the Youth Justice Act 1997 to ensure the Act expressly prohibits fully unclothed searches of children and young people in detention.
The Department for Education, Children and Young People should:
1. introduce body scanner technology at Ashley Youth Detention Centre and include such technology in any facility designed to replace the Centre
2. update the Department’s Personal Searches of Young People Detained at AYDC procedure to
  1. define a fully unclothed search as a form of child sexual abuse
  2. explicitly outline the hierarchy of search options, from the least to the most intrusive
  3. align gender requirements for staff who conduct or observe searches with requirements in the Youth Justice Act 1997
  4. specify internal and external reporting requirements in relation to searches
3. publish the personal searches procedure on the Department’s website
4. consider what search policies and procedures, if any, should apply in the proposed new assisted bail and supported residential facilities
5. ensure Ashley Youth Detention Centre (and any future detention facility) provides
  1. monthly reports on searches of children and young people in detention to the Secretary
  2. quarterly reports on searches of children and young people in detention to the Quality and Risk Committee (Recommendation 9.5) to enable it to monitor trends and identify any areas of concern
  3. the search register and all relevant supporting documentation to the Commission for Children and Young People (Recommendation 18.6) on a monthly basis or more frequently, as agreed with the Commission for Children and Young People.

Isolation

‘Isolation’ of children and young people in detention is defined in different ways and can cover a range of situations involving confining, secluding, separating or segregating a child or young person from other children and young people. In a 2016 report on human rights standards in youth detention facilities in Australia, the Australian Children’s Commissioners and Guardians distinguished between the following practices:

‘Seclusion’, ‘isolation’, ‘confinement’ or ‘separation’—this involves the involuntary placement of a child or young person in a room from which they are not able to leave.1266
‘Segregation’—this involves limiting a child or young person’s contact with certain peers in the facility (for example, by changing the child or young person’s education and recreation times, so they do not encounter another child or young person) but does not necessarily involve placing added restrictions on their movements.1267
‘Lockdown’—this involves keeping large groups of children in their rooms for periods of time, which is frequently used as part of a detention facility’s safety and security management regime.1268

According to the Australian Children’s Commissioners and Guardians, seclusion and segregation ‘should not be used in any form on children with known psychosocial issues, indicators of self-harm, mental illness or other related vulnerabilities’.1269

As outlined in Chapter 10, under the Youth Justice Act, isolation is defined as ‘locking a detainee in a room separate from others and from the normal routine of the detention centre’.1270 We discuss this definition in Section 9.2.4.

According to international human rights standards:

The solitary confinement of a child in detention and any other punishment that may compromise the physical or mental health of a child are strictly prohibited.1271 The United Nations has defined solitary confinement as confinement for 22 hours or more a day without meaningful human contact.1272
Any separation of a child in detention from others must be ‘for the shortest possible time and used only as a measure of last resort for the protection of the child or others’.1273
Any disciplinary measures and procedures in detention should be consistent with upholding the inherent dignity of the child and ‘the fundamental objective of institutional care, namely, instilling a sense of justice, self-respect and respect for the basic rights of every person’.1274

What we heard about isolation practices in detention

As discussed in Chapter 11, Case study 3, we heard a range of evidence about isolation practices at Ashley Youth Detention Centre from victim-survivors and their families. They described various experiences, including recollections of:

different degrees or kinds of isolation, ranging from being held in a room alone to being confined to a unit with only staff
at times, lengthy periods of isolation, including for a number of weeks
inappropriate isolation being used for a range of reasons, including as part of the induction process, as a form of punishment for bad behaviour or self-harm, against victims of assault, or as retribution for making complaints
poor isolation conditions, often with limited or no access to therapeutic programs, education, health care or enough food or bedding
handcuffs and physical restraint being used to place a child or young person in isolation, or while they were in isolation
isolation that traumatised and confused children and young people, including contributing to long-term negative effects on their mental health and wellbeing.

In Chapter 11, Case study 3, we also describe evidence of several practices used at Ashley Youth Detention Centre that involved separating children and young people from others, but which were not formally labelled as isolation or treated in line with legal requirements for the use of isolation. Labels used to describe such practices included ‘unit bound’, ‘individualised programs’, ‘separate routine’ and the ‘Blue Program’.

In that case study, we find that the use of isolation as a form of behaviour management, punishment or cruelty and contrary to the Youth Justice Act has been a regular and persistent practice at Ashley Youth Detention Centre since at least the early 2000s, and the conditions that enabled this practice still exist today. We also find that:

Isolation practices often involved segregating children and young people from other detainees and denying them the right to take part in the usual educational programming offered through Ashley School.
The Department, and sometimes the Tasmanian Government, have been on notice about potentially unlawful isolation practices at Ashley Youth Detention Centre since at least 2013, and have not taken sufficient action.
The Department demonstrated, at best, naivety in repeatedly addressing poor and potentially unlawful isolation through training and policy change, and accepting lack of staff knowledge as an explanation, despite many staff, including operational leaders, having long employment histories at the Centre.

As noted in Section 4.7.2, in July 2023, Commissioner McLean informed us that, since August 2022, there had been a deterioration of conditions for children and young people in detention, and that isolation practices continued to be used at the Centre.1275 She advised that, over the previous six months, her office had observed (among other practices):

Individual young people being referred to as ‘unit bound’ by staff during conversations, on office noticeboards, and in Weekly Review Meeting … minutes;
The extended use of unit-specific lockdowns … and the extended isolation of individual young people, with one young person likening these practices to the ‘Blue Program’;
Moving or threatening to move young people to units that experience more frequent lockdowns as a means of responding to and/or managing behaviour;
The reintroduction of ‘quiet time,’ which sees young people restricted to their rooms every day between 12:30pm – 1:15pm, sometimes without staff being present in the unit …1276

This is extremely concerning.

In response to Commissioner McLean’s comments, the Government acknowledged that restrictive practices continued at Ashley Youth Detention Centre due to staff shortages (discussed in Section 9.2.2).1277 Secretary Bullard also stated:

The [Commissioner for Children and Young People] has expressed concern that young people at [Ashley Youth Detention Centre], particularly those in the Franklin Unit, have been locked down in response to their behaviour. I am advised that young people in the Franklin Unit have been subject to the same restrictive practices as other young people at [the Centre]. I understand that some residents may perceive that they are being treated differently if they are in their rooms while others are out of theirs. This is not the case, as restrictive practice means that young people are out of their rooms at different times of the day, depending on the number and experience of staff present in [the Centre] and the need to accommodate any association issues between young people.1278

We note that the Government’s response did not address Commissioner McLean’s observations:

that staff were referring to individual children as ‘unit bound’
of extended isolation of individual young people
that daily 45-minute ‘quiet time’ had been reinstated.

As such, the Government’s response did not address all our grave concerns about the continuing use of isolation at Ashley Youth Detention Centre. As we only became aware of these concerns in July 2023, we were unable to continue to explore these specific matters.

Given the focus on isolation practices as human rights violations within our hearings—including a specific focus on ‘unit bound’ and the Blue Program—we find it astounding that these practices would persist or be reinstated during our Commission of Inquiry. Commissioner McLean’s observations suggest a culture that has continued to be punitive and has remained impervious to change. We remain gravely concerned that human rights abuses of children have occurred at Ashley Youth Detention Centre during our Inquiry and persist at the time of writing.

Lockdowns related to staff shortages

As discussed in Section 4.7, we also heard evidence about lockdowns involving children and young people being kept in their rooms for extended periods and unable to take part in normal programs, such as school, as a result of not enough staff being available to safely cover the normal operations of the Centre.1279 We heard that, to ensure the Centre’s minimum staff-to-detainee ratios were maintained during staff shortages, only one child or young person per unit could be out of their room at a time, usually on an hourly rotation.1280

In November 2021, a young person detained at Ashley Youth Detention Centre made a complaint to the Ombudsman alleging they had been unable to attend school programs due to staff shortages.1281 The Ombudsman’s investigating officer noted that it was concerning that a young person could not attend school programs for about a week due to the inability of staff to provide the necessary coverage, and the issue had not been proactively identified or addressed.1282 We discuss restricted access to education during lockdowns in Section 6.6.2.

Commissioner McLean informed us that, between February and August 2022, her office had received 45 requests for advocacy about restrictive practices and lockdowns, making such practices the most common concern in the requests received during that time.1283

We also received concerning evidence from Vincenzo Caltabiano, former Director of Tasmania Legal Aid, and Hannah Phillips, a lawyer with experience working with youth in the Tasmanian justice and child safety systems, that restrictive practices at Ashley Youth Detention Centre have had the effect of limiting children and young people’s access to legal representation.1284

Lucas Digney, Assistant State Secretary, Health and Community Services Union (Tasmania Branch), told us that the restrictive practices flowing from understaffing resulted in isolation of children and young people at Ashley Youth Detention Centre:

… they are being kept in their rooms for extended periods of time, and if one of our members wanted to place a young person in their room and they did it without authority, well, they would be disciplined for that because that young person is being isolated. And, I’m sure that most people would agree that that’s an intolerable situation, that we are detaining young people and we’re placing them in a regime of restrictive practice simply because we can’t resource the facility where we’re housing them.1285

Mark Morrissey, former Commissioner for Children and Young People, told us that isolation and lockdowns at Ashley Youth Detention Centre could be construed as constituting torture in the context of the United Nations’ Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘OPCAT’):

So, I understand within the OPCAT context … the use of isolation to some people’s minds would actually be a form of torture … and we’ve heard evidence, I think, when I’ve been listening, of young people being locked in their cells for a week or two or longer alone, often on weekends due to staffing, short staffing, whatever reasons they were locked in their rooms as well. For a young person to be locked in a room, in my view, that does constitute a form of torture …1286

In December 2022, the United Nations Committee against Torture (responsible for monitoring the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) stated that it was ‘seriously concerned’ about ‘solitary confinement’ practices at Ashley Youth Detention Centre and two other youth detention centres in Australia.1287 The committee also stated that it considered current practices contravened the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the associated United Nations Standard Minimum Rules for the Treatment of Prisoners (also known as the Nelson Mandela Rules).1288

In July 2023, the Commissioner for Children and Young People told us that ‘rolling lockdowns’ continued to occur at Ashley Youth Detention Centre.1289

The Department’s views on lockdowns

In August 2022, Pamela Honan, Director, Strategic Youth Services in the Department, told us that the increased use of ‘restrictive practices’ was not satisfactory and that efforts had been made to communicate the context surrounding these restrictions to children and young people in detention:

I am not happy with staff having to implement restrictive practices, however, it has been explained to detainees that this is not their fault, and it is not a punishment. Staff on site are working with youth workers to ensure young people are rotated out of their rooms and units as much as possible to engage in educational learning, recreation activities and exercise. This occurs for several hours a day on most days but requires a number of staff to work significant overtime.1290

Secretary Pervan was asked whether he was aware of the opinion expressed by Mr Morrissey, and with which the Ombudsman agreed, that confining children to their rooms for prolonged periods could constitute torture.1291 Secretary Pervan responded:

Without wanting to go to a specific case, only because I don’t have the detail in front of me, as I understand—and it’s a superficial understanding—the definition of ‘torture’ in that document goes to intent, and there was, I believe, looking at the past, a use of restrictive practice to—it would be argued by the staff involved it was used as a disciplinary measure, but yet the intent was to cause people to feel bad, it wasn’t for their safety, it wasn’t for any other purpose but to punish them.1292

Secretary Pervan distinguished between lockdowns caused by staff shortages and using isolation as torture:

There are two profound differences between isolation or restrictive practice being used as torture and what we’ve seen recently. One is that cognisance that it’s damaging to the wellbeing of people to have them in isolation, and that in this instance when we haven’t been able to get the young people out for the time that they’ve been required, the staff there, up to and including Ms Honan, have explained to them what the context is, why it’s happening and what we’re doing to try and fix it. So they haven’t just been locked in their rooms and not told anything; it’s been explained to them that its only because we’re short of staff and we’re doing everything we can to get them out of their rooms, and as soon as we’ve had more staff on deck they’ve been back to normal programs and access to services and activities.1293

Confining children and young people to their rooms for prolonged periods has serious detrimental effects on their health and wellbeing, regardless of the reason or justification for the confinement. Mr Watson told us that he is:

… very concerned when young people are restricted to their rooms due to staff shortages. I am concerned that their access to face-to-face schooling is reduced. I am concerned that their access to outside areas is reduced as well as their access to exercise, each other and their families is reduced. I am concerned that young people may have their mental health impacted.1294

The Youth Justice Act and inspection standards

As noted, isolation is defined in the Youth Justice Act as ‘locking a detainee in a room separate from others and from the normal routine of the detention centre’.1295 The Youth Justice Act does not define ‘normal routine’ or ‘separate from others’. As discussed in Chapter 11, Case study 3, Ashley Youth Detention Centre and the Department distinguished some practices, such as ‘unit bound’, from isolation under the Youth Justice Act on the basis that these practices were part of the normal routine of the Centre. We do not agree with this interpretation of the legislation.

Also as discussed in Chapter 11, Case study 3, Ashley Youth Detention Centre and the Department suggested that practices involving locking a young person in a unit with a youth worker did not constitute isolation under the Youth Justice Act on the basis that this is not separation ‘from others’.1296 We consider that the relevant question should be whether a child or young person has been separated from other children and young people, rather than from staff.1297

As outlined in Chapter 10, section 133 of the Youth Justice Act gives the detention centre manager the power to authorise the isolation of a child or young person:

if their behaviour presents an immediate threat to their own safety or the safety of any other person or to property, and all other reasonable steps have been taken to prevent the child or young person from harming themselves, any other person or damaging property, but have been unsuccessful, or1298
‘in the interests of the security of the centre’ (this would appear to be the power generally relied on to authorise lockdowns of Ashley Youth Detention Centre).1299

The Youth Justice Act also provides that:

If necessary, reasonable force may be used to place a child or young person in isolation.1300
A child or young person in isolation must be ‘closely supervised and observed’ at intervals of no longer than 15 minutes.1301
The detention centre manager must ensure the particulars of every use of isolation are recorded in an isolation register.1302
Using isolation as a punishment is prohibited, ‘except as provided’ in section 133 of the Act.1303

The Inspection Standards refer to ‘separation, segregation or isolation’ but state that ‘isolation’ is ‘the term generally used by Ashley Youth Detention Centre and Children and Youth Services for instances of separation and segregation of young people’.1304

According to Standard 8.9:

A young person should only be separated or segregated in response to an ‘unacceptable risk to themselves or others and only when all other means of control have been exhausted’ (although this standard contemplates that separation, segregation or isolation may also be necessary ‘for the good order of the detention centre’).1305
Separation, segregation and isolation should never be used as a sanction or to obtain compliance with staff instructions.1306
Separation, segregation or isolation should be for the minimum time necessary.1307
Staff should closely supervise a child or young person in separation or segregation, who should not be left for long periods with nothing to occupy them.1308
The conditions of separation or segregation should ‘provide no less amenity than normal accommodation’, except where a child or young person is separated due to a serious risk of suicide or self-harm.1309
A register recording details of the separation and the young person’s routine while in separation should be maintained.1310

Custodial isolation procedures

The key policy and procedure document currently in place to guide the isolation of children and young people at Ashley Youth Detention Centre is the Use of Isolation Procedure dated 1 July 2017 (‘Isolation Procedure’).1311 The Isolation Procedure defines ‘isolation’ in the same way as the Youth Justice Act, but specifies considerably more detailed requirements for using isolation than the Youth Justice Act and the Inspection Standards.1312 As discussed in Chapter 11, Case study 3, staff at Ashley Youth Detention Centre do not appear to have applied the Isolation Procedure to some practices that involved the isolation of children and young people, such as ‘unit bound’.

According to the Isolation Procedure:

Isolation is a prohibited action, except for in very specific circumstances. All other reasonable steps must be taken before its use is considered. Where it is authorised it must be kept to the minimum time necessary to ensure the safety of individuals or property. The goal is to help the young person reintegrate into the group as safely and as quickly as possible.1313

The Isolation Procedure:

requires youth workers to ‘make every effort’ to help a young person whose behaviour is escalating to regain control of their behaviour before resorting to isolation1314
includes a (non-exhaustive) list of actions youth workers can take in response to a young person’s escalating behaviour—these include identifying and removing the trigger for the behaviour, redirecting the young person’s attention, offering a task such as exercising or listening to music, and asking another youth worker to take over supervision of the situation1315
states that authorisation of isolation under the Youth Justice Act ‘in the interests of the security of the centre’ might include isolation ‘to prevent or control a security breach’ such as a riot, power failure, breach of the perimeter, or an escape, or ‘to allow order or control to be restored to the Centre (or to prevent its anticipated loss)’1316
requires isolation to be authorised by the Centre Manager or their delegate (discussed below) in person, by phone or in writing1317
states that, to authorise isolation, the Centre Manager (or their delegate) must be satisfied that ‘isolation is a reasonable intervention under the circumstances and is in accordance with the legislation and this procedure’1318
prohibits the commencement of isolation until authorisation is obtained.1319

Before or as soon as possible after isolation has been authorised, the Centre Manager (or their delegate) must undertake an assessment to determine the conditions for the care and treatment of the young person while in isolation, in consultation with health services staff and members of Ashley Youth Detention Centre’s Multi-Disciplinary Team (discussed in Section 6.4.1) who are on site at the time.1320 The assessment must consider matters such as the needs of the young person, any trauma history, their response to previous isolations, the risk of suicide or self-harm and their relationships with particular staff and other children and young people.1321

The Centre Manager (or their delegate) sets the conditions of isolation, which must be recorded on the authorisation form, in relation to:

the period of isolation—this must be the shortest period that is appropriate in the circumstances and can involve an initial period of 30 minutes, an extension of the initial period to three hours and further extensions subject to an approval process (outlined below), but the total time in isolation cannot exceed 12 hours1322
supervision and observation requirements—an observation must occur at least every 15 minutes and more often where there are concerns for the young person’s wellbeing, and observations must be recorded and signed by the observer1323
medical reviews—a young person in isolation must be checked by the Correctional Primary Health Services nurse every three hours and by a medical practitioner after seven hours (or earlier on the advice of the nurse)1324
‘other conditions’—this may include specifying safe and therapeutic items to be left with the young person (such as playing cards or drawing materials) or access to a support person, cultural advisor or youth worker1325
arrangements following the young person’s release from isolation—for example, whether they should be referred to ‘an appropriate health service’.1326

To extend isolation beyond a three-hour period, the Centre Manager (or their delegate) must:

review the observation records prepared during the period of isolation
consult with the Correctional Primary Health Services nurse or medical practitioner and available members of the Multi-Disciplinary Team
consult with the Director, Strategic Youth Services on the outcome of these consultations
complete the ‘Authorisation for Extension of Isolation’ form, noting any new conditions of the isolation or change to conditions.1327

As discussed in Chapter 11, Case study 3, in December 2021, the instrument dealing with delegation of authorities and powers at Ashley Youth Detention Centre was revised. The 2021 delegation instrument provides as follows:

The Assistant Manager of the Centre may exercise the power to isolate a young person under the Youth Justice Act.1328
The Director, Strategic Youth Services or the Operations Manager may exercise the power to isolate a young person under the Youth Justice Act if the Centre Manager and the Assistant Manager are ‘on leave, uncontactable, or unable for any other reason to perform the relevant function’.1329
An Operations Coordinator may authorise isolation for a period of 30 minutes.1330
A youth worker may exercise the power to isolate a young person under the Youth Justice Act, only for an initial period of 30 minutes and only if the youth worker is performing the duties of the Operations Coordinator.1331

The Centre Manager (or their delegate) must ensure ‘the particulars of every use of isolation’ are recorded in the isolation register.1332 Since 2017, the isolation register has been recorded electronically.1333 Each month, a report that includes the isolation register ‘and associated documents’ is sent to the Commissioner for Children and Young People and the Custodial Inspector.1334 Commissioner McLean told us that:

… the quality and reliability of the [Ashley Youth Detention Centre isolation] data is questionable and there can be inconsistencies between the reports we receive from children and young people about the use of such practices, and the data.1335

In response to this comment, the Department told us that it was continuing ‘to look at the collection and reporting of data sets that relate to youth justice, with a view to improving both the integrity and timeliness of that data being reported’.1336

The Isolation Procedure requires the Centre Support Team (now known as ‘Weekly Review Meetings’—refer to the discussion in Section 6.4.1) to conduct monthly reviews of the use of isolation. These reviews must focus on any patterns of use, any strategies that have been useful in reducing isolation use or reducing the length of time someone is in isolation, and how that information can be used to inform staff training, supervision and program scheduling.1337 The Centre Support Team must forward this information to the Centre Manager (if they were not at the meeting) and the Director, Strategic Youth Services.1338

Secretary Pervan told us that isolations data is analysed monthly for the Director and that ‘if a pattern is identified’ for a particular young person or staff member, ‘the Director will ask the Manager, Custodial Youth Justice for more information to determine whether there is an issue with the young person or staff member’.1339 Secretary Pervan also told us that the Commissioner for Children and Young People is provided with copies of minutes from Weekly Review Meetings and with monthly isolation summaries.1340

The Isolation Procedure states that the Quality Improvement and Workforce Development Team randomly selects incidents that involved isolation to assess whether isolation was appropriately authorised, observations were carried out appropriately, the period of isolation was appropriate, and if isolation use was accurately recorded in the isolation register.1341 This team no longer exists, so this safeguard is now missing.

Secretary Pervan also told us that, following an isolation, an evaluation of the isolation episode is conducted at the next meeting of the Multi-Disciplinary Team.1342

Our recommendations on isolation and lockdowns

Definition of isolation and amendments to the Youth Justice Act

We consider that any practice involving a child or young person in detention being confined to their room or unit and prevented from having contact with other children and young people (outside the normal overnight routine) constitutes isolation and should be managed in accordance with the law, standards and procedural requirements for isolation, regardless of the label used to refer to the practice. In particular, a practice should be considered isolation even if a child or young person is confined to a unit with a member of staff. This should be made clear in the Youth Justice Act. This change should ensure all isolation practices (broadly defined) are authorised and recorded according to the appropriate procedure.

Isolation must not be used as punishment for perceived poor behaviour. As discussed in Chapter 11, Case study 3, many instances of isolation of children and young people at Ashley Youth Detention Centre were connected to the Behaviour Development System (later renamed the Behaviour Development Program) and were, ultimately, used as a form of punishment for perceived inappropriate or poor behaviour. In Section 6.3.4, we recommend that the Behaviour Development Program be discontinued.

The list of ‘prohibited actions’ in the Youth Justice Act refers to ‘the use of isolation, within the meaning of section 133, as a punishment except as provided in that section’.1343 In our view, as currently worded, this provision can be read as allowing isolation as a punishment where it is carried out in line with section 133. This can be contrasted with the equivalent Victorian provision in the Children, Youth and Families Act 2005 (Vic), which simply lists as a prohibited action ‘the use of isolation (within the meaning of section 488) as a punishment’.1344 We recommend that the Youth Justice Act be amended to state more clearly that isolation must not be used to punish a child or young person.

We note that, in New South Wales, the Children (Detention Centre) Act 1987 (NSW) makes it a criminal offence for a person to punish a detainee or cause a detainee to be punished by ‘segregating’ them in contravention of section 19 of that Act.1345 We recommend that the use of isolation as a punishment be made a criminal offence in Tasmania.

We also recommend that the Youth Justice Act explicitly refers to the principle that isolation should only be used as a measure of last resort and for the minimum time necessary.

Changes to the Isolation Procedure

We recommend that the Department clarifies delegations for the purposes of authorising isolation and extensions of isolation, and that these delegations be specified in the Isolation Procedure. In particular, the circumstances in which the Centre Manager or Assistant Manager are ‘uncontactable, or unable for any other reason to perform the relevant function’ should be clarified, so all staff and managers of detention facilities and others in the Department have a clear understanding of authorisation processes for isolation. As described in Chapter 11, Case study 3, the need to clarify this was highlighted by the independent investigation of an incident that occurred at Ashley Youth Detention Centre in December 2019 involving the isolation of children and young people at the Centre.

We also recommend that the Department alters the Isolation Procedure to require authorisation to extend a period of isolation beyond three hours to be provided by a senior departmental official, rather than by the Centre Manager. We consider such oversight to be necessary given the serious and detrimental effects of extended isolation on children and young people’s mental health and wellbeing.

We also recommend that the Department publishes the Isolation Procedure on its website.

Staff understanding and implementation of isolation procedures

As discussed in Chapter 11, Case study 3, we are concerned about inconsistencies in Ashley Youth Detention Centre staff and managers’ understanding of isolation procedures, particularly in relation to which circumstances amounted to isolation and the authorisation processes when the practice was identified as isolation.

It is vital that departmental and detention centre managers and staff understand what practices amount to isolation and the procedures for authorising and implementing lawful and appropriate isolation of children and young people.

It is also important to ensure isolation is not being used as a primary or default response to children and young people who display difficult, challenging or complex behaviour, or as a punishment for negative behaviour. The Draft Youth Justice Blueprint refers to the fact that the best-performing youth justice systems achieve safety and security ‘primarily through relationships’ rather than isolation.1346 This requires, at a minimum, comprehensive, ongoing training and professional development for operational staff in de-escalation techniques and the appropriate use of isolation. Our recommendation for training on the use of isolation is discussed in Section 9.4.

However, we also consider that cultural change may be required to ensure staff comply with isolation laws and procedures in detention. As discussed in Chapter 11, Case study 3, we hold concerns that a punitive culture may have been supported and applied by some staff at Ashley Youth Detention Centre, who may have taken opportunities, whenever they arose, to nullify reforms to isolation procedures and return to more punitive isolation practices.

In Section 4.2, we discuss resistance to change among some staff at Ashley Youth Detention Centre. To address this issue and achieve meaningful cultural change in youth detention, in Section 4, we recommend significant reforms in the areas of staffing, leadership, governance and children’s participation.

Changes to reporting and oversight

We consider that there needs to be greater Department oversight of isolation in detention. As discussed in Chapter 11, Case study 3, it is not clear that the Centre Manager routinely reported all uses of isolation to the Department, as opposed to doing so only in instances where isolation formed part of a response to a critical incident on site. Secretary Pervan told us that ‘[t]he Director is informed contemporaneously with any periods of isolation that extend beyond three hours’, but this is not reflected in the Isolation Procedure.1347 Updating the Isolation Procedure to require authorisation for isolation longer than three hours from a senior departmental official (as recommended) will improve departmental oversight of isolation.

The Isolation Procedure refers to monthly reviews of isolations at Ashley Youth Detention Centre being provided to the Director, and regular audits of isolations being undertaken by the Department’s Quality Improvement and Workforce Development Team. As mentioned in Section 9.2.5, this team no longer exists and we are not aware that its functions for monitoring isolations are currently performed by any other team in the Department.1348

The Department should provide monthly reports on isolation to the Secretary. This is important for effective internal oversight of youth detention, particularly given the previous lack of transparent reporting from Ashley Youth Detention Centre to senior officials in the Department.

The Department should not rely solely on Ashley Youth Detention Centre’s analysis of isolations data. As with searches, we recommend quarterly reporting on isolations to the new Quality and Risk Committee, which should monitor trends and patterns in isolation use and identify any areas of concern.

We also recommend, at a minimum, monthly reporting of isolation data—including the register and all relevant supporting documentation—to the new Commission for Children and Young People (Recommendation 18.6). In response to a draft of this chapter, Commissioner McLean proposed that the Department be required to report isolations to the Commission for Children and Young People within 24 or 48 hours of each isolation incident.1349 We have not tested the feasibility of this proposal with the Government. The Government should work with the Commission for Children and Young People to determine an appropriate regime for the reporting of isolation data that prioritises the safety of children and young people.

In addition, to acknowledge the importance of these issues and to strengthen transparency and accountability, we recommend that the Department publishes quarterly data about isolation in youth detention.

Changes to address lockdowns

We acknowledge that, even in a well-run detention facility, occasional lockdowns may be unavoidable. However, we are deeply concerned about the prolonged, rolling lockdowns that have occurred at Ashley Youth Detention Centre in recent years due to chronic understaffing and the seriously detrimental impact of these lockdowns on the mental and physical wellbeing of children and young people in detention. We understand that, as recently as July 2023, lockdowns brought on by staff shortages continued at the Centre, with children and young people locked in their rooms or units for up to 23 hours a day.1350

We acknowledge that there was no suggestion made to us by the Department or Ashley Youth Detention Centre management or staff that lockdowns were beneficial or did not present a significant cause for concern. We also acknowledge that, to some degree, especially in relation to the COVID-19 pandemic, understaffing has been beyond the direct control of the Centre’s management and the Department. However, as discussed in Section 4.7.2, while sometimes framed by management and departmental officials as a recent phenomenon, staff shortages have been a longstanding issue at Ashley Youth Detention Centre.

As discussed in Section 4.2.2, understaffing damages staff morale, increases workloads and creates risks to staff safety. Lockdowns imposed when there are not enough staff can make children and young people ‘agitated and more difficult to engage with’ when they are released from their rooms, which ‘leads to frustration and confrontation between staff and detainees’.1351 This can, in turn, lead to further reductions in staff numbers, creating a cycle that is difficult to break.

The persistent nature of staff shortages at Ashley Youth Detention Centre requires the Department to take steps to ensure the Centre is appropriately staffed to provide therapeutic responses to children and young people and avoid the need for lockdowns. We make recommendations to improve staff recruitment and retention in Section 4.7.3. We anticipate that implementation of these recommendations will reduce the need for lockdowns.

We understand that the power to authorise a lockdown of a youth detention facility arises from the power in the Youth Justice Act to authorise isolation of a child or young person ‘in the interests of the security of the centre’.1352 Isolation under this provision is covered by the Isolation Procedure, although the relevant part of the procedure does not refer to lockdowns.

We made a number of requests for information about the policies and processes under which children and young people in detention are isolated and how the use of isolation is monitored.1353 Although we did not receive evidence on the process for authorising lockdowns at Ashley Youth Detention Centre, it was not clear to us that the Isolation Procedure was followed. That procedure would require individual assessments to be undertaken for every child or young person to be subjected to a lockdown before it could be authorised, with individual plans for how each child or young person’s isolation during the lockdown should be managed. It would also require the isolation of each child and young person as part of a lockdown to be entered on the isolation register.

While we acknowledge that the Isolation Procedure focuses primarily on ‘behavioural’ isolations, and does not appear to contemplate facility-wide lockdowns, it is concerning if proper procedures are not being followed for the isolation of children and young people through lockdowns. In recognition of the serious impact of lockdowns on children and young people in detention, we recommend that Ashley Youth Detention Centre (and any future detention facility) records information about lockdowns, including unit-specific lockdowns, separately from isolations occurring in response to behaviour. This should include the reason for the lockdown, the number of children and young people subjected to the lockdown, the duration of the lockdown and the measures taken to meet children’s and young people’s needs, and support their health and wellbeing during the lockdown.

Lockdown data should be provided to the new Commission for Children and Young People (Recommendation 18.6), monthly or more frequently, and be published regularly on the Department’s website. We note that, in Victoria, the Department of Justice and Community Safety publishes quarterly data on ‘behavioural based’ isolations and ‘isolations based on the security of the centre concerns’ (lockdowns) in youth justice centres.1354

Recommendation 12.32

The Tasmanian Government should introduce legislation to amend the Youth Justice Act 1997 to ensure the Act:
1. makes clear that confining a detainee in their room or unit and preventing them from having contact with other detainees (other than overnight) constitutes isolation, regardless of the label used to refer to the practice
2. clarifies that the use of isolation as a punishment is a prohibited action and makes it a criminal offence for a person to punish a detainee by isolating them or causing them to be isolated
3. refers expressly to the principle that isolation should only be used as a measure of last resort and for the minimum time necessary.
The Department for Education, Children and Young People should:
1. update the Department’s Use of Isolation procedure to
  1. make clear that confining a detainee in their room or unit and preventing them from having contact with other detainees (other than overnight) constitutes isolation, regardless of the label used to refer to the practice
  2. specify clearly who is a delegate of the Secretary or the detention centre manager for the purpose of authorising isolation and extensions of isolation
  3. require isolation beyond three hours to be authorised by a senior departmental official such as a Director
  4. specify internal and external reporting requirements in relation to isolation
2. publish the updated Use of Isolation procedure on the Department’s website
3. ensure Ashley Youth Detention Centre (and any future detention facility) records information on lockdowns, including the reason for the lockdown, details of authorisation processes, the duration of the lockdown, the number of children and young people isolated during the lockdown, measures adopted during the lockdown to meet the needs of children and young people and support their health and wellbeing, and steps taken after the lockdown to address its effects on children and young people
4. ensure Ashley Youth Detention Centre (and any future detention facility) provides
  1. monthly reports on isolation and lockdowns in detention to the Secretary
  2. quarterly reports on the isolation of children and young people in detention and lockdowns to the Quality and Risk Committee (Recommendation 9.5) to enable it to monitor trends and identify any areas of concern
  3. the isolation register (with all relevant supporting documentation) and separate data on lockdowns to the Commission for Children and Young People (Recommendation 18.6) on a monthly basis or more frequently, as agreed with the Commission for Children and Young People
5. publish quarterly data on isolation and lockdowns in youth detention.

Use of force

As outlined in Chapter 10, according to international legal instruments, the use of force in detention is only permitted when it is strictly necessary—that is, where the child poses an imminent threat of injury to themselves or others—and where other methods of control have been exhausted.1355 When force is deemed necessary, it must be used: by properly trained staff; for the shortest possible time or a limited time; without causing humiliation and degradation; and only in self-defence, in response to attempted escape or in response to active or passive physical resistance.1356

What we heard about the use of force in detention

As discussed in Chapter 11, Case studies 1 and 4, we heard evidence about some staff regularly using force against children and young people at Ashley Youth Detention Centre. Some of the experiences shared by victim-survivors about the use of force included:

force and restraints being used to effect strip searches
children and young people being restrained as part of isolation practices
force, restraints and violence being used to punish children and young people for not following orders or for reporting abuse
staff using violence against children and young people, and encouraging violence amongst them, as a form of humiliation
force, restraints and violence being used to facilitate staff members’ sexual abuse of children or young people, or in connection with sexual abuse.

As detailed in Chapter 11, Case studies 1 and 4, we heard allegations that children and young people detained at Ashley Youth Detention Centre had been pinned down by staff members for relatively minor infractions, had their heads deliberately slammed against furniture and walls, been handcuffed for hours at a time, been dragged while handcuffed, had bones broken by staff, and had staff target them for physical violence.We discuss the punitive culture at Ashley Youth Detention Centre in Section 4.2.

In Chapter 11, Case study 4, we find that:

Most, if not all, the accounts we heard describe an excessive, unreasonable or likely illegal use of force by some staff at Ashley Youth Detention Centre.
Victim-survivors’ accounts, viewed as a whole, suggested a pattern of some staff using force instead of de-escalation techniques to manage young people’s behaviour.
Various reviews of inappropriate uses of force at Ashley Youth Detention Centre from 2016 to 2017 identified that force was used other than as a last resort or when there were no obvious threats to staff or others.
The excessive use of force has been a longstanding method of abusing children and young people by some staff at Ashley Youth Detention Centre, and the Department and Tasmanian Government have not always responded appropriately.

Commissioner McLean told us that children and young people in custody consistently raise concerns with her regarding the excessive use of force and that:

use of force incidents against children and placing the child in isolation are closely interrelated, often causally and cyclically: an isolation event leading to behaviour of a child where force is used, causing further isolation, and so on.1357

At our hearings in August 2022, Mr Watson indicated that he believed that the use of force had decreased recently due to increased closed-circuit television camera coverage and hard drive capacity to store the footage, but conceded that force was still used too often:

My Director’s Executive Assistant has been in her role for 25 years and I can recall her saying to me on two months in a row, this is the first time in her 25 years that she can recollect no use of force and no isolation for the centre … That’s something that, you know, when I first started, use of force and isolation were reasonably common and it’s something that I‘m—I believe is far less common today; however, it’s still too high. We’re still working to reduce it further.1358

We discuss the limited coverage of closed-circuit television cameras at Ashley Youth Detention Centre in Section 6.2.

The Youth Justice Act and inspection standards

As outlined in Chapter 10, the Youth Justice Act prohibits the use of physical force against a child or young person unless it is reasonable and:

necessary to prevent the child or young person from harming themselves or anyone else, or from damaging property
necessary for the security of the centre, or
otherwise authorised under the Youth Justice Act or at common law—reasonable force may be used to carry out a search or to place a child or young person in isolation.1359

The Youth Justice Act also prohibits any action that inflicts, or is intended to inflict, physical pain or discomfort on a child or young person in detention as a punishment.1360

If force is used in the context of a search, this must be reported to the person in charge of the facility.1361

The Inspection Standards set a higher standard than the Youth Justice Act for when force can be used and the conditions of its use. The standards state 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’.1362 The Inspection Standards also state that:

force must only be used for ‘the shortest time required’1363
force should never be used as a sanction or to obtain a young person’s compliance with staff instructions1364
the use of force should not cause humiliation or degradation1365
all instances of force should be recorded, investigated and reported1366
a young person who has been subjected to force should be provided with health care following the incident and offered the opportunity to discuss the incident with a staff member who was not involved1367
parents and carers are notified of incidents of restraint or force where appropriate.1368

Custodial procedures on the use of force

The key policies and procedures on the use of force at Ashley Youth Detention Centre are the:

Use of Physical Force Procedure dated 10 December 2018 (‘Use of Force Procedure’)1369
Minimising the Use of Physical Force and Restraint Practice Advice dated 1 July 2017 (‘Use of Force Practice Advice’)1370
Use of Mechanical Restraints (Handcuffs) Procedure dated 21 October 20191371
Use of Mechanical Restraints Practice Advice dated 21 October 2019.1372

Together, these documents prohibit:

using ‘excessive force’, which is defined to include ‘any force when none is needed’, ‘more force than is needed’, ‘any force or level of force continuing after the necessity for it has ended’, and ‘knowingly wrongful use of force’1373
using a technique or hold ‘that is not proportionate to the level of risk present’ or for longer than required, use of positions that make it difficult for the young person to breathe, and use of body weight to sit or lie across a young person’s back or stomach1374
applying direct pressure to the neck, thorax, abdomen, back or pelvic area1375
using handcuffs except where ‘it is reasonable and necessary to prevent harm to a person, property or for the security of the Centre and all other means of control have been exhausted and failed’ (handcuffs ‘must never be used as a punishment’)1376
using any type of mechanical restraint other than handcuffs1377
using force against a young person to facilitate compliance with an order or direction from a staff member.1378

The Use of Force Procedure advises staff that, where excessive use of force is suspected, they may be subject to ‘internal and/or external investigation’ and ‘disciplinary and/or criminal proceedings’.1379

According to the Use of Force Practice Advice, ‘[t]he use of force is considered a severe measure that should only be carried out as a last resort’.1380 If a young person appears unsettled or anxious, or if an incident is escalating, the Use of Force Procedure requires staff to ‘alert the Operations Coordinator and other relevant staff’ to discuss and assess the level of risk, and strategies to reduce the chance of an incident occurring or escalating.1381 When undertaking a risk assessment, staff are encouraged to consider matters such as what is going on in the young person’s life as well as the young person’s developmental age, mental or physical traits, substance use, history of incidents and previous reactions to the use of force.1382

The Use of Force Practice Advice emphasises the importance of communicating with the young person, using non-threatening body language, listening, asking open-ended questions, guiding them towards making positive behaviour choices and being ‘specific and gentle, but firmly directive’ about the desired behaviour.1383

To assess whether force is an appropriate response, staff must consider whether it is ‘proportionate’, ‘lawful’, ‘accountable’ (staff must be able to justify using force and explain why other options were not used), ‘necessary’ (the force must be required to fulfil a staff member’s duty of care), and ‘ethical’ (the use of force must ‘reflect human rights principles’).1384

When force is required, staff must:

‘apply the minimum amount of physical force necessary using an approved technique to gain control of the young person’s behaviour’1385
continuously monitor the young person for signs of distress and continue talking to the young person throughout the incident, making it clear that the use of force will stop when it is no longer necessary to protect the young person or others1386
‘discontinue the use of force as soon as the young person has become compliant’.1387

Following a use of force, the Operations Manager must review closed-circuit television camera footage of the incident as soon as practicable and the Operations Coordinator must:1388

report the use of force to the Centre Manager1389
put in place a plan to debrief the young person if required, review the young person’s ‘behaviour goals and strategies’ and address the need for any ‘post incident intervention’1390
ensure any injured staff have been attended to and ‘conduct a debrief for all staff involved in the incident to ensure they are safe and well before they go home’.1391

The Correctional Primary Health Services nurse must ‘sight every young person who has been restrained, assess for possible injury and treat as required’.1392

Relevant staff must record the details of the use of force on the ‘Use of Force Register’ and ‘follow the Incident Reporting procedure’.1393 We understand this to be a reference to the AYDC Incident Reporting Procedure dated 1 July 2018 (‘Incident Reporting Procedure’).1394 The purpose of that procedure is to ‘outline the steps that staff at Ashley Youth Detention Centre must take following an incident that has arisen from the behavior/s of a young person or multiple young people’.1395 The Incident Reporting Procedure does not define ‘incident’.

According to the Incident Reporting Procedure:

Staff must report information about the incident and the young person—this includes identifying ‘whether restrictive practices were used and what type (use of force, mechanical restraints, isolation)’ and recommending ‘a level of seriousness (recorded incident, minor incident or detention offence)’ for the incident.1396
The Centre Support Team (now known as ‘Weekly Review Meetings’) must review the circumstances of the incident.1397
The Centre Manager must review the incident, decide on further actions required and advise the Director, Strategic Youth Services ‘as appropriate’—if notified, the Director must decide whether an independent investigation is called for and the type of investigation.1398

Ms Honan told us that incident reporting is escalated to her ‘if there is a significant event such as sexual/physical assault, damage to property, disturbance, self harm, [or] escape’ and that she is notified of ‘[a]ll incidents of injury or harm to a young person’.1399 This list would not cover all uses of force. Ms Honan also told us that, in 2020, the ‘Ashley Incident Management System’—a centralised system for electronic recording of incidents—was implemented and all staff were trained in using this system.1400

The Use of Force Procedure requires the Centre Support Team to conduct monthly reviews on the use of force and to forward this information to the Centre Manager and the Department.1401 Ms Honan told us she receives monthly reports on the use of force.1402

The Use of Force Procedure also contemplates the review of an agreed number of randomly selected incident reports involving the use of force to establish whether force was appropriate and accurately recorded in the use of force register, but does not specify who should conduct these reviews or how often they should be conducted.1403

Recent reforms

The Keeping Kids Safe Plan refers to the Department establishing an ‘Incident Review Committee’ at Ashley Youth Detention Centre, in September 2022, to ‘review incidents on a weekly basis for compliance with policy and procedure, follow up actions based on review findings and to identify learning areas to support staff’.1404 This committee is chaired by the Director, Custodial Operations, and its members include the Director, Strategic Youth Services and the Centre Manager.1405 The committee reports to the Executive Director, Services for Youth Justice.1406

According to the Incident Review Committee’s terms of reference, its functions are to review ‘all serious/major incidents that occurred over the last 7 calendar days’ and ‘agree actions to be undertaken or make recommendations arising from the serious/major incident’.1407 The terms of reference anticipate that ‘relevant footage will be downloaded, reviewed and discussed by the committee members during the meeting’.1408

We are unsure how the work of the Incident Review Committee intersects with or complements the work of the Risk Assessment Process Team, which also reviews serious incidents (refer to Chapter 10).

Further, the division of responsibility between the Incident Review Committee and the Weekly Review Meetings in reviewing incidents weekly at Ashley Youth Detention Centre is unclear to us. It may be that the Incident Review Committee is responsible for reviewing only ‘serious/major’ incidents, while all other incidents are considered at the Weekly Review Meetings. It would be beneficial to clarify this in the Incident Reporting Procedure.

The Keeping Kids Safe Plan also states that Ashley Youth Detention Centre ‘reports all critical incidents and follow up actions to both the [Commissioner for Children and Young People] and Custodial Inspector on a real time basis’.1409 However, Commissioner McLean told us that she does ‘not receive reports of all critical incidents’ at Ashley Youth Detention Centre and that, when she is notified of incidents, it is ‘certainly … not in “real time”’.1410 She also stated that she is ‘not generally provided with sufficient detail to understand what has occurred and what has been done in response to the incident’.1411

Minimising the use of force in detention

The Inspection Standards impose a more stringent standard than the Youth Justice Act for the use of force in detention by not permitting force solely to prevent damage to property or where ‘necessary for the security of the centre’.1412

We recommend amendments to the Youth Justice Act to more closely reflect the Inspection Standards. In particular, the Youth Justice Act should provide that force should only be used against a child or young person in detention when reasonable and necessary to prevent an imminent and serious threat of harm to the child or young person or to others, or to prevent an imminent escape, and when all other means of control have been exhausted. Force should be used for the shortest time necessary and should never be used to punish a child or young person or to secure their compliance with an instruction or direction. We consider that these changes would enable the use of force to prevent an assault, harmful sexual behaviours or the destruction of property that involves an imminent threat of serious harm to a person.

We do not recommend any changes to the existing provisions of the Youth Justice Act in relation to the use of force to carry out a search or to place a child or young person in isolation, noting we make recommendations in Section 9.2.6 directed at minimising the use of isolation.

We also recommend that the Youth Justice Act makes it a criminal offence for a person to use force against a child or young person in detention in contravention of the Act. We note that section 22 of the Children (Detention Centres) Act 1987 (NSW) makes it a criminal offence to subject a detainee to a range of punishments, including striking them or subjecting them to any other form of physical violence, or to handcuff or forcibly restrain a detainee without reasonable excuse.1413

The Use of Force Procedure is considerably more comprehensive than the Youth Justice Act in terms of controls, checks and balances on the use of force. However, we consider that it could be strengthened to reflect extra safeguards in the Inspection Standards, namely:

the requirement to provide every child or young person who has been subjected to force with health care (as opposed to the current requirement for the nurse to ‘sight every young person who has been restrained’)1414
the requirement to offer every child or young person who has been subjected to force the opportunity to discuss it with a staff member who was not involved (as opposed to the current requirement to ‘[d]ebrief the young person … if required’)1415
the requirement to notify parents and carers of incidents of force or restraint where appropriate.

We also recommend that the Use of Force Procedure be updated to require all uses of force to be reported immediately to a senior departmental official such as a Director.

Consistent with our recommended approach to reporting on searches, isolation and lockdowns, we recommend monthly reporting on the use of force to the Secretary, and quarterly reporting to the Quality and Risk Committee to monitor trends and patterns in the use of force.

Data on the use of force should also be reported to the new Commission for Children and Young People (Recommendation 18.6). The Commissioner for Children and Young People proposed that such reporting occur within 24 or 48 hours of each use of force incident.1416 However, we have not tested the feasibility of this proposal with the Government. We recommend monthly reporting, at a minimum, on the use of force to the new Commission. The Government should work with the Commission for Children and Young People to determine an appropriate frequency for the reporting of data on the use of force in youth detention.

Finally, we are concerned that incidents examined in Chapter 11, Case study 4, reveal that staff did not follow procedure. We address this in the next section.

Recommendation 12.33

The Tasmanian Government should introduce legislation to amend the Youth Justice Act 1997 to provide that:
1. subject to sections 25E and 133, force may only be used when reasonable and necessary to prevent an imminent and serious threat of harm to a person or to prevent an imminent escape, and when all other means of control have been exhausted
2. force must be used for the minimum time necessary
3. force must never be used to punish a child or young person, or solely to secure their compliance with an instruction or direction
4. using force in contravention of the Act is a criminal offence.
The Department for Education, Children and Young People should:
1. update the Department’s Use of Force procedure to
  1. require all uses of force to be immediately reported to a senior departmental official, such as a Director, in addition to identifying the use of force as part of an incident report
  2. require every child or young person who has been subjected to the use of force to be provided with health care and offered the opportunity to discuss the incident with a staff member who was not involved
  3. require parents and carers of a child or young person who has been subjected to the use of force to be notified
  4. specify internal and external reporting requirements in relation to the use of force
2. publish the updated Use of Force procedure on the Department’s website
3. ensure Ashley Youth Detention Centre (and any future detention facility) provides
  1. monthly reports on the use of force in detention to the Secretary
  2. quarterly reports on the use of force in detention to the Quality and Risk Committee (Recommendation 9.5) to enable it to monitor trends and identify any areas of concern
  3. the use of force register and all relevant supporting documentation to the Commission for Children and Young People (Recommendation 18.6) on a monthly basis or more frequently, as agreed with the Commission for Children and Young People.

Training on searches, isolation and use of force

In Section 4.7.3, we recommend continuing professional development for youth workers on: expected standards of behaviour in interacting with children and young people; the human rights of children and young people in detention; approaches to setting fair, clear and firm boundaries for children and young people’s behaviour within a therapeutic, trauma-informed framework; and training in all custodial policies and procedures.

As noted throughout this section, there is a particular need for ongoing training and professional development for youth detention centre staff in laws, policies and procedures on searches, isolation and the use of force. We consider that it is also important for staff of the Department’s Youth Justice Services directorate (including leadership) who are not based at Ashley Youth Detention Centre to be familiar with the laws, policies and procedures for these practices. This would ensure consistency of understanding across the Department, strengthen internal oversight of restrictive practices in detention and improve those practices.

Accordingly, we recommend joint training for staff of youth detention facilities and other relevant youth justice staff in the Department on the laws, standards, policies and procedures on isolation, the use of force and personal searches of children and young people in detention. While we consider that such training will help change practices at Ashley Youth Detention Centre, training alone is not enough. In Section 4, we make recommendations designed to achieve broader cultural change in youth detention and ensure past harmful practices do not continue.

There is also a need to ensure police understand legislative and procedural requirements for restrictive practices in youth detention. In Chapter 11, Case study 7, we find that Tasmania Police should improve its responses to allegations of child sexual abuse made by current and former detainees at Ashley Youth Detention Centre. Our suggestions for improvement include ensuring police have ready access to guidance on Tasmanian law in relation to personal searches, isolation and the use of force so they can readily identify when alleged conduct falls outside the parameters of acceptable professional conduct and may indicate that a crime has occurred. We make a recommendation to this effect here. We consider that this guidance will also assist police who carry out searches of children and young people in police custody.

Recommendation 12.34

The Department for Education, Children and Young People should provide regular joint training and professional development for staff who have contact with children and young people in youth detention facilities and relevant staff of the Youth Justice Services directorate on laws, standards, policies and procedures regarding the use of isolation, the use of force and searches of children and young people in detention to ensure consistency in understanding and application. This training should be mandatory.
Tasmania Police should ensure its members receive regular training and guidance on laws and procedures on the use of isolation, the use of force and searches of children and young people in detention to enable police to readily identify conduct that falls outside the parameters of acceptable professional conduct among staff and may constitute a criminal offence.

Responding to concerns, complaints and critical incidents in youth detention

Effective complaints processes are critical to creating a safe detention environment. Children and young people in detention who have a concern—for example, about the services they have received or not received while in detention, or about the behaviour of staff or other children and young people, including child sexual abuse—need a clear, safe and accessible process to raise the concern and make a complaint, and to have confidence that it will be taken seriously and responded to appropriately. Effective processes are also required for the family members of children and young people in detention or detention facility staff who want to raise a concern about the treatment or safety of a child or young person in detention.

Complaints from or about a child or young person in detention can be responded to ‘internally’ (by the detention facility or by the Department) or ‘externally’ (by an independent oversight body). In Section 11, we discuss the role of external oversight bodies in supporting children and young people in detention to raise concerns about their treatment (including making a formal complaint about the Department to the Ombudsman) and advocating to resolve their concerns.

In this section, we examine the internal processes of Ashley Youth Detention Centre and the Department for identifying and responding to concerns and complaints from or about children and young people in detention, including those involving child sexual abuse and other serious allegations.

The case studies in this volume indicate serious problems with the Department’s responses to concerns, complaints and critical incidents in detention involving risks to the safety of children and young people in detention. In Chapter 11, Case study 2, we find that Ashley Youth Detention Centre has been aware of harmful sexual behaviours at the Centre and has not taken steps to protect children and young people from these behaviours. As discussed in that case study, when harmful sexual behaviours occurred, staff or Centre management often failed to respond appropriately—whether by not removing the risks, not supporting the victim-survivor, or punishing them for making a complaint.

In Chapter 11, Case study 6, we find that Ashley Youth Detention Centre and the Department did not respond appropriately to a serious allegation from Max (a pseudonym) of misconduct against a staff member. As discussed in that case study, we consider that the response to Max’s allegation suggests systemic problems in how Ashley Youth Detention Centre and the Department respond to serious allegations, including by children and young people against staff members. We observed similar problems in the Department’s response to allegations of child sexual abuse against staff (discussed in Chapter 11, Case study 7) and in a complaint from Alysha (a pseudonym), a former staff member at Ashley Youth Detention Centre, about the safety of children (discussed in Chapter 11, Case study 5).

Overall, the evidence detailed in our case studies indicates shortcomings in the Department’s responses to complaints, including not:

creating a culture where complaints by staff or children and young people are encouraged
recognising complaints involving child sexual abuse or harmful sexual behaviours
appropriately escalating and formalising complaints
adequately and appropriately investigating complaints
responding to complaints in a way that maintained safety and confidentiality and managed fear of reprisal for the complainant
addressing safety risks raised by complaints.

The National Royal Commission recommended that institutions have ‘a clear, accessible and child-focused complaints handling policy and procedure that sets out how the institution should respond to complaints of child sexual abuse’.1417 The National Royal Commission’s final report set out a list of actions that should form part of an effective institutional response to a complaint of child sexual abuse. These were: identifying a complaint; assessing risk; reporting to police, child protection and other bodies; investigating the complaint; communicating and providing support to those affected

by the complaint; maintaining records; completing a ‘root cause analysis’ to identify systemic factors that may have contributed to the complaint; and monitoring and reviewing outcomes.1418

The National Royal Commission also recommended that state and territory governments review internal and external complaints-handling systems concerning youth detention to ensure they are capable of effectively dealing with complaints of child sexual abuse.1419 According to this recommendation, the review should ensure (among other matters) that children can easily access child-appropriate information about complaints processes, complaints-handling systems are accessible for children with literacy difficulties or who speak English as a second language, and children are regularly consulted about the effectiveness of complaints-handling systems, so systems are continually improved.1420

In our view, the Department’s processes for identifying and responding to complaints and serious incidents in youth detention, including those relating to child sexual abuse, require significant reform. In this section, we recommend that the Department implements measures to:

address structural barriers in complaints systems and create a culture in which complaints and critical feedback from staff, children and young people in detention and family members are encouraged (broader cultural change in youth detention is discussed in Section 4)
provide for concerns and complaints about child sexual abuse and related conduct by staff to be referred to and investigated by a new Child-Related Incident Management Directorate, recommended in Chapter 6 (Recommendation 6.6)
ensure concerns and complaints related to harmful sexual behaviours are reported to the Department’s new Harmful Sexual Behaviours Support Unit and managed in line with a separate policy recommended in Section 8.5 of this chapter (Recommendation 12.30)
ensure children and young people in detention feel safe to raise concerns, are aware of their rights to make a complaint and understand complaints processes
ensure staff are aware of their role in responding to concerns raised by children and young people in detention and have clear processes for raising concerns about other staff
update and strengthen custodial policies and procedures for complaints processes.

What we heard about complaints processes in detention

Victim-survivors told us about their experiences in making, or attempting to make, complaints at Ashley Youth Detention Centre. They reported significant barriers to making complaints. Some said that they did not complain for fear of repercussions from staff or other detainees; others told us they tried to complain but felt discouraged from going further because of the responses they received.1421 We acknowledge that the complaints policies and procedures in place at the time of these experiences differed from those currently in place (described in Section 10.2); however, we consider that this evidence is still highly relevant to reforming complaints handling for children and young people in detention.

One victim-survivor, Fred (a pseudonym), said he received no feedback at all after making a complaint:

So, I wrote down my experience on a piece of paper and put it in an envelope with – I believe I was told to put ‘complaints’ on it – and slipped it under my door; it was picked up by passing officers, like, as all mail would go out, and I never heard anything. I put two complaints in in my time at Ashley and I never heard anything about either of them.1422

Victim-survivor Warren (a pseudonym) described never making a complaint due to fear of the repercussions:

I never made a complaint about anything that happened while I was in Ashley. The process of making a complaint was to write it down and give it to the workers. If someone ever complained about something it would always get back to the workers and they would tell each other about it. They would make your life hell and you suffered more. Because of this, no-one really made any complaints.1423

Some victim-survivors spoke of feeling complaining was futile because they would not be believed. Max said:

Yeah, even if me and my mate had’ve made a complaint, still, that’s only two criminals against, like, four or five or, like, five or six staff members that have all got good records and that, and they’re youth workers, they’re not—the way we seen it as, there’s nothing we can do, no-one’s gonna believe us.1424

These experiences are reflected in the Take Notice, Believe Us and Act! report, which found that some children and young people (with experiences in detention, out of home care, education and health systems) felt unsafe raising concerns or making a complaint. Young people in detention described a culture ‘where “snitches” were frowned upon or where their adult and peer harassers retaliated when their behaviours were raised’.1425

When asked what they would do if they were unsafe or had been harmed, most children and young people interviewed for the Take Notice, Believe Us and Act! report said they would turn to someone outside the institution to raise their concern or make a complaint.1426 In Section 11.4, we recommend establishing an independent community visitor scheme to enable every child or young person in detention to have regular, frequent access to a trusted adult who is independent of the Department and who can advocate on their behalf.

In her submission to our Inquiry, Angela Sdrinis, a lawyer who specialises in institutional abuse claims, outlined multiple barriers to children and young people reporting child sexual abuse at Ashley Youth Detention Centre.1427 These included children and young people: being unaware of complaints procedures; having an ‘ingrained distrust of authorities’; fearing being ridiculed, accused of lying or not being believed; being denied access to or avoiding external supports such as family visits; being intimidated by staff; and fearing being known as someone who reports.1428 Ms Sdrinis also referred to children’s illiteracy, poor communication skills, lack of self-esteem and disempowerment due to intergenerational trauma as barriers to reporting.1429

Mark Morrissey, former Commissioner for Children and Young People, also referred to children and young people being reluctant to complain:

One thing I observed: often the culture that existed in an adult prison would reach back into the young people at Ashley. So, some of these children came from the generational situation where other family members had been in jail and they learnt the culture and the rules of a prison … which meant not being a dog or speaking up …1430

Mr Morrisey also highlighted the problems he observed with complaints processes at Ashley Youth Detention Centre after starting in his role in 2014. He explained that, at that time, a child or young person wishing to make a complaint had to put the complaint in writing and place it in a brightly coloured public complaints box that was in a prominent position in the Centre’s dining room.1431

Mr Morrissey stated that this was problematic because many of the children in detention were illiterate and because, in an environment where the dominant ethos was ‘don’t dob’, the public location of the complaints box was a major disincentive to making a complaint.1432 As he outlined in his statement:

The chances of a young person placing a complaint or concern in the box were close to zero. Interestingly I was advised by [Ashley Youth Detention Centre] management that ‘the young people rarely if ever make complaints so I was not to expect very much’… I was not made aware of any complaints going into the complaint box between 2014 and 2017.1433

We note that, according to the Feedback, Concern & Complaints Info Sheet given to children and young people in detention, there are now multiple ‘post boxes’ for feedback and complaints located throughout Ashley Youth Detention Centre, rather than a single complaints box (this is discussed in Section 10.2).1434

Complaints processes at Ashley Youth Detention Centre

Youth Justice Act

The Youth Justice Act gives children and young people in detention the right to complain about their treatment in detention. Section 129 of the Youth Justice Act provides that a child in detention can complain to the Secretary of the Department (or the Ombudsman) about the standard of care, accommodation or treatment they are receiving in a detention centre.1435

More broadly, section 137 of the Youth Justice Act provides that a child in detention, a member of the child’s family or a guardian can complain to the Secretary about any matter affecting or connected with a child in detention. Section 138 states that, on receiving a complaint, the Secretary must provide the complainant and child with written notice detailing the complaint and how the complaint will be dealt with.1436 The Secretary does not have to deal with a complaint reasonably believed to be ‘trivial’ or ‘made only to cause annoyance’.1437

Ashley Youth Detention Centre policies and procedures

We asked the Tasmanian Government to provide the policies and procedures applied to complaints made by or on behalf of children at Ashley Youth Detention Centre.1438 In June 2022, we received three Ashley Youth Detention Centre complaints policies and procedures, each of which was undated:

Responding to Feedback, Concerns and Complaints Procedure (‘Complaints Procedure’)
Feedback and Complaints Practice Advice (‘Complaints Practice Advice’)
a Make a Complaint form for children and young people.1439

The Complaints Procedure and Complaints Practice Advice were updated with effect from October 2022 and we refer to these updated versions in our discussion.1440 The Department’s Practice Manual now also includes a new Feedback, Concern & Complaints Info Sheet (‘Information Sheet’) for children and young people at Ashley Youth Detention Centre (effective from October 2022) and a new Help Form for children and young people in detention to seek help or provide feedback (effective from September 2022) (‘Help Form’), which we also discuss in Section 10.2.3.1441

In addition, there are custodial policies and procedures that guide staff who have concerns about the safety of a child or young person in detention, including concerns about the behaviour of a colleague. These are discussed separately in Section 10.2.7.

We also note that the Department’s website includes a page called ‘Complaints—Child Safety and Youth Justice Services’, which states that a person can make a complaint about a youth justice service if they are: a client of the service; a ‘friend, relative or guardian of a client’; a service provider; or ‘anyone who has a valid interest in an issue’.1442 Complaints can be made to any staff member or emailed or mailed to the Department.1443 The website indicates that the Department will treat complaints confidentially and try to resolve any formal complaint within four weeks of receiving it.1444

Information provided to children and young people about the complaints process

On admission to Ashley Youth Detention Centre, children and young people are given a booklet called Information for Young People and Families.1445 This booklet advises children and young people that:

they can complain about services at Ashley Youth Detention Centre or about the behaviour or conduct of a staff member or another young person
they can complain to any staff member, who ‘can start the process to deal with your complaint’
they ‘should not feel scared about making a complaint’ and can choose to ‘have a support person who can provide emotional and administrative support, make sure the complaint is dealt with fairly and promptly, and help you understand the process and the outcome’
they have a choice as to whether their complaint is dealt with by Ashley Youth Detention Centre (in which case staff will refer the complaint to the Centre Manager) or by the Secretary of the Department (in which case staff can provide contact information, but the young person must contact the Secretary themselves)
the Centre Manager may decide not to investigate if they believe the complaint is ‘trivial or made to cause annoyance’
complaints referred to the Centre Manager will usually be investigated within 21 days and the young person will receive a letter telling them the outcome of their complaint
they can ask for a review by the Secretary or the Ombudsman of a decision made about a complaint if they are not happy with it.1446

Custodial procedures also require staff to explain this information verbally to children and young people on admission.1447

The Information Sheet (also provided on admission) advises children and young people that if they want to provide feedback to Ashley Youth Detention Centre management or make a complaint they can:

fill out a Help Form, which can be found in each unit, at Ashley School and in the ‘Health Corridor’ (discussed in Chapter 10)—once completed the form can be placed in one of several ‘post boxes’ located in the young person’s unit, at Ashley School or in the corridor near the health services
join the ‘Resident Advisory Group’, which is a fortnightly forum designed to give children and young people detained at Ashley Youth Detention Centre ‘a say about the things that affect them’, including their views on the ‘physical amenity of the site, detention processes, standard of care, treatment and program options and how safe they feel’ (the Resident Advisory Group is discussed in detail in Section 4.6.2)
contact the Ombudsman or the Commissioner for Children and Young People by using the phone in their unit or writing to them.1448

The Help Form is a relatively simple, two-page form that invites children and young people to write their ‘issues, problems, feedback or suggestions’ in relation to a range of areas, including safety, phone calls, food and clothing, and to tick a box indicating whether they would like the form to go the Centre Manager, the Secretary or the Ombudsman.1449

The Complaints Procedure requires Ashley Youth Detention Centre managers to ensure each unit’s meeting area displays ‘promotional feedback and complaints resources’.1450

Process for responding to complaints from children about sexual abuse

According to the Complaints Practice Advice, where a child or young person discloses harm by a staff member, this is to be addressed by a different process—‘not the complaints process’—and staff who receive such a disclosure ‘must immediately report that to an Operations Coordinator or Manager for follow up’.1451 Staff must also ‘ensure that the young person is kept safe from further harm and follow procedures regarding the notification of harm’.1452

The different process to be followed where a child or young person discloses harm is not clear to us. The Complaints Procedure refers to a separate procedure called When a Young Person Discloses Harm, but this document was not provided to us and we could not find it in the Department’s Practice Manual.1453

According to the Complaints Procedure:

If the young person discloses abuse (verbal, physical or sexual) by another resident or staff member, an incident report must be raised (see incident procedure).1454

This would appear to be a reference to the AYDC Incident Reporting Procedure (‘Incident Reporting Procedure’), although this procedure does not address harm by staff.1455 The purpose of this procedure is to outline the steps that staff must take ‘following an incident that has arisen from the behavior/s of a young person or multiple young people’.1456 A central focus of the procedure is determining whether any young person involved in the incident has committed a ‘detention offence’ under the Youth Justice Act, rather than responding to the needs of young people affected by the incident.1457

Secretary Pervan’s view was that any allegation of harmful sexual behaviours at Ashley Youth Detention Centre fell within the definition of an ‘incident’ for the purposes of the Incident Reporting Procedure.1458 While the Incident Reporting Procedure may apply to concerns involving harmful sexual behaviours (because these could be described as constituting an incident ‘arising from the behaviour’ of a young person), we do not consider this procedure to be suitable to guide responses to such concerns. Viewing harmful sexual behaviours solely through the lens of ‘detention offences’ is inconsistent with a contemporary understanding of such behaviours (refer to Chapter 21 for a discussion of these issues). We discuss the Department’s response to harmful sexual behaviours in detention in Section 8 and recommend developing a separate departmental policy to prevent and respond to such behaviours in detention (Recommendation 12.30).

As noted, the Incident Reporting Procedure does not refer to or contemplate reports or allegations of child sexual abuse or other allegations of abuse or human rights violations by staff. In her August 2022 statement to our Inquiry, Pamela Honan, Director, Strategic Youth Services, told us that she was not aware of any policy governing the Department’s response to allegations of child sexual abuse as these matters are ‘managed by People and Culture’.1459

In his June 2022 statement, Secretary Pervan told us that if a complaint is made about the sexual abuse of a child or young person in detention by a current staff member, ‘it may be referred to the Department’s People and Culture Division’, which notifies Tasmania Police and the Registrar of the Registration to Work with Vulnerable People Scheme; undertakes an initial risk assessment (also referred to in this volume as a ‘preliminary assessment’) that may result in action to remove the staff member from the workplace; and prepares advice for the Secretary about whether a breach of the State Service Code of Conduct may have occurred.1460

The Secretary may then appoint an investigator to investigate the allegation in line with the procedure in Employment Direction No. 5—Breach of Code of Conduct.1461 The Secretary considers the investigation report prepared by the investigator and the staff member’s response to the report, and makes a determination as to any breaches of the Code of Conduct and sanctions, which may include terminating the staff member’s employment.1462

Secretary Pervan said that the governance process of the People and Culture Division ensured that ‘the safety of a child or young person [was] the primary consideration when responding to an allegation’ and that support was made available to the complainant.1463

However, former Acting Executive Director of People and Culture, Jacqueline Allen, told us that the Department’s People and Culture team:

… [did] not have documented or approved Communities Tasmania policies and procedures, relating to supporting complainants and victims; assessing and taking steps to ensure the safety of detainees; notifying other agencies of allegations; conducting investigations; decision making regarding outcomes and disciplinary processes; informing affected parties of outcomes; and record keeping.1464

Ms Allen explained that this was because the People and Culture team was not directly in contact with complainants and victim-survivors because contact was typically made through the Department of Justice (for claimants through the National Redress Scheme) or the Office of the Solicitor-General (for civil litigation complainants).1465

Ms Allen told us that, despite this, there were many informal policies and procedures that People and Culture adopted in relation to the notification process.1466 For example, Employment Direction No. 5 specifically outlined how People and Culture were to conduct investigations, including how to involve a young person.1467 Ms Allen also told us that, from around November 2020 onwards, once the People and Culture team was made aware of an allegation, it would inform other agencies of allegations associated with an employee.1468

Ms Allen also stated that ‘People and Culture provided advice and guidance around employee related matters in the department, not resident, children or youth related matters’.1469 She told us that while she had responsibility for managing parts of the complaints process, such as collecting and organising information that forms part of a preliminary assessment, neither she nor the People and Culture team had decision-making authority for Ashley Youth Detention Centre.1470 Instead, Ms Allen said that the Centre’s management was responsible for ‘receiving and acting on complaints, allegations, and concerns regarding conduct of [Centre] officials’.1471 She indicated that the People and Culture team was not directly responsible for the safety of children and young people because this responsibility sat with Ashley Youth Detention Centre management.1472

Ms Honan stated that her role was to report these matters to People and Culture.1473 A discussion would occur with People and Culture about who was best to handle the complaint or allegation depending on the nature of it.1474 She said that any allegations about harm of a young person by an official were referred to and managed by People and Culture.1475 Ms Honan added that she did not hold an investigative role; rather, her role was to support the investigation by providing any information or documentation available to assist enquiries.1476

As illustrated here and in Chapter 11, Case study 7, the lack of clarity about the process for responding to complaints involving child sexual abuse in detention is highly problematic and places children and young people in detention at increased risk of child sexual abuse.

Process for responding to other complaints from children

In summary, the Complaints Procedure provides that the process for responding to complaints (other than those involving the disclosure of harm or abuse) is as follows:

The Ashley Youth Detention Centre Senior Management Team discusses the complaint and appoints an ‘Investigator’ (presumably a member of staff, although this is not specified) to ‘follow up on the complaint and manage the response process’, although ‘sensitive matters (such as staff misconduct) [are] handled separately by the Director and Executive Director’, while complaints about Ashley School or the health service are referred to the manager of the relevant service.1477
The Investigator (or their delegate) reads the complaint and speaks to the complainant ‘for further clarity’, then speaks to other ‘parties’ and ‘gathers relevant details in order to make an informed decision’.1478
If the complaint is ‘complex’, the Investigator can ‘table it at the next [Senior Management Team] morning meeting for further consultation’.1479
The Senior Management Team discusses the ‘final recommendation’ and determines the outcome, and the young person is informed of the outcome verbally and in writing.1480
The outcome is recorded in the ‘complaints register’.1481

According to the Complaints Procedure, a child or young person who has made a complaint must receive an acknowledgment letter within 72 hours of lodging the complaint and a follow-up letter every 10 days until the complaint is resolved. They should also be offered support in relation to the complaint.1482

Strengths and limitations of complaints processes for children and their families

There are some positive features of the complaints processes, policies and procedures described in the preceding sections. In particular, we commend the requirement in the Complaints Procedure to provide support to a child or young person making a complaint, and to keep them informed of the investigation process.

However, we note the following structural limitations of current complaints processes and barriers to making complaints:

Many children and young people in detention have low literacy levels. This severely limits the effectiveness of detailed written information provided to them about how to make a complaint. We are not convinced that children and young people read the information booklet given to them on admission to detention.
While staff are also required to verbally explain complaints processes to children and young people when they are admitted to detention, admission can be an overwhelming experience and there is a risk that the child or young person will not understand or retain a verbal explanation of how to make a complaint.
The Help Form, while simple, relies on a child or young person being able to express their concern or complaint in writing, which they may be unable or unwilling to do.
While there are now several ‘post boxes’ throughout Ashley Youth Detention Centre for receiving written complaints, they appear to still be located in shared spaces, which may make some children and young people reluctant to use them, for fear of being perceived as a ‘snitch’.
As noted in Section 11.4, while children and young people in detention can make phone calls to the Commissioner for Children and Young People or the Ombudsman to raise concerns or make complaints, it is not clear that such calls can always be made in private.

In an environment where there has previously been a strong culture of non-disclosure, strategies are required to overcome these structural barriers to children and young people raising concerns or making complaints.

We also note the following concerns with the current Complaints Procedure and Complaints Practice Advice:

They do not define child sexual abuse and related conduct, including harmful sexual behaviours.
As noted, they do not clearly explain the procedure to be followed where a child or young person discloses a safety concern (such as sexual abuse by staff or harmful sexual behaviours by another child or young person), nor do they refer to another procedure that does so.
They do not define or provide guidance on what might constitute a ‘sensitive matter’, other than ‘staff misconduct’ (noting that, in any event, the Complaints Procedure and Complaints Practice Advice do not apply to complaints about abuse of a child or young person by a staff member).
They do not refer to the procedure for notifying Tasmania Police, Child Safety Services or the Registrar of the Registration to Work with Vulnerable People Scheme of relevant concerns (refer to Section 10.2.7).
They do not include mechanisms to conduct a risk assessment or undertake a root cause analysis to enable systemic improvements to be implemented following the investigation of a complaint.
While the Complaints Procedure directs staff to record complaints in the complaints register, Secretary Pervan did not refer to this register when explaining the Centre’s complaints process.1483 Secretary Pervan said that staff have recorded ‘incidents’ in the ‘Ashley Incident Monitoring System’ since January 2021.1484
They are not publicly accessible. As noted, the Department’s website explains that complaints can be made by any person who has a ‘valid interest in an issue’ relating to a decision, a service provided or the behaviour of Child Safety and Youth Justice Services staff.1485 However, aside from a short explanation of ‘what you can expect when making a complaint’, the website does not provide any policy or procedure outlining how the Department handles complaints, concerns or allegations involving children and young people in detention.1486

Complaints from staff

The Complaints Procedure and the Complaints Practice Advice are concerned with responding to complaints from children and young people rather than from staff. The Department’s Practice Manual includes the following documents to guide staff who have concerns about the safety of children and young people in detention:

The Contacting the SFSK Advice and Referral Line Procedure requires staff to contact the Advice and Referral Line where they believe, suspect or know that a child or young person is at risk of, or is experiencing, abuse or neglect.1487 This procedure advises staff who become aware of historical or current concerns about the conduct of another employee ‘as it relates to the safety of children and young people’ to immediately report those concerns to their supervisor and contact the Advice and Referral Line.1488
The Reporting Concerns fact sheet advises staff ‘to report any conduct or behaviour which is of concern to you, and that could compromise the safety and wellbeing of a child’.1489 Concerns about the conduct of another staff member must be reported to the Department’s People and Culture team, to the Advice and Referral Line and, ‘[i]f the concerning behaviour is criminal in nature’, to Tasmania Police.1490 Staff should also discuss their concerns with their supervisor or manager as soon as practicable.1491 The fact sheet acknowledges that ‘these matters can cause significant distress for employees and can be confronting and disturbing’ and indicates that ‘[e]xtensive support is available to all employees’, including support from the employee’s manager and from ‘Health and Wellbeing Officers’.1492
More broadly, the Transparency and Accountability policy requires staff to comply with the State Service Code of Conduct, to ‘[c]ommunicate when things go wrong so that matters can be addressed at the earliest possible moment’ and to ‘[f]oster a no blame culture to promote practice improvement’.1493

None of these documents defines or explains child sexual abuse, harmful sexual behaviours, grooming or professional boundary breaches.

Even where there are clear policies and procedures requiring staff to report concerning behaviour on the part of colleagues, staff may be unlikely to report where the culture does not enable or encourage this—for example, where staff feel that they may be labelled ‘difficult’ or ‘hysterical’, their concerns may be minimised by management, or they may experience reprisals. In Section 4, we make a series of recommendations aimed at creating a child safe culture in youth detention. We also consider that there are opportunities to encourage and empower staff in youth detention to report concerning conduct on the part of their colleagues. These are discussed in Section 10.3.1.

Planned reforms

The Keeping Kids Safe Plan, released in October 2022, indicated that the Department was ‘[d]eveloping and implementing a robust internal complaint system (for both children and young people and staff)’ at Ashley Youth Detention Centre.1494

In February 2023, Secretary Bullard advised us that the Department had begun a ‘complaints management review project’ with a view to aligning its approach with other government agencies such as the Department of Health.1495 The Department for Education, Children and Young People’s Project Initiation Plan – Complaints Management Review states that a review of complaints functions has occurred in the Children and Families and the Education portfolios, but has yet to be undertaken for ‘functions within Youth Justice’.1496

We also note that the Department’s Safeguarding Framework describes broadly how the Department will implement Standard 6 of the Child Safe Standards—‘Processes to respond to complaints and concerns are child-focused’—including ways for people and children to report concerns, for providing trauma-informed support following disclosure, for record keeping and for transparent communication.1497 However, it is not clear how this will be applied to children and young people in detention.

Improving complaints processes

The Take Notice, Believe Us and Act! report found that, for children and young people to feel able to raise a concern or disclose abuse or mistreatment, they needed:

to know what complaints processes were in place and how to access them1498
to have at least one trusted adult they could turn to1499
to have confidence that they would be believed1500
to know that adults and organisations would take their concerns seriously and respond quickly and effectively, so things would change for the better1501
to know they would be protected from any consequences or repercussions.1502

As noted in Section 11.4, we recommend establishing an independent community visitor scheme for children and young people in detention. This would give each child and young person a trusted adult to speak to regularly and frequently, who would be independent of the Department and would have the power to advocate on the child or young person’s behalf. The other features identified by children and young people in the Take Notice, Believe Us and Act! report are addressed in the following discussion.

Encouraging complaints and critical feedback

The Department needs to take active steps to create a culture in which complaints and critical feedback are encouraged. This is essential to overcome children’s and young people’s mistrust of and lack of confidence in complaints processes and the dominant culture of not ‘dobbing’.

It is important to ensure children and young people in detention understand the complaints process and feel safe making a complaint. This requires them to know what to expect when making a complaint, what steps the Department or the facility will take in response to a complaint and how complainants will be protected against repercussions.

As outlined in Section 10.2.6, there are several structural barriers to children and young people in detention making complaints, including low literacy levels and a heavy reliance on information provided to children and young people during admission. The Department should ensure its complaints processes address these barriers.

In our view, children and young people in detention should be regularly, actively reminded about feedback and complaints processes throughout their time in detention, using a variety of developmentally appropriate mechanisms. These could include visual materials displayed in every unit and regular information sessions on how to make a complaint. Implementation of the independent community visitor scheme recommended in Section 11.4 will also provide a regular reminder to children of their right to make a complaint.

Children and young people also need to be empowered and feel confident to make complaints. We acknowledge that such confidence may only develop once children and young people begin to use the complaints process and see quick, decisive, effective action taken in response to their complaints, without negative repercussions for them. Building this confidence may take time.

Nevertheless, as Mr Morrissey stated, it is important as part of a therapeutic environment to give children and young people the ‘skills and permission to have a voice’.1503 In Section 4.6, we make recommendations aimed at promoting the voices of children and young people in detention and empowering them to have input into detention centre operations and processes. In particular, we recommend that the Department reviews and strengthens the Ashley Youth Detention Centre Resident Advisory Group.

The families and guardians of children and young people in detention also need to be made aware of, and have confidence in, departmental complaints processes. In the Australian Capital Territory, the complaints management policy for responding to a complaint about youth detention is publicly available.1504 We recommend that the Department develops and publishes a guide to making a complaint about youth detention, so anyone with a concern about a child or young person in detention has an easily accessible complaint pathway.

Staff in detention facilities also need to be encouraged to report concerns about their colleagues, make complaints and provide feedback without fear of reprisal. In Chapter 15, we discuss programs used in the health sector to improve organisational culture and encourage staff to speak up if they observe concerning actions or behaviour—in particular, the ‘Speaking up for Safety’ program, which is being implemented at Royal Hobart Hospital.1505

In Chapter 15, we also discuss the Ethos Program, which is a peer-based early intervention program designed to recognise staff who demonstrate positive behaviours, remove barriers from speaking up about concerns that affect patient or staff safety, and allow for a quick, fair and transparent response to all staff, including those making a complaint and those with concerning behaviours.1506 Under the Ethos Program:

staff are trained on how to ‘speak up’ effectively and can use an online messaging system to submit feedback for recognition (to acknowledge positive behaviour) or reflection (to offer feedback for improvement)1507
feedback is delivered by a trained ‘Ethos Messenger’, who is generally a peer of the staff member, via an informal conversation1508
trained staff triage reports received through the Ethos messaging system across four levels, depending on the seriousness of the incident.1509

In Chapter 15, we recommend that the Department of Health considers integrating features of the Ethos Program into its cultural improvement program (Recommendation 15.4). A similar reporting system that applies to all staff could also be a valuable initiative for creating a culture that enables the giving and receiving of feedback in youth detention.

Responding to complaints—the role of the Child-Related Incident Management Directorate and the Harmful Sexual Behaviours Support Unit

In Chapter 6, we recommend establishing a Child-Related Incident Management Directorate to receive, assess, investigate, coordinate and oversee the Department’s responses to allegations of child sexual abuse and related conduct (including grooming and professional boundary breaches), and other harms to children and young people by staff (Recommendation 6.6).

The Child-Related Incident Management Directorate would have three functions:

an incident report management function, which would be responsible for assisting child-facing services in the Department (such as Ashley Youth Detention Centre) with managing incidents or allegations against staff, including being the point of contact for these services—this function should be responsible for ensuring the relevant government institution takes appropriate actions in relation to matters referred to the Directorate
an investigations function, comprising appropriately trained and skilled investigators who would undertake preliminary assessments, investigate incidents of alleged misconduct (including allegations of child sexual abuse) and prepare reports for misconduct adjudicators to consider
a misconduct disciplinary advice function that involves misconduct adjudicators examining reports prepared by investigators on incidents of alleged misconduct, assessing whether misconduct has been established and, where there may have been a breach of departmental policies, preparing a report recommending a course of action for the Secretary.

The recommended approach is based on the South Australian Department for Education’s system for responding to and investigating complaints of child sexual abuse.1510 In our view, the South Australian model embodies many of the features that the National Royal Commission recognised as being instrumental to an institution’s ability to respond to concerns or complaints of child sexual abuse in a way that is sensitive and child-focused. These include:

investigations being conducted by impartial, objective, trained investigators1511
children being interviewed by people with relevant specialist skills (for example, knowledge of child development, trauma-related behaviours, indicators of abuse and investigative techniques)1512
responding to complainants in a sensitive, supportive and protective way and ensuring affected parties (including the subject of the complaint) have access to support, therapeutic treatment services and advocacy.1513

The Child-Related Incident Management Directorate would be responsible for leading the response to allegations of child sexual abuse by staff across all portfolios of the Department, namely education, out of home care and youth justice.

In relation to youth detention, we recommend the following:

All concerns and complaints involving allegations of child sexual abuse and related conduct (including grooming and boundary breaches) or other harms to children (including the inappropriate use of force, isolation or searches) by staff should be referred immediately to the Child-Related Incident Management Directorate.
The incident report management function of the Child-Related Incident Management Directorate should be responsible for ensuring detention centre management communicates appropriately with children and young people affected by an allegation against a staff member, as well as their parents or carers.
The incident report management function and the investigations function of the Child-Related Incident Management Directorate should be performed by staff with knowledge and understanding of the youth justice system, and an understanding of the characteristics of abuse and mistreatment of children and young people in detention. This is particularly important in view of the widespread and systematic abuse experienced by some children and young people at Ashley Youth Detention Centre, as illustrated in Chapter 11, Case study 1.

In the case of concerns or complaints about harmful sexual behaviours, in Chapter 9 we recommend that the Department establishes a Harmful Sexual Behaviours Support Unit (Recommendation 9.28) in the new Office of the Chief Practitioner (Recommendation 9.17). We recommend that this unit supports all child-facing services in the Department, including youth justice services, to manage harmful sexual behaviours through the provision of advice, guidance and support. The Harmful Sexual Behaviours Support Unit should work closely with the new Quality and Risk Committee (Recommendation 9.5) to ensure systemic risks, practice issues and opportunities for improvement are identified.

In Section 8.5 of this chapter, we recommend (in Recommendation 12.30) that:

the Harmful Sexual Behaviours Support Unit develops detailed policies, protocols and guidelines to support best practice responses to harmful sexual behaviours displayed in youth detention or other residential youth justice facilities
all complaints about harmful sexual behaviours in youth detention or other residential youth justice facilities be reported to the Harmful Sexual Behaviours Support Unit and to the new Commission for Children and Young People.

The question then arises as to whether other, non-serious concerns and complaints about youth detention should also be automatically escalated within the Department. We note that in the Australian Capital Territory, the complaints management policy for children and young people in detention aims to ‘resolve complaints quickly and effectively and at the lowest level of formality possible’, stating that:

In many cases, concerns and complaints can be resolved quickly and effectively through informal communication with young people, their family members or significant others. In some cases a young person may simply want to have the reasons for a decision clearly explained to them, or may want an opportunity to have their views and concerns listened to and taken seriously.1514

Alison Grace, Deputy Centre Manager, Bimberi Youth Justice Centre, in the Australian Capital Territory, told us that ‘[a]s much as possible young people are encouraged to speak with their supervising Youth Worker, Team Leader and/or Unit Manager to address their concerns’.1515

The Australian Capital Territory’s complaints management policy places clear obligations on staff to ‘take the time to stop, listen and respond’ to any concerns raised by children and young people in a supportive and consistent manner because this may ‘reduce the need for complainants to escalate their concerns into formal complaints’.1516 However, the policy also states that ‘[u]nder no circumstances should staff try to talk a child or young person out of making a complaint’.1517 If the child or young person wants to make a complaint, staff should help them to do so.1518 Unit Managers will typically investigate complaints, but serious matters must be escalated to the Manager and the Director, Child and Youth Protection Services Operations.1519

We are mindful of the voices of victim-survivors who spoke of feeling there was no point in making a complaint to Ashley Youth Detention Centre because they felt they would not be believed or would suffer reprisals. We note that most of the matters about which victim-survivors remained silent would constitute serious complaints that would be escalated to the new Child-Related Incident Management Directorate under our recommended complaints-handling system.

We are also mindful that it may be impractical and not in a child’s or young person’s best interests for all minor concerns or complaints about youth detention to be escalated within the Department for investigation; for example, it may delay resolving the complaint. On this basis, we recommend that the primary responsibility for responding to non-serious concerns and complaints remains with management and staff of the detention facility.

Other recommended improvements to complaints processes

The Complaints Procedure and Complaints Practice Advice should be updated to reflect the changes recommended in Sections 10.3.1 and 10.3.2 and to:

demonstrate the ways in which specific barriers to making complaints in detention settings have been addressed
clearly define child sexual abuse and related conduct, including sexual misconduct, (consistent with the Child and Youth Safe Organisations Act—discussed in Chapter 18), grooming and boundary breaches
set timeframes for responding to complaints
specify any voluntary or mandatory reporting obligations
specify requirements for communicating with and providing support to complainants and other affected people
include procedures for formalising complaints received verbally, via email or other means where it is clear that the intent of the person is to make a complaint
clarify requirements for recording complaints and investigation outcomes
ensure complaints processes apply to any new detention facility designed to replace Ashley Youth Detention Centre, as well as other residential youth justice facilities, including the proposed assisted bail facilities and supported residential facilities (discussed in Sections 5.4.5 and 6.8.2 respectively).

The role of detention centre staff in complaints processes should be to respond supportively and proactively to concerns raised by children and young people, explain complaints processes to them and support them to make a complaint. They should understand which concerns and complaints must be referred immediately to the Child-Related Incident Management Directorate, and their mandatory and voluntary reporting obligations.

Staff receiving a complaint need to consider the intent of the person raising the issue—if it is clear they are making a complaint or reporting a serious incident, it needs to be treated as such, regardless of whether it is raised verbally, via email or using another mechanism, and regardless of whether it is made using the right form.

In Section 4.7.3, we recommend that professional development for staff includes training on all departmental policies and procedures (Recommendation 12.9). This should include training on complaints processes. In Section 4.8, we recommend that the Department develops a professional conduct policy that sets out the standards of behaviour expected of those who work in youth detention and other youth justice facilities, including contractors and volunteers (Recommendation 12.10).

Recommendation 12.35

The Department for Education, Children and Young People should:

update its complaints procedure and practice advice for youth detention to
1. address structural barriers to making complaints in detention and include developmentally appropriate communication methods at all stages
2. require concerns, regardless of the form in which they are raised, to be recognised, recorded and actioned as a complaint where the person raising the concern wants to make a complaint
3. define child sexual abuse (including sexual misconduct, grooming and harmful sexual behaviours) and boundary breaches
4. require all complaints and concerns involving allegations of child sexual abuse and related conduct or other harms to children (including the inappropriate use of force, isolation or searches) by staff, breaches of the State Service Code of Conduct or the professional conduct policy for youth detention (Recommendation 12.10) and reportable conduct as defined by the Child and Youth Safe Organisations Act 2023 to be referred immediately to the new Child-Related Incident Management Directorate for response (Recommendation 6.6)
5. require all incidents involving harmful sexual behaviours to be reported to the Harmful Sexual Behaviours Support Unit (Recommendation 9.28)
6. clearly specify mandatory and voluntary reporting obligations for staff in relation to Tasmania Police, Child Safety Services, the Registrar of the Registration to Work with Vulnerable People Scheme and the Independent Regulator under the Child and Youth Safe Organisations Act 2023
7. set timeframes for responding to complaints
8. specify requirements for communicating with and providing support to complainants and other affected parties, including parents or carers of affected children and young people
9. clarify the requirements for recording complaints and outcomes of complaint investigations to enable the monitoring of trends for quality, safety and governance purposes
10. include procedures for making and responding to complaints in relation to other residential youth justice facilities, including the proposed assisted bail and supported residential facilities
ensure staff in detention and other residential youth justice facilities understand and comply with their role in responding to complaints, including complaints about child sexual abuse, and have a clear process for raising safety concerns about other staff
use a range of child-friendly tools to ensure children and young people in detention and other residential youth justice facilities are aware of complaints processes and understand the steps facility staff and the Department will take in response to a complaint, including a complaint about child sexual abuse
ensure a child-friendly guide to making a complaint and explaining complaints procedures, including the circumstances under which complaints made to oversight bodies may be referred to the Department, is readily accessible on the Department’s website, as well as a guide for adults wishing to make a complaint on behalf of a child in detention or another residential youth justice facility
ensure there are staff in the Child-Related Incident Management Directorate with expertise in youth justice, including an understanding of the risks of child sexual abuse in detention and the characteristics of mistreatment and abuse in detention environments.

Independent oversight of youth detention

Independent external oversight is a vital component of safeguarding children and young people held in a closed facility such as Ashley Youth Detention Centre, where contact with people outside the facility is heavily controlled, regulated and limited.

To help identify and minimise the risks of child sexual abuse, children and young people in detention must have access to regular visits from the staff of an independent oversight body who have the interpersonal skills, cultural competency and professional background to build rapport and trust with them.1520

Children must also be empowered to engage with and participate in complaints and monitoring mechanisms while in detention.1521 They should feel confident to raise concerns with an oversight body and to make a formal complaint where necessary. This requires oversight bodies to be reliable, trustworthy and adequately resourced, and to communicate effectively with each other so children and young people in detention get useful responses to complaints, without negative repercussions.1522

Youth detention oversight bodies must also be proactive, particularly where children and young people may be reluctant to raise concerns or make complaints.1523 According to Stephen Kinmond OAM, former New South Wales Deputy Ombudsman (Human Services) and current New South Wales Children’s Guardian with responsibility for overseeing reportable conduct:

… if a particular agency or sector has demonstrated low reporting rates, it is important for the oversight body to take timely action. Indeed, for the [New South Wales reportable conduct scheme], the Ombudsman’s ability to undertake auditing activities was a critical function in assisting an agency to improve its systems and practices for providing safe environments for children in its care.1524

As the National Royal Commission noted, oversight bodies such as inspectors of custodial services, visitor schemes, children’s commissioners and guardians, and ombudsman offices can mitigate the heightened risks of child sexual abuse associated with a secure, locked youth detention facility and ensure greater transparency and accountability.1525

The National Royal Commission recommended that:

State and territory governments should ensure they have an independent oversight body with the appropriate visitation, complaint handling and reporting powers to provide oversight of youth detention. This could include an appropriately funded and independent Inspector of Custodial Services or similar body. New and existing bodies should have expertise in child-trauma, and the prevention and identification of child sexual abuse.1526

As mentioned in Section 10, the National Royal Commission also recommended that state and territory governments review existing external complaints-handling systems concerning youth detention centres to ensure they are capable of effectively dealing with complaints of child sexual abuse, so:

children can easily access child-appropriate information about external oversight
children have confidential and unrestricted access to external oversight bodies
staff involved in managing complaints internally and externally include Aboriginal people and professionals qualified to give trauma-informed care
complaints-handling systems are accessible for children with literacy difficulties or who speak English as a second language
children are regularly consulted about the effectiveness of complaints-handling systems and systems are continually improved.1527

The Take Notice, Believe Us and Act! report confirmed the importance of all children and young people in detention having access to external advocates who could proactively seek their views and respond when they had safety concerns.1528 However, as outlined in Section 10.1 and described in Section 11.2, some victim-survivors who were or had been in detention told us that they did not know who to contact to make a complaint, they did not feel safe making a complaint and, when they did complain, there was no action or response.

As noted, it is essential for children and young people in detention to feel safe to disclose sexual abuse or other mistreatment to an independent oversight body. However, it is not enough for an oversight body to rely solely on disclosures or complaints from children and young people in detention for the proper performance of its functions. An effective oversight body in the youth detention context is one that understands that youth detention exposes children and young people to a higher risk of sexual abuse and is cautious if there are low rates of complaints.1529

We note that the youth justice reforms outlined in the Keeping Kids Safe Plan, Draft Youth Justice Blueprint and Draft First Action Plan do not indicate any intention to reform current youth justice oversight mechanisms.1530

In this section, we recommend:

establishing an independent community visitor scheme for children and young people in detention, to give them an independent, trusted adult to whom they can speak regularly, with whom they can safely and confidently raise concerns, and who will advocate on their behalf
improving the Ombudsman’s processes for handling complaints containing allegations of sexual abuse involving children and young people in detention
strengthening and improving systemic monitoring of Tasmania’s youth detention facilities.

Tasmania’s system of oversight for youth detention

Several bodies in Tasmania are responsible for independently monitoring the safety and wellbeing of children and young people in youth detention. Collectively, the Commissioner for Children and Young People, Ombudsman and Custodial Inspector provide independent, external oversight for children and young people held in Ashley Youth Detention Centre.1531 Their roles are described in the following sections.

Also, in February 2022, the Tasmanian Government announced that it had appointed Richard Connock as a Tasmanian National Preventive Mechanism following the enactment of the OPCAT Implementation Act 2021 in November 2021.1532 Mr Connock is also the Ombudsman, Custodial Inspector, Tasmanian Health Complaints Commissioner, Energy Ombudsman and de facto Information and Privacy Commissioner.1533 The National Preventive Mechanism, established in line with OPCAT, is an independent body tasked with preventing torture. Its key function is:

… to regularly examine the treatment of persons deprived of their liberty in places of detention with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment.1534

The role does not investigate complaints.1535 The Tasmanian National Preventive Mechanism is discussed in Section 11.7.

In this section, we discuss oversight functions exercised over individual children and young people in youth detention and the youth detention system itself. For individuals, we distinguish between advocacy on behalf of an individual child—including visiting a child in detention, helping them to raise any concerns about their experience in detention and seeking resolution of those concerns—and the formal investigation of a complaint about detention made by a child or young person.

As discussed in Chapter 18, the current oversight arrangements for institutions responsible for children and young people are complex and fragmented. This is true of youth detention. Table 12.1 summarises the functions of the Commissioner for Children and Young People, the Ombudsman and the Custodial Inspector in respect of youth detention. These functions are then discussed in the following sections.

Table 12.1: Overview of current youth detention oversight system

Function	Commissioner for Children and Young People	Ombudsman	Custodial Inspector
Visiting an individual child in detention and listening to their concerns	●
Advocating on behalf of an individual child in detention (including assisting the child to make a formal complaint)	●
Investigating a complaint from a child about detention		●
Inspecting detention facilities			●
Monitoring the wellbeing of children in detention	● (as part of general function of monitoring the wellbeing of all Tasmanian children)		● (as part of inspection function)
Making recommendations to government about children in detention or the detention system	●	●	●

Commissioner for Children and Young People

The Commissioner for Children and Young People is an independent statutory officer appointed by the Governor on the advice of the Minister for Education, Children and Youth under the Commissioner for Children and Young People Act 2016 (‘Commissioner for Children and Young People Act’).1536 As mentioned earlier, the Commissioner for Children and Young People is Leanne McLean, who was appointed in November 2018.1537

The general functions of the Commissioner for Children and Young People are described in Chapter 18. These functions are broad and include advocating for all children and young people, as well as promoting, monitoring and reviewing the wellbeing of children and young people in Tasmania.1538

The statutory functions of the Commissioner for Children and Young People do not specifically refer to monitoring the wellbeing of children and young people in youth detention or monitoring the operation of the youth justice system more broadly. However, the Commissioner for Children and Young People Act specifies that it must be administered in line with several principles, including that the interests and needs of ‘vulnerable’ children and young people—defined to include detainees and former detainees—should be given special regard and serious consideration.1539

The Act also requires the Commissioner for Children and Young People to act ‘as advocate for a detainee under the Youth Justice Act 1997’.1540 This entails:

listening to, and giving voice to, the concerns and grievances of the detainee and facilitating the resolution of those concerns and grievances
seeking information about, and facilitating access by the detainee to, support services appropriate to the needs of the detainee
assessing whether the detainee has been provided with adequate information about his or her rights
assessing, in the Commissioner’s opinion, the physical and emotional wellbeing of the detainee.1541

The Commissioner for Children and Young People is a ‘prescribed officer’ for the purposes of section 135A of the Youth Justice Act.1542 This entitles the Commissioner to access, at any reasonable time, any detention centre for the purposes of performing functions under the Commissioner for Children and Young People Act, and to visit any detainee at a centre for the purposes of performing functions under the Youth Justice Act in relation to the detainee.1543 The detention centre staff and manager must allow the Commissioner for Children and Young People to conduct an interview with a detainee ‘out of the hearing of any other person’ and must not, without the approval of the detainee, open, copy, remove or read any correspondence between the detainee and the Commissioner.1544

The Commissioner for Children and Young People does not have the power to investigate or review decisions made about individuals. An exception applies where the Minister for Education, Children and Youth requests that the Commissioner investigates or reviews a decision or recommendation made, or an act or omission, under any Act.1545 In these circumstances, the Commissioner can undertake an investigation or review that is outside of their general jurisdiction.1546 Commissioner McLean told us that she had not been asked to undertake such an investigation during her term as Commissioner for Children and Young People.1547

The Commissioner for Children and Young People can: provide a child, or the child’s family, with information about relevant government and non-government programs or services; refer a child to such programs or services; or investigate or otherwise deal with any matter affecting the wellbeing of children generally when it is raised through a matter relating to a specific child.1548 This general power in relation to all children applies equally to children in detention. The Commissioner for Children and Young People can also refer any matter to the Ombudsman or Custodial Inspector if the Commissioner considers it appropriate.1549

Commissioner McLean indicated that she visits Ashley Youth Detention Centre every three weeks and that during 2020–21 she visited 15 times.1550 She said she meets with children and young people in a quiet space if they request this, and with or without a youth worker present.1551 She also advised that she participates in programs, visits young people in their units and can move through the Centre unaccompanied.1552

Commissioner McLean explained that she can assist children and young people to make a complaint to relevant authorities, which most commonly involves raising a complaint directly with Ashley Youth Detention Centre management, the Secretary of the Department, the Ombudsman or Tasmania Police.1553

In February 2022, an Advocate for Young People in Detention was appointed to assist Commissioner McLean to perform her youth detainee advocacy functions and meet the demand for help with making a complaint:1554

… we now have a full-time advocate for young people in detention who lives in the North West of the state, who’s present on site very regularly and has a mobile phone whose number is available to all detainees from admission. So, since the instigation of that additional resource we have seen a dramatic increase in the call on our advocacy and also an increase in the call upon us to facilitate a complaint.1555

However, despite her regular visits to Ashley Youth Detention Centre, Commissioner McLean told us that, as at 12 April 2022, no child or young person detained there had raised with her allegations of child sexual abuse perpetrated by staff.1556

In her statement to our Commission of Inquiry, Commissioner McLean identified four instances where she had been made aware (from a source other than a child) of child sexual abuse allegations involving children and young people at Ashley Youth Detention Centre.1557 These instances largely related to potential harmful sexual behaviours displayed by young people or historical allegations of abuse.1558 Commissioner McLean told us that she generally responded by referring the matters to other relevant authorities, discussing issues with the (former) Department of Communities, monitoring progress and outcomes of any reviews and, in one case, providing advocacy for a young person.1559

We acknowledge that the Commissioner for Children and Young People currently has no statutory power to investigate such incidents on her own motion, or to investigate departmental responses to such allegations. Nevertheless, the handling of these incidents highlights the limitations of, and weaknesses in, Tasmania’s current system of oversight of youth detention, where the Commissioner for Children and Young People is reliant on the assurances of the Department and lacks the power to inquire into the accuracy of those assurances.

We note that if these or similar incidents occurred in future, those involving allegations against staff would be subject to the Reportable Conduct Scheme under the Child and Youth Safe Organisations Act (discussed in Chapter 18). Under this scheme, an allegation that a ‘worker’ at Ashley Youth Detention Centre engaged in ‘reportable conduct’ (such as sexual offences, sexual misconduct or grooming) against a child or young person

in detention would need to be notified to the Independent Regulator and investigated by the head of the detention facility (as the ‘relevant entity’).1560 This is the Secretary of the Department, or their delegate.

Under the Child and Youth Safe Organisations Act, the Independent Regulator of the Reportable Conduct Scheme would be responsible for monitoring the investigation. It would receive: a copy of investigation findings, with reasons for the findings; details of any disciplinary or other action taken by management against the worker; and, where no action was proposed, the reasons for this decision.1561 The Independent Regulator would also have the power to investigate an allegation of reportable conduct on the Independent Regulator’s own motion, if it considered that this was in the public interest.1562

We strongly support the introduction of a reportable conduct scheme in Tasmania. In Chapter 18, we recommend establishing a new Commission for Children and Young People (Recommendation 18.6), which should assume the functions of the Independent Regulator of the Reportable Conduct Scheme. We discuss the new Commission for Children and Young People in Section 11.3.

We note that concerns about children and young people in detention who have engaged in harmful sexual behaviours against other children and young people in detention would not be subject to the Reportable Conduct Scheme because that scheme does not extend beyond reportable conduct by a ‘worker’ (defined as a person aged 18 years or older). In Section 8.5, we recommend that the Department be required to notify the new Commission for Children and Young People of incidents involving harmful sexual behaviours in youth detention, so the Commission has a complete picture of what is occurring in youth detention (Recommendation 12.30).

As discussed in Chapter 18, despite the statutory requirement that the Commissioner for Children and Young People acts ‘independently, impartially and in the public interest’, we heard evidence that cast doubt on the operational independence of the role.1563 In particular, former Commissioner for Children and Young People Mark Morrissey recounted several experiences where he felt the independence of his office had been undermined by the Government (these are described in Chapter 18). Mr Morrissey referred to:

… an apparent attempt to undermine the raison d’etre of the [Commissioner for Children and Young People]—namely as an independent voice legitimately advocating for children and young people, particularly vulnerable and at-risk children.1564

Mr Morrissey said that, following these experiences, he found it increasingly difficult to have his message accepted about child protection reform work and decided to retire.1565 He also indicated that his two predecessors had not continued in their roles for the full intended duration of their appointments, but did not specify or speculate as to why.1566

As discussed in Chapter 18, lack of control over resourcing can also impede the independence of an oversight body. Commissioner McLean noted that, in contrast to the Ombudsman, who has control of his own budget and has a separate appropriation, the budget for the Commissioner for Children and Young People is an output item from the (former) Department of Communities budget.1567 Commissioner McLean also told us that resourcing for her office ‘has remained a constant challenge’ and resourcing constraints have limited her ability to fulfil her functions.1568 The funding allocated to the Commissioner for Children and Young People was $1,386,000 in 2021–22.1569 In Chapter 18, we discuss independent resourcing of the new Commission for Children and Young People.

Ombudsman

The Ombudsman is an independent statutory officer appointed under the Ombudsman Act 1978.1570 The Ombudsman has a role both in relation to individuals and the youth detention system (refer to Table 12.1). As noted, the position is currently held by Richard Connock.1571

The primary role of the Ombudsman is to investigate the administrative actions of public authorities to ensure they are lawful, reasonable and fair.1572 The Ombudsman may receive complaints from people who are aggrieved by the administrative actions of public authorities if they have not been successful in resolving their complaint directly with the authority.1573 This includes complaints from children and young people in detention about their treatment in Ashley Youth Detention Centre.1574

Under the Youth Justice Act, a child or young person detained at a youth detention centre is entitled to complain to the Ombudsman about the standard of care, accommodation or treatment they are receiving in the detention centre.1575 Where a child or young person in detention wants to make a complaint to the Ombudsman, staff of the detention centre must take all steps necessary to facilitate the complaint and must send the Ombudsman an unopened, sealed envelope containing the complaint.1576

The Ombudsman’s 2021–22 annual report indicates that most complaints across all public authorities are resolved by way of ‘preliminary inquiries’—this involves a ‘co-operative approach’ where authorities provide information and work with the Ombudsman to address complaints and improve processes.1577 However, where appropriate, the Ombudsman may conduct an investigation on the basis of a complaint or on the Ombudsman’s own motion.1578 Following an investigation, a report is prepared for the public authority and this may contain recommendations to remedy actions.1579 The report may also be provided to the relevant Minister and to Parliament.1580 The Ombudsman does not have the power to compel a public authority to adopt any recommendations, although these ‘are ordinarily accepted and acted upon’.1581

The Ombudsman advised us that his office receives ‘very few, if any’ complaints about child sexual abuse.1582 The Ombudsman’s most recent annual report indicates that the Ombudsman received two complaints about Ashley Youth Detention Centre in 2021–22, up from one complaint in 2020–21.1583 The annual report provides no more information on the nature of these complaints.

Case studies 1 and 7 in Chapter 11 examine the former Ombudsman’s response to a complaint made by Erin (a pseudonym) in 2012 about the sexually inappropriate behaviour of a male youth worker at Ashley Youth Detention Centre. The then Ombudsman referred the allegations to Ashley Youth Detention Centre management and finalised the complaint.1584

We are aware of other complaints about the behaviour of staff at Ashley Youth Detention Centre that the then Ombudsman classified as ‘minor’ and referred in error to Centre management for internal review between 2009 and 2013.1585 In our view, the allegations in these complaints were not minor in nature. In Chapter 11, Case study 7, we observe that this historical arrangement between the Office of the Ombudsman and the Department, at least on occasion, resulted in serious matters being erroneously referred back to the Centre in and around 2012. In that case study, we also express our concern about the integrity of the processes which were in place in the Office of the Ombudsman at the time to ensure inappropriate referrals were not made.

The current Ombudsman advised us that this arrangement is no longer in place.1586 Mr Connock said that the Ombudsman’s Office now conducts preliminary enquiries for ‘any complaint’ it receives.1587 We have not been advised about how this process has been formalised.

We also understand that Ashley Youth Detention Centre management has, in the past, advised staff that they should not have direct contact with the Offices of the Ombudsman or Custodial Inspector, and that all enquiries from those offices must be escalated to senior management.1588

The Custodial Inspector

The Office of the Custodial Inspector was established by the Custodial Inspector Act 2016 (‘Custodial Inspector Act’) and commenced operation in November 2016.1589 The purpose of the office is to ‘provide independent, proactive, preventive and systemic oversight of custodial centres’, including Ashley Youth Detention Centre.1590 The Custodial Inspector must act independently, impartially and in the public interest.1591

As noted, the current Custodial Inspector is Mr Connock, who also holds several other appointments.1592

The Custodial Inspector’s functions include:

preparing and publishing guidelines and standards for conducting inspections1593
carrying out a mandatory inspection of each custodial centre against all inspection standards at least once every three years, and any occasional inspections of the Custodial Inspector’s own accord or as requested by the Minister for Corrections and Rehabilitation1594
reporting to the Minister or Parliament on the inspections, and any particular issue or general matter relating to the functions of the Custodial Inspector, if it is in the public interest to do so, or if requested by either House of Parliament or a Committee of either House of Parliament1595
providing an annual report to Parliament1596
providing advice or making recommendations that the Custodial Inspector thinks appropriate, including advice or recommendations relating to the safety, custody, care, wellbeing and rehabilitation of prisoners and detainees.1597

The Custodial Inspector has published Inspection Standards for Youth Custodial Centres in Tasmania, comprising standards under nine themes: governance and procedural fairness; informed advice; service delivery; family and community; partnerships; infrastructure; workforce; security; and health and wellbeing.1598

The Custodial Inspector does not respond to individual complaints.1599 However, if the Custodial Inspector considers that a matter raised by, or during, a mandatory or occasional inspection should be investigated, the Custodial Inspector may refer the matter to the Ombudsman or any other such person or body for investigation.1600

The Custodial Inspector is also entitled to visit or speak to a detainee at all reasonable times.1601 The person in charge of a custodial centre, each member of staff of the custodial centre and any person providing services in a custodial centre must allow the Custodial Inspector (like the Commissioner for Children and Young People) to conduct an interview with a detainee out of the hearing of any other person, and must not, without approval of the detainee, copy, remove or read any correspondence between the detainee and the Custodial Inspector.1602 These requirements are reflected in the Youth Justice Act.1603

The Custodial Inspector’s 2020–21 annual report indicated that the Custodial Inspector held ‘few concerns about the operations at [Ashley Youth Detention Centre]’.1604

Mr Connock told us that his many other responsibilities limited his ability to visit Ashley Youth Detention Centre.1605 Mr Connock also indicated that the Office of the Custodial Inspector was ‘not well enough resourced to do a full omnibus inspection most of the time’, so it undertook themed inspections instead.1606 The permanent staffing of the Office of the Custodial Inspector is the Inspector, one Principal Inspection Officer, one Senior Inspection Officer and one Administration and Research Officer.1607 Given the other demands on his time, the current Custodial Inspector has formally delegated all of his functions and powers under the Custodial Inspector Act to his staff.1608

In the Custodial Inspector’s 2021–22 annual report, the Custodial Inspector noted that, despite receiving extra funding for the Administration and Research Officer position, the Inspectorate’s resources were ‘still limited’.1609 He noted that, due to the departure of two staff members in late 2021 and difficulties in recruiting staff, there was a backlog of inspections.1610 He also indicated that the Inspectorate was unlikely to meet its three-year legislative timeframe for inspecting all custodial centres against all standards.1611

The Custodial Inspector has prepared eight reports into Ashley Youth Detention Centre, covering the themes of health and wellbeing; education and programs; custody; families, communities and partnerships; equal opportunity; food and nutrition; resources and systems; and environmental health and hygiene.1612 These reports were published between October 2018 and February 2022. They relate to inspections undertaken between May 2017 and February 2021.

There is only one reference to child sexual abuse in the Custodial Inspector’s reports on Ashley Youth Detention Centre—in the 2019 Custody Inspection Report.1613 That report referred to the National Royal Commission’s recommendation that state and territory governments review legislation, policies and procedures to ensure best practice for personal searches. The Custodial Inspector’s report recommended that the (former) Department of Communities consider ‘best practice processes for conducting personal searches of young people including providing clear information, including illustrations, about how the search will be performed’.1614 As discussed in Section 9.1.4, the Department updated its procedure for personal searches of children and young people in detention in February 2023.1615

In oral evidence, Mr Connock indicated that the standards related to safety, security and health would be particularly important for managing allegations of child sexual abuse.1616

The security standards refer to ‘the importance of ensuring that the environments in which young people are lawfully detained are safe, secure, and developmentally appropriate’.1617 They specify (among other matters) that:

detention centres are to be adequately staffed at all times1618
the use of force, including any form of restraints, should not cause humiliation or degradation and should be used for the shortest possible time (refer to Section 9.3)1619
behaviour management schemes should have incentives to promote effort and good behaviour and use fair sanctions for poor behaviour (these schemes are discussed in Section 6.3)1620
young people should be separated or segregated only in response to an unacceptable risk to themselves or others, and only when all other means of control have been exhausted (isolation is discussed in Section 9.2)1621
young people, staff and visitors should understand that bullying and intimidating behaviour are not acceptable and be aware of the consequences of such behaviour.1622

The health and wellbeing standards ‘provide guidance to youth justice services about ways that optimise the health and wellbeing of young people’.1623 They state that young people in custody should have their health needs addressed by appropriate health and ancillary services, and they should have a minimum of 10 hours out of their rooms each day.1624

We agree that these standards are relevant to ensuring an environment that protects children and young people from the risks of child sexual abuse. However, we consider that other standards are also relevant to minimising the risks of child sexual abuse in youth detention, such as the service delivery standard, which states that ‘young people in detention centres have the right to be safe and free from abuse’.1625

In oral evidence, Mr Connock told us that his office received ‘all sorts of internal documentation now’ about Ashley Youth Detention Centre, including ‘numbers about residents, where they’re housed [and] various incidents’.1626 According to the Tasmanian Government’s most recent progress report on implementing the recommendations of the National Royal Commission, Ashley Youth Detention Centre has ‘implemented changes to ensure that the Custodial Inspector is notified of all significant incidents’ at the Centre.1627 This is a positive development. However, it is not clear that the Custodial Inspector is resourced well enough to analyse or act on these reports.

Further, while we acknowledge the Custodial Inspector’s resourcing constraints, we consider that thematic inspections are less likely to identify abuse or mistreatment of children and young people in detention than full, open-ended inspections that take a broad view of children’s safety, health and wellbeing.

Chapter 11, Case study 1 reveals recollections of victim-survivors who said they had been sexually abused at Ashley Youth Detention Centre from the early 2000s to as recently as the early 2020s.1628 In that case study, we find that, for decades, some children and young people detained at Ashley Youth Detention Centre experienced systematic harm and abuse. In Chapter 11, Case study 3, we find that the use of isolation as a form of behaviour management, punishment or cruelty and contrary to the Youth Justice Act has been a regular and persistent practice at Ashley Youth Detention Centre since at least the early 2000s, and the conditions that enabled this practice still exist today. While the Custodial Inspector’s 2019 Custody Inspection Report commented on the use of isolation, that report did not identify any abusive practices in relation to this issue.1629

In oral evidence, Mr Connock conceded he was unaware of the extent of the abusive practices at Ashley Youth Detention Centre and accepted that more needed to be done to empower children and young people experiencing sexual or other abuse to make complaints.1630

We acknowledge that, as outlined in Sections 10.1 and 11.2, many children and young people felt it was unsafe to raise concerns with oversight bodies about child sexual abuse at Ashley Youth Detention Centre for fear of reprisals or punishment from staff or other young people in detention. Nevertheless, we consider that a proactive oversight body should understand the risks of child sexual abuse in the institution it is overseeing and not accept the absence of reports of abuse as an indication that abuse is not occurring. Rather, as noted, an effective oversight body should treat low reporting rates in a high-risk institution as grounds for further action and investigation.

Experiences of children and young people

We heard evidence from children and young people in detention and former detainees that suggests that external oversight of youth detention has not been effective. We acknowledge that some of these experiences predate the creation of the statutory Commissioner for Children and Young People and the Custodial Inspector.

Some children and young people in detention or formerly in detention were unaware that they could ask an external entity for help. For example, Warren (a pseudonym), a victim-survivor who was first admitted to Ashley Youth Detention Centre in the mid-2000s when he was 13 years old, told us:

I didn’t know if there was anyone outside Ashley we could make a complaint to. Now I know I can make a complaint to the Ombudsman but I didn’t know that when I was at Ashley.1631

We also heard that where young people in detention did make a complaint, they did not receive effective responses from the oversight body in question, or faced negative repercussions from Ashley Youth Detention Centre staff for doing so. Erin, whose experiences we describe in Chapter 11, Case study 1, told us that the complaint she made to the Ombudsman about highly concerning sexual behaviour towards her from a male youth worker in 2012 was referred to the Centre and that the Ombudsman’s Office did not contact her again.1632 Erin said she was not notified of any outcome by the Department or the Ombudsman and said other staff were ‘pissed off’ at her for speaking up. Subsequently, she felt it was pointless to make a complaint.1633

As discussed in Chapter 11, Case study 6, when Counsel Assisting asked Max (a pseudonym), a victim-survivor who was detained at Ashley Youth Detention Centre, how he was treated by staff after speaking to the Commissioner for Children and Young People in the late 2010s, he said:

They treated me like shit. They weren’t giving me any, like, toasties, they’d only give me drinks when I was allocated drinks. Like, before that they’d give us drinks sort of whenever, like toasties whenever, and then they just started just restricting everything. They tried to do it all by the rules, but like, they were just being real—they were just being real, like, real strict about everything, when they hadn’t been like that, then after that they just started doing it.1634

When Counsel Assisting asked Max if he felt like he was being punished because he had spoken to the Commissioner for Children and Young People, he replied ‘Yeah, yeah, it was obvious what they were doing’.1635

We did not ask the Tasmanian Government or the Commissioner for Children and Young People to give extensive evidence to reject or support Max’s evidence. However, the Ashley Youth Detention Centre staff member against whom the allegation was made denied the allegation during hearings.1636

Children and young people consulted for the Take Notice, Believe Us and Act! report said they were aware that the Commissioner for Children and Young People could help them make complaints.1637 However, some children and young people reported that they were not always allowed or encouraged to contact independent entities, while others noted that there were repercussions for doing so:1638

That’s another thing that Ashley [Youth Detention Centre] hates as well. They put all these posters up and that, but deep down they hate it. If you say, ‘I want to call the Commissioner,’ they’re just like, ‘Oh, you’re going to do that, are you?’ Because most times people do it to complain about a certain staff member. And then that staff member doesn’t do shit for you. They say, ‘Well, if you call the Commissioner, then I’m not doing shit for you.’ They’re like, ‘I’ll give you what I have to, I’ll give you your food and that, but only because I have to by law, but I’m not going to sit there and like you. If you do that, you’re just a scumbag.’ The amount of times I’ve had that said to me, then like, ‘No, I’m only joking’.1639

In Section 4, we make recommendations aimed at transforming the culture in youth detention, including ensuring children and young people are aware of their rights, empowering them to speak up and ensuring staff in detention facilities comply with a professional conduct policy that specifies standards of acceptable behaviour. In Section 10.3, we recommend measures to encourage complaints and critical feedback in youth detention from children and young people, and staff.

We also consider that there is scope to strengthen Tasmania’s system of external oversight for youth detention.

A new Commission for Children and Young People

In Chapter 18, we set out our recommendations to establish a new, independent Commission for Children and Young People that would subsume the functions of the current Commissioner for Children and Young People and have additional functions (Recommendation 18.6). These would include regulatory functions under the Child and Youth Safe Organisations Act in relation to the Child and Youth Safe Standards and the Reportable Conduct Scheme.

The new Commission for Children and Young People would have three statutory officeholders, each appointed by the Governor for a term not exceeding five years:

a Commissioner for Children and Young People, who would also be the Independent Regulator under the Child and Youth Safe Organisations Act
a Commissioner for Aboriginal Children and Young People (discussed in Chapter 9)
a Child Advocate (Deputy Commissioner) (discussed in Chapter 9).

To be effective, a youth detention oversight body should have expertise in relation to children and be independent—in its composition, resources, legal status and powers—of the institutions or agencies it is responsible for overseeing.1640 As discussed in Section 11.1.1, we heard evidence that cast doubt on the ability of the role of Commissioner for Children and Young People to be performed independently and effectively.

To maximise the independence of the new Commission for Children and Young People, we recommend in Chapter 18 that:

Commissioners for Children and Young People and Deputy Commissioners be appointed following an externally advertised merit-based selection process to ensure they have relevant professional qualifications and substantive experience in matters affecting children (Recommendation 18.7)
before making a recommendation to the Governor for an appointment to the Commission for Children and Young People, the Minister be required to consult with the leader of any political party that has at least two members in either house of Parliament (Recommendation 18.7)
the Commission for Children and Young People be separately and directly funded, like the Ombudsman, rather than through the Department for Education, Children and Young People (Recommendation 18.8)
the performance of the functions of the Commission for Children and Young People be monitored by a joint standing committee of the Tasmanian Parliament (Recommendation 18.9).

The new Commission for Children and Young People would not be a general complaints-handling or investigation body but would have a new individual advocacy function for children in out of home care and youth detention through a new independent community visitor scheme, and functions and powers to monitor the out of home care and youth justice systems (refer to Chapter 9 and the discussion in Sections 11.4 and 11.6 of this chapter).

Strengthening individual advocacy for children in detention

It is vital that children and young people in youth detention are supported to express any concerns about their treatment and that those concerns are treated confidentially.1641 It is also essential that such support remains in place until those concerns are resolved. The South Australian Guardian for Children and Young People, Penny Wright, told us that, despite not having a direct complaints-handling function for children in youth detention, her office’s most important mechanisms for protecting children in detention against the risk of sexual abuse were regular visits to detention facilities, regular sighting of all children in detention and the opportunity for children to speak to advocates confidentially.1642

As noted, the Commissioner for Children and Young People also has an individual advocacy function for children and young people in detention, which involves the Commissioner regularly engaging with children in detention and providing them with an opportunity to speak with advocates confidentially. While we consider that this function could be strengthened, we acknowledge that the performance of the Commissioner’s advocacy role has been enhanced since the appointment of a fixed-term dedicated Advocate for Young People in Detention in the office of the Commissioner for Children and Young People (noted in Section 11.1.1).1643

We heard evidence about the operation of independent community visitor schemes in Queensland and Victoria.1644 The Queensland scheme applies to children in out of home care and youth detention, while the Victorian scheme only applies to children in youth detention centres.1645 We also heard from Ms Wright about her role as Training Centre Visitor.1646 We were impressed by the capacity of these mechanisms to identify issues of concern to children and young people in detention—including concerns about child sexual abuse—and to effectively advocate on behalf of children and young people in detention for the resolution of their concerns.

In Chapter 9, we recommend that the Tasmanian Government introduces legislation to establish an independent community visitor scheme for children in out of home care, youth detention and other residential youth justice facilities, based on the Queensland Community Visitor Program (Recommendation 9.34). The key features of that program, which is administered by the Queensland Public Guardian, are:

Community visitors are appointed for up to three years by the Public Guardian.1647 They must have the ‘knowledge, experience or skills needed’ to perform the functions of the role.1648 They are not volunteers and are not employees of the public service.1649
Community visitors have a range of statutory functions, including developing a trusting and supportive relationship with each child they visit, advocating on behalf of the child, inspecting detention centres, and ensuring the child’s needs are being met.1650
Community visitors must visit children in detention ‘regularly’.1651 One Queensland youth detention centre is visited twice a week, while the remaining two are visited weekly.1652 A child in detention can also request a visit from a community visitor.1653
Community visitors have various statutory powers, including the power to enter a detention centre without notice, inspect the centre, talk to a child in private and require a staff member to answer questions and produce documents.1654

In Chapter 9, we also recommend that the independent community visitor scheme be administered by the new Commission for Children and Young People and led by the new Child Advocate. The Child Advocate should be responsible for appointing community visitors based on their skills, knowledge and expertise, including in the areas of child development, working with vulnerable children and young people, and the experiences and needs of Aboriginal children and young people. The Child Advocate should appoint at least one independent community visitor who is Aboriginal.

In relation to youth detention, we consider that community visitors should be responsible for:

developing trusting and supportive relationships with children and young people in detention and assisting them to understand their rights
advocating on behalf of children and young people in detention by listening to, giving voice to and helping to resolve their concerns and grievances
facilitating access to support services for children and young people in detention
inquiring into and reporting on the physical and emotional wellbeing of children and young people in detention
inquiring into whether the needs of children and young people in detention are being met
conducting exit interviews with children and young people leaving detention.

The independent community visitor scheme should be funded to enable every child and young person in detention to be visited weekly or whenever a child requests a visit. Ideally, a child would be visited by the same visitor each week, to build a relationship of trust. Children and young people in other residential youth justice facilities, such as the proposed assisted bail facilities (discussed in Section 5.4.5) and supported residential facilities (discussed in Section 6.8.2), should also receive regular visits.

Aboriginal children in detention should have access, wherever possible, to an independent community visitor who is Aboriginal. Alternatively, an Aboriginal child or young person in detention may request the involvement or assistance of the Commissioner for Aboriginal Children and Young People. Where such a request is made, the Child Advocate should work closely with the Commissioner for Aboriginal Children and Young People to arrange this.

We also consider that a child or young person who is transferred from youth detention to adult prison before they turn 18 should continue to receive visits from an independent community visitor until they turn 21. This will ensure continuity of the relationship between the visitor and the child or young person and recognise the increased vulnerability to sexual abuse of children and young people in prison.

Interviews between independent community visitors and young people in detention should be conducted in a safe environment, and out of the hearing and sight of detention centre staff and other young people to ensure privacy and confidentiality.1655 We heard evidence that, occasionally, the environment at Ashley Youth Detention Centre was not always safe for discussions with oversight bodies. Commissioner McLean told us that, during periods when the Centre was under restrictive practices or lockdowns (discussed in Sections 4.7.2 and 9.2.2), she had to conduct advocacy through the door of children and young people’s rooms:

My understanding today is that we have moved back to restrictive practices, that young people may be cycling in and out of their rooms on an hourly basis … When you visit the facility to speak to young people and advocate for them through a small window hole in the door, it is really awful … I don’t think it would meet the safety requirements of the centre for a worker, because they’re so thin on the ground, to come off the floor to supervise a young person out of their room to engage with the Commissioner or the Advocate.1656

We also heard that phone calls at Ashley Youth Detention Centre are monitored and are within a sight line of a youth worker.1657 We heard that a phone with prerecorded numbers had been installed at Ashley Youth Detention Centre, but these did not include the numbers of all oversight bodies.1658

In 2019, the Custodial Inspector observed that, for a phone call to be made from Ashley Youth Detention Centre, a child or young person needed to ask a staff member to provide a phone, which would then be plugged into a connection point on the wall.1659 In some units, such points were available in rooms separate from the common area; however, the Custodial Inspector noted that sound travelled around these rooms and ‘little privacy [was] afforded for the young person making the call’.1660 In other units, the only phone connection point was in the common area, which provided ‘no privacy whatsoever’.1661 The Custodial Inspector recommended that the then Department of Communities consider:

… options for installing private spaces with appropriate confidential settings in each unit at [Ashley Youth Detention Centre] for young people to make professional and personal telephone calls.1662

The Tasmanian Government’s most recent annual Action Plan in response to the recommendations of the National Royal Commission states that:

… all children and young people detained at [Ashley Youth Detention Centre] can contact the [Commissioner for Children and Young People] by telephone at any time, in a physical location that offers the detainees increased privacy.1663

As noted in Section 6.7.4, in June 2023, the Department informed us that it had ‘recently procured mobile phones for young people within Ashley Youth Detention Centre’, which would give them ‘the ability to make personal and professional calls from the privacy of their bedrooms or the Centre’s outside spaces or meeting rooms, outside of school hours’.1664 The mobile phones were expected to be provided to children and young people in July 2023.1665 We welcome this initiative because it is essential that children and young people be able to make private phone calls, including to oversight bodies.

In Chapter 9, we recommend that the independent community visitor scheme includes funding for a small number of legally trained child advocacy officers—also appointed by the Child Advocate—to help children and young people in out of home care and youth detention with more complex concerns. These officers could assist children and young people in detention to make a formal complaint to the Ombudsman, where the concern cannot not be resolved informally. The Ombudsman’s processes are discussed in Section 11.5.

Recommendation 12.36

The Tasmanian Government, in establishing and resourcing the new independent community visitor scheme (Recommendation 9.34), should ensure:

independent community visitors visit children and young people in detention facilities weekly, at a minimum
Aboriginal children and young people in detention or other residential youth justice facilities have access, wherever possible, to visits from an Aboriginal independent community visitor or from the Commissioner for Aboriginal Children and Young People, depending on the child’s preference
independent community visitors have the necessary statutory powers to perform their functions, including the power to enter the facility, have access to children and young people in the facility and inspect the facility
each facility where children and young people are detained or reside has a safe, dedicated space where independent community visitors can meet with children and young people and discuss concerns without being observed or overheard by staff or other children and young people.

Complaints to the Ombudsman about children’s experiences in detention

From 1 January 2024, under the Child and Youth Safe Organisations Act, complaints about child sexual abuse and related matters against staff in youth detention will constitute a ‘reportable allegation’ and fall within the scope of the Reportable Conduct Scheme. If the Ombudsman’s Office received such a complaint, it should be able to share this information with the Independent Regulator of the scheme, so a reportable conduct investigation can be undertaken (refer to Chapter 18 for a discussion of information sharing between oversight bodies).

For complaints about administrative actions or departmental decisions, such as the placement of a child or young person in a particular unit in a detention facility, we consider that the Ombudsman is the appropriate body to continue to receive such complaints, rather than the new Commission for Children and Young People. However, there is scope to improve the Ombudsman’s processes.

Currently, a complaint to the Ombudsman must be made by the person who is ‘personally aggrieved’ by the administrative action, unless that person has died or cannot act for themselves, in which case the complaint may be made by a personal representative suitable to represent them.1666 We heard from Mr Connock that if a child or young person has the capacity and wants to make a complaint, then ‘it should probably come from the young person, but we would treat everything on a case-by-case [basis]’.1667

In Chapter 9, we recommend that the new Child Advocate be given the power to make a complaint to the Ombudsman on behalf of a child in out of home care, youth detention or another residential youth justice facility (Recommendation 9.35). In that chapter, we also propose that the Office of the Ombudsman works with the new Commission for Children and Young People to establish an accessible, child-friendly complaints process and develop specialisation among investigators in managing complaints from or involving children in out of home care, youth detention or other residential youth justice facilities.

In Chapter 18, we recommend that the Ombudsman, the Commission for Children and Young People, the Integrity Commission and the Registrar of the Registration to Work with Vulnerable People Scheme develop a memorandum of understanding relating to the management of reports, complaints and concerns about child sexual abuse (Recommendation 18.15). This memorandum of understanding should provide for permissive information-sharing practices that prioritise the safety of children. We discuss this recommendation in Section 11.8 of this chapter.

In Chapter 18, we also recommend that the Ombudsman, the Commission for Children and Young People, the Integrity Commission and the Registrar of the Registration to Work with Vulnerable People Scheme work jointly to develop a user-friendly guide for the general public that describes (among other matters):

how each of these agencies can assist with complaints and concerns about how organisations respond to child sexual abuse
the process they will adopt to respond to reports, complaints and concerns
how information provided by a person lodging a report, complaint or concern will be shared and managed
how agencies are committed to a ‘no wrong door’ approach to complaints, so people are reassured that all reports, complaints and concerns will receive a response from an agency (Recommendation 18.14).

We also recommend that a child-friendly version of this guide be developed and publicised widely in youth justice, out of home care and health settings and schools. Both guides should be available on the agencies’ websites and form part of their child safety community education and engagement activities.

To improve the Ombudsman’s internal processes, we recommend that it develops guidelines for its staff on managing complaints involving child sexual abuse in youth detention, other residential youth justice facilities or out of home care.

Recommendation 12.37

The Ombudsman should develop written guidelines for its staff on managing complaints it receives containing allegations of child sexual abuse involving children in youth detention, other residential youth justice facilities or out of home care. Among other matters, these guidelines should include:

the definition of child sexual abuse and related conduct, including sexual misconduct, grooming, harmful sexual behaviours and boundary breaches
the process for reporting relevant allegations to Tasmania Police, Child Safety Services, the Registrar of the Registration to Work with Vulnerable People Scheme and the Independent Regulator under the Child and Youth Safe Organisations Act 2023
guidance on referring an allegation or complaint to an agency named in the complaint
guidance on communicating with child complainants on the referral of their complaints to other entities and the progress of investigations into their complaints
processes for sharing information with other oversight bodies regarding the management of complaints (Recommendation 18.15).

Systemic monitoring of youth detention

The Custodial Inspector is responsible for inspecting and monitoring Tasmania’s custodial centres. As such, the Custodial Inspector is not focused solely on youth detention and does not have specialist expertise in children or the youth justice system. To date, the Custodial Inspector has not identified any specific risks of child sexual abuse in Ashley Youth Detention Centre, even though such risks have clearly existed.

Mr Connock, the current Custodial Inspector, holds six other statutory roles and has limited capacity to devote to inspecting Ashley Youth Detention Centre. We received evidence that the Office of the Custodial Inspector is under-resourced.1668 We are concerned that the current system for monitoring youth detention is ill-equipped to identify or prevent risks of child sexual abuse to children and young people in detention.

In our view, the oversight body responsible for systemic monitoring of youth detention should be child-focused and should specialise in working with children and young people. It should have expertise in child trauma and in preventing and identifying child sexual abuse.1669 It should be resourced to engage in regular and frequent monitoring of youth detention facilities.

In Victoria, the Commission for Children and Young People has functions in relation to ‘vulnerable children and young persons’.1670 These include children and young people detained in a youth justice centre or a youth residential centre under the Children, Youth and Families Act 2005 (Vic) and children involved in the youth justice system more broadly.1671 One of these functions is to ‘monitor and report to Ministers on the implementation and effectiveness of strategies relating to the safety or wellbeing of vulnerable children and young persons’.1672

According to its 2021–22 annual report, the Victorian Commission for Children and Young People monitors the safety and wellbeing of children and young people in Victoria’s two youth justice centres. It does this by reviewing all serious incidents (such as assaults or self-harm) that occur in those centres, by conducting onsite inspections and by monitoring custodial population data and incident trends. It also tracks the use of isolation, force and restraints.1673 The Victorian Commission for Children and Young People operates an independent visitor program for children and young people in youth justice centres and conducts exit interviews with children and young people leaving youth justice centres.1674

The Victorian Commission for Children and Young People also has specific inquiry powers in relation to children in youth detention. For example, it has a systemic inquiry power that enables it to conduct an inquiry into the provision of youth justice services to vulnerable children if it identifies a persistent or recurring systemic issue in the provision of those services and considers that a review will improve those services.1675 In 2021, the Victorian Commission for Children and Young People published its Our Youth, Our Way inquiry report on the over-representation of Aboriginal children and young people in Victoria’s youth justice system (discussed in Section 7).1676 That inquiry was conducted using the Commission for Children and Young People’s systemic inquiry power.1677

The Victorian Commission for Children and Young People can also conduct an inquiry into the safety and wellbeing of a vulnerable child or group of vulnerable children, where the inquiry relates to the services provided or omitted to be provided to that child or group of children.1678

Similarly, the Northern Territory Children’s Commissioner has the power to undertake investigations into systemic issues in youth detention under Part 5 of the Children’s Commissioner Act 2013 (NT).1679 In 2021–22, the Children’s Commissioner used its own-motion investigation powers to conduct preliminary inquiries into the detention of children under the age of 14 years in the Alice Springs Youth Detention Centre and Don Dale Youth Detention Centre.1680 The Children’s Commissioner also has the power to inquire into the services provided to an individual child in youth detention.1681

In Tasmania, Commissioner McLean told us that she is provided with data about children and young people held at Ashley Youth Detention Centre, including the daily roll, minutes of Weekly Review Meetings and monthly reports of incidents, isolation, use of force and searches.1682 She conceded that her office is constrained in its ability to analyse this data in significant detail due to a lack of resources.1683 Commissioner McLean also referred to her role in advocating for a therapeutic approach to youth justice and noted that she had observed a strong emphasis on a shift to a therapeutic model since she started in the role.1684

We consider that the new Commission for Children and Young People, as an oversight body dedicated exclusively to issues relating to children and young people, should be given functions and powers to monitor the wellbeing of children and young people in detention and the youth justice system more broadly. The Commission for Children and Young People should have expertise in working with vulnerable children and a deep understanding of the many challenges faced by children and young people in detention.

Giving the new Commission for Children and Young People systemic monitoring functions for youth detention would be complemented by the proposed independent community visitor scheme (refer to Recommendation 12.36). Through this scheme, the concerns expressed to visitors by children and young people in detention during regular visits would provide early and valuable insight into any systemic problems arising in youth detention centres.1685

This recommendation would also be consistent with our recommendation in Chapter 9 to give the Commission for Children and Young People expanded powers and resources to oversee and monitor the out of home care system. As noted in that chapter and in Section 5.5.3 of this chapter, many children in detention are also involved in the out of home care system—we consider it logical and appropriate for a single oversight body to monitor the experiences of these vulnerable children.

The Commission for Children and Young People should also have the power to enter adult prisons to monitor the safety and wellbeing of children and young people in those facilities. This is essential because of the increased vulnerability of children and young people to sexual abuse in prison.

We acknowledge that implementing these recommendations will require additional resourcing for the new Commission for Children and Young People. However, we consider that this is essential to ensure that a body with the necessary specialisation and expertise is responsible for systemic monitoring of youth detention.

Systemic monitoring by the Commission for Children and Young People should replace the inspection and monitoring of youth detention centres currently undertaken by the Custodial Inspector. However, the Tasmanian Government should consider whether the Commission for Children and Young People should assume responsibility for maintaining and reviewing the Inspection Standards for Youth Custodial Centres in Tasmania or whether they should remain the responsibility of the Custodial Inspector, given the Custodial Inspector will continue to be responsible for the standards for adult custodial facilities. If the Custodial Inspector retains responsibility for the youth detention standards, the Office of the Custodial Inspector should liaise with the new Commission for Children and Young People in updating and maintaining the standards.

Recommendation 12.38

The Tasmanian Government should ensure the Commission for Children and Young People (Recommendation 18.6):

has functions and powers to monitor the operation of youth detention centres and other residential youth justice facilities, and the safety and wellbeing of, and the provision of services to, children and young people in detention, and in the youth justice system more broadly, by
1. regularly monitoring and reviewing custodial population data and information on serious or adverse incidents (such as child sexual abuse, assaults, attempted suicide, self-harm, riots, escapes and property damage) and the use of isolation, force, restraints and searches
2. conducting regular onsite inspections of youth detention and other residential youth justice facilities
3. conducting own-motion systemic inquiries into issues that are identified through monitoring
4. conducting own-motion inquiries into the youth justice services received by an individual child or group of children
has the power to enter adult prison facilities to visit children and young people in those facilities to monitor their safety and wellbeing
is adequately resourced on an ongoing basis to fulfil its systemic monitoring functions.

Appointing a child-specific National Preventive Mechanism

As noted in Chapter 10, Australia is a party to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘OPCAT’), which it ratified in 2017.1686

Article 3 of OPCAT contains an obligation on States Parties to set up, designate or maintain, at the domestic level, one or several visiting bodies for preventing torture and other cruel, inhuman or degrading treatment or punishment, known as the National Preventive Mechanism.1687 The key functions of the National Preventive Mechanism are to visit and inspect places of detention, and to provide advice and make recommendations to the State to prevent torture and cruel, inhuman or degrading treatment.1688

Article 17 of OPCAT requires States Parties to maintain, designate or establish the National Preventive Mechanism no later than one year after ratification of the protocol.1689 Australia sought to delay its obligation to establish a National Preventive Mechanism, with 20 January 2023 set as the date for compliance.1690

OPCAT also requires States Parties to facilitate visits by the United Nations Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘Subcommittee on Prevention’).1691 The Subcommittee on Prevention comprises 25 independent human rights experts who serve in their personal capacity and monitor States Parties’ adherence to OPCAT.1692

The National Royal Commission recommended that the National Preventive Mechanism(s) be provided with:

… the expertise to consider and make recommendations relating to preventing and responding to child sexual abuse as part of regularly examining the treatment of persons deprived of their liberty in places of detention.1693

In October 2022, the Australian Human Rights Commission published a ‘road map’ to compliance with OPCAT.1694 This followed a national symposium in September 2022 that brought together relevant stakeholders from the Australian, state and territory governments.1695 That document recommended that governments ensure National Preventive Mechanisms are designed and operate in a way that reflect the needs of vulnerable cohorts who are disproportionately represented in places of detention.1696

The Tasmanian Parliament passed the OPCAT Implementation Act 2021 in November 2021. The purpose of the Act is to enable the National Preventive Mechanism to be appointed and maintained, and for the Subcommittee on Prevention to fulfil its mandate as set out in OPCAT.1697 Significantly, the Act provides for the appointment of ‘a person, or more than one person’ as a Tasmanian National Preventive Mechanism.1698

The functions of the Tasmanian National Preventive Mechanism include:

regularly examining the treatment of people deprived of their liberty in places of detention, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment
requiring the provision of, or access to, information held by any person concerning detainees, including the number and treatment of detainees
accessing, inspecting and reviewing places of detention
interviewing detainees
making recommendations and providing advice to the relevant authorities, to improve the treatment and conditions of people deprived of their liberty and prevent torture and other cruel, inhuman or degrading treatment or punishment
developing and publishing guidelines and standards in respect of detainees or places of detention.1699

In February 2022, the Tasmanian Government announced that Richard Connock had been appointed to the position of a Tasmanian National Preventive Mechanism for two years.1700

In the Ombudsman’s 2021–22 annual report, Mr Connock referred to his appointment as a Tasmanian National Preventive Mechanism and indicated that he was not required to report publicly on the performance of these functions.1701 He also stated that ‘little work’ has been undertaken by the Australian, state and territory governments to progress implementation of OPCAT—for example, to establish monitoring standards—which ‘renders the making of [a National Preventive Mechanism] office Budget Submission impossible at present’.1702

The Ombudsman’s annual report also observed that implementing the National Preventive Mechanism would require ‘significant resourcing and funding’.1703 Mr Connock reiterated during our hearings that this additional appointment constituted a further stretching of his capacity, explaining that ‘with OPCAT I’ve now got seven jurisdictions, and it’s becoming increasingly difficult to keep track of everything’.1704

The Subcommittee on Prevention suspended a visit to Australia in October 2022 after it was unable to gain unrestricted access to all places of deprivation of liberty in Queensland and New South Wales.1705 Subsequently, it announced that it had decided to terminate its suspended visit to Australia.1706 However, before the visit to Australia was suspended, the Subcommittee on Prevention visited Ashley Youth Detention Centre.1707 In February 2023, the Subcommittee on Prevention indicated that it would share a report with the Australian Government on what was observed during its October visit ‘as soon as possible’.1708 The Australian Government has not disclosed whether it will release the report publicly.

We note that other jurisdictions have appointed multiple National Preventive Mechanisms for different detention contexts.1709 In the Northern Territory, the Office of the Children’s Commissioner has been proposed (though not yet appointed) as a child-specific National Preventive Mechanism, alongside the Northern Territory Ombudsman.1710

Given Mr Connock’s many statutory roles, we consider that there would be considerable benefit in the Tasmanian Government appointing another National Preventive Mechanism with expertise in children and young people to focus on examining facilities where children and young people are detained. Given our recommendation to transfer systemic monitoring functions for youth detention from the Custodial Inspector to the new Commission for Children and Young People (Recommendation 12.38), we also recommend appointing this body as a Tasmanian National Preventive Mechanism for children and young people. The two National Preventive Mechanisms should work together closely.

We acknowledge that a small number of children may be sentenced to adult imprisonment, or may be transferred from youth detention to adult prison, and that the Commission for Children and Young People will not be a body with general expertise in the adult correctional system. Despite this, we consider that the significant number of children in youth detention who are also involved in the out of home care system makes the new Commission—a body with responsibility for monitoring the out of home care and youth justice systems—an appropriate National Preventive Mechanism for children and young people.

According to Article 18 of OPCAT, States Parties must ‘guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel’. To achieve this, the Commission for Children and Young People’s National Preventive Mechanism function should be funded and resourced separately from its other functions.

Recommendation 12.39

The Tasmanian Government should:

appoint the Commission for Children and Young People (Recommendation 18.6) as an additional National Preventive Mechanism under the United Nations Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), with expertise in child rights, child trauma, the prevention and identification of child abuse, the needs of Aboriginal children and young people and the needs of children and young people with disability, and with power to inspect places where children and young people are detained
resource Tasmanian National Preventive Mechanisms sufficiently to allow them to effectively fulfil their functions under OPCAT.

Collaboration among oversight bodies

As discussed in Chapter 18, effective information sharing is a crucial part of any child-centred system to ensure oversight bodies are clear about their respective roles and responsibilities in responding to any concerns about child safety. A child (or their advocate) should be able to make a complaint to, or raise a concern with, any of these oversight bodies and have it actioned or redirected appropriately without the child or young person needing to understand which type of complaint or concern should be raised with which body.

In Chapter 18, we describe the evidence we heard from Commissioner McLean, Mr Connock and Michael Easton, Chief Executive Officer, Integrity Commission, about the way the Commissioner for Children and Young People, Ombudsman and Integrity Commission work together on matters concerning children and young people. We heard that there are no consistent formal arrangements for information sharing or clear roles and responsibilities between these entities, with the determination of who is best placed to deal with a complaint often managed on a case-by-case basis.1711

In discussing the information-sharing relationship between these entities, Mr Connock said:

So, while there’s no protocol or memorandum of understanding, we all have a high level of understanding of our various functions … As the Commissioner has said, she doesn’t have the individual complaint-handling thing, but our two offices have a really good relationship, I think, and a good understanding, and we will take the complaint if it’s within our jurisdiction.1712

Commissioner McLean noted that if a child or young person wanted to make a complaint, she would assist them to make that complaint to the Ombudsman.1713 However, she indicated that there had been times when she had been unclear about whether a particular complaint would constitute a matter over which the Ombudsman had jurisdiction:

And it’s those good relations that we have with [Mr Connock] and his office that clear that up. I largely agree with what [Mr Connock] has said in that regard; there are no formal arrangements.1714

Commissioner McLean also indicated that there were no formal arrangements for sharing outcomes of individual cases referred to the Ombudsman:

So, we don’t have a formal record-keeping system in that regard, but we do check in with young people very regularly, including whether or not they have heard about the progress of their complaint.1715

Subsequently, in August 2022, Commissioner McLean told us that her office had negotiated an information-sharing arrangement with the Ombudsman’s Office, noting that it can be confusing for children and young people to determine the responsible oversight body:

… I acknowledge that it can be a bit confusing for young people and we often find ourselves in that explanatory position and saying, ‘Look, we’re not going to handle this complaint but we will make sure that the Ombudsman gets the complaint’. And just recently between the Ombudsman’s Office and our office we have negotiated an information-sharing arrangement that, with the use of a consent form, enables information about the outcome of the complaint to also come through my office so that we can help to communicate the outcome of the complaint to the young person.1716

We do not consider that relying on goodwill between oversight bodies is sufficient to protect the rights of vulnerable children and young people. We commend the information-sharing arrangement that has been agreed between the Commissioner for Children and Young People and the Ombudsman.

No child or young person should be turned away from an oversight body; rather, an oversight body that is approached by a child or young person should determine where they will receive the most appropriate assistance.

We consider that establishing the independent community visitor scheme for children and young people in detention (refer to Recommendation 12.36) will go a considerable way to ensuring children and young people feel confident to raise concerns about their treatment in detention, are aware of their rights, and understand the roles of the various oversight bodies and the process for making a formal complaint. As outlined in Section 11.4, independent community visitors would be responsible for assisting children and young people in detention to raise concerns and make complaints, and would keep children and young people informed of the progress of these matters.

Also, as noted in Chapter 18, we consider that there would be benefit in oversight bodies developing clear and formalised information-sharing agreements to underpin their practices. This is particularly important considering the new Commission for Children and Young People’s recommended oversight functions and powers in relation to Child and Youth Safe Standards and the Reportable Conduct Scheme.

In that chapter, we recommend that the Commission for Children and Young People, the Integrity Commission, the Ombudsman and the Registrar of the Registration to Work with Vulnerable People Scheme develop a formal memorandum of understanding for managing and overseeing reports, complaints and concerns relating to child sexual abuse that:

defines the roles, responsibilities, functions and limitations of each agency and describes where these overlap or intersect
requires consultation prior to the initiation of systemic reviews or inquiries where the subject of that inquiry relates to areas of common interest or intersecting functions
provides for permissive and enabling information-sharing practices that prioritise the safety and welfare of children for individual matters and ensure each party receives from others de-identified trend data necessary to perform its functions (Recommendation 18.15).

Conclusion

We remain gravely concerned about the culture at Ashley Youth Detention Centre and the safety and wellbeing of the children and young people detained there.

Children in detention are among the most vulnerable children in the community. Many have experienced violence, abuse, neglect and trauma, and have been failed by multiple service systems—education, health, housing and child protection—before coming into contact with the criminal justice system. The detention system must not harm them further. It must keep them safe from sexual abuse. It must also provide the children in its care with the support they need to turn their lives around.

In this chapter, we have described the extensive reforms needed to divert children from detention wherever possible and to create a child safe culture in youth detention—a culture where children are aware of their rights, they are listened to, their views are taken into account, and their rights are respected. Implementing these reforms will require strong leadership, a long-term commitment to change from all involved, and staff who have the right attributes and skills to build constructive and therapeutic relationships with children in detention. Resistance to change among staff must be overcome to achieve meaningful reform.

Implementation of our recommendations will also require a genuine commitment to listening to the voices of children in detention and those with experience of detention and, in particular, to the voices of victim-survivors of child sexual abuse in detention.

We acknowledge that reform of youth detention and the youth justice system is a monumental task. Those responsible for implementation will face challenges and setbacks. We agree with the Northern Territory Royal Commission that:

Progress is not always linear, especially during a process of major reform and when dealing with a vexed social issue such as young people who have offended. Critics of the system may seize on these moments to discredit it, but they are both normal and inevitable. They are not a reason to abandon the change. The leaders of the reform should acknowledge the possibility that missteps will occur … The test for those administering the system and their leaders is how they respond to challenges when they arise.1717

We urge the Tasmanian Government and future governments to maintain the commitment to implementing our recommendations to ensure the safety of Tasmanian children in youth detention and the youth justice system.

Notes

1 Peter Gutwein, ‘Ashley Youth Detention Centre to Close’ (Media Release, 9 September 2021) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/ashley_youth_detention_centre_to_close>.

2 Alexandra Humphreys, ‘Ashley Youth Detention Centre in Tasmania’s North to Close Down and Be Replaced by Two New Facilities’, ABC News (online, 9 September 2021) <https://www.abc.net.au/news/2021-09-09/ashley-youth-dentention-centre-tasmania-to-close/100447184>.

3 Jeremy Rockliff and Roger Jaensch, ‘Closure of Ashley Youth Detention Centre Part of Entire Youth Justice System Reform’ (Media Release, 28 August 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/closure-of-ashley-youth-detention-centre-part-of-entire-youth-justice-system-reform>.

4 Roger Jaensch, ‘Therapeutic Approach to Youth Justice Reforms’ (Media Release, 22 November 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/therapeutic-approach-to-youth-justice-reforms>.

5 Roger Jaensch, ‘Therapeutic Approach to Youth Justice Reforms’ (Media Release, 22 November 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/therapeutic-approach-to-youth-justice-reforms>.

6 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022).

7 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 7.

8 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 7–8.

9 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 8.

10 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 8.

11 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 6.

12 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 9–23.

13 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 9.

14 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023).

15 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023); Department for Education, Children and Young People, Procedural Fairness Response, 27 June 2023, 1.

16 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 6.

17 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 7.

18 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 10.

19 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 10–11.

20 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 19.

21 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 34.

22 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 9.

23 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 9–10.

24 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 34.

25 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 3.

26 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 9.

27 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 11.

28 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 3, 13.

29 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 15.

30 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 17.

31 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 19.

32 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 21.

33 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 9–22.

34 Tasmania, Parliamentary Debates, Legislative Assembly, 8 November 2022, 29 (Jeremy Rockliff, Premier).

35 Tasmania, Parliamentary Debates, Legislative Assembly, 8 November 2022, 31 (Jeremy Rockliff, Premier).

36 The name ‘Fred’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 18 August 2022. Transcript of ‘Fred’, 25 August 2022, 3346 [39–44].

37 Transcript of Robert White, 18 August 2022, 2801 [37–43].

38 Evidence to Legislative Council Sessional Committee Government Administration B, Parliament of Tasmania, Inquiry into Tasmanian Adult Imprisonment and Youth Detention Matters, Hobart, 13 July 2023, 60 (Roger Jaensch).

39 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 17, 65.

40 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 17, 65, Recommendation 17.6.

41 Department of Social Services (Cth), ‘National Memorial for Victims and Survivors of Institutional Child Sexual Abuse’, Families and Children (Web Page, 9 June 2023) <https://www.dss.gov.au/families-and-children-programs-services-children/national-memorial-for-victims-and-survivors-of-institutional-child-sexual-abuse-national-memorial>.

42 The Commission to Inquire into Child Abuse (Report, 2009) vol 4, 461 [702]; Independent Jersey Care Inquiry (Report, 3 July 2017) vol 3, 67, Recommendation 8b.

43 The Commission to Inquire into Child Abuse (Report, 2009) vol 4, 461 [7.02].

44 The Commission to Inquire into Child Abuse (Report, 2009) vol 4, 461 [7.02].

45 Independent Jersey Care Inquiry (Report, 3 July 2017) vol 1, 61 [13.22].

46 Independent Jersey Care Inquiry (Report, 3 July 2017) vol 1, 61 [13.22].

47 ‘Memorial Garden’, Port Arthur Historic Site (Web Page) <https://portarthur.org.au/memorial-garden/>.

48 Elise Archer, ‘Community to Be Consulted on the Future of Ashley Youth Detention Centre Site’ (Media Release, 9 December 2021) <https://elisearcher.com.au/community-to-be-consulted-on-the-future-of-ashley-youth-detention-centre-site/>.

49 Elise Archer, ‘Community to Be Consulted on the Future of Ashley Youth Detention Centre Site’ (Media Release, 9 December 2021) <https://elisearcher.com.au/community-to-be-consulted-on-the-future-of-ashley-youth-detention-centre-site/>.

50 Elise Archer, ‘Community to Be Consulted on the Future of Ashley Youth Detention Centre Site’ (Media Release, 9 December 2021) <https://elisearcher.com.au/community-to-be-consulted-on-the-future-of-ashley-youth-detention-centre-site/>.

51 Department of Justice, ‘Northern Correctional Facility’, Strategic Infrastructure Projects (Web Page, 17 April 2023) <https://www.justice.tas.gov.au/strategic-infrastructure-projects/northern-correctional-facility>.

52 Department of Justice, ‘Northern Correctional Facility’, Strategic Infrastructure Projects (Web Page, 17 April 2023) <https://www.justice.tas.gov.au/strategic-infrastructure-projects/northern-correctional-facility>.

53 Department of Justice, Report on Community Consultation on Future Use of the Ashley Youth Detention Centre Site for the Development of the Northern Correctional Facility (Report, undated) <https://www.justice.tas.gov.au/__data/assets/pdf_file/0009/659025/NCF-AYDC-Consultation-Report.pdf>. This report provides an overview of feedback received through the community consultation process that finished on 14 March 2022. It indicates that consultation involved ‘direct contact’ with ‘[n]ear [n]eighbours’, ‘public drop-in sessions’ and ‘written submissions’: at 4.

54 The name ‘Simon’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 18 August 2022. Transcript of ‘Simon’, 18 August 2022, 2760 [39–41].

55 Ben Hann, ‘Deloraine Prison Unpopular with Locals’, The Examiner (online, 19 February 2023) <gandmmonitoring.com.au/reports/story.php?storyProfileID=730970>.

56 Statement of Warren Strange, 28 April 2022, 30 [98].

57 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 8, 9.

58 Statement of Pamela Honan, 18 August 2022, 54 [84.2]; Transcript of Jacqueline Allen, 25 August 2022, 3366 [23–24].

59 Transcript of Stuart Watson, 23 August 2022, 3187 [47]–3188 [4].

60 Transcript of Stuart Watson, 23 August 2022, 3188 [11–21].

61 Transcript of Stuart Watson, 23 August 2022, 3188 [4–6].

62 Statement of Pamela Honan, 18 August 2022, 54 [84.2].

63 Statement of Jacqueline Allen, 15 August 2022, 43 [248].

64 Statement of Jacqueline Allen, 15 August 2022, 40 [214]; Transcript of Kathy Baker, 25 August 2022, 3421 [10–15].

65 Statement of Kathy Baker, 18 August 2022, 9 [30], 33 [193]; Transcript of Kathy Baker, 25 August 2022, 3406 [8–16], 3421 [4–15].

66 The name ‘Ben’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 18 August 2022. Statement of ‘Ben’, 29 March 2022, 10 [46]; Statement of Kathy Baker, 18 August 2022, 7 [18].

67 Department of Communities, ‘NTP-TAS-02 – Item 15 Cover sheet’, 20 September 2021, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

68 Statement of Kathy Baker, 18 August 2022, 10 [32]; Department of Communities, ‘Project Initiation Document: Records Digitisation and Remediation Project’, 7 July 2020, produced by the Tasmanian Government in response to a Commission notice to produce; Transcript of Kathy Baker, 25 August 2022, 3406 [27–29], 3407 [3–12].

69 Department of Communities, ‘Project Initiation Document: Records Digitisation and Remediation Project’, 7 July 2020, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

70 Department of Communities, ‘Project Initiation Document: Records Digitisation and Remediation Project’, 7 July 2020, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

71 Department of Communities, ‘Project Initiation Document: Records Digitisation and Remediation Project’, 7 July 2020, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

72 Department of Communities, ‘Project Initiation Document: Records Digitisation and Remediation Project’, 7 July 2020, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

73 Department of Communities, ‘Project Initiation Document: Records Digitisation and Remediation Project’, 7 July 2020, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

74 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 8, 70, 106.

75 Statement of Michael Pervan, 14 June 2022, 87 [472].

76 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 8, 74.

77 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 8, 82.

78 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 8, 76.

79 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 8, 87, Recommendation 8.3.

80 ‘Record Types Covered by the Disposal Freeze on Records about Children’, Office of the State Archivist (Web Page) <https://www.informationstrategy.tas.gov.au/Resources/Pages/Record-types.aspx>.

81 ‘Record Types Covered by the Disposal Freeze on Records about Children’, Office of the State Archivist (Web Page) <https://www.informationstrategy.tas.gov.au/Resources/Pages/Record-types.aspx>.

82 Department of Health and Human Services, Review of Claims of Abuse of Children in State Care Final Report – Round 4 (Report, November 2014) 12; Ombudsman Tasmania, Review of Claims of Abuse from Adults in State Care as Children (Final Report – Phase 2, June 2006) 4–6; Ombudsman Tasmania, Listen to the Children: Review of Claims of Abuse from Adults in State Care as Children (Report, November 2004) 15–16.

83 Ombudsman Tasmania, Listen to the Children: Review of Claims of Abuse from Adults in State Care as Children (Report, November 2004); Ombudsman Tasmania, Review of Claims of Abuse from Adults in State Care as Children (Final Report – Phase 2, June 2006); Department of Health and Human Services, Review of Claims of Abuse of Children in State Care Final Report – Round 4 (Report, November 2014).

84 Statement of Kathy Baker, 18 August 2022, 21 [115]; Statement of Mandy Clarke, 16 November 2022, 2 [5(a)].

85 Statement of Mandy Clarke, 19 August 2022, 9 [27]; Statement of Mandy Clarke, 16 November 2022, 2 [5(a)]; Transcript of Mandy Clarke, 25 August 2022, 3408 [46]–3409 [7].

86 Statement of Michael Pervan, 23 August 2022, 29 [106]; Statement of Kathy Baker, 18 August 2022, 21 [115].

87 Department of Communities, ‘AYDC Child Sexual Abuse Allegations’ (Excel spreadsheet), 29 October 2021, produced by the Tasmanian Government in response to a Commission notice to produce.

88 Statement of Mandy Clarke, 19 August 2022, 9 [27]; Request for statement served on Mandy Clarke, 24 October 2022, 5–6 [5]; Statement of Mandy Clarke, 16 November 2022, 3 [5(b)].

89 Email from Director, Child Abuse Royal Commission Response Unit to Mandy Clarke, 19 September 2020, produced by the Tasmanian Government in response to a Commission notice to produce; Department of Justice, ‘Claims of Abuse in AYDC’ (Spreadsheet), 19 September 2020, produced by the Tasmanian Government in response to a Commission notice to produce.

90 Statement of Kathy Baker, 18 August 2022, 21 [115].

91 Statement of Michael Pervan, 23 August 2022, 29 [108].

92 Department for Education, Children and Young People, ‘Response to NTP-TAS-008’, 20 January 2023, 9 [34]–10 [35], produced by the Tasmanian Government in response to a Commission notice to produce.

93 Department for Education, Children and Young People, ‘Response to NTP-TAS-008’, 20 January 2023, 9 [34]–10 [35], produced by the Tasmanian Government in response to a Commission notice to produce.

94 Department for Education, Children and Young People, ‘Response to NTP-TAS-008’, 20 January 2023, 9–10 [34], produced by the Tasmanian Government in response to a Commission notice to produce.

95 Department for Education, Children and Young People, ‘Response to NTP-TAS-008’, 20 January 2023, 10 [36], produced by the Tasmanian Government in response to a Commission notice to produce.

96 Department for Education, Children and Young People, ‘Response to NTP-TAS-008’, 20 January 2023, 10 [36], produced by the Tasmanian Government in response to a Commission notice to produce.

97 Department for Education, Children and Young People, ‘Response to NTP-TAS-008’, 20 January 2023, 10 [36], produced by the Tasmanian Government in response to a Commission notice to produce.

98 Department for Education, Children and Young People, ‘Response to NTP-TAS-008’, 20 January 2023, 10 [37], produced by the Tasmanian Government in response to a Commission notice to produce.

99 Statement of Darren Hine, 14 June 2022, 3–4 [9], 7 [27–29].

100 Statement of Darren Hine, 6 June 2022, Attachment DLH–03 (‘Child Sexual Abuse Joint Review Team: Historical Review Process Framework’, Department of Police, Fire and Emergency Management, 21 January 2022) 3.

101 Statement of Darren Hine, 6 June 2022, Attachment DLH–02 (‘Child Sexual Abuse Joint Review’, Project Plan, 21 July 2021) 4.

102 Statement of Darren Hine, 14 June 2022, 3–4 [9], 7 [2–29].

103 Statement of Darren Hine, 6 June 2022, Attachment DLH–03 (‘Child Sexual Abuse Joint Review Team: Historical Review Process Framework’, Department of Police, Fire and Emergency Management, 21 January 2022) 3.

104 Statement of Jonathan Higgins, 8 August 2022, 17 [48].

105 Statement of Jonathan Higgins, 8 August 2022, 17 [49].

106 Statement of Jonathan Higgins, 7 November 2022, 15 [42].

107 Statement of Darren Hine, 14 June 2022, 7 [30–31], 20 [93].

108 Refer generally to Statement of Peter Graham, 15 August 2022, 9–10.

109 Statement of Peter Graham, 15 August 2022, 10. This is ‘behaviour that poses a risk of harm to vulnerable persons, whether by reason of neglect, abuse or other conduct’: Registration to Work with Vulnerable People Act 2013 s 3; Registration to Work with Vulnerable People Regulations 2014 reg 5A.

110 Child and Youth Safe Organisations Act 2023 ss 4, 34.

111 Child and Youth Safe Organisations Act 2023 ss 4 (definitions of ‘entity’, ‘reportable allegation’, ‘reportable conduct’), 5, 7, sch 2 cl 2(h)(i).

112 National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth) s 97(1)(e).

113 Australian Government, ‘6.3 Disclosing Protected Information’, National Redress Guide (Web Page, 7 January 2023) <https://guides.dss.gov.au/national-redress-guide/6/3>.

114 Statement of Ginna Webster, 10 June 2022, 50 [323].

115 Statement of Ginna Webster, 10 June 2022, 50 [324], 51 [328–330].

116 Statement of Ginna Webster, 10 June 2022, 50 [321(b)–(c)]; State of Tasmania, Procedural Fairness Response, 27 July 2023, 3.

117 Statement of Ginna Webster, 10 June 2022, 51 [325].

118 Statement of Ginna Webster, 10 June 2022, 51 [326].

119 State of Tasmania, Procedural Fairness Response, 27 July 2023, 10.

120 State of Tasmania, Procedural Fairness Response, 27 July 2023, 10.

121 Request for statement served on Ginna Webster, 29 March 2022, 13 [81].

122 Statement of Ginna Webster, 10 June 2022, 53 [338]–54 [339].

123 State of Tasmania, Procedural Fairness Response, 27 July 2023, 4.

124 State of Tasmania, Procedural Fairness Response, 27 July 2023, Attachment 3 (‘National Redress Scheme Operational Manual for Participating Institutions’, August 2018) 43.

125 State of Tasmania, Procedural Fairness Response, 27 July 2023, Attachment 3 (‘National Redress Scheme Operational Manual for Participating Institutions’, August 2018) 43.

126 State of Tasmania, Procedural Fairness Response, 27 July 2023, Attachment 3 (‘National Redress Scheme Operational Manual for Participating Institutions’, August 2018) 43.

127 State of Tasmania, Procedural Fairness Response, 27 July 2023, 4.

128 State of Tasmania, Procedural Fairness Response, 27 July 2023, 4.

129 State of Tasmania, Procedural Fairness Response, 27 July 2023, 3–4, 7; State of Tasmania, Procedural Fairness Response, 27 July 2023, 11.

130 Refer, for example, to Letter from Michael Pervan to Deputy Commissioner, 18 February 2020, produced by the Tasmanian Government in response to a Commission notice to produce; Tasmania Police, ‘Disclosure Report – Intel Submission’, 13 September 2021, produced by the Tasmanian Government in response to a Commission notice to produce; Email from Tasmania Police Criminal History Services to Registrar, Registration to Work with Vulnerable People, 4 November 2021, produced by the Tasmanian Government in response to a Commission notice to produce; Statement of Peter Graham, 15 August 2022, Attachment 1 (Registration to Work with Vulnerable People Records Concerning Ashley Youth Detention Centre Staff, 15 August 2022) 34.

131 State of Tasmania, Procedural Fairness Response, 27 July 2023, 3–4, 6–7.

132 Statement of Peter Graham, 15 August 2022, 10.

133 Transcript of Michael Pervan, 26 August 2022, 3513 [13–29].

134 Statement of Donald Palmer, 2 April 2022, 4–5 [19].

135 Child and Youth Safe Organisations Act 2023 s 14, sch 1, sch 2 item 2(h).

136 Child and Youth Safe Organisations Act 2023 sch 1, item 1.

137 Child and Youth Safe Organisations Act 2023 sch 1, item 2.

138 Child and Youth Safe Organisations Act 2023 sch 1, item 7.

139 Session with Tony Kemp, 10 November 2022.

140 Transcript of Janise Mitchell, 18 August 2022, 2853 [1–7]; Transcript of Samantha Crompvoets, 13 September 2022, 4028 [10–35], 4029 [25–32].

141 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 2, 157.

142 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 40.

143 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 48–50.

144 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 48–49.

145 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 49.

146 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 49, quoting Donald Palmer, Valerie Feldman and Gemma McKibbin, The Role of Organisational Culture in Child Sexual Abuse in Institutional Contexts (Final Report prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse, December 2016) 49.

147 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 49.

148 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 50.

149 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 105.

150 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 3.

151 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 7–11.

152 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 8–10.

153 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 12.

154 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 13.

155 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 13.

156 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 13.

157 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 13.

158 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 14.

159 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 14.

160 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 14.

161 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 15.

162 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 15.

163 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 15.

164 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 16.

165 Penal Reform International, Institutional Culture in Detention: A Framework for Preventive Monitoring (Report, 2nd ed, 2015) 16.

166 Statement of Donald Palmer, 12 April 2022, 14 [53].

167 Statement of Samantha Crompvoets, 10 September 2022, 9 [35].

168 Statement of Samantha Crompvoets, 10 September 2022, 9 [35].

169 Legislative Council Select Committee, Parliament of Tasmania, Ashley, Youth Justice and Detention (Report, 2007) 4.

170 According to Recommendation 23, ‘[t]he matter of continuing low morale among [Ashley Youth Detention Centre] employees should be addressed through the further enhancement of recruitment and induction processes and also enhancing ongoing practices by providing advanced training and personal development programs for existing staff’: Legislative Council Select Committee, Parliament of Tasmania, Ashley, Youth Justice and Detention (Report, 2007) 8.

171 Department of Health and Human Services, ‘Serious Incident Investigation Report Ashley Youth Detention Centre – Death of a Youth on Remand (Final Draft Version 4.0)’, 30 March 2011, 17, 20, 22, produced by the Tasmanian Government in response to a Commission notice to produce; Statement of Robert White, 16 August 2022, 6 [21].

172 Department of Health and Human Services, ‘Serious Incident Investigation Report Ashley Youth Detention Centre – Death of a Youth on Remand (Final Draft Version 4.0)’, 30 March 2011, 22, produced by the Tasmanian Government in response to a Commission notice to produce.

173 Department of Health and Human Services, ‘Serious Incident Investigation Report Ashley Youth Detention Centre – Death of a Youth on Remand (Final Draft Version 4.0)’, 30 March 2011, 35–36, Recommendations 4 and 5, produced by the Tasmanian Government in response to a Commission notice to produce.

174 Heather Harker, Independent Review of Ashley Youth Detention Centre, Tasmania (Report, June 2015) 16. De-escalation techniques are techniques used to manage conflict and difficult behaviours, and to prevent violence and aggression in youth detention.

175 Heather Harker, Independent Review of Ashley Youth Detention Centre, Tasmania (Report, June 2015) 5–7.

176 Heather Harker, Independent Review of Ashley Youth Detention Centre, Tasmania (Report, June 2015) 8–9.

177 Noetic Solutions Pty Ltd, Custodial Youth Justice Options Paper: Report for the Tasmanian Government Department of Health and Human Services (Report, October 2016) 13.

178 Children and Youth Services, ‘Minute to Secretary: AYDC – Commissioner for Children Letter and Emerging Concerns’, 6 May 2016, 7, produced by the Tasmanian Government in response to a Commission notice to produce.

179 Children and Youth Services, ‘Minute to Secretary: AYDC – Commissioner for Children Letter and Emerging Concerns’, 6 May 2016, 5, 8, produced by the Tasmanian Government in response to a Commission notice to produce.

180 Children and Youth Services, ‘Minute to Secretary: AYDC – Commissioner for Children Letter and Emerging Concerns’, 6 May 2016, 7, produced by the Tasmanian Government in response to a Commission notice to produce.

181 Department of Health and Human Services, ‘Report to the Minister for Human Services – Ashley Youth Detention Centre, Review of Incidents 14–15 July 2016’, 19 August 2016, 2, 14–15, produced by the Tasmanian Government in response to a Commission notice to produce.

182 Letter from Richard Connock to Michael Pervan, 17 December 2019, 9, produced by the Tasmanian Government in response to a Commission notice to produce.

183 Serious Events Review Team, ‘Serious Event Review Report – Review of the Matter of [Henry]’, 19 March 2020, 33, produced by the Tasmanian Government in response to a Commission notice to produce. The name ‘Henry’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 18 August 2022.

184 Serious Events Review Team, ‘Serious Event Review Report – Review of the Matter of [Henry]’, 19 March 2020, 34–35, produced by the Tasmanian Government in response to a Commission notice to produce.

185 Janise Mitchell, ‘Through the Fence and into Their Lives: Ashley Youth Detention Centre Trauma Informed Practice Framework, Discovery Phase’, April 2020, 2–3, produced by the Tasmanian Government in response to a Commission notice to produce.

186 Janise Mitchell, ‘Through the Fence and into Their Lives: Ashley Youth Detention Centre Trauma Informed Practice Framework, Discovery Phase’, April 2020, 6–7, produced by the Tasmanian Government in response to a Commission notice to produce.

187 Janise Mitchell, ‘Through the Fence and into Their Lives: Ashley Youth Detention Centre Trauma Informed Practice Framework, Discovery Phase’, April 2020, 21, produced by the Tasmanian Government in response to a Commission notice to produce.

188 Statement of Stuart Watson, 16 August 2022, 5 [28(c)].

189 Statement of Mark Morrissey, 9 August 2022, 17 [107].

190 Statement of Mark Morrissey, 9 August 2022, 8 [53].

191 Transcript of Robert White, 18 August 2022, 2790 [40–46], 2791 [19–30].

192 Transcript of Mark Morrissey, 18 August 2022, 2772 [41].

193 Statement of Kathy Baker, 18 August 2022, 19 [100(c)]; Strategic Youth Services, ‘Issues Briefing: Staffing Levels and Labour Hire at the Ashley Youth Detention Centre’, 22 July 2019 (updated 9 September 2019), produced by the Tasmanian Government in response to a Commission notice to produce; Strategic Youth Services ‘Issues Briefing: Staffing Levels and Labour Hire at Ashley Youth Detention Centre’ 22 July 2019 (updated 17 December 2019), produced by the Tasmanian Government in response to a Commission notice to produce; Transcript of Lucas Digney, 24 August 2022, 3270 [26–41].

194 Statement of Madeleine Gardiner, 15 August 2022, 19 [33].

195 Transcript of Madeleine Gardiner, 22 August 2022, 2993 [22–27].

196 Statement of Madeleine Gardiner, 15 August 2022, 20 [34]–21 [35].

197 Transcript of Madeleine Gardiner, 22 August 2022, 2993 [21–25].

198 Statement of former Manager, Ashley Youth Detention Centre, 14 July 2022, 1–2 [6].

199 Statement of Robert White, 16 August 2022, 13 [52]–14 [53].

200 Statement of Robert White, 16 August 2022, 5 [15], 6 [19].

201 Statement of Robert White, 16 August 2022, 4–5 [15].

202 Statement of Michael Guerzoni, 29 April 2022, 24–25 [83].

203 Statement of Mark Morrissey, 9 August 2022, 17 [105].

204 Statement of Mark Morrissey, 9 August 2022, 17 [107].

205 Statement of Mark Morrissey, 9 August 2022, 17 [107]; Statement of Robert White, 16 August 2022, 6 [19].

206 The name ‘Alysha’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 18 August 2022. Transcript of ‘Alysha’, 22 August 2022, 3035 [5–8].

207 Statement of ‘Alysha’, 16 August 2022, 9 [41].

208 Transcript of ‘Alysha’, 22 August 2022, 3035 [8–13].

209 Transcript of ‘Alysha’, 22 August 2022, 3035 [15–32].

210 The name ‘Simon’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 18 August 2022. Transcript of ‘Simon’, 18 August 2022, 2760 [33–37].

211 The name ‘Warren’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 18 August 2022. Transcript of ‘Warren’, 18 August 2022, 2765 [45]–2766 [2].

212 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023).

213 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023), 57.

214 Anonymous statement, 23 May 2022, 3 [10].

215 Anonymous statement, 23 May 2022, 3 [10].

216 Statement of Madeleine Gardiner, 15 August 2022, 24 [39(b)].

217 Statement of Michael Guerzoni, 29 April 2022, 24 [83].

218 Transcript of Mark Morrissey, 18 August 2022, 2777 [22–26].

219 The name ‘Max’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 18 August 2022. Transcript of ‘Max’, 23 August 2022, 3123 [26–37].

220 Statement of Fiona Atkins, 15 August 2022, 10 [38]; Transcript of Fiona Atkins, 24 August 2022, 3280 [46]–3281 [6].

221 Statement of Fiona Atkins, 15 August 2022, 10 [38]; Transcript of Fiona Atkins, 24 August 2022, 3280 [46]–3281 [6].

222 Statement of Stuart Watson, 16 August 2022, 4 [22].

223 Transcript of Stuart Watson, 23 August 2022, 3136 [45]–3137 [5].

224 Transcript of Stuart Watson, 23 August 2022, 3137 [7–18].

225 Transcript of Veronica Burton, 22 August 2022, 3088 [15].

226 Transcript of Veronica Burton, 22 August 2022, 3088 [16–21].

227 Statement of ‘Alysha’, 16 August 2022, 17 [80].

228 Statement of former Manager, Professional Services and Policy, Ashley Youth Detention Centre, 8 August 2022, 9 [28].

229 Transcript of Veronica Burton, 22 August 2022, 3087 [23–37].

230 Transcript of Veronica Burton, 22 August 2022, 3087 [30–37].

231 Transcript of Mark Morrissey, 18 August 2022, 2776 [45–47].

232 Statement of Mark Morrissey 9 August 2022, 8 [55].

233 Statement of Youth Worker, Ashley Youth Detention Centre, 23 May 2022, 5 [1]; Statement of Youth Worker, Ashley Youth Detention Centre, 3 June 2022, 1; Statement of Youth Worker, Ashley Youth Detention Centre, 1 August 2022, 1 [1].

234 Statement of Youth Worker, Ashley Youth Detention Centre, 2 June 2022, 2 [6]; Statement of Operations Manager, Ashley Youth Detention Centre, 1 August 2022, 2 [7].

235 Statement of Richard Eccleston, 2 May 2022, 12 [49].

236 The name ‘Erin’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 18 August 2022. Transcript of ‘Erin’, 22 August 2022, 3022 [10–16].

237 Transcript of ‘Alysha’, 22 August 2022, 3046 [4–9].

238 Transcript of Janise Mitchell, 18 August 2022, 2838 [40–42].

239 Transcript of Janise Mitchell, 18 August 2022, 2838 [42–44].

240 Transcript of Janise Mitchell, 18 August 2022, 2838 [45]–2839 [3].

241 Statement of Mandy Clarke, 19 August 2022, 2–3 [2].

242 Transcript of Michael Pervan, 26 August 2022, 3482 [27–32].

243 Transcript of Sarah Spencer, 18 August 2022, 2820 [22–26].

244 Transcript of Sarah Spencer, 18 August 2022, 2923 [29–32].

245 Statement of Sarah Spencer, 2 June 2022, 9 [52–53].

246 Transcript of Colleen Ray, 18 August 2022, 2811 [3–10].

247 Transcript of Sarah Spencer, 18 August 2022, 2811 [17–33].

248 Transcript of Sarah Spencer, 18 August 2022, 2818 [13–20].

249 Ivan Dean, Submission No. 23 to Legislative Council Sessional Committee Government Administration B, Inquiry into Tasmanian Adult Imprisonment and Youth Detention Matters (March 2023) 4.

250 Ivan Dean, Submission No. 23 to Legislative Council Sessional Committee Government Administration B, Inquiry into Tasmanian Adult Imprisonment and Youth Detention Matters (March 2023) 6.

251 Statement of Madeleine Gardiner, 15 August 2022, 17 [26].

252 Statement of Madeleine Gardiner, 15 August 2022, 18 [29]; Transcript of Madeleine Gardiner, 22 August 2022, 2989 [34–45].

253 Statement of Madeleine Gardiner, 15 August 2022, 18 [29].

254 Transcript of Stuart Watson, 23 August 2022, 3149 [27–32].

255 Statement of Pamela Honan, 18 August 2022, 19 [23.1].

256 Statement of Pamela Honan, 18 August 2022, 20 [23.4–23.7].

257 Transcript of Pamela Honan, 19 August 2022, 2942 [43–44].

258 Transcript of Pamela Honan, 19 August 2022, 2942 [47].

259 Transcript of Michael Pervan, 26 August 2022, 3490 [20–25].

260 Jeremy Rockliff, ‘Closure of Ashley Youth Detention Centre Part of Entire Youth Justice System Reform’ (Media Release, 28 August 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/closure-of-ashley-youth-detention-centre-part-of-entire-youth-justice-system-reform>.

261 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023); Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023); Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022).

262 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 11.

263 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 32.

264 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 9–10, 12.

265 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 23.

266 Statement of Donald Palmer, 12 April 2022, 15 [54].

267 Statement of Donald Palmer, 12 April 2022, 15 [55].

268 Youth Justice Act 1997 s 124(1).

269 Department for Education, Children and Young People, FAQ – Establishing the New Department (Web Page) <https://www.decyp.tas.gov.au/new-department/faqs-establishing-the-new-department/>.

270 Department for Education, Children and Young People, DECYP – Organisation-Chart (undated) <https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/DECYP-Organisation-Chart.pdf>; Department for Education, Children and Young People, Procedural Fairness Response, 21 July 2023, 2–3.

271 Department for Education, Children and Young People, DECYP – Organisation-Chart (undated) <https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/DECYP-Organisation-Chart.pdf>; Department for Education, Children and Young People, Procedural Fairness Response, 21 July 2023, 3.

272 Transcript of Christopher Simcock, 7 September 2022, 3641 [38–40].

273 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 15.

274 Statement of Michael Pervan, 27 July 2022, 23 [39].

275 Statement of Michael Pervan, 27 July 2022, Annexure 6 (‘Ashley Youth Detention Centre Organisational Structure’, May 2022). In the Tasmanian State Service there are 10 ‘General Stream’ bands. According to the Tasmanian State Service Award, ‘Band 8 work leads a complex functional or program unit and develops program strategies, policies and operational approach’: Tasmanian State Service Award (No. 4 of 2023, 9 May 2023) 42.

276 Transcript of Janise Mitchell, 18 August 2022, 2852 [24–36].

277 Transcript of Mandy Clarke, 25 August 2022, 3418 [39–44].

278 Transcript of Veronica Burton, 22 August 2022, 3105 [34–46].

279 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 15.

280 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 17.

281 Department for Education, Children and Young People, DECYP Organisational Chart (undated) <https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/DECYP-Organisation-Chart.pdf>.

282 Department for Education, Children and Young People, DECYP Organisational Chart (undated) <https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/DECYP-Organisation-Chart.pdf>.

283 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 6, 147.

284 Statement of Samantha Crompvoets, 10 September 2022, 16 [60–61].

285 Transcript of Robert White, 18 August 2022, 2798 [9–16].

286 Transcript of Samantha Crompvoets, 13 September 2022, 4034 [6–19].

287 Statement of Michael Pervan, 27 July 2022, 48 [92].

288 Statement of Michael Pervan, 27 July 2022, 48 [93–94].

289 Statement of Michael Pervan, 27 July 2022, 48 [95–96].

290 Statement of Michael Pervan, 27 July 2022, 75 [264].

291 Transcript of Michael Pervan, 25 August 2022, 3454 [1–7].

292 Transcript of Michael Pervan, 25 August 2022, 3454 [8–15].

293 Transcript of Pamela Honan, 19 August 2022, 2941 [12].

294 Transcript of Pamela Honan, 19 August 2022, 2941 [12–17].

295 Statement of Pamela Honan, 18 August 2022, 21 [26.1].

296 Transcript of Mandy Clarke, 25 August 2022, 3401 [1].

297 Statement of Pamela Honan, 18 August 2022, 21 [26.2].

298 Statement of Pamela Honan, 18 August 2022, 11 [8.2], 21 [26.2].

299 Statement of Pamela Honan, 18 August 2022, 11 [9.1], 20 [23.6].

300 Statement of Pamela Honan, 18 August 2022, 21 [26.2].

301 Statement of Pamela Honan, 18 August 2022, 20 [23.5].

302 Statement of Pamela Honan, 18 August 2022, 21 [26.3].

303 Statement of Pamela Honan, 18 August 2022, 21 [26.3].

304 Statement of Pamela Honan, 18 August 2022, 20 [23.7].

305 Transcript of Pamela Honan, 19 August 2022, 2979 [18–33].

306 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 21.

307 Statement of Chris Simcock, 28 October 2022, Attachment 3 (‘Ashley Youth Detention Centre Incident Review Committee Terms of Reference’, Department for Education, Children and Young People, undated) 1.

308 Statement of Mandy Clarke, 19 August 2022, Attachment MC.001 (‘Youth Justice Reform Governance Framework’, Tasmanian Government, December 2021).

309 Statement of Mandy Clarke, 19 August 2022, Attachment MC.001 (‘Youth Justice Reform Governance Framework’, Tasmanian Government, December 2021) 4.

310 Statement of Mandy Clarke, 19 August 2022, Attachment MC.001 (‘Youth Justice Reform Governance Framework’, Tasmanian Government, December 2021) 5.

311 Statement of Mandy Clarke, 19 August 2022, Attachment MC.001 (‘Youth Justice Reform Governance Framework’, Tasmanian Government, December 2021) 9–10.

312 Statement of Mandy Clarke, 19 August 2022, Attachment MC.001 (‘Youth Justice Reform Governance Framework’, Tasmanian Government, December 2021) 12–13.

313 Statement of Mandy Clarke, 19 August 2022, Attachment MC.001 (‘Youth Justice Reform Governance Framework’, Tasmanian Government, December 2021) 15–16.

314 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 9.

315 Tasmanian Government, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 34.

316 Tasmanian Government, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 34.

317 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 24.

318 Tasmanian Government, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 8.

319 Statement of Madeleine Gardiner, 15 August 2022, 21 [35].

320 Statement of Madeleine Gardiner, 15 August 2022, 20–21 [34].

321 Australian Human Rights Commission, National Principles for Child Safe Organisations (2018) 6.

322 Child and Youth Safe Organisations Act 2023 sch 1, Standard 2.

323 Standard 3 provides that ‘[c]hildren and young people are empowered about their rights, participate in decisions affecting them and are taken seriously’: Victorian Commission for Children and Young People, ‘The 11 Child Safe Standards’, Child Safe Standards (Web Page) Standard 3 <https://ccyp.vic.gov.au/child-safe-standards/the-11-child-safe-standards/>.

324 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023).

325 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 104.

326 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 104.

327 Statement of Donald Palmer, 12 April 2022, 18 [63–65].

328 Commission for Children and Young People, Empowerment and Participation: A Guide for Organisations Working with Children and Young People (Report, 2021). We note that Commissioner Leah Bromfield was involved in the development of this report.

329 Commission for Children and Young People, Empowerment and Participation: A Guide for Organisations Working with Children and Young People (Guide, 2021) 29.

330 Commission for Children and Young People, Empowerment and Participation: A Guide for Organisations Working with Children and Young People (Guide, 2021) 30.

331 Commission for Children and Young People, Empowerment and Participation: A Guide for Organisations Working with Children and Young People (Guide, 2021) 31.

332 Commission for Children and Young People, Empowerment and Participation: A Guide for Organisations Working with Children and Young People (Guide, 2021) 32.

333 Office of the Advocate for Children and Young People, A Guide to Establishing a Children and Young People’s Advisory Group (Guide, May 2021).

334 Office of the Advocate for Children and Young People, A Guide to Establishing a Children and Young People’s Advisory Group (Guide, May 2021) 14–16, 54–55.

335 Department of Communities, Youth Matter: A Practical Guide to Increase Youth Engagement and Participation in Tasmania (Guide, undated).

336 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017).

337 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017) 1.

338 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017) 1.

339 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017) 2; Statement of Michael Pervan, 7 June 2022, 52 [232].

340 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017) 2–3.

341 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017) 2.

342 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017) 3.

343 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017) 3–4.

344 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017) 4.

345 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017) 4.

346 Children and Youth Services, AYDC Resident Advisory Group (Procedure, 13 November 2017) 5.

347 Janise Mitchell, ‘Through the Fence and into Their Lives: Ashley Youth Detention Centre Trauma Informed Practice Framework, Discovery Phase’, April 2020, 16, produced by the Tasmanian Government in response to a Commission notice to produce.

348 Tasmanian Government, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 10.

349 Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 14–15.

350 The Annie E. Casey Foundation, The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders (Report, 2010) 28.

351 Statement of Operations Manager, Ashley Youth Detention Centre, 1 August 2022, 1 [1]–3 [16]; Statement of Youth Worker, Ashley Youth Detention Centre, 2 [5–11]; Statement of Fiona Atkins, 15 August 2022, 3 [12–14].

352 Statement of Michael Guerzoni, 29 April 2022, 24 [83].

353 Transcript of Sarah Spencer, 18 August 2022, 2808 [34–36]; Transcript of Colleen Ray, 18 August 2022, 2807 [32–47].

354 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 17.

355 Transcript of Colleen Ray, 18 August 2022, 2807 [7–11].

356 Department of Communities Tasmania, ‘Ashley Youth Detention Centre Learning and Development Framework’, December 2020, 7, produced by the Tasmanian Government in response to a Commission notice to produce.

357 Department of Communities Tasmania, ‘Ashley Youth Detention Centre Learning and Development Framework’, December 2020, 9, produced by the Tasmanian Government in response to a Commission notice to produce.

358 Ombudsman Tasmania, ‘Preliminary Inquiries into the Assessment of a Use of Force Incident at the Ashley Youth Detention Centre’, December 2019, 9, produced by the Tasmanian Government in response to a Commission notice to produce.

359 Transcript of Christopher Simcock, 7 September 2022, 3650 [40–45].

360 Department of Territory Families, Housing and Communities (NT), ‘Interested in Becoming a Youth Justice Officer?’ (Information Sheet, 4 October 2022) 4 <https://tfhc.nt.gov.au/__data/assets/word_doc/0006/1155426/interested-in-becoming-a-youth-justice-officer-fact-sheet.docx>. Refer also to ‘Youth Detention Centres’, Department of Territory Families, Housing and Communities (Web Page, 19 October 2022) <https://tfhc.nt.gov.au/youth-justice/youth-detention-centres>.

361 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 51, Recommendation 20.2.

362 Territory Families, Housing and Communities (NT), Northern Territory Youth Detention Centres Model of Care (Framework, 20 May 2022).

363 Territory Families, Housing and Communities (NT), Northern Territory Youth Detention Centres Model of Care (Framework, 20 May 2022) 17.

364 Territory Families, Housing and Communities (NT), Northern Territory Youth Detention Centres Model of Care (Framework, 20 May 2022) 17.

365 ‘Youth Officer’, Department of Communities and Justice (NSW) (Web Page, 8 June 2023) <https://dcj.nsw.gov.au/about-us/careers-at-communities-and-justice-nsw/pathways/youth-officer.html>.

366 ‘Detention Youth Workers’, Department of Child Safety, Seniors and Disability Services (Qld) (Web Page, 15 May 2022) <https://www.cyjma.qld.gov.au/about-us/careers/opportunities/working-youth-detention/detention-youth-workers>.

367 ‘Youth Justice Career Pathways’, Department of Justice and Community Safety (Vic) (Web Page, 28 June 2023) <https://www.justice.vic.gov.au/careers/youth-justice-career-pathways>.

368 ‘Working In Youth Justice’, Department of Human Services (SA) (Web Page, 31 May 2023) <https://dhs.sa.gov.au/how-we-help/youth-justice/working-in-youth-justice>.

369 ‘Youth Justice Officer’, Department of Justice (WA) (Web Page, 13 June 2023) <https://www.wa.gov.au/organisation/department-of-justice/youth-justice-officer>.

370 Statement of Alison Grace, 29 July 2022, 3 [12], 17 [87].

371 Statement of Alison Grace, 29 July 2022, 18 [90].

372 Statement of Alison Grace, 29 July 2022, 18 [90].

373 Statement of Alison Grace, 29 July 2022, 18 [91].

374 Statement of Alison Grace, 29 July 2022, 18–19 [92].

375 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 32–33; Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 6.

376 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 32.

377 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 9, 10, 12, 18, 19.

378 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 22.

379 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 22.

380 Transcript of Robert White, 18 August 2022, 2791 [42]–2792 [2].

381 Noetic Solutions Pty Ltd, Custodial Youth Justice Options Paper: Report for the Tasmanian Government Department of Health and Human Services (Report, October 2016) 16.

382 Transcript of Robert White, 18 August 2022, 2792 [18].

383 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 19.

384 Statement of Fiona Atkins, 15 August 2022, 14 [46].

385 Statement of Fiona Atkins, 15 August 2022, 14 [46].

386 Legislative Council Select Committee, Parliament of Tasmania, Ashley, Youth Justice and Detention (Report, July 2007) 21–22.

387 Transcript of Sarah Spencer, 18 August 2022, 2818 [37–39].

388 Statement of Mark Morrissey, 9 August 2022, 17 [108].

389 Statement of Mark Morrissey, 9 August 2022, 17 [108].

390 Transcript of Mark Morrissey, 18 August 2022, 2786 [18–23].

391 Transcript of Lucas Digney, 24 August 2022, 3267 [47]–3268 [7].

392 Statement of ‘Max’, 19 May 2022, 2 [8]–3 [11].

393 Statement of ‘Max’, 19 May 2022, 2 [8].

394 Transcript of Colleen Ray, 18 August 2022, 2810 [45]–2811 [10].

395 Transcript of Sarah Spencer, 18 August 2022, 2818 [27–39].

396 Statement of Fiona Atkins, 15 August 2022, 15 [48].

397 Statement of Lucas Digney, 9 August 2022, 10 [29(a)].

398 Statement of Lucas Digney, 9 August 2022, 10 [30].

399 Statement of Lucas Digney, 9 August 2022, 10 [31(a)].

400 Statement of Michael Pervan, 23 August 2022, 2 [4].

401 Transcript of Michael Pervan, 26 August 2022, 3485 [40]–3486 [5].

402 Isabel Bird, ‘Locked Down at Ashley for up to 23 Hours ‘Every Day’’, The Examiner (Launceston, 8 July 2023); Commissioner for Children and Young People, ABC Radio—Lockdowns at AYDC for up to 23 Hours a Day (Web Page, 6 July 2023) <https://childcomm.tas.gov.au/abc-radio-lockdowns-at-aydc-for-up-to-23-hours-a-day/>.

403 Statement of Lucas Digney, 9 August 2022, 11 [31(d)].

404 Statement of Lucas Digney, 9 August 2022, 11 [31(d)–(e)].

405 Statement of Jacqueline Allen, 21 December 2022, Attachment 112 (Email from Lucas Digney to Jacqueline Allen et al, 24 June 2022).

406 Statement of Jacqueline Allen, 21 December 2022, Attachment 112 (Email from Jacqueline Allen to Lucas Digney et al, 27 June 2022).

407 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 4.

408 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 9–10.

409 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 15.

410 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 15.

411 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 15.

412 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 16.

413 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 16.

414 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 16.

415 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 17.

416 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 17.

417 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 5.

418 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 5.

419 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 5.

420 Commissioner for Children and Young People, Procedural Fairness Response, 12 July 2023, 3.

421 Commissioner for Children and Young People, Procedural Fairness Response, 12 July 2023, 5.

422 Commissioner for Children and Young People, Procedural Fairness Response, 12 July 2023, 6.

423 Commissioner for Children and Young People, ‘Ashley Youth Detention Centre’ (Media Release, 27 August 2022) <https://childcomm.tas.gov.au/ashley-youth-detention-centre/>.

424 Letter from Timothy Bullard to Commission of Inquiry, 3 August 2023, 1.

425 Letter from Timothy Bullard to Commission of Inquiry, 3 August 2023, 1.

426 Letter from Timothy Bullard to Commission of Inquiry, 3 August 2023, 1–2.

427 Transcript of Pamela Honan, 19 August 2022, 2938 [30–33].

428 Transcript of Pamela Honan, 19 August 2022, 2938 [34–43].

429 Transcript of Samantha Crompvoets, 13 September 2022, 4039 [29–33].

430 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 19–20.

431 Statement of Janise Mitchell, 17 August 2022, 9 [48].

432 Transcript of Janise Mitchell, 18 August 2022, 2837 [16–24].

433 Ms Grace told us that Bimberi Youth Justice Centre runs a biannual recruitment process: Statement of Alison Grace, 29 July 2022, 17 [87].

434 Keith Kaufman et al, Risk Profiles for Institutional Child Sexual Abuse: A Literature Review (Report prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse, October 2016) 38.

435 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 7, 185.

436 Statement of Jacqueline Allen, 15 August 2022, 38 [203(c)].

437 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017) vol 15, 40; Statement of James Ogloff, 22 August 2022, 18 [74].

438 Criminal Code 1924 s 18(1).

439 Criminal Code 1924 s 18(2); Commission for Children and Young People Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 155–156.

440 Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Tables S72b and S34b. On an average day in detention in Tasmania, there were 0.2 children aged 13 years. The number of children aged 10, 11 or 12 years in detention on an average day in Tasmania was ‘zero or rounded to zero’: Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Table S72a.

441 Transcript of Fiona Atkins, 24 August 2022, 3273 [5–11].

442 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 29. The 2017 review of Victoria’s youth justice system observed that ‘[n]o evidence shows that a custodial order reduces offending’: James Ogloff and Penny Armytage, Youth Justice Review and Strategy: Meeting Needs and Reducing Offending (Report, July 2017) Executive Summary, 14.

443 Statement of Vincenzo Caltabiano, 13 July 2022, 10 [58].

444 Change the Record, National Justice Coalition, #Raise The Age (Web Page, 2015) <https://www.changetherecord.org.au/raisetheage#:~:text=The%20ACT%20has%20made%20it,and%20their%20families%20to%20thrive>; Law Council of Australia, Submission to Council of Attorneys-General Age of Criminal Responsibility Working Group, Age of Criminal Responsibility Review (2 March 2020); Australian Medical Association, ‘No Excuses Left – Raise the Age of Criminal Responsibility to 14 Says AMA’ (Media Release, 15 December 2022) <https://www.ama.com.au/media/no-excuses-left-raise-age-criminal-responsibility-14-says-ama#:~:text=The%20AMA%20has%20welcomed%20the,of%20age%2C%20with%20no%20exceptions>.

445 Law Council of Australia, Submission to Council of Attorneys-General Age of Criminal Responsibility Working Group, Age of Criminal Responsibility Review (2 March 2020) 5.

446 Commission for Children and Young People Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 150.

447 Commission for Children and Young People Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 164.

448 Commissioner for Children and Young People Victoria, ‘Raise the Age of Criminal Responsibility: Australian and New Zealand Children’s Commissioners and Guardians’ (Media Release, 28 November 2019) <https://ccyp.vic.gov.au/news/raise-the-age-of-criminal-responsibility-australian-and-new-zealand-childrens-commissioners-and-guardians/>.

449 Tasmania Legal Aid, Children First: Children in the Child Safety and Youth Justice System (Report, July 2021) 6; Statement of Vincenzo Caltabiano, 13 July 2022, 4 [27]; Tasmanian Aboriginal Legal Service, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (11 March 2022) 3.

450 United Nations Committee on the Rights of the Child, Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia, UN Doc CRC/C/AUS/CO5-6 (1 November 2019) para 48(a).

451 Elise Archer, ‘States Agree to Develop Nationally Consistent Approach to Raising the Age of Criminal Responsibility’ (Media Release, 15 November 2021) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/states_agree_to_develop_nationally_consistent_approach_to_raising_the_age_of_criminal_responsibility/states_agree_to_develop_nationally_consistent_approach_to_raising_the_age_of_criminal_responsibility#:~:text=At%20the%20Meeting%20of%20Attorneys,10%20years%20to%2012%20years>.

452 Australian Government, ‘Standing Council of Attorneys-General Communiqué’ (Media Release, 9 December 2022) 6–7 <https://www.ag.gov.au/about-us/publications/standing-council-attorneys-general-communiques>.

453 Criminal Code Amendment (Age of Criminal Responsibility) Act 2022 (NT).

454 Premier of Victoria, ‘Keeping Young People out of the Criminal Justice System’ (Media Release, 26 April 2023) <https://www.premier.vic.gov.au/keeping-young-people-out-criminal-justice-system>.

455 Justice (Age of Criminal Responsibility) Legislation Amendment Bill 2023 (ACT).

456 Roger Jaensch, ‘Raising the Minimum Age of Detention’ (Media Release, 8 June 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/raising_the_minimum_age_of_detention>.

457 Tasmania Law Reform Institute, Raising the Minimum Age of Criminal Responsibility: Law Reform Considerations (Report No. 5, April 2022) 1.

458 Tasmania Law Reform Institute, Raising the Minimum Age of Criminal Responsibility: Law Reform Considerations (Report No. 5, April 2022) 1.

459 Tasmania Law Reform Institute, Raising the Minimum Age of Criminal Responsibility: Law Reform Considerations (Report No. 5, April 2022) 55–56.

460 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 7.

461 Sentencing Advisory Council Victoria, Reoffending by Children and Young People in Victoria (Report, December 2016) 7.

462 United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 7 [25].

463 Roger Jaensch, ‘Raising the Minimum Age of Detention’ (Media Release, 8 June 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/raising_the_minimum_age_of_detention>.

464 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 7–8; Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 6.

465 United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 14 [89].

466 Tasmania Legal Aid, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (undated) 3; Tasmanian Aboriginal Legal Service, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (11 March 2022) 3.

467 Commission for Children and Young People Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 172.

468 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 13.

469 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 13.

470 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 13.

471 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 3, 13.

472 Tasmania Legal Aid, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (undated) 15.

473 Oranga Tamariki Act 1989 (NZ) s 5(1). The Oranga Tamariki Act 1989 (NZ) is also known as the Children and Young People’s Well-being Act 1989 (NZ).

474 Sam Bookman and Andrew Becroft, ‘The New Principles of the Oranga Tamariki Legislation Act: CROCodile Tears or Provisions with Bite?’ (21 May 2019) SSRN Electronic Journal 15 <https://ssrn.com/abstract=3391878>.

475 Oranga Tamariki Act 1989 (NZ) s 5(1).

476 Oranga Tamariki Act 1989 (NZ) s 208(2).

477 Oranga Tamariki Act 1989 (NZ) s 208(2).

478 Oranga Tamariki Act 1989 (NZ) ss 4A(2), 208(1).

479 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 27 (emphasis in original).

480 United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 5 [15–16].

481 United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 5 [16].

482 United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 5 [16].

483 Youth Justice Act 1997 pt 2.

484 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 39.

485 Youth Justice Act 1997 ss 3 (definition of ‘offence’), 7.

486 Youth Justice Act 1997 ss 3 (definitions of ‘offence’ and ‘prescribed offence’), 161.

487 Youth Justice Act 1997 s 107(2).

488 Youth Justice Act 1997 s 3 (definition of ‘prescribed offence’).

489 Youth Justice Act 1997 s 3 (definition of ‘prescribed offence’).

490 Youth Justice Act 1997 s 3 (definition of ‘prescribed offence’).

491 Police Offences Act 1935 s 37J(1).

492 Youth Justice Act 1997 s 7.

493 Youth Justice Act 1997 s 8.

494 Tasmania Police, Tasmania Police Manual (5 August 2021) 358 [9.1.4].

495 Youth Justice Act 1997 s 9(1)(a).

496 Youth Justice Act 1997 s 10(2).

497 Youth Justice Act 1997 s 9(2), (3), (5).

498 Youth Justice Act 1997 s 9(2)(c).

499 Youth Justice Act 1997 s 11(1), (2). As noted in Section 7.1, we are not aware of any recognised Aboriginal organisations having been declared for the purposes of the Youth Justice Act 1997. Under section 12(1) of the Youth Justice Act 1997, if a formal caution is to be administered to a child or young person who is ‘a member of a religious, ethnic or other community group’ and the authorised police officer who would otherwise administer the formal caution considers it appropriate, the caution may be administered by a representative of that group approved by that authorised police officer.

500 Youth Justice Act 1997 s 10(2).

501 Youth Justice Act 1997 s 10(3)(b), (10).

502 Youth Justice Act 1997 s 10(3)(b).

503 Youth Justice Act 1997 s 9(4).

504 Youth Justice Act 1997 ss 13(1), 14(2), 15.

505 Youth Justice Act 1997 s 14(2)(c)(ii).

506 Youth Justice Act 1997 ss 16(1), 17.

507 Youth Justice Act 1997 s 16(1).

508 Youth Justice Act 1997 s 20(1).

509 Productivity Commission, Report on Government Services (Report, 31 January 2023) part C, section 6, table 6A.9.

510 Productivity Commission, Report on Government Services (Report, 31 January 2023) part C, section 6, table 6A.9.

511 Productivity Commission, Report on Government Services (Report, 31 January 2023) part C, section 6, table 6A.9.

512 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 45. The Sentencing Advisory Council reported a slight increase in the number of formal cautions over this period.

513 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 45.

514 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 45.

515 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 45.

516 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 45–46.

517 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 45.

518 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 29.

519 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 27.

520 Noetic Solutions Pty Ltd, Custodial Youth Justice Options Paper: Report for the Tasmanian Government Department of Health and Human Services (Report, October 2016) 15.

521 Tasmania Legal Aid, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (undated) 11.

522 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 51.

523 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 51.

524 Statement of Vincenzo Caltabiano, 13 July 2022, 7 [38].

525 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032 Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 11, 19.

526 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032 Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 23.

527 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032 Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 23.

528 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 15.

529 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 15–16.

530 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 15.

531 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 16.

532 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 5.

533 Kamarah Pooley, What Are the Characteristics of Effective Youth Offender Programs? (Australian Institute of Criminology Trends & Issues in Crime and Criminal Justice No. 604, September 2020) 12.

534 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 44.

535 Justices Act 1959 s 34.

536 Criminal Law (Detention and Interrogation) Act 1995 s 4.

537 Tasmanian Government, Department of Justice, ‘Reforms to the Tasmanian Bail System’ (Position Paper, January 2018) 20.

538 Youth Justice Act 1997 s 25(2).

539 Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Table S109a. The Australian Institute of Health and Welfare advises that ‘[t]his data should be interpreted with caution due to potential issues with recording and updating of custodial order details in Tasmania’.

540 Transcript of Fiona Atkins, 24 August 2022, 3273 [2–3].

541 Transcript of Fiona Atkins, 24 August 2022, 3276 [10].

542 Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Table S109a.

543 Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Table S117. The Australian Institute of Health and Welfare advises that ‘[t]his data should be interpreted with caution due to potential issues with recording and updating of custodial order details in Tasmania’.

544 Commissioner for Children and Young People, Procedural Fairness Response, 15 June 2023, 4.

545 Tasmania Legal Aid, Children First: Children in the Child Safety and Youth Justice System (Report, July 2021) 18.

546 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 95.

547 Sentencing Advisory Council Victoria, Children Held on Remand in Victoria: A Report On Sentencing Outcomes (Report, September 2020) 5.

548 Transcript of Robert White, 18 August 2022, 2798 [46]–2799 [1].

549 Statement of Vincenzo Caltabiano, 13 July 2022, 5 [28].

550 Tasmania Legal Aid, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (undated) 13. These issues were also identified in a 2013 report of the former Acting Commissioner for Children: Acting Commissioner for Children Tasmania, Alternatives to Secure Youth Detention in Tasmania (Report, 26 July 2013) 86–87.

551 Transcript of Hannah Phillips, 19 August 2022, 2892 [10–14].

552 Statement of Vincenzo Caltabiano, 13 July 2022, 4 [24].

553 Statement of Vincenzo Caltabiano, 13 July 2022, 4 [24].

554 Kelly Richards and Lauren Renshaw, Bail and Remand for Young People in Australia: A National Research Project (Report, Australian Institute of Criminology Research and Public Policy Series 125, 2013) 58.

555 Kelly Richards and Lauren Renshaw, Bail and Remand for Young People in Australia: A National Research Project (Report, Australian Institute of Criminology Research and Public Policy Series 125, 2013) 58–59.

556 Kelly Richards and Lauren Renshaw, Bail and Remand for Young People in Australia: A National Research Project (Report, Australian Institute of Criminology Research and Public Policy Series 125, 2013) 58.

557 Statement of Hannah Phillips, 13 July 2022, 4–5 [23].

558 Statement of Hannah Phillips, 13 July 2022, 4 [22].

559 Statement of Vincenzo Caltabiano, 13 July 2022, 3 [20].

560 Tasmanian Government, 2021–22 Budget: Government Services (Budget Paper No 2, August 2021) vol 1, 180–181.

561 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 32.

562 Save the Children, New Launceston Office (Web Page, 16 April 2019) <https://www.savethechildren.org.au/media/media-releases/new-launceston-office>; Save the Children, Save the Children Opens First Devonport Office (Web Page, 13 September 2018) <https://www.savethechildren.org.au/media/media-releases/devonport-office-opening>.

563 Tasmanian Aboriginal Legal Service, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (11 March 2022) 10.

564 Kelly Richards and Lauren Renshaw, Bail and Remand for Young People in Australia: A National Research Project (Report, Australian Institute of Criminology Research and Public Policy Series 125, 2013) 92.

565 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 32.

566 Kelly Richards and Lauren Renshaw, Bail and Remand for Young People in Australia: A National Research Project (Report, Australian Institute of Criminology Research and Public Policy Series 125, 2013) 92.

567 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 32; Tasmania Legal Aid, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (undated) 13; Tasmanian Aboriginal Legal Service, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (11 March 2022) 10.

568 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 32; Tasmania Legal Aid, Children First: Children in the Child Safety and Youth Justice System (Report, July 2021) 19.

569 Youth Justice Act 1997 s 24B.

570 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 33–34.

571 Tasmanian Aboriginal Legal Service, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (11 March 2022) 10–11.

572 Statement of Vincenzo Caltabiano, 13 July 2022, 5 [29]; Tasmania Legal Aid, Children First: Children in the Child Safety and Youth Justice System (Report, July 2021) 6, 18.

573 Bail Act 1977 (Vic) s 3B(1).

574 Bail Act 1977 (Vic) s 3B(3).

575 Bail Act 1977 (Vic) s 3AAA(1)(h).

576 Sentencing Advisory Council Victoria, Children Held on Remand in Victoria: A Report On Sentencing Outcomes (Report, September 2020) ix. We note that, in January 2023, the Victorian Premier announced that the Victorian Government would introduce bail reforms in the first half of 2023: Adeshola Ore, ‘Daniel Andrews Promises Victorian Bail Law Reform after Inquest into Veronica Nelson’s Death’, The Guardian (online, 31 January 2023) <https://www.theguardian.com/australia-news/2023/jan/31/daniel-andrews-promises-victorian-bail-law-reform-after-inquest-into-veronica-nelsons-death>.

577 Tasmanian Government, Department of Justice, Community Consultations – Bail Bill 2021 (Web Page) <https://www.justice.tas.gov.au/community-consultation/closed-community-consultations2/bail-bill>.

578 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 5.

579 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 2 February 2023) 26.

580 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 2 February 2023) 27.

581 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 2 February 2023) 25.

582 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 17.

583 Tasmanian Government, Department for Education, Children and Young People, Assisted Bail Facilities (undated) <https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/Youth-Justice-Assisted-Bail-Facilities.pdf>.

584 Department for Education, Children and Young People, Procedural Fairness Response, 16 June 2023, 5.

585 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 6.

586 United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 14 [86].

587 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) GA Res 40/33, UN Doc A/RES/40/33 (adopted 29 November 1985) rule 13.1.

588 United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 12 [73].

589 Youth Justice Act 1997 ss 32, 37(1), 47(1).

590 The orders are listed in the same order as in section 47(1) of the Youth Justice Act 1997.

591 Youth Justice Act 1997 s 47(1)(a).

592 Youth Justice Act 1997 s 47(1)(b).

593 Youth Justice Act 1997 ss 47(1)(c), 51.

594 Youth Justice Act 1997 ss 47(1)(d), 54.

595 Youth Justice Act 1997 ss 47(1)(e), 57.

596 Youth Justice Act 1997 ss 47(1)(f), 65.

597 Youth Justice Act 1997 ss 3, 6A, 47(1)(g), 69.

598 Youth Justice Act 1997 ss 47(1)(h), 79, 81, 90.

599 Youth Justice Act 1997 ss 3, 47(1)(i).

600 Youth Justice Act 1997 ss 47(1)(j), 56A.

601 Youth Justice Act 1997 s 37.

602 Youth Justice Act 1997 ss 38–40.

603 Youth Justice Act 1997 s 41.

604 Youth Justice Act 1997 s 47(3A).

605 Youth Justice Act 1997 s 47(4).

606 Youth Justice Act 1997 s 48(1).

607 Youth Justice Act 1997 s 5(1)(g).

608 Youth Justice Act 1997 s 5(1)(i).

609 Youth Justice Act 1997 s 5(1)(h).

610 Youth Justice Act 1997 s 4(h).

611 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021).

612 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 81.

613 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 81.

614 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 82.

615 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 82.

616 Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Tables S43a, 72a. In Tasmania, community-based youth justice supervision includes probation and community service but does not include an undertaking to be of good behaviour or release on conditions.

617 Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Table S43a.

618 Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Table S45a. ‘Rate’ means the number of young people per 10,000 relevant population. The rate of young people aged 10 to 17 years under community-based youth justice supervision on an average day in Tasmania in 2021–22 was 10.7.

619 Statement of Vincenzo Caltabiano, 13 July 2022, 7 [40].

620 Statement of Anthony McGinness, 6 July 2022, 5 [20].

621 Statement of Anthony McGinness, 6 July 2022, 5 [20].

622 Department for Education, Children and Young People, Practice Manual – Services for Children and Families, and Services for Youth Justice: Community Youth Justice (undated).

623 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 81–82.

624 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 69.

625 Jesuit Social Services, Ignatius Learning Centre (Web Page, 2023) <https://jss.org.au/programs/ignatius-learning-centre/>.

626 Jesuit Social Services, Ignatius Learning Centre (Web Page, 2023) <https://jss.org.au/programs/ignatius-learning-centre/>.

627 Jesuit Social Services, Ignatius Learning Centre Enrolment Policy (February 2021) 1 <https://cdn.jss.org.au/wp-content/uploads/2022/12/15102155/ILC-Enrolment-Policy.pdf>.

628 Jesuit Social Services, Ignatius Learning Centre (Web Page, 2023) <https://jss.org.au/programs/ignatius-learning-centre/>. We note that the Victorian Certificate of Applied Learning has been replaced by the new Victorian Pathways Certificate and the Victorian Certificate of Education – Vocational Major (refer to Section 6.6.3).

629 Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 1: Children Who Are Known to Child Protection among Sentenced and Diverted Children in the Victorian Children’s Court (Report, June 2019) 6; Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 2: Children at the Intersection of Child Protection and Youth Justice across Victoria (Report, April 2020); Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 3: Sentencing Children Who Have Experienced Trauma (Report, June 2020).

630 Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 1: Children Who Are Known to Child Protection among Sentenced and Diverted Children in the Victorian Children’s Court (Report, June 2019) 93; Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 2: Children at the Intersection of Child Protection and Youth Justice across Victoria (Report, April 2020) 2.

631 Tasmania Legal Aid, Children First: Children in the Child Safety and Youth Justice System (Report, July 2021) 4, 9.

632 Tasmania Legal Aid, Children First: Children in the Child Safety and Youth Justice System (Report, July 2021) 9.

633 Tasmania Legal Aid, Children First: Children in the Child Safety and Youth Justice System (Report, July 2021) 10.

634 Tasmania Legal Aid, Children First: Children in the Child Safety and Youth Justice System (Report, July 2021) 10.

635 Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 3: Sentencing Children Who Have Experienced Trauma (Report, June 2020) xii.

636 Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 3: Sentencing Children Who Have Experienced Trauma (Report, June 2020) xiii.

637 Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 3: Sentencing Children Who Have Experienced Trauma (Report, June 2020) xiii.

638 Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 3: Sentencing Children Who Have Experienced Trauma (Report, June 2020) xiii.

639 Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 3: Sentencing Children Who Have Experienced Trauma (Report, June 2020) xiv.

640 Sentencing Advisory Council Victoria, ‘Crossover Kids’: Vulnerable Children in the Youth Justice System. Report 3: Sentencing Children Who Have Experienced Trauma (Report, June 2020) 51.

641 United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 8 [38–39].

642 United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 8 [39].

643 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 54.

644 Magistrates Court of Tasmania, Youth Justice Court (Web Page) <https://www.magistratescourt.tas.gov.au/about_us/youth_justice_division>.

645 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 54.

646 Children, Young Persons and Their Families Act 1997 s 3 (definition of ‘Court’); Magistrates Court of Tasmania, Children’s Court (Web Page) <https://www.magistratescourt.tas.gov.au/about_us/childrens_division>.

647 Statement of Robert White, 16 August 2022, 24 [108–109].

648 Commissioner for Children and Young People, Procedural Fairness Response, 15 June 2023, 4–7.

649 Commissioner for Children and Young People, Procedural Fairness Response, 15 June 2023, 6.

650 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 89.

651 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 89.

652 Statement of Robert White, 16 August 2022, 24 [110].

653 Tasmania Legal Aid, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (undated) 6.

654 Tasmania Legal Aid, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (undated) 6–8.

655 Transcript of Vincenzo Caltabiano, 19 August 2022, 2902 [32–42], 2903 [22–24].

656 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 52.

657 Sentencing Advisory Council Tasmania, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 1.

658 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 2 February 2023) 25.

659 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 2 February 2023) 25.

660 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 15.

661 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 5.

662 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 20.

663 Statement of Mark Morrissey, 9 August 2022, 8 [54].

664 Statement of Robert White, 16 August 2022, 14 [57]; Transcript of James Ogloff, 13 September 2022, 3975 [36–40]; Transcript of Vincenzo Caltabiano, 19 August 2022, 2899 [31–36]; Transcript of Janise Mitchell, 18 August 2022, 2845 [4–17]. The Tasmanian Sentencing Advisory Council has identified similar factors as the characteristics of young offenders: Sentencing Advisory Council, ‘Sentencing Young Offenders’ (Research Paper No. 6, October 2021) 10–11.

665 Refer to the case studies in Chapter 11 of this volume.

666 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 442–444.

667 According to the United Nations, ‘States parties should immediately embark on a process to reduce reliance on detention to a minimum’: United Nations Committee on the Rights of the Child, General Comment No 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 14 [83].

668 Sentencing Advisory Council, Victoria, Reoffending by Children and Young People in Victoria (Report, December 2016) 41; Statement of Hannah Phillips, 13 July 2022, 20 [102–103].

669 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 37(c).

670 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 8.

671 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 433.

672 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 434–435.

673 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 435.

674 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 436–437.

675 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 438.

676 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 437.

677 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 439.

678 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 438–439.

679 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 440.

680 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023); Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023); Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022).

681 Statement of Janise Mitchell, 17 August 2022, 4 [19]–5 [25].

682 Roger Jaensch, ‘Therapeutic Approach to Youth Justice Reforms’ (Media Release, 22 November 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/therapeutic-approach-to-youth-justice-reforms>.

683 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 17.

684 United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN Doc A/RES/45/113 (4 April 1991) annex, 206 [17].

685 United Nations Committee on the Rights of the Child, General Comment No 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 15 [95(b)].

686 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 433.

687 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 444.

688 Statement of Elena Campbell, 4 July 2022, 14 [68]; Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 10.

689 Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 15.

690 Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 18.

691 Statement of Anthony McGinness, 6 July 2022, 8–9 [38].

692 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 434.

693 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 443.

694 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, May 2021) 549.

695 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 15.

696 Statement of Dale Tolliday, 30 April 2022, 8 [31–33].

697 The United Nations Rules for the Protection of Juveniles Deprived of their Liberty state that ‘small-scale facilities should be established and integrated into the social, economic and cultural environment of the community’ and that the population in detention facilities should be ‘as small as possible’: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN Doc A/RES/45/113 (4 April 1991) annex, 206–207 [30].

698 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 446; Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 10.

699 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 447.

700 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 446.

701 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 450.

702 Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Table S109a. The Australian Institute of Health and Welfare advises that ‘[t]his data should be interpreted with caution due to potential issues with recording and updating of custodial order details in Tasmania’.

703 Department for Education, Children and Young People, Procedural Fairness Response, 17 June 2023, 3.

704 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 7.

705 Action 3 of the Government’s Draft First Action Plan under the Draft Youth Justice Blueprint is to review the Youth Justice Act 1997 to consider (among other matters) ‘an expanded range of community sentencing options’. An ‘expected outcome’ of this action is ‘decreased detention of children and young people, especially those aged under 14’, to be delivered between 2023 and 2025: Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2035 (Draft Plan, January 2023) 13–14.

706 Roger Jaensch, ‘Consultation Begins on Preferred Sites for New Youth Detention Facility’ (Media Release, 23 March 2023) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/consultation-begins-on-preferred-sites-for-new-youth-detention-facility>.

707 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 446.

708 Noetic Solutions Pty Ltd, Custodial Youth Justice Options Paper: Report for the Tasmanian Government Department of Health and Human Services (Report, October 2016) 4.

709 Statement of Anthony McGinness, 6 July 2022, 12 [53–54]; Transcript of James Ogloff, 13 September 2022, 3989 [16–24].

710 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 62.

711 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 77.

712 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 78, Recommendation 21.2.

713 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 78, Recommendation 21.2.

714 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 78, Recommendation 21.1.

715 Statement of ‘Erin’, 18 July 2022, 7 [37]; Transcript of ‘Simon’, 18 August 2022, 2758 [7–13].

716 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 9–10.

717 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 10–11.

718 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 11.

719 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 12–13.

720 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 14.

721 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 13.

722 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 5.

723 Department for Education, Children and Young People, Procedural Fairness Response, 17 June 2023, 4.

724 Department for Education, Children and Young People, Procedural Fairness Response, 17 June 2023, 4.

725 Ashley Youth Detention Centre, ‘Standard Operating Procedure #37: CCTV Surveillance Cameras’, December 2011, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

726 Ashley Youth Detention Centre, ‘Standard Operating Procedure #37: CCTV Surveillance Cameras’, December 2011, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

727 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 8, 22–23, Recommendation 8.4.

728 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 8, 22, Recommendation 8.3.

729 Tasmanian Government, Office of the State Archivist, Notice of a Disposal Freeze on Records Relating to Children (Notice, December 2019).

730 Tasmanian Government, Office of the State Archivist, Notice of a Disposal Freeze on Records Relating to Children (Notice, December 2019) 1.

731 Tasmanian Government, Office of the State Archivist, Notice of a Disposal Freeze on Records Relating to Children (Notice, December 2019) 1.

732 Tasmanian Government, Office of the State Archivist, Notice of a Disposal Freeze on Records Relating to Children (Notice, December 2019) 1.

733 Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 14.

734 Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 14.

735 Jesuit Social Services, #Justice Solutions Tour: Expanding the Conversation (Report, August 2017) 20.

736 Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 14.

737 Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 15.

738 Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 15.

739 Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 11.

740 The Annie E. Casey Foundation, The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders (Report, 2010) 28.

741 The Annie E. Casey Foundation, The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders (Report, 2010) 28.

742 The Annie E. Casey Foundation, The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders (Report, 2010) 28.

743 The Annie E. Casey Foundation, The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders (Report, 2010) 29, 40.

744 The Annie E. Casey Foundation, The Missouri Model: Reinventing the Practice of Rehabilitating Youthful Offenders (Report, 2010) 29.

745 Ashley Youth Detention Centre, ‘Blue Colour Category Purpose and Practices’, undated, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

746 Ashley Youth Detention Centre, ‘Behaviour Development System, Version 2.6’, March 2018, 9–12, produced by the Tasmanian Government in response to a Commission notice to produce.

747 Statement of Madeleine Gardiner, 15 August 2022, 26–27 [48].

748 Statement of Robert White, 16 August 2022, 5–6 [18].

749 Transcript of ‘Alysha’, 22 August 2022, 3035 [15–20].

750 Statement of Michael Guerzoni, 29 April 2022, 24–25 [83].

751 Department of Communities Tasmania, ‘Ashley Youth Detention Centre Practice Framework’, December 2020, 8, produced by the Tasmanian Government in response to a Commission notice to produce.

752 Department of Communities Tasmania, ‘Ashley Youth Detention Centre Practice Framework’, December 2020, 9, produced by the Tasmanian Government in response to a Commission notice to produce.

753 Department of Communities Tasmania, ‘Ashley Youth Detention Centre Practice Framework’, December 2020, 12–18, produced by the Tasmanian Government in response to a Commission notice to produce.

754 Department of Communities Tasmania, ‘Ashley Youth Detention Centre Learning and Development Framework’, December 2020, 5, 9, produced by the Tasmanian Government in response to a Commission notice to produce.

755 Transcript of Pamela Honan, 19 August 2022, 2944 [36]–2945 [2].

756 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 19.

757 Statement of Pamela Honan, 18 August 2022, 32 [49.7]. Secretary Pervan told us that the Behaviour Development Program was redeveloped in April 2022: Statement of Michael Pervan, 27 July 2022, 69 [219].

758 Statement of Pamela Honan, 18 August 2022, 32 [49.7].

759 Statement of Michael Pervan, 27 July 2022, 69 [221].

760 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 22.

761 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 22; Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 5.

762 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 11–12, 21. The Youth Justice Amendment (Searches in Custody) Act 2022, which provides a legislative framework for searches of children and young people in detention, received Royal Assent on 16 June 2022.

763 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 11.

764 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 464–465.

765 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 465.

766 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 40–42 [8.6–8.8].

767 Statement of Barry Nicholson, 18 August 2022, 2 [10].

768 Statement of Robert White, 16 August 2022, 12 [47].

769 Transcript of James Ogloff, 13 September 2022, 3974 [9–36]; Transcript of Alison Grace, 26 August 2022, 3478 [26–35].

770 Transcript of James Ogloff, 13 September 2022, 3974 [38]–3975 [7].

771 Transcript of James Ogloff, 13 September 2022, 3977 [8–32].

772 Statement of Janise Mitchell, 17 August 2022, 7 [34–35].

773 Jesuit Social Services, #Justice Solutions Tour: Expanding the Conversation (Report, August 2017) 16.

774 Jesuit Social Services, #Justice Solutions Tour: Expanding the Conversation (Report, August 2017) 16.

775 Statement of Michael Pervan, 27 July 2022, 19 [32], 39 [44].

776 Statement of Pamela Honan, 18 August 2022, 19 [22.1].

777 Tasmanian Government, Department of Communities, Ashley Youth Detention Centre Organisational Structure (May 2022).

778 Statement of Pamela Honan, 18 August 2022, 33 [51.1].

779 Statement of Pamela Honan, 18 August 2022, 33 [52.1].

780 Tasmanian Government, Department of Health and Human Services, Ashley Youth Detention Centre Case Management Guidelines (July 2014) 10–11.

781 Statement of Pamela Honan, 18 August 2022, 33 [51.3]; Statement of Madeleine Gardiner, 15 August 2022, 16 [23].

782 Statement of Pamela Honan, 18 August 2022, 33 [51.3].

783 Statement of Madeleine Gardiner, 15 August 2022, 16 [23].

784 Statement of Pamela Honan, 18 August 2022, 19–20 [23.3].

785 Statement of Michael Pervan, 27 July 2022, 41 [50].

786 Ashley Youth Detention Centre, ‘Multi-Disciplinary Team (MDT) – Terms of Reference’, March 2018, produced by the Tasmanian Government in response to a Commission notice to produce.

787 Ashley Youth Detention Centre, ‘Multi-Disciplinary Team (MDT) – Terms of Reference’, March 2018, produced by the Tasmanian Government in response to a Commission notice to produce; Statement of Michael Pervan, 27 July 2022, Annexure 23 (‘Terms of Reference: AYDC Multi-Disciplinary Team’, Custodial Youth Justice Services, 21 December 2021) 2.

788 Statement of Pamela Honan, 18 August 2022, 33 [52.2].

789 Statement of Pamela Honan, 18 August 2022, 33 [53.1].

790 Statement of Madeleine Gardiner, 15 August 2022, 17 [24–25].

791 Tasmanian Government, Department of Health and Human Services, Ashley Youth Detention Centre Case Management Guidelines (Guidelines, July 2014) 17.

792 Statement of Pamela Honan, 18 August 2022, 19 [23.2].

793 Statement of Pamela Honan, 18 August 2022, 19 [23.1].

794 Statement of Pamela Honan, 18 August 2022, 20 [23.4].

795 Statement of Pamela Honan, 18 August 2022, 33 [51.4].

796 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 5.

797 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 5.

798 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) GA Res 40/33, UN Doc A/RES/40/33 (adopted 29 November 1985) rule 13.5. This is also a requirement of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN Doc A/RES/45/113 (4 April 1991) annex, 206 [18(b)].

799 Transcript of James Ogloff, 13 September 2022, 3979 [43]–3980 [5].

800 Penny Armytage and James Ogloff, Youth Justice Review and Strategy: Meeting Needs and Reducing Offending (Report, July 2017) part 2, 61–72.

801 Penny Armytage and James Ogloff, Youth Justice Review and Strategy: Meeting Needs and Reducing Offending (Report, July 2017) part 2, 70.

802 Penny Armytage and James Ogloff, Youth Justice Review and Strategy: Meeting Needs and Reducing Offending (Report, July 2017) part 2, 71.

803 Recommendations 6.19 and 6.20: Penny Armytage and James Ogloff, Youth Justice Review and Strategy: Meeting Needs and Reducing Offending (Report, July 2017) part 2, 71–72.

804 Statement of Michael Pervan, 27 July 2022, Annexure 27 (‘A Memorandum of Understanding between the Correctional Primary Health Services and Children, Youth and Families – Ashley Youth Detention Centre’, Department of Communities, May 2021) 7.

805 Statement of Barry Nicholson, 18 August 2022, 23 [198].

806 Statement of Barry Nicholson, 18 August 2022, 23 [198].

807 Statement of Barry Nicholson, 18 August 2022, 1 [1]–3 [18].

808 Statement of Barry Nicholson, 18 August 2022, 1 [5(i)].

809 Statement of Barry Nicholson, 18 August 2022, 1 [5(ii)].

810 Statement of Barry Nicholson, 18 August 2022, 2 [5(iv)].

811 Statement of Barry Nicholson, 18 August 2022, 2 [5(v)].

812 Statement of Barry Nicholson, 18 August 2022, 2 [5(iii)].

813 Statement of Barry Nicholson, 18 August 2022, 2 [6]; Transcript of Barry Nicholson, 19 August 2022, 2921 [7–24].

814 Statement of Barry Nicholson, 18 August 2022, 2 [6]; Transcript of Barry Nicholson, 19 August 2022, 2921 [26–33]; [38–43].

815 Statement of Barry Nicholson, 18 August 2022, 2 [10].

816 Statement of Barry Nicholson, 18 August 2022, 2 [10].

817 Statement of Barry Nicholson, 18 August 2022, 2 [9].

818 Statement of Barry Nicholson, 18 August 2022, 2 [9].

819 Statement of Barry Nicholson, 18 August 2022, 5 [36].

820 Transcript of Barry Nicholson, 19 August 2022, 2923 [11–38].

821 Statement of Barry Nicholson, 18 August 2022, 2 [8].

822 Transcript of James Ogloff, 13 September 2022, 3975 [42–46].

823 Statement of Brett McDermott, 11 April 2022, 23 [13(a)].

824 Statement of former Head of Department, Statewide Forensic Mental Health Services, 22 August 2022, 5–6 [16–17].

825 Transcript of James Ogloff, 13 September 2022, 3977 [34–40].

826 Statement of Barry Nicholson, 18 August 2022, 5 [36].

827 Transcript of James Ogloff, 13 September 2022, 3977 [42–46].

828 Statement of Nurse Unit Manager, 11 November 2022, 33 [143].

829 Office of the Custodial Inspector, Inspection of Ashley Youth Detention Centre in Tasmania, 2017: Health and Wellbeing Inspection Report (Report, October 2018) 27, Recommendations 7 and 8.

830 Statement of Director of Nursing, Statewide Forensic Mental Health Services, 3 November 2022, 15 [81].

831 Youth Justice Act 1997 s 134A(2).

832 Youth Justice Act 1997 s 134A(2)(b).

833 Department of Health, Approved Facilities (Web Page, 26 November 2021) <https://www.health.tas.gov.au/about/office-chief-psychiatrist/information-health-professionals-office-chief-psychiatrist/approved-facilities>.

834 Department of Health, ‘Wilfred Lopes Centre Fact Sheet’ (June 2022) <https://www.health.tas.gov.au/sites/default/files/2021-12/FMHS_Wilfred_Lopes_Centre_service_guide_brochure_DoHTasmania2020.pdf>.

835 The Convention on the Rights of the Child states that every child deprived of liberty must be separated from adults unless it is considered in the child’s best interest not to do so: Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 37(c).

836 Statement of Hannah Phillips, 13 July 2022, 13 [65].

837 Statement of Brett McDermott, 11 April 2022, 13 [7(a)].

838 Professor Brett McDermott, Child and Adolescent Mental Health Services Review (Report, November 2020) 21.

839 Professor Brett McDermott, Child and Adolescent Mental Health Services Review (Report, November 2020) 21.

840 Victorian Government, Contemporary Detention Environments (Volume 15) (Web Page, 11 February 2022) <https://www.vic.gov.au/victorian-government-annual-report-2021-royal-commission-institutional-responses-child-sexual-abuse-9>.

841 Victorian Government, Contemporary Detention Environments (Volume 15) (Web Page, 11 February 2022) <https://www.vic.gov.au/victorian-government-annual-report-2021-royal-commission-institutional-responses-child-sexual-abuse-9>.

842 Statement of Brett McDermott, 11 April 2022, 23 [13(a)].

843 Statement of Brett McDermott, 11 April 2022, 22 [13].

844 Professor Brett McDermott, Child and Adolescent Mental Health Services Review (Report, November 2020) 22.

845 Youth Justice Act 1997 s 105(2).

846 Statement of Brett McDermott, 11 April 2022, 23 [13].

847 Transcript of Brett McDermott, 3 May 2022, 185 [20–31].

848 Statement of Brett McDermott, 11 April 2022, 27 [13(g)].

849 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) GA Res 40/33, UN Doc A/RES/40/33 (adopted 29 November 1985) rule 26.1. Refer also to United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN Doc A/RES/45/113 (4 April 1991) annex, 207 [38].

850 Statement of Anthony McGinness, 6 July 2022, 7 [33].

851 Statement of Samuel Baker, 8 August 2022, 5 [41].

852 Statement of Samuel Baker, 8 August 2022, 5 [40].

853 Statement of Samuel Baker, 8 August 2022, 1 [5].

854 Statement of Samuel Baker, 8 August 2022, 3 [19]; Transcript of Samuel Baker, 19 August 2022, 2913 [32–33].

855 Transcript of Samuel Baker, 19 August 2022, 2906 [34–36].

856 Statement of Samuel Baker, 8 August 2022, 3 [20].

857 Statement of Samuel Baker, 8 August 2022, 4 [35].

858 Statement of Samuel Baker, 8 August 2022, 3 [22].

859 Office of the Custodial Inspector, Families, Community and Partnerships Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2019 (Report, October 2019) 25.

860 Statement of Samuel Baker, 8 August 2022, 8 [64].

861 Statement of Samuel Baker, 8 August 2022, 5 [42].

862 Statement of Mark Morrissey, 9 August 2022, 12 [76–77].

863 Statement of Hannah Phillips, 13 July 2022, 14 [68].

864 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 49.

865 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 49.

866 Transcript of Samuel Baker, 19 August 2022, 2907 [20–22].

867 Transcript of Samuel Baker, 19 August 2022, 2907 [28–36].

868 Statement of Samuel Baker, 8 August 2022, 6 [48].

869 Statement of Samuel Baker, 8 August 2022, 6 [49].

870 Transcript of Samuel Baker, 19 August 2022, 2907 [38–44].

871 Ashley Youth Detention Centre, ‘Blue Colour Category: Purpose and Practices’, undated, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

872 Statement of Samuel Baker, 8 August 2022, 7 [56].

873 Statement of Samuel Baker, 8 August 2022, 7 [56].

874 Statement of Pamela Honan, 18 August 2022, 29 [42.2]; Statement of Michael Pervan, 20 December 2022, 16 [59]; Statement of Stuart Watson, 16 August 2022, 11–12 [71]; Transcript of Stuart Watson, 23 August 2022, 3180 [8–35]; Transcript of Samuel Baker, 19 August 2022, 2913 [41]–2914 [2]; Transcript of Sarah Spencer, 18 August 2022, 2818 [38–39].

875 Education Act 2016 s 16(1)(a), (3); Transcript of Samuel Baker, 19 August 2022, 2914 [17–21], [23–36].

876 Statement of Samuel Baker, 8 August 2022, 7–8 [58].

877 Transcript of Samuel Baker, 19 August 2022, 2914 [23–36].

878 Transcript of Samuel Baker, 19 August 2022, 2916 [25–29].

879 Statement of Hannah Phillips, 13 July 2022, 15 [74].

880 Isabel Bird, ‘Locked Down at Ashley for up to 23 Hours “Every Day”’, The Examiner (Launceston, 8 July 2023); Commissioner for Children and Young People, ABC Radio – Lockdowns at AYDC for up to 23 Hours a Day (Web Page, 6 July 2023) <https://childcomm.tas.gov.au/abc-radio-lockdowns-at-aydc-for-up-to-23-hours-a-day/>.

881 Diagrama Foundation, A Blueprint for Change: Adapting the Lessons of the Spanish Youth Justice System to the Northern Territory (Report, October 2019) 14–15.

882 Statement of Elena Campbell, 4 July 2022, 13 [64].

883 Parkville College, About (Web Page) <https://www.parkvillecollege.vic.edu.au/about>.

884 Parkville College, 2021 Annual Report to the School Community (Report, 26 April 2022) 5.

885 Parkville College, 2021 Annual Report to the School Community (Report, 26 April 2022) 5.

886 Parkville College, The Parkville College Model: A Culturally Responsive Evidence-Based Pedagogy (undated) 3.

887 Parkville College, The Parkville College Model: A Culturally Responsive Evidence-Based Pedagogy (undated) 3.

888 Victorian Government, Department of Justice and Community Safety, Youth Justice Strategic Plan 2020–2030 (Plan, May 2020) 29.

889 Victorian Government, Department of Education, Supporting Young People to Make Positive Transitions from Custody: Actions for Schools & Settings (undated) 1 <https://www.education.vic.gov.au/PAL/youth-justice-supporting-young-people-in-custody.pdf>.

890 Victorian Government, Department of Education, Supporting Young People to Make Positive Transitions from Custody: Actions for Schools & Settings (undated) 1 <https://www.education.vic.gov.au/PAL/youth-justice-supporting-young-people-in-custody.pdf>.

891 Parkville College, 2021 Annual Report to the School Community (Report, 26 April 2022) 4.

892 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 21.

893 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 21.

894 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 21.

895 United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 15 [95(c)]; Transcript of Elena Campbell, 7 July 2022, 2568 [30–32].

896 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 465.

897 Convention on the Rights of the Child, opened for signature 20 September 1989, 1577 UNTS 3 (entered into force 20 November 1989) art 37(c); United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN Doc A/RES/45/113 (4 April 1991) annex, 208 [59].

898 Penny Armytage and James Ogloff, Youth Justice Review and Strategy: Meeting Needs and Reducing Offending (Report, July 2017) part 2, 42.

899 Ashley Youth Detention Centre, ‘Standard Operating Procedure #9: Site Entry/Exit—Visitors and Service Providers’, August 2012, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

900 Ashley Youth Detention Centre, ‘Standard Operating Procedure #9: Site Entry/Exit—Visitors and Service Providers’, August 2012, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

901 Ashley Youth Detention Centre, ‘Standard Operating Procedure #9: Site Entry/Exit—Visitors and Service Providers’, August 2012, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

902 Ashley Youth Detention Centre, ‘Standard Operating Procedure #9: Site Entry/Exit—Visitors and Service Providers’, August 2012, 2, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

903 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 22 [4.1.8].

904 Office of the Custodial Inspector, Families, Community and Partnerships Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2019 (Report, October 2019) 13–14.

905 Office of the Custodial Inspector, Families, Community and Partnerships Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2019 (Report, October 2019) 4–5, 14, 16.

906 Department for Education, Children and Young People, Procedural Fairness Response, 17 June 2023, 7.

907 Statement of Madeleine Gardiner, 15 August 2022, 39 [77(e)]; Transcript of Madeleine Gardiner, 22 August 2022, 2996 [24]–2997 [11].

908 Office of the Custodial Inspector, Families, Community and Partnerships Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2019 (Report, October 2019) 15.

909 Ashley Youth Detention Centre, ‘Information for Young People and Families’, undated, 13, produced by the Tasmanian Government in response to a Commission notice to produce.

910 Statement of Anthony McGinness, 6 July 2022, 6 [24].

911 Ashley Youth Detention Centre, ‘Standard Operating Procedure #22: Temporary Leave’, 2015, produced by the Tasmanian Government in response to a Commission notice to produce. We note that we have only been able to identify Standard Operating Procedure #22 in what appears to be its draft form. Consequently, it is unclear whether and to what extent this procedure was implemented and followed in practice.

912 Ashley Youth Detention Centre, ‘Standard Operating Procedure #22: Temporary Leave’, 2015, 3–5, produced by the Tasmanian Government in response to a Commission notice to produce.

913 Ashley Youth Detention Centre, ‘Standard Operating Procedure #22: Temporary Leave’, 2015, 4–5, produced by the Tasmanian Government in response to a Commission notice to produce.

914 Ashley Youth Detention Centre, ‘Information for Young People and Families’, undated, 13, produced by the Tasmanian Government in response to a Commission notice to produce.

915 Ashley Youth Detention Centre, ‘Standard Operating Procedure #25: Telephone Calls and Written Correspondence’, March 2014, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

916 Ashley Youth Detention Centre, ‘Information for Young People and Families’, undated, 13, produced by the Tasmanian Government in response to a Commission notice to produce.

917 Office of the Custodial Inspector, Families, Community and Partnerships Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2019 (Report, October 2019) 5.

918 Department of Communities, ‘Ashley Youth Detention Centre Practice Framework’, December 2020, 17, produced by the Tasmanian Government in response to a Commission notice to produce.

919 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 8.

920 Department for Education, Children and Young People, Procedural Fairness Response, 17 June 2023, 7.

921 Department for Education, Children and Young People, Procedural Fairness Response, 17 June 2023, 7.

922 Statement of Anthony McGinness, 6 July 2022, 5 [23].

923 In relation to disciplinary procedures in detention facilities, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty state that ‘the restriction or denial of contact with family members should be prohibited for any purpose’: United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN Doc A/RES/45/113 (4 April 1991) annex, 208 [67].

924 Statement of Anthony McGinness, 6 July 2022, 13 [56].

925 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 194.

926 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 201, Recommendation 24.1.

927 Transcript of Anthony McGinness, 18 August 2022, 2843 [22–35].

928 Statement of Anthony McGinness, 6 July 2022, 9 [40].

929 Children and Youth Services, ‘Procedure: Exit Planning and Review for Young People Detained at AYDC’, 15 July 2014, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

930 Children and Youth Services, ‘Procedure: Exit Planning and Review for Young People Detained at AYDC’, 15 July 2014, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

931 Children and Youth Services, ‘Procedure: Exit Planning and Review for Young People Detained at AYDC’, 15 July 2014, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

932 Children and Youth Services, ‘Procedure: Exit Planning and Review for Young People Detained at AYDC’, 15 July 2014, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

933 Children and Youth Services, ‘Procedure: Exit Planning and Review for Young People Detained at AYDC’, 15 July 2014, 3–4, produced by the Tasmanian Government in response to a Commission notice to produce.

934 Children and Youth Services, ‘Procedure: Exit Planning and Review for Young People Detained at AYDC’, 15 July 2014, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

935 Transcript of Leanne McLean, 24 August 2022, 3308 [21–38].

936 Transcript of Vincenzo Caltabiano, 19 August 2022, 2891 [7–23].

937 Statement of Vincenzo Caltabiano, 13 July 2022, 10 [58].

938 Transcript of Janise Mitchell, 18 August 2022, 2844 [44]–2845 [8].

939 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 51.

940 Save the Children Australia, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (28 February 2022) 5; Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 50.

941 Commissioner for Children and Young People, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (21 March 2022) 50.

942 Save the Children Australia, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (28 February 2022) 5 [5].

943 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 30.

944 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 30.

945 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 31.

946 Roger Jaensch, ‘Closure of Ashley Youth Detention Centre Part of Entire Youth Justice System Reform’ (Media Release, 28 August 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/closure-of-ashley-youth-detention-centre-part-of-entire-youth-justice-system-reform>; Roger Jaensch, ‘Therapeutic Approach to Youth Justice Reforms’ (Media Release, 22 November 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/therapeutic-approach-to-youth-justice-reforms>.

947 Department for Education, Children and Young People, Support Centre Facilities (undated) <https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/Support-Centre-further-details.pdf>.

948 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 21.

949 Statement of Alison Grace, 29 July 2022, 9 [47].

950 Statement of Alison Grace, 29 July 2022, 9 [47].

951 Berry Street School, Teaching and Learning (Web Page, 2023) <https://www.berrystreetschool.vic.edu.au/education/teaching-and-learning>; Berry Street School, Transition Program (Web Page, 2023) <https://www.berrystreetschool.vic.edu.au/education/transition-program>.

952 Youth Justice Act 1997 s 25(2).

953 Statement of Michael Pervan, 27 July 2022, Annexure 29 (‘Memorandum of Understanding between the Department of Health and Human Services, Children and Youth Services and Department of Justice, Tasmania Prison Service: Transfer of Offenders to and from Ashley Youth Detention Centre and the Tasmania Prison Service’, 23 December 2014).

954 Statement of Michael Pervan, 27 July 2022, Annexure 29 (‘Memorandum of Understanding between the Department of Health and Human Services, Children and Youth Services and Department of Justice, Tasmania Prison Service: Transfer of Offenders to and from Ashley Youth Detention Centre and the Tasmania Prison Service’, 23 December 2014) 6.

955 Statement of Michael Pervan, 27 July 2022, Annexure 29 (‘Memorandum of Understanding between the Department of Health and Human Services, Children and Youth Services and Department of Justice, Tasmania Prison Service: Transfer of Offenders to and from Ashley Youth Detention Centre and the Tasmania Prison Service’, 23 December 2014) 6.

956 Statement of Michael Pervan, 27 July 2022, Annexure 29 (‘Memorandum of Understanding between the Department of Health and Human Services, Children and Youth Services and Department of Justice, Tasmania Prison Service: Transfer of Offenders to and from Ashley Youth Detention Centre and the Tasmania Prison Service’, 23 December 2014) 5–6.

957 Statement of Michael Pervan, 27 July 2022, Annexure 29 (‘Memorandum of Understanding between the Department of Health and Human Services, Children and Youth Services and Department of Justice, Tasmania Prison Service: Transfer of Offenders to and from Ashley Youth Detention Centre and the Tasmania Prison Service’, 23 December 2014) 5–6.

958 Statement of Michael Pervan, 27 July 2022, Annexure 29 (‘Memorandum of Understanding between the Department of Health and Human Services, Children and Youth Services and Department of Justice, Tasmania Prison Service: Transfer of Offenders to and from Ashley Youth Detention Centre and the Tasmania Prison Service’, 23 December 2014) 16.

959 Statement of Michael Pervan, 27 July 2022, Annexure 29 (‘Memorandum of Understanding between the Department of Health and Human Services, Children and Youth Services and Department of Justice, Tasmania Prison Service: Transfer of Offenders to and from Ashley Youth Detention Centre and the Tasmania Prison Service’, 23 December 2014) 6.

960 Statement of Michael Pervan, 27 July 2022, 46 [83].

961 Statement of Michael Pervan, 27 July 2022, Annexure 29 (‘Memorandum of Understanding between the Department of Health and Human Services, Children and Youth Services and Department of Justice, Tasmania Prison Service: Transfer of Offenders to and from Ashley Youth Detention Centre and the Tasmania Prison Service’, 23 December 2014) 8–9.

962 Statement of Michael Pervan, 27 July 2022, Annexure 29 (‘Memorandum of Understanding between the Department of Health and Human Services, Children and Youth Services and Department of Justice, Tasmania Prison Service: Transfer of Offenders to and from Ashley Youth Detention Centre and the Tasmania Prison Service’, 23 December 2014) 9.

963 Statement of Michael Pervan, 27 July 2022, Annexure 29 (‘Memorandum of Understanding between the Department of Health and Human Services, Children and Youth Services and Department of Justice, Tasmania Prison Service: Transfer of Offenders to and from Ashley Youth Detention Centre and the Tasmania Prison Service’, 23 December 2014) 10.

964 Children, Youth and Families Act 2005 (Vic) s 467(1).

965 Youth Parole Board, Victoria, Annual Report 2021–2022 (Report, September 2022) 6; Children, Youth and Families Act 2005 (Vic) s 442(2).

966 Children, Youth and Families Act 2005 (Vic) s 467(2) and (3).

967 Children, Youth and Families Act 2005 (Vic) s 467(2)(d).

968 Children, Youth and Families Act 2005 (Vic) s 467(1).

969 Victorian Ombudsman, Investigation into the Rehabilitation and Reintegration of Prisoners in Victoria (Report, September 2015) 98.

970 Sentencing Advisory Council, Victoria, Rethinking Sentencing for Young Adult Offenders (Report, December 2019) 79.

971 Home Stretch, Tasmania Becomes First State to Extend Care to 21 (Web Page, 19 February 2018) <https://thehomestretch.org.au/news/first-state-government-extend-care-21-years-australia/>; Carly Dolan, ‘Plan to Extend Out-of-Home Care Age to 21 Welcomed by Foster Carers’, The Examiner (online, 14 February 2018) <https://www.examiner.com.au/story/5227934/tasmania-to-become-first-state-to-extend-out-of-home-care-age-to-21>.

972 Attorney-General, ‘Incorrect Prisoner Releases’ (Media Release, 2 September 2016) <https://www.premier.tas.gov.au/releases/incorrect_prisoner_releases>.

973 Attorney-General, ‘Incorrect Prisoner Releases’ (Media Release, 2 September 2016) <https://www.premier.tas.gov.au/releases/incorrect_prisoner_releases>.

974 Sarah Aquilina, ‘Risdon Prison Incorrectly Releases Ninth Inmate in Four Years’, The Examiner (online, 2 July 2021) <https://www.examiner.com.au/story/6375442/ninth-prisoner-incorrectly-released-due-to-human-error/>.

975 Conversation with ‘anonymous’, 23 September 2022.

976 Department for Education, Children and Young People, Procedural Fairness Response, 17 June 2023, 10.

977 Consultation with Aboriginal community members, North West Tasmania, 8 April 2022.

978 Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Tables S81a, S144. Table S81a indicates that there were 8.1 children and young people aged 10 to 17 years in detention on an average day in 2021–22, of whom 3.6 were Aboriginal. According to the Productivity Commission, the average daily number of children and young people aged 10 to 17 years in detention in Tasmania in 2021–22 was eight, four of whom were Aboriginal: Productivity Commission, Report on Government Services: 17 Youth Justice Services (Report, 24 January 2023) Table 17A.5 <https://www.pc.gov.au/ongoing/report-on-government-services/2023/community-services/youth-justice>.

979 Hannah Phillips, a lawyer with experience working with youth in the Tasmanian justice and child safety systems, told the Commission of Inquiry that she contacted Ashley Youth Detention Centre every month to ask the number of children and young people in detention who identified as Aboriginal and that ‘the number [was] regularly just under half’: Statement of Hannah Phillips, 13 July 2022, 12 [58].

980 Australian Institute of Health and Welfare, Youth Justice in Australia 2021–22 (Report, 31 March 2023) Table S109a. According to the Australian Institute of Health and Welfare, this data should be interpreted with caution due to ‘potential issues with recording and updating of custodial order details in Tasmania’.

981 In 2022, the Australian Institute of Health and Welfare reported that, nationally, Aboriginal children and young people under youth justice supervision in 2020–21 were more likely than non-Aboriginal children and young people to have had an interaction with the child protection system in the preceding five years: Australian Institute of Health and Welfare, Young People Under Youth Justice Supervision and Their Interaction with the Child Protection System 2020–21 (Report, December 2022) vi.

982 Tasmania Legal Aid, Children First: Children in the Child Safety and Youth Justice System (Report, 2021) 10.

983 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 73.

984 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 82.

985 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 26, 29, 152.

986 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 3, 97.

987 Joint Council on Closing the Gap, National Agreement on Closing the Gap (July 2020) 33 <https://www.closingthegap.gov.au/national-agreement/national-agreement-closing-the-gap/7-difference/b-targets/b11>.

988 The actions are for Tasmania Police to continue to divert Aboriginal children and young people from the criminal justice system, and to build partnerships with Aboriginal communities to support their capacity to deliver services for Aboriginal children and young people in, or at risk of entering, the youth justice system: Tasmanian Government, Closing the Gap: Tasmanian Implementation Plan 2021–2023 (2021) 17.

989 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023).

990 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 124, Recommendation 15.5.

991 Transcript of ‘Charlotte’, 24 August 2022, 3203 [42]–3204 [11]; Transcript of Madeleine Gardiner, 22 August 2022, 2996 [24]–2998 [42].

992 Roger Jaensch, ‘Therapeutic Approach to Youth Justice Reforms’ (Media Release, 22 November 2022); Tasmanian Government, Department for Education, Children and Young People, Proposed Youth Justice—Facilities Model (22 November 2022).

993 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022).

994 Consultation with Aboriginal community members, North West Tasmania, 15 March 2023.

995 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 19.

996 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 21.

997 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 23.

998 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 25.

999 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 32.

1000 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 5, 15.

1001 Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023) 11.

1002 Victorian Government, Wirkara Kulpa: Aboriginal Youth Justice Strategy 2022–2032 (February 2022) 8.

1003 Victorian Government, Wirkara Kulpa: Aboriginal Youth Justice Strategy 2022–2032 (February 2022) 12.

1004 Victorian Government, Wirkara Kulpa: Aboriginal Youth Justice Strategy 2022–2032 (February 2022) 34, 38–53.

1005 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 106.

1006 Consultation with Aboriginal community members, North West Tasmania, 8 April 2022.

1007 Submission 150 Tasmanian Aboriginal Legal Service, 16.

1008 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 10.

1009 Youth Justice Act 1997 s 11.

1010 Roger Jaensch, ‘Therapeutic Approach to Youth Justice Reforms’ (Media Release, 22 November 2022); Department for Education, Children and Young People, Proposed Youth Justice – Facilities Model (22 November 2022); Department for Education, Children and Young People, Detention Facility (undated) <https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/Youth-Justice-Detention-Facility.pdf>; Department for Education, Children and Young People, Assisted Bail Facilities (undated) <https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/Youth-Justice-Assisted-Bail-Facilities.pdf>; Department for Education, Children and Young People, Support Centre Facilities (undated) <https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/Support-Centre-further-details.pdf>.

1011 Consultation with Aboriginal community members, North West Tasmania, 8 April 2022.

1012 Consultation with Aboriginal community members, North West Tasmania, 8 April 2022.

1013 Consultation with Aboriginal community members, North West Tasmania, 8 April 2022.

1014 Consultation with Aboriginal community members, northern Tasmania, 18 July 2022.

1015 Consultation with Aboriginal community members, North West Tasmania, 8 April 2022; Consultation with Aboriginal community members, northern Tasmania, 18 July 2022.

1016 Transcript of Heather Sculthorpe, 15 June 2022, 1312 [28–42].

1017 Legislative Council Select Committee, Parliament of Tasmania, Ashley, Youth Justice and Detention (Report, July 2007) 63.

1018 Tasmanian Government, Government Response to the Recommendations of the Legislative Select Committee Review of Ashley, Youth Justice and Detention, April 2008 (Report, 10 June 2008) 8.

1019 Transcript of Heather Sculthorpe, 15 June 2022, 1312 [43]–1313 [8].

1020 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 545, Finding 40.

1021 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 545.

1022 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 551, Recommendation 74.

1023 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 551, Recommendation 74.

1024 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 550.

1025 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 550.

1026 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 549.

1027 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 470, Recommendation 61.

1028 Oranga Tamariki Ministry for Children, New Zealand Government, Community-based Remand Homes (Web Page, 2 March 2023) <https://orangatamariki.govt.nz/about-us/research/our-research/community-based-remand-homes/>.

1029 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 502, 505–506.

1030 Consultation with Aboriginal community members, northern Tasmania, 19 July 2022.

1031 Submission 150 Tasmanian Aboriginal Legal Service, 12.

1032 Commonwealth of Australia, Department of the Prime Minister and Cabinet, Keeping Our Kids Safe: Cultural Safety and the National Principles for Child Safe Organisations (Report, 2021) 7. This document was a joint project between SNAICC – National Voice for our Children, the Victorian Aboriginal Child Care Agency and the National Office for Child Safety.

1033 Department of the Prime Minister and Cabinet, Keeping Our Kids Safe: Cultural Safety and the National Principles for Child Safe Organisations (Report, 2021) 7.

1034 Consultation with Aboriginal community members, northern Tasmania, 18 July 2022.

1035 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 92.

1036 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 104.

1037 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 12, 215.

1038 Secretariat of National Aboriginal & Islander Child Care Inc. (SNAICC), Working and Walking Together: Supporting Family Relationship Services to Work with Aboriginal and Torres Strait Islander Families and Organisations (Report, March 2010) 21.

1039 Statement of Heather Sculthorpe, 15 June 2022, 3–5.

1040 Custodial Youth Justice Services, ‘Procedure: Admission of a Young Person into Detention Custody’, 31 May 2022, 4–5, produced by the Tasmanian Government in response to a Commission notice to produce.

1041 Children and Youth Services, ‘Procedure: Confirming Aboriginal and Torres Strait Islander Status’, 1 July 2015, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1042 Statement of Michael Pervan, 27 July 2022, 107 [466].

1043 Statement of Michael Pervan, 27 July 2022, 75 [258].

1044 Statement of Michael Pervan, 27 July 2022, 17 [17].

1045 Commissioner for Children and Young People, Monitoring Report No. 1: The Tasmanian Out-of-Home Care System and ‘Being Healthy’ (Report, October 2019) 31.

1046 Statement of Michael Pervan, 7 June 2022, 47 [204].

1047 Statement of Michael Pervan, 27 July 2022, 90 [369].

1048 Statement of Michael Pervan, 27 July 2022, 90 [368].

1049 Tasmanian Government, Department of Health and Human Services, Ashley Youth Detention Centre Case Management Guidelines (July 2014) 9.

1050 Email from Program Coordinator, Ashley Youth Detention Centre to Planning and Program Support Analyst, Children and Youth Services, 2 July 2020.

1051 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 9.

1052 The name ‘Charlotte’ is a pseudonym; Order of the Commission of Inquiry, restricted publication order, 18 August 2022. Transcript of ‘Charlotte’, 24 August 2022, 3203 [43–47].

1053 Consultation with Aboriginal community members, southern Tasmania, 21 February 2023.

1054 Consultation with Aboriginal community members, northern Tasmania, 18 July 2022.

1055 Department of Health and Human Services, Guidelines for Working with Young Aboriginal People and Other Young People from Culturally and Linguistically Diverse (CALD) Backgrounds (August 2010).

1056 Department of Health and Human Services, Guidelines for Working with Young Aboriginal People and Other Young People from Culturally and Linguistically Diverse (CALD) Backgrounds (August 2010) 3.

1057 Department of Health and Human Services, Guidelines for Working with Young Aboriginal People and Other Young People from Culturally and Linguistically Diverse (CALD) Backgrounds (August 2010) 3.

1058 Transcript of Michael Pervan, 25 August 2022, 3450 [7–9].

1059 Transcript of Michael Pervan, 25 August 2022, 3450 [10–20].

1060 Office of the Custodial Inspector, Equal Opportunity Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2019 (Report, September 2019) 12.

1061 Statement of Michael Guerzoni, 29 April 2022, 25 [88].

1062 Consultation with Aboriginal community members, northern Tasmania, 18 July 2022.

1063 Consultation with Aboriginal community members, northern Tasmania, 18 July 2022.

1064 Department of Communities Tasmania, Ashley Youth Detention Centre: A Connected Community (Newsletter, February 2021) 1.

1065 Consultation with Aboriginal community members, southern Tasmania, 21 February 2023.

1066 Consultation with Aboriginal community members, northern Tasmania, 18 July 2022.

1067 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 374.

1068 Penny Armytage and James Ogloff, Youth Justice Review and Strategy: Meeting Needs and Reducing Offending: Part 2 (Report, July 2017) 202.

1069 Tasmanian Aboriginal Legal Service, Submission to Department of Communities, Reforming Tasmania’s Youth Justice System (11 March 2022) 7.

1070 Consultation with Aboriginal community members, southern Tasmania, 3 June 2022.

1071 Statement of Madeleine Gardiner, 15 August 2022, 39 [77(e)].

1072 Ashley Youth Detention Centre, ‘Standard Operating Procedure #9: Site Entry/Exit—Visitors and Service Providers’, August 2012, 1, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1073 Ashley Youth Detention Centre, ‘Standard Operating Procedure #22: Temporary Leave’, 2015, 3–5, produced by the Tasmanian Government in response to a Commission notice to produce.

1074 Ashley Youth Detention Centre, ‘Information for Young People and Families’, undated, 13, produced by the Tasmanian Government in response to a Commission notice to produce.

1075 Statement of Madeleine Gardiner, 15 August 2022, 39 [77(e)]; Transcript of Madeleine Gardiner, 22 August 2022, 2996 [24]–2997 [11].

1076 Statement of Madeleine Gardiner, 15 August 2022, 39 [77(e)].

1077 Statement of Madeleine Gardiner, 15 August 2022, 40 [78].

1078 Statement of Madeleine Gardiner, 15 August 2022, 39 [77(e)]; Transcript of Madeleine Gardiner, 22 August 2022, 2996 [44]–2997 [6].

1079 Statement of Madeleine Gardiner, 15 August 2022, 39 [77(e)]; Transcript of Madeleine Gardiner, 22 August 2022, 2998 [3–4].

1080 Transcript of Madeleine Gardiner, 22 August 2022, 2997 [38–47].

1081 Transcript of Madeleine Gardiner, 22 August 2022, 2998 [15–19].

1082 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 259.

1083 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 124, Recommendation 15.5.

1084 Statement of Michael Pervan, 27 July 2022, 21–37 [39].

1085 Transcript of ‘Charlotte’, 24 August 2022, 3203 [43–47].

1086 Transcript of ‘Charlotte’, 24 August 2022, 3204 [2–11].

1087 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 514–515.

1088 Lead Consultant Forensic Psychiatrist, Orygen, quoted in Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 515.

1089 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 515.

1090 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 517, Recommendation 69.

1091 Consultation with Aboriginal community members, northern Tasmania, 18 July 2022; Consultation with Aboriginal community members, northern Tasmania, 19 July 2022.

1092 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 124, Recommendation 15.5.

1093 Department of Communities, ‘Ashley Youth Detention Centre Learning and Development Framework’, December 2020, 5, 9, produced by the Tasmanian Government in response to a Commission notice to produce.

1094 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 537, 544.

1095 J Robinson et al, Looking the Other Way: Young People and Self-harm (Report, 2016) 16.

1096 Children and Youth Services, ‘Procedure: Suicide and Self-harm Prevention’, 29 January 2019, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1097 Children and Youth Services, ‘Procedure: Suicide and Self-harm Prevention’, 29 January 2019, 2–4, produced by the Tasmanian Government in response to a Commission notice to produce.

1098 Children and Youth Services, ‘Procedure: Suicide and Self-harm Prevention’, 29 January 2019, 3–4, produced by the Tasmanian Government in response to a Commission notice to produce.

1099 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 530.

1100 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 537, Recommendation 72.

1101 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 30.

1102 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 19–20.

1103 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 20.

1104 Department for Education, Children and Young People, Procedural Fairness Response, 5 June 2023, 9.

1105 Transcript of Vincenzo Caltabiano, 19 August 2022, 2891 [7–23].

1106 Consultation with Aboriginal community members, northern Tasmania, 18 July 2022; Consultation with Aboriginal community members, northern Tasmania, 19 July 2022; Consultation with Aboriginal community members, North West Tasmania, 28 September 2022.

1107 Consultation with Aboriginal community members, northern Tasmania, 18 July 2022.

1108 Consultation with Aboriginal community members, northern Tasmania, 19 July 2022.

1109 Consultation with Aboriginal community members, North West Tasmania, 28 September 2022.

1110 Consultation with Aboriginal community members, northern Tasmania, 19 July 2022.

1111 Consultation with Aboriginal community members, northern Tasmania, 19 July 2022.

1112 Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 31.

1113 Roger Jaensch, ‘Therapeutic Approach to Youth Justice Reforms’ (Media Release, 22 November 2022); Department for Education, Children and Young People, Support Centre Facilities (undated) <https://publicdocumentcentre.education.tas.gov.au/library/Shared%20Documents/Support-Centre-further-details.pdf>.

1114 North Australian Aboriginal Justice Agency, NAAJA Youth Throughcare Program (Web Page) <https://www.naaja.org.au/youth-throughcare/>.

1115 North Australian Aboriginal Justice Agency, NAAJA Youth Throughcare Program (Web Page) <https://www.naaja.org.au/youth-throughcare/>.

1116 North Australian Aboriginal Justice Agency, NAAJA Youth Throughcare Program (Web Page) <https://www.naaja.org.au/youth-throughcare/>.

1117 Victorian Government, Victorian Aboriginal Justice Agreement: Improving Transition from Youth Justice (Web Page, 9 March 2023) <https://www.aboriginaljustice.vic.gov.au/the-agreement/aboriginal-justice-outcomes-framework/goal-23-fewer-aboriginal-people-progress-14>.

1118 Victorian Aboriginal Child Care Agency, Annual Report 2020–2021 (Report, 2021) 32.

1119 Victorian Aboriginal Child Care Agency, Annual Report 2020–2021 (Report, 2021) 32.

1120 Victorian Government, Victorian Aboriginal Justice Agreement: Improving Transition from Youth Justice (Web Page, 9 March 2023) <https://www.aboriginaljustice.vic.gov.au/the-agreement/aboriginal-justice-outcomes-framework/goal-23-fewer-aboriginal-people-progress-14>.

1121 Victorian Government, Victorian Aboriginal Justice Agreement: Improving Transition from Youth Justice (Web Page, 9 March 2023) <https://www.aboriginaljustice.vic.gov.au/the-agreement/aboriginal-justice-outcomes-framework/goal-23-fewer-aboriginal-people-progress-14>.

1122 National Office of Child Safety National Clinical Reference Group, ‘Draft Discussion Paper from the National Clinical Reference Group – Language and Terminology’ (Paper for the States and Territories Children with Harmful Sexual Behaviour – Prevention and Response Working Group, December 2022).

1123 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 38.

1124 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 20; vol 15, 10.

1125 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 82.

1126 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 18, Recommendation 10.1; 147–160.

1127 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 15, Recommendation 15.4(a); 117.

1128 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 18, Recommendations 10.2, 10.3; 19, Recommendation 10.4.

1129 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 18, Recommendations 10.1(a)–(b); 145–146; vol 15, 17, Recommendation 15.8.

1130 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 15, Recommendation 15.3.

1131 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 16, Recommendation 15.4(c); 17, Recommendation 15.9.

1132 Transcript of Pamela Honan, 19 August 2022, 2945 [44–47], 2946 [33–37].

1133 Ivan Dean, Submission No. 23 to Legislative Council Sessional Committee Government Administration B, Inquiry into Tasmanian Adult Imprisonment and Youth Detention Matters (March 2023) 4.

1134 Ivan Dean, Submission No. 23 to Legislative Council Sessional Committee Government Administration B, Inquiry into Tasmanian Adult Imprisonment and Youth Detention Matters (March 2023) 4.

1135 Statement of Alison Grace, 29 July 2022, 16 [83]–17 [84]; Transcript of Alison Grace, 26 August 2022, 3474 [32–47].

1136 Statement of Michael Pervan, 27 July 2022, 55 [142].

1137 Statement of Michael Pervan, 27 July 2022, 55 [143].

1138 Statement of Michael Pervan, 27 July 2022, 55 [143].

1139 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 18.

1140 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 20, 58, 61–66; vol 15, 10.

1141 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 125.

1142 Statement of Michael Pervan, 27 July 2022, 94 [391].

1143 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 141–142.

1144 Refer generally to Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 124–125.

1145 Statement of Robyn Miller, 9 June 2022, 9 [46]–10 [47], 11 [52–53].

1146 Statement of Robyn Miller, 9 June 2022, 10 [48].

1147 Department of Communities Western Australia, Framework for Understanding and Guiding Responses to Harmful Sexual Behaviours in Children and Young People (Australian Centre for Child Protection Western Australia, 2 June 2022) 21.

1148 Department of Justice, Fifth Annual Progress Report and Action Plan 2023 (Report, December 2022) Appendix A, 60.

1149 Department of Justice, Fifth Annual Progress Report and Action Plan 2023 (Report, December 2022) Appendix A, 60.

1150 Children and Youth Services, Young Person Risk Questionnaire (Form, 31 May 2022); Custodial Youth Justice Services, Induction Program Checklist (Form, 31 May 2022).

1151 Statement of Renae Pepper, 2 May 2022, 7 [28]–8 [33].

1152 Refer generally to Simon Hackett, Pat Branigan and Dez Holmes, Harmful Sexual Behaviour Framework: An Evidence-Informed Operational Framework for Children and Young People Displaying Harmful Sexual Behaviours (2nd ed, National Society for the Prevention of Cruelty to Children, 2019); Department of Communities Western Australia, Framework for Understanding and Guiding Responses to Harmful Sexual Behaviours in Children and Young People (Australian Centre for Child Protection Western Australia, 2 June 2022); True Relationships and Reproductive Health, Traffic Lights® for Professionals (Web Page) <https://www.true.org.au/education/programs-resources/for-schools-teachers/traffic-lights-for-professionals>. Commissioner Bromfield is the Director of the Australian Centre for Child Protection.

1153 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 15, Recommendation 15.4(a).

1154 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 69; vol 15, 83.

1155 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 83.

1156 Statement of Michael Pervan, 26 July 2022, 50 [107]; Custodial Youth Justice Services, ‘Procedure: Unit Commissioning, De-Commissioning and Allocation to a Young Person’, 31 May 2022, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1157 Custodial Youth Justice Services, ‘Procedure: Unit Commissioning, De-Commissioning and Allocation to a Young Person’, 31 May 2022, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1158 Custodial Youth Justice Services, ‘Procedure: Unit Commissioning, De-Commissioning and Allocation to a Young Person’, 31 May 2022, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1159 Custodial Youth Justice Services, ‘Procedure: Unit Commissioning, De-Commissioning and Allocation to a Young Person’, 31 May 2022, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1160 Custodial Youth Justice Services, ‘Procedure: Unit Commissioning, De-Commissioning and Allocation to a Young Person’, 31 May 2022, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1161 Department of Justice, Fifth Annual Progress Report and Action Plan 2023 (Report, December 2022) Appendix A, 60.

1162 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 73.

1163 Statement of ‘Charlotte’, 31 January 2022, 2; Transcript of ‘Charlotte’, 24 August 2022, 3202 [22–30]; Transcript of ‘Erin’, 22 August 2022, 3022 [25–31]; Statement of Madeleine Gardiner, 15 August 2022, 44–45 [85(e)]; Transcript of Madeleine Gardiner, 22 August 2022, 2995 [11–38].

1164 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 149.

1165 Department of Justice, Fifth Annual Progress Report and Action Plan 2023 (Report, December 2022) Appendix A, 64.

1166 Department of Communities Western Australia, Framework for Understanding and Guiding Responses to Harmful Sexual Behaviours in Children and Young People (Australian Centre for Child Protection Western Australia, 2 June 2022) 22–31.

1167 Department of Communities Western Australia, Framework for Understanding and Guiding Responses to Harmful Sexual Behaviours in Children and Young People (Australian Centre for Child Protection Western Australia, 2 June 2022) 21.

1168 Refer generally to the Transcript of ‘Erin’, 22 August 2022, 3018 [17]–3031 [38].

1169 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 11; vol 15, 128.

1170 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 79.

1171 Statement of Michael Pervan, 27 July 2022, 55 [141].

1172 Statement of Michael Pervan, 27 July 2022, 88 [357], 92 [380].

1173 Statement of Michael Pervan, 27 July 2022, 93 [386].

1174 Statement of Renae Pepper, 30 April 2022, 15 [63]–16 [64].

1175 Statement of Renae Pepper, 30 April 2022, 17–18 [72].

1176 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 134.

1177 Refer generally to Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 7, 193–197.

1178 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, 4, produced by the Tasmanian Government in response to a Commission notice to produce. Refer to Section 10.2 for a discussion of how incidents and complaints are recorded.

1179 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1180 Custodial Youth Justice Services, ‘Procedure: Contacting the SFSK Advice and Referral Line’, 26 August 2021, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1181 Children, Youth and Families, ‘Fact Sheet: Reporting Concerns’, 26 August 2021, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1182 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 10, 144–146, vol 15, 80.

1183 Statement of Madeleine Gardiner, 15 August 2022, 41 [83].

1184 Statement of Madeleine Gardiner, 15 August 2022, 41 [83]; Email from Madeleine Gardiner to Patrick Ryan and others, 5 September 2019, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1185 Refer to Transcript of Pamela Honan, 19 August 2022, 2953 [26]–2954 [22].

1186 Statement of Madeleine Gardiner, 15 August 2022, 52 [93(e)]; Statement of Renae Pepper, 30 April 2022, 15 [60].

1187 Statement of Renae Pepper, 30 April 2022, 15 [61–63].

1188 Statement of Madeleine Gardiner, 15 August 2022, Annexure 1, 1; Statement of Madeleine Gardiner, 15 August 2022, 11 [17(d)], 41 [83], 52 [93(e)].

1189 Statement of Madeleine Gardiner, 15 August 2022, 36 [67], 37 [74].

1190 Statement of Michael Pervan, 27 July 2022, 63 [184].

1191 Department of Communities, ‘Summary of Response to NTP-TAS-004, Item 14’, 12 April 2022, 2 [6], produced by the Tasmanian Government in response to a Commission notice to produce.

1192 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 19.

1193 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1194 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, 1, 3–4, produced by the Tasmanian Government in response to a Commission notice to produce.

1195 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 9; Donald Palmer, Valerie Feldman and Gemma McKibbin, The Role of Organisational Culture in Child Sexual Abuse in Institutional Contexts (Final Report prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse, December 2016) 38.

1196 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 39; Donald Palmer, Valerie Feldman and Gemma McKibbin, in Child Sexual Abuse in Institutional Contexts (Final Report prepared for the Royal Commission into Institutional Responses to Child Sexual Abuse, December 2016) 53–55.

1197 Donald Palmer and Valerie Feldman, ‘Toward a More Comprehensive Analysis of the Role of Organizational Culture in Child Sexual Abuse in Institutional Contexts’ (2017) 74 Child Abuse and Neglect 23, 29.

1198 Commissioner for Children and Young People, Procedural Fairness Response, 4 August 2023, 2–3.

1199 Youth Justice Act 1997 s 25A (definition of ‘custodial facility’).

1200 Commissioner for Children and Young People, Procedural Fairness Response, 4 August 2023, 2–3.

1201 Statement of Leanne McLean, 12 April 2022, Attachment LM–18 (‘Searches of Children and Young People in Custody in Custodial Facilities in Tasmania’, Memorandum of Advice, Leanne McLean, 7 May 2019) 15.

1202 Statement of Leanne McLean, 12 April 2022, Attachment LM–18 (‘Searches of Children and Young People in Custody in Custodial Facilities in Tasmania’, Memorandum of advice, Leanne McLean, 7 May 2019) 15.

1203 Office of the Custodial Inspector, Custody Inspection Report: Inspection of Youth Custodial Services in Tasmania (Report, 2018).

1204 Office of the Custodial Inspector, Custody Inspection Report: Inspection of Youth Custodial Services in Tasmania (Report, 2018) 6.

1205 Youth Justice Act 1997 s 131(2)(a), as enacted.

1206 Youth Justice Amendment (Searches in Custody) Act 2022 s 7.

1207 Youth Justice Act 1997 s 25E(1).

1208 Youth Justice Act 1997 s 25F.

1209 Youth Justice Act 1997 ss 25A (definition of ‘unclothed search’), 25G(1).

1210 Youth Justice Act 1997 ss 25B(3)–(4).

1211 Youth Justice Act 1997 ss 25A (definition of ‘relevant authorising officer’), 25E(5).

1212 Youth Justice Act 1997 s 25E(7).

1213 Youth Justice Act 1997 s 25E(2). Refer also to ss 25A (definition of ‘search officer’), 25C.

1214 Youth Justice Act 1997 ss 25D(1) (definition of ‘person of the required gender’), (3).

1215 Youth Justice Act 1997 ss 25D(1) (definition of ‘person of the required gender’), (3)(b).

1216 Youth Justice Act 1997 s 25D(4).

1217 Youth Justice Act 1997 s 25E(4)(a)–(b).

1218 Youth Justice Act 1997 s 25E(4)(c).

1219 Youth Justice Act 1997 ss 25K(1)–(3).

1220 Youth Justice Act 1997 s 25K(4).

1221 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 38 [8.4.1]. Refer also to Australian Children’s Commissioners and Guardians, Statement on Conditions and Treatment in Youth Justice Detention (24 November 2017) 5 [9].

1222 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 39 [8.5.1], [8.5.7].

1223 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 39 [8.5.6].

1224 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 39 [8.5.2].

1225 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 39 [8.5.2].

1226 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023).

1227 Ashley Youth Detention Centre, ‘Standard Operating Procedure #7: Searches’, July 2015, 1, produced by the Tasmanian Government in response to a Commission notice to produce; Statement of Michael Pervan, 27 July 2022, Annexure 80 (‘Personal Searches of Young People Detained at AYDC’, Procedure, Children and Youth Services, 3 September 2019).

1228 Statement of Michael Pervan, 27 July 2022, Annexure 80 (‘Personal Searches of Young People Detained at AYDC’, Procedure, Children and Youth Services, 3 September 2019) 1–2, 9.

1229 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 1.

1230 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 1.

1231 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 2.

1232 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 2.

1233 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 2.

1234 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 3.

1235 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 3.

1236 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 3.

1237 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 1.

1238 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 1.

1239 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 1. According to the Department’s Keeping Kids Safe Plan, ‘the routine of partially clothed searches’ ceased for all children and young people, including new admissions and young people returning after property excursion, from 27 September 2022: Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 21.

1240 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 7.

1241 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 3–4.

1242 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 4.

1243 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 4.

1244 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 3–5. We note that the requirement for the Director, Custodial Youth Justice, to approve a partially clothed search was not a requirement under the earlier procedure.

1245 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 6.

1246 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 5–6.

1247 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 6.

1248 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023) 5.

1249 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 6.

1250 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 21.

1251 Statement of Patrick Ryan, 18 August 2022, 12 [123].

1252 Statement of Patrick Ryan, 18 August 2022, 12 [124].

1253 Statement of Fiona Atkins, 15 August 2022, 14 [45(b)].

1254 Transcript of Stuart Watson, 23 August 2022, 3163 [25–28].

1255 Transcript of Stuart Watson, 23 August 2022, 3168 [17–19].

1256 Stuart Watson, Procedural Fairness Response, 30 July 2023, 2 [6].

1257 Stuart Watson, Procedural Fairness Response, 30 July 2023, 2 [4].

1258 Transcript of Stuart Watson, 23 August 2022, 3168 [30–32].

1259 Anonymous Statement, 16 August 2022, 10 [48].

1260 Department of Communities, ‘Issues Briefing to the Minister: Update on Matters Referred by Cassy O’Connor’s Office’, 22 December 2021, 7, produced by the Tasmanian Government in response to a Commission notice to produce.

1261 Department of Communities, ‘Issues Briefing to the Minister: Update on Matters Referred by Cassy O’Connor’s Office’, 22 December 2021, 7, produced by the Tasmanian Government in response to a Commission notice to produce.

1262 Department of Communities, ‘Issues Briefing to the Minister: Update on Matters Referred by Cassy O’Connor’s Office’, 22 December 2021, 8, produced by the Tasmanian Government in response to a Commission notice to produce.

1263 Statement of Stuart Watson, 16 August 2022, 7 [45(b)–46].

1264 Statement of Colleen Ray, 29 May 2022, 6 [16(f)].

1265 Statement of Michael Pervan, 14 June 2022, 32 [173].

1266 Australian Children’s Commissioners and Guardians, Human Rights Standards in Youth Detention Facilities in Australia: The Use of Restraint, Disciplinary Regimes and Other Specified Practices (Report, April 2016) 60–62.

1267 Australian Children’s Commissioners and Guardians, Human Rights Standards in Youth Detention Facilities in Australia: The Use of Restraint, Disciplinary Regimes and Other Specified Practices (Report, April 2016) 60–61.

1268 Australian Children’s Commissioners and Guardians, Human Rights Standards in Youth Detention Facilities in Australia: The Use of Restraint, Disciplinary Regimes and Other Specified Practices (Report, April 2016) 60–61.

1269 Australian Children’s Commissioners and Guardians, Human Rights Standards in Youth Detention Facilities in Australia: The Use of Restraint, Disciplinary Regimes and Other Specified Practices (Report, April 2016) 63.

1270 Youth Justice Act 1997 s 133(1).

1271 United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN Doc A/RES/45/113 (4 April 1991, adopted 14 December 1990) annex, 208 [67].

1272 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) GA 70/175, UN Doc A/RES/70/175 (8 January 2016, adopted 17 December 2015) r 44.

1273 United Nations Committee on the Rights of the Child, General Comment No 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 16 [95(h)].

1274 United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN Doc A/RES/45/113 (4 April 1991, adopted 14 December 1990) annex, 208 [66].

1275 Commissioner for Children and Young People, Procedural Fairness Response, 12 July 2023, 3.

1276 Commissioner for Children and Young People, Procedural Fairness Response, 12 July 2023, 5.

1277 Letter from Timothy Bullard to Commission of Inquiry, 3 August 2023, 1–2.

1278 Letter from Timothy Bullard to Commission of Inquiry, 3 August 2023, 2.

1279 Transcript of Sarah Spencer, 18 August 2022, 2818 [27–39]. Refer, for example, to Luke Miller, ‘Ashley Lockdowns Scrutinised over a Week Since Commencing’, The Examiner (Launceston, 3 July 2022); Luke Miller, ‘Ashley Lockdowns Resume’, The Examiner (Launceston, 24 October 2022); Lucy MacDonald, ‘Inside Tasmania’s Troubled AYDC, where Kids Say They Get No Help’, ABC News (5 December 2022).

1280 Transcript of Samuel Baker, 19 August 2022, 2914 [23–36]; Transcript of Leanne McLean, 24 August 2022, 3304 [40–46].

1281 Email from Investigation Officer, Ombudsman Tasmania to the Office of the Secretary of the Department of Communities, 15 November 2021, produced by the Tasmanian Government in response to a Commission notice to produce; Letter from Michael Pervan to Investigation Officer, Ombudsman Tasmania, 29 November 2021, produced by the Tasmanian Government in response to a Commission notice to produce; Letter from Investigation Officer, Ombudsman Tasmania to Michael Pervan, 8 December 2021, produced by the Tasmanian Government in response to a Commission notice to produce.

1282 Letter from Investigation Officer, Ombudsman Tasmania to Michael Pervan, 8 December 2021, produced by the Tasmanian Government in response to a Commission notice to produce.

1283 Transcript of Leanne McLean, 24 August 2022, 3303 [30–43].

1284 Statement of Vincenzo Caltabiano, 13 July 2022, 10–11 [65]; Statement of Hannah Phillips, 13 July 2022, 15 [74].

1285 Transcript of Lucas Digney, 24 August 2022, 3265 [3–14].

1286 Transcript of Mark Morrissey, 18 August 2022, 2786 [13–23]; refer also to Statement of Mark Morrissey, 9 August 2022, 10 [61–62].

1287 United Nations Committee against Torture, Concluding Observations on the Sixth Periodic Report of Australia, UN Doc C/AUS/CO/6 (5 December 2022, adopted on 22 and 23 November 2022) 11 [37(d)].

1288 United Nations Committee against Torture, Concluding Observations on the Sixth Periodic Report of Australia, UN Doc C/AUS/CO/6 (5 December 2022, adopted on 22 and 23 November 2022) 11 [37(d)].

1289 Commissioner for Children and Young People, Procedural Fairness Response, 12 July 2023, 3.

1290 Statement of Pamela Honan, 18 August 2022, 29 [42.2].

1291 Transcript of Michael Pervan, 26 August 2022, 3531 [10–17]; Transcript of Richard Connock, 24 August 2022, 3307 [20–34].

1292 Transcript of Michael Pervan, 26 August 2022, 3531 [21–29].

1293 Transcript of Michael Pervan, 26 August 2022, 3531 [39]–3532 [6].

1294 Statement of Stuart Watson, 16 August 2022, 11 [71(b)].

1295 Youth Justice Act 1997 s 133(1).

1296 Letter from Mark Morrissey to Minister for Human Services, 11 November 2016, 2.

1297 Refer, for example, to Letter from Mark Morrissey to Minister for Human Services, 11 November 2016, 2.

1298 Youth Justice Act 1997 s 133(2)(a).

1299 Youth Justice Act 1997 s 133(2)(b).

1300 Youth Justice Act 1997 s 133(4).

1301 Youth Justice Act 1997 s 133(5).

1302 Youth Justice Act 1997 s 133(6).

1303 Youth Justice Act 1997 s 132(a).

1304 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) III [Abbreviations], 43 [8.9].

1305 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 43 [8.9], [8.9.1].

1306 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 43 [8.9.2].

1307 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 43 [8.9].

1308 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 43 [8.9.4].

1309 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 43 [8.9.5].

1310 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 43 [8.9.3].

1311 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, produced by the Tasmanian Government in response to a Commission notice to produce. Additional Practice Manual documents for using isolation include the ‘Authorisation for Use of Isolation’ form, ‘Authorisation for Extension of Isolation’ form, ‘Observation Record’ and ‘Use of Isolation Register’.

1312 Youth Justice Act 1997 s 133(1); Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1313 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1314 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1315 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1316 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1317 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1318 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1319 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1320 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1321 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1322 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 3–4, produced by the Tasmanian Government in response to a Commission notice to produce.

1323 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 4–5, produced by the Tasmanian Government in response to a Commission notice to produce.

1324 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1325 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 4–5, produced by the Tasmanian Government in response to a Commission notice to produce.

1326 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 5, produced by the Tasmanian Government in response to a Commission notice to produce.

1327 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 5–6, produced by the Tasmanian Government in response to a Commission notice to produce.

1328 Department of Communities, ‘Youth Justice Act 1997: Instrument of Revocation and Delegation – Detention Centre Manager’, 16 December 2021, produced by the Tasmanian Government in response to a Commission notice to produce, 2.

1329 Department of Communities, ‘Youth Justice Act 1997: Instrument of Revocation and Delegation – Detention Centre Manager’, 16 December 2021, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1330 Department of Communities, ‘Youth Justice Act 1997: Instrument of Revocation and Delegation – Detention Centre Manager’, 16 December 2021, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1331 Department of Communities, ‘Youth Justice Act 1997: Instrument of Revocation and Delegation – Detention Centre Manager’, 16 December 2021, 6, produced by the Tasmanian Government in response to a Commission notice to produce.

1332 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 6, produced by the Tasmanian Government in response to a Commission notice to produce.

1333 Statement of Michael Pervan, 27 July 2022, 74 [255].

1334 Statement of Michael Pervan, 27 July 2022, 72 [242].

1335 Commissioner for Children and Young People, Procedural Fairness Response, 12 July 2023, 3.

1336 Letter from Timothy Bullard to Commission of Inquiry, 3 August 2023, 2.

1337 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 6–7, produced by the Tasmanian Government in response to a Commission notice to produce.

1338 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 7, produced by the Tasmanian Government in response to a Commission notice to produce.

1339 Statement of Michael Pervan, 27 July 2022, 72 [246].

1340 Statement of Michael Pervan, 27 July 2022, 48 [94].

1341 Children and Youth Services, ‘Procedure: Use of Isolation’, 1 July 2017, 7, produced by the Tasmanian Government in response to a Commission notice to produce.

1342 Statement of Michael Pervan, 27 July 2022, 61 [177].

1343 Youth Justice Act 1997 s 132(a).

1344 Children, Youth and Families Act 2005 (Vic) s 487(a).

1345 Children (Detention Centres) Act 1987 (NSW) ss 19, 22(1)(h), 22(3). The maximum penalty for this offence is 10 penalty units or imprisonment for a period not exceeding 12 months or both (s 22(3)).

1346 Department for Education, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023) 31.

1347 Statement of Michael Pervan, 27 July 2022, 72 [242].

1348 Statement of Michael Pervan, 6 June 2022, 52 [232].

1349 Commissioner for Children and Young People, Procedural Fairness Response, 4 August 2023, 6.

1350 Isabel Bird, ‘Locked Down at Ashley for up to 23 Hours “Every Day”’, The Examiner (Launceston, 8 July 2023); Commissioner for Children and Young People, ABC Radio – Lockdowns at AYDC for up to 23 Hours a Day (Web Page, 6 July 2023) <https://childcomm.tas.gov.au/abc-radio-lockdowns-at-aydc-for-up-to-23-hours-a-day/>.

1351 Statement of Lucas Digney, 9 August 2022, 10 [30].

1352 Youth Justice Act 1997 s 133(2)(b).

1353 Request for statement served on Michael Pervan, 25 May 2022, 9 [20], [21], 15 [54(d)], 16 [54(e)]; Request for statement served on Michael Pervan, 2 August 2022, 26 [78]; Request for statement served on Stuart Watson, 22 July 2022, 11 [53(d)], [60(a) and (b)]; Request for statement served on Pamela Honan, 25 July, 6 [13(a) and (b)], 10 [37(e)].

1354 Department of Justice and Community Safety, Youth Justice Isolation Quarterly Reporting (1 January 2023 to 31 March 2023) (Web Page, 5 July 2023) <https://www.justice.vic.gov.au/youth-justice-isolation-quarterly-reporting-1-january-2023-to-31-march-2023>.

1355 United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN Doc A/RES/45/113 (4 April 1991) annex I, 208 [63–64]; Juan E Méndez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/HRC/28/68 (5 March 2015), 21 [86(f)].

1356 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), GA Res 70/175, UN Doc A/RES/70/175 (8 January 2016) r 82; United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA Res 45/113, UN Doc A/RES/45/113 (4 April 1991) annex, 208 [63–64]; Juan E Méndez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/HRC/28/68 (5 March 2015), 21 [86(f)].

1357 Commissioner for Children and Young People, Procedural Fairness Response, 4 August 2023, 8.

1358 Transcript of Stuart Watson, 23 August 2022, 3154 [35–44].

1359 Youth Justice Act 1997 ss 131(5), 132(b), 133(4).

1360 Youth Justice Act 1997 s 132(c).

1361 Youth Justice Act 1997 s 25J.

1362 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 37 [8.3.1].

1363 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 37 [8.3].

1364 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 37 [8.3.5].

1365 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 37 [8.3.2].

1366 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 37 [8.3.8], [8.3.9].

1367 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 37 [8.3.11], [8.3.12].

1368 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 37 [8.3.13].

1369 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, produced by the Tasmanian Government in response to a Commission notice to produce.

1370 Children and Youth Services, ‘Practice Advice: Minimising the Use of Physical Force and Restraint’, 1 July 2017, produced by the Tasmanian Government in response to a Commission notice to produce.

1371 Custodial Youth Justice, ‘Procedure: Use of Mechanical Restraints (Handcuffs)’, 21 October 2019, produced by the Tasmanian Government in response to a Commission notice to produce.

1372 Children and Youth Services, ‘Practice Advice: Use of Mechanical Restraints’, 21 October 2019, produced by the Tasmanian Government in response to a Commission notice to produce.

1373 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1374 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1375 Children and Youth Services, ‘Practice Advice: Minimising the Use of Physical Force and Restraint’, 1 July 2017, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1376 Children and Youth Services, ‘Practice Advice: Use of Mechanical Restraints’, 21 October 2019, 1, produced by the Tasmanian Government in response to a Commission notice to produce; Custodial Youth Justice, ‘Procedure: Use of Mechanical Restraints (Handcuffs)’, 21 October 2019, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1377 Custodial Youth Justice, ‘Procedure: Use of Mechanical Restraints (Handcuffs)’, 21 October 2019, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1378 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 2, produced by the Tasmanian Government in response to a Commission notice to produce. In addition, Ashley Youth Detention Centre staff are prohibited from deploying any form of chemical agent designed to cause temporary incapacitation or sensory irritation, such as oleoresin capsicum spray: Statement of Michael Pervan, 20 December 2022, Annexure 80 (‘Use of Chemical Agents and Restraints’, Procedure, Custodial Youth Justice, 21 October 2019) 1.

1379 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1380 Children and Youth Services, ‘Practice Advice: Minimising the Use of Physical Force and Restraint’, 1 July 2017, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1381 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1382 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1383 Children and Youth Services, ‘Practice Advice: Minimising the Use of Physical Force and Restraint’, 1 July 2017, 2–3, produced by the Tasmanian Government in response to a Commission notice to produce.

1384 Children and Youth Services, ‘Practice Advice: Minimising the Use of Physical Force and Restraint’, 1 July 2017, 3–4, produced by the Tasmanian Government in response to a Commission notice to produce.

1385 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1386 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1387 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1388 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1389 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1390 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 4–5, produced by the Tasmanian Government in response to a Commission notice to produce.

1391 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 5, produced by the Tasmanian Government in response to a Commission notice to produce.

1392 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1393 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 5, produced by the Tasmanian Government in response to a Commission notice to produce. The Report on Use of Physical Force form dated 1 July 2017 requires reasons for the use of force and details of the circumstances around the use of force, injuries to the young person, whether handcuffs were applied, the staff member(s) involved and injuries to staff. An authorisation section requires sign-off by the ‘Supervisor’, ‘Operations Manager’ and ‘Manager’: Children and Youth Services, Report on Use of Physical Force (Form, 1 July 2017).

1394 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, produced by the Tasmanian Government in response to a Commission notice to produce.

1395 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1396 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1397 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, 3, produced by the Tasmanian Government in response to a Commission notice to produce.

1398 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, 4–5, produced by the Tasmanian Government in response to a Commission notice to produce.

1399 Statement of Pamela Honan, 18 August 2022, 11 [9.1–9.2].

1400 Statement of Pamela Honan, 18 August 2022, 12 [12.1].

1401 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 5, produced by the Tasmanian Government in response to a Commission notice to produce.

1402 Statement of Pamela Honan, 18 August 2022, 11 [8.2].

1403 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 6, produced by the Tasmanian Government in response to a Commission notice to produce.

1404 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 21.

1405 Statement of Chris Simcock, 28 October 2022, Attachment 3 (‘Ashley Youth Detention Centre Incident Review Committee Terms of Reference’, Department for Education, Children and Young People, undated) 1.

1406 Statement of Chris Simcock, 28 October 2022, Attachment 3 (‘Ashley Youth Detention Centre Incident Review Committee Terms of Reference’, Department for Education, Children and Young People, undated) 2.

1407 Statement of Chris Simcock, 28 October 2022, Attachment 3 (‘Ashley Youth Detention Centre Incident Review Committee Terms of Reference’, Department for Education, Children and Young People, undated) 1.

1408 Statement of Chris Simcock, 28 October 2022, Attachment 3 (‘Ashley Youth Detention Centre Incident Review Committee Terms of Reference’, Department for Education, Children and Young People, undated) 1.

1409 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 6.

1410 Commissioner for Children and Young People, Procedural Fairness Response, 4 August 2023, 9.

1411 Commissioner for Children and Young People, Procedural Fairness Response, 4 August 2023, 9.

1412 Youth Justice Act 1997 s 132(b)(ii), (iii).

1413 Children (Detention Centres) Act 1987 (NSW) s 22(1)(a), (2), (3).

1414 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 4, produced by the Tasmanian Government in response to a Commission notice to produce.

1415 Children and Youth Services, ‘Procedure: Use of Physical Force’, 10 December 2018, 5, produced by the Tasmanian Government in response to a Commission notice to produce.

1416 Commissioner for Children and Young People, Procedural Fairness Response, 4 August 2023, 9.

1417 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 7, 217.

1418 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 7, 33.

1419 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 17, Recommendation 15.9.

1420 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 17, Recommendation 15.9.

1421 Transcript of ‘Simon’, 18 August 2022, 2758 [27–31], 2759 [15–18]; Transcript of ‘Max’, 23 August 2022, 3118 [5–13], 3122 [42–43]; Transcript of ‘Fred’, 25 August 2022, 3344 [15–42].

1422 Transcript of ‘Fred’, 25 August 2022, 3344 [15–21].

1423 Transcript of ‘Warren’, 18 August 2022, 2769 [6–15].

1424 Transcript of ‘Max’, 23 August 2022, 3118 [8–13].

1425 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 73.

1426 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 69.

1427 Statement of Angela Sdrinis, 5 May 2022, 68.

1428 Statement of Angela Sdrinis, 5 May 2022, 68.

1429 Statement of Angela Sdrinis, 5 May 2022, 68.

1430 Transcript of Mark Morrissey, 18 August 2022, 2775 [39–46].

1431 Statement of Mark Morrissey, 9 August 2022, 14 [87–88].

1432 Transcript of Mark Morrissey, 18 August 2022, 2774 [38–44]; Statement of Mark Morrissey, 9 August 2022, 14 [87]–15 [88].

1433 Statement of Mark Morrissey, 9 August 2022, 15 [88–89].

1434 Ashley Youth Detention Centre, Feedback, Concerns & Complaints Info Sheet (Information Sheet, 28 October 2022).

1435 Youth Justice Act 1997 s 129(1)(d).

1436 Youth Justice Act 1997 s 138(1).

1437 Youth Justice Act 1997 s 138(2).

1438 Notice to produce served on the State of Tasmania, 9 March 2022, 5–6 [12].

1439 Statement of Michael Pervan, 7 June 2022, Annexures 27–29 (‘Responding to Feedback, Concerns and Complaints’, Procedure, Custodial Youth Justice Services, undated; ‘Feedback and Complaints’, Practice Advice, Custodial Youth Justice Services, undated; ‘Make a Complaint’, Form, undated).

1440 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022); Custodial Youth Justice Services, Feedback and Complaints (Practice Advice, 28 October 2022).

1441 Ashley Youth Detention Centre, Feedback, Concerns & Complaints Info Sheet (Information Sheet, 28 October 2022); Ashley Youth Detention Centre, Help Form (Form, 13 September 2022).

1442 Department for Education, Children and Young People, Complaints – Child Safety and Youth Justice Services (Web Page) <https://www.decyp.tas.gov.au/about-us/complaints-child-safety-service/>.

1443 Department for Education, Children and Young People, Complaints – Child Safety and Youth Justice Services (Web Page) <https://www.decyp.tas.gov.au/about-us/complaints-child-safety-service/>.

1444 Department for Education, Children and Young People, Complaints – Child Safety and Youth Justice Services (Web Page) <https://www.decyp.tas.gov.au/about-us/complaints-child-safety-service/>.

1445 Ashley Youth Detention Centre, ‘Information for Young People and Families’, undated, produced by the Tasmanian Government in response to a Commission notice to produce.

1446 Ashley Youth Detention Centre, ‘Information for Young People and Families’, undated, 15–17, produced by the Tasmanian Government in response to a Commission notice to produce.

1447 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 2.

1448 Department for Education, Children and Young People, Feedback, Concerns & Complaints Info Sheet (Information Sheet, 28 October 2022) 1.

1449 Ashley Youth Detention Centre, Help Form (Form, 13 September 2022) 1–2.

1450 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 2.

1451 Custodial Youth Justice Services, Feedback and Complaints (Practice Advice, 28 October 2022) 1.

1452 Custodial Youth Justice Services, Feedback and Complaints (Practice Advice, 28 October 2022) 3.

1453 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 5.

1454 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 3.

1455 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, produced by the Tasmanian Government in response to a Commission notice to produce.

1456 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1457 Children and Youth Services, ‘Procedure: AYDC Incident Reporting’, 1 July 2018, 1, 3–4, produced by the Tasmanian Government in response to a Commission notice to produce.

1458 Statement of Michael Pervan, 23 August 2022, 54 [221].

1459 Statement of Pamela Honan, 18 August 2022, 17 [16–17]. The list of delegations under sections 137 and 138 of the Youth Justice Act 1997 states that responsibility for complaints sits with Children and Youth Services: at 6–7 [3].

1460 Statement of Michael Pervan, 7 June 2022, 20 [128], 21 [133–136].

1461 Statement of Michael Pervan, 7 June 2022, 21 [136].

1462 Statement of Michael Pervan, 7 June 2022, 21–22 [137].

1463 Statement of Michael Pervan, 7 June 2022, 20 [128].

1464 Statement of Jacqueline Allen, 15 August 2022, 43 [247].

1465 Jacqueline Allen, Procedural Fairness Response, 31 July 2023, 1–2 [1].

1466 Jacqueline Allen, Procedural Fairness Response, 31 July 2023, 1–2 [1].

1467 Jacqueline Allen, Procedural Fairness Response, 31 July 2023, 1–2 [1].

1468 Jacqueline Allen, Procedural Fairness Response, 31 July 2023, 1–2 [1].

1469 Jacqueline Allen, Procedural Fairness Response, 31 July 2023, 2–3 [2].

1470 Statement of Jacqueline Allen, 15 August 2022, 32 [180].

1471 Statement of Jacqueline Allen, 15 August 2022, 32 [175].

1472 Statement of Jacqueline Allen, 15 August 2022, 37 [201].

1473 Statement of Pamela Honan, 18 August 2022, 17 [16.1].

1474 Statement of Pamela Honan, 18 August 2022, 17 [16.1].

1475 Statement of Pamela Honan, 18 August 2022, 17 [16.1].

1476 Statement of Pamela Honan, 18 August 2022, 18 [20.1].

1477 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 4–5. The earlier version of the Complaints Procedure assigned responsibility to the Centre Manager for delegating complaints to staff members to investigate: Statement of Michael Pervan, 7 June 2022, Annexure 27 (‘Responding to Feedback, Concerns and Complaints’, Procedure, Custodial Youth Justice Services, undated) 4–5.

1478 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 5.

1479 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 5.

1480 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 5.

1481 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 5.

1482 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 5.

1483 Custodial Youth Justice Services, Responding to Feedback, Concerns and Complaints (Procedure, 28 October 2022) 5.

1484 Statement of Michael Pervan, 7 June 2022, 20 [130]–21 [132].

1485 Department for Education, Children and Young People, Complaints – Child Safety and Youth Justice Services (Web Page) <https://www.decyp.tas.gov.au/about-us/complaints-child-safety-service/>.

1486 Department for Education, Children and Young People, Complaints – Child Safety and Youth Justice Services (Web Page) <https://www.decyp.tas.gov.au/about-us/complaints-child-safety-service/>.

1487 Custodial Youth Justice Services, ‘Procedure: Contacting the SFSK Advice and Referral Line’, 26 August 2021, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1488 Custodial Youth Justice Services, ‘Procedure: Contacting the SFSK Advice and Referral Line’, 26 August 2021, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1489 Children, Youth and Families, ‘Fact Sheet: Reporting Concerns’, 26 August 2021, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1490 Children, Youth and Families, ‘Fact Sheet: Reporting Concerns’, 26 August 2021, 1, produced by the Tasmanian Government in response to a Commission notice to produce.

1491 Children, Youth and Families, ‘Fact Sheet: Reporting Concerns’, 26 August 2021, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1492 Children, Youth and Families, ‘Fact Sheet: Reporting Concerns’, 26 August 2021, 2, produced by the Tasmanian Government in response to a Commission notice to produce.

1493 Children and Youth Services, Transparency and Accountability (Policy, 1 July 2015) 1.

1494 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022) 12.

1495 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, 10.

1496 Letter from Timothy Bullard to Commission of Inquiry, 9 February 2023, Annexure 10.1 (‘Project Initiation Plan – Complaints Management Review’, Plan, Version 1.0, Department for Education, Children and Young People, 31 January 2023) 3.

1497 Department for Education, Children and Young People, Safe. Secure. Supported. Our Safeguarding Framework (April 2023) 35–40.

1498 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 69–70.

1499 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 70.

1500 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 71.

1501 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 71–72.

1502 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 73.

1503 Transcript of Mark Morrissey, 18 August 2022, 2775 [32–46].

1504 ACT Government, ‘Children and Young People (Complaints Management) Policy and Procedures 2018 (No. 1)’, ACT Legislation Register (Web Page) <https://www.legislation.act.gov.au/ni/2018-437/>.

1505 Statement of Kathrine Morgan-Wicks, 24 May 2022, 17 [147].

1506 Statement of Erwin Loh, 24 June 2022, 4 [18].

1507 Statement of Erwin Loh, 24 June 2022, 4 [19].

1508 Statement of Erwin Loh, 24 June 2022, 4 [20].

1509 Statement of Erwin Loh, 24 June 2022, 5 [28–29].

1510 Department for Education, Managing Allegations of Sexual Misconduct in SA Education and Care Settings (March 2019).

1511 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 7, 206.

1512 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 7, 206.

1513 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 7, 211–213.

1514 ACT Government, Children and Young People (Complaints Management) Policy and Procedures 2018 (No.1) (Notifiable Instrument NI2018–437, 7 August 2018) 1.

1515 Statement of Alison Grace, 29 July 2022, 12–13 [65].

1516 ACT Government, Children and Young People (Complaints Management) Policy and Procedures 2018 (No.1) (Notifiable Instrument NI2018–437, 7 August 2018) 9.

1517 ACT Government, Children and Young People (Complaints Management) Policy and Procedures 2018 (No.1) (Notifiable Instrument NI2018–437, 7 August 2018) 9.

1518 ACT Government, Children and Young People (Complaints Management) Policy and Procedures 2018 (No.1) (Notifiable Instrument NI2018–437, 7 August 2018) 10.

1519 ACT Government, Children and Young People (Complaints Management) Policy and Procedures 2018 (No.1) (Notifiable Instrument NI2018–437, 7 August 2018) 9–10.

1520 Manfred Nowak, Report of the Independent Expert Leading the United Nations Global Study on Children Deprived of Liberty (Report, July 2019) 19 [104]; Lisa Ewenson and Bronwyn Naylor, ‘Protecting Human Rights in Youth Detention: Listening to the Voices of Children and Young People in Detention’ (2021) 27(1) Australian Journal of Human Rights 110.

1521 Lisa Ewenson and Bronwyn Naylor, ‘Protecting Human Rights in Youth Detention: Listening to the Voices of Children and Young People in Detention’ (2021) 27(1) Australian Journal of Human Rights 97, 109.

1522 Lisa Ewenson and Bronwyn Naylor, ‘Protecting Human Rights in Youth Detention: Listening to the Voices of Children and Young People in Detention’ (2021) 27(1) Australian Journal of Human Rights 97, 106–107, 112.

1523 Statement of Stephen Kinmond, 29 March 2022, 7 [33].

1524 Statement of Stephen Kinmond, 29 March 2022, 8 [34].

1525 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017) vol 15, 75-77, 141, Recommendation 15.10.

1526 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017) vol 15, 135, Recommendation 15.9.

1527 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 2017) vol 15, 135, Recommendation 15.9.

1528 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 82–83.

1529 Refer to Chapter 10 for a discussion of the risks of child sexual abuse in youth detention.

1530 Department for Education, Children and Young People, Keeping Kids Safe: A Plan for Ashley Youth Detention Centre until Its Intended Closure (Report to the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, October 2022); Department for Education, Children and Young People, Draft Youth Justice Blueprint 2022–2032: Keeping Children and Young People out of the Youth Justice System (Draft Report, 3 February 2023); Department for Education, Children and Young People, Keeping Children and Young People out of the Youth Justice System: Draft First Action Plan 2023–2025 (Draft Plan, January 2023).

1531 Department of Justice, Fifth Annual Progress Report and Action Plan 2023 (Report, December 2022) Appendix A, 66.

1532 Department of Justice, Fifth Annual Progress Report and Action Plan 2023 (Report, December 2022) Appendix A, 58; Elise Archer, ‘Appointment of the Tasmanian National Preventive Mechanism’ (Media Release, 7 February 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/appointment_of_the_tasmanian_national_preventive_mechanism>.

1533 Office of the Custodial Inspector Tasmania, About Us (Web Page) <https://www.custodialinspector.tas.gov.au/about_us>; Statement of Richard Connock, 24 June 2022, 2 [1].

1534 OPCAT Implementation Act 2021 s 9(1)(a).

1535 Office of the United Nations High Commissioner for Human Rights, Preventing Torture: The Role of National Preventive Mechanisms (Professional Training Series No. 21, 2018) 6; OPCAT Implementation Act 2021 s 9.

1536 Commissioner for Children and Young People Act 2016 s 5.

1537 Statement of Leanne McLean, 12 April 2022, 2 [5].

1538 Commissioner for Children and Young People Act 2016 s 8(1).

1539 Commissioner for Children and Young People Act 2016 ss 3(2)(b), 4.

1540 Commissioner for Children and Young People Act 2016 s 8(1)(b).

1541 Commissioner for Children and Young People Act 2016 s 10(1).

1542 Youth Justice Act 1997 s 135A(1); Youth Justice Regulations 2019 regs 6(1), 6(2).

1543 Youth Justice Act 1997 s 135A(2).

1544 Youth Justice Act 1997 s 135A(3).

1545 Commissioner for Children and Young People Act 2016 s 9.

1546 Commissioner for Children and Young People Act 2016 s 9.

1547 Statement of Leanne McLean, 12 April 2022, 4 [13].

1548 Commissioner for Children and Young People Act 2016 s 14(2).

1549 Commissioner for Children and Young People Act 2016 s 17(2).

1550 Statement of Leanne McLean, 12 April 2022, 23 [78].

1551 Statement of Leanne McLean, 12 April 2022, 23 [81].

1552 Statement of Leanne McLean, 12 April 2022, 23 [78–79].

1553 Statement of Leanne McLean, 12 April 2022, 24 [82–83].

1554 Statement of Leanne McLean, 12 April 2022, 25 [86].

1555 Transcript of Leanne McLean, 24 August 2022, 3301 [44]–3302 [6].

1556 Statement of Leanne McLean, 12 April 2022, 29 [101].

1557 Statement of Leanne McLean, 12 April 2022, 29 [101].

1558 Statement of Leanne McLean, 12 April 2022, 29 [103]–31 [106].

1559 Statement of Leanne McLean, 12 April 2022, 29 [103]–31 [106].

1560 Child and Youth Safe Organisations Act 2023 ss 4–5, 7–8, 34–35.

1561 Child and Youth Safe Organisations Act 2023 s 35(4).

1562 Child and Youth Safe Organisations Act 2023 s 24(1).

1563 Commissioner for Children and Young People Act 2016 s 8(3).

1564 Statement of Mark Morrissey, 9 August 2022, 27 [175].

1565 Transcript of Mark Morrissey, 18 August 2022, 2782 [28–37].

1566 Transcript of Mark Morrissey, 18 August 2022, 2782 [39–45].

1567 Transcript of Leanne McLean, 5 May 2022, 429 [44–46].

1568 Statement of Leanne McLean, 12 April 2022, 9 [31]–10 [33].

1569 Statement of Leanne McLean, 12 April 2022, 8 [29].

1570 Ombudsman Act 1978 s 12; Ombudsman Tasmania, Annual Report 2021–2022 (Report, 2022) 5.

1571 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 2022) 5; Statement of Richard Connock, 24 June 2022, 2 [1]; Elise Archer, ‘Appointment of the Tasmanian National Preventive Mechanism’ (Media Release, 7 February 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/appointment_of_the_tasmanian_national_preventive_mechanism>.

1572 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 2022) 5.

1573 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 2022) 5. Refer also to the Ombudsman Act 1978 ss 4A, 14.

1574 Transcript of Richard Connock, 24 August 2022, 3293 [5–10].

1575 Youth Justice Act 1997 s 129(1)(d).

1576 Ombudsman Act 1978 s 18.

1577 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 2022) 5. Refer also to the Ombudsman Act 1978 s 20A.

1578 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 2022) 5. Refer also to the Ombudsman Act 1978 s 13.

1579 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 2022) 5. Refer also to the Ombudsman Act 1978 s 28.

1580 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 2022) 6.

1581 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 2022) 6.

1582 Transcript of Richard Connock, 5 May 2022, 426 [43].

1583 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 2022) 49.

1584 Statement of ‘Erin’, 18 July 2022, Attachment [Erin]–001 (Letter from Investigation Officer, Ombudsman Tasmania, to ‘Erin’).

1585 Refer, for example, to Letter from Senior Investigation Officer, Ombudsman Tasmania to Manager, Ashley Youth Detention Centre, 25 May 2009, produced by the Tasmanian Government in response to a Commission notice to produce, 1; Letter from Investigation Officer, Ombudsman Tasmania to Manager, Ashley Youth Detention Centre, 28 October 2010, produced by the Tasmanian Government in response to a Commission notice to produce, 1; Letter from Senior Investigation Officer, Ombudsman Tasmania to Manager, Ashley Youth Detention Centre, 4 October 2013, produced by the Tasmanian Government in response to a Commission notice to produce, 1.

1586 Transcript of Richard Connock, 24 August 2022, 3300 [9–14].

1587 Transcript of Richard Connock, 24 August 2022, 3300 [2–16].

1588 Email from Patrick Ryan to Professional Services and Policy Manager and Madeleine Gardiner, 18 July 2019, produced by the Tasmanian Government in response to a Commission notice to produce.

1589 Office of the Custodial Inspector, Annual Report 2020–21 (Report, 2021) 6.

1590 Custodial Inspector Act 2016 s 3. Under section 4 of the Custodial Inspector Act 2016, a ‘custodial centre’ includes a detention centre within the meaning of the Youth Justice Act 1997.

1591 Custodial Inspector Act 2016 s 7.

1592 Office of the Custodial Inspector, About Us (Web Page) <https://www.custodialinspector.tas.gov.au/about_us>; Statement of Richard Connock, 24 June 2022, 2 [1].

1593 Custodial Inspector Act 2016 s 6(1)(c).

1594 Custodial Inspector Act 2016 ss 6(1)(a)–(b), 13–14. Under section 4 of the Custodial Inspector Act 2016, a ‘custodial centre’ includes a detention centre within the meaning of the Youth Justice Act 1997.

1595 Custodial Inspector Act 2016 ss 6(1)(d)–(f).

1596 Custodial Inspector Act 2016 s 6(1)(g).

1597 Custodial Inspector Act 2016 s 6(1)(h).

1598 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018).

1599 Custodial Inspector Act 2016 s 8; Office of the Custodial Inspector, Annual Report 2020–21 (Report, 2021) 10–11.

1600 Custodial Inspector Act 2016 s 29(1).

1601 Custodial Inspector Act 2016 s 17(1).

1602 Custodial Inspector Act 2016 s 17(2).

1603 Like the Commissioner for Children and Young People, the Custodial Inspector is a ‘prescribed officer’ for the purposes of section 135A of the Youth Justice Act 1997: Youth Justice Regulations 2019 reg 6.

1604 Office of the Custodial Inspector, Annual Report 2020–21 (Report, 2021) 22.

1605 Transcript of Richard Connock, 24 August 2022, 3298 [6–10].

1606 Transcript of Richard Connock, 24 August 2022, 3296 [43]–3297 [1].

1607 Office of the Custodial Inspector, Annual Report 2021–22 (Report, 2022) 6. The Principal Inspection Officer, Senior Inspection Officer and Administration and Research Officer are 1.0 full-time-equivalent positions.

1608 Office of the Custodial Inspector, Annual Report 2021–22 (Report, 2022) 4, 6.

1609 Office of the Custodial Inspector, Annual Report 2021–22 (Report, 2022) 4.

1610 Office of the Custodial Inspector, Annual Report 2021–22 (Report, 2022) 4.

1611 Office of the Custodial Inspector, Annual Report 2021–22 (Report, 2022) 8.

1612 Office of the Custodial Inspector, Publications (Web Page) <https://www.custodialinspector.tas.gov.au/inspection_reports>.

1613 Office of the Custodial Inspector, Custody Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2018 (Report, August 2019) 30.

1614 Office of the Custodial Inspector, Custody Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2018 (August 2019) 30.

1615 Department for Education, Children and Young People, Personal Searches of Young People Detained at AYDC (Procedure, 28 February 2023).

1616 Transcript of Richard Connock, 24 August 2022, 3297 [12–19].

1617 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 35–44.

1618 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 35 [8.1.4].

1619 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 37 [8.3.2].

1620 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 42 [8.8].

1621 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 43 [8.9.1].

1622 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 44 [8.10].

1623 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 45 [9].

1624 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 45 [9.1], 51 [9.8].

1625 Office of the Custodial Inspector, Inspection Standards for Youth Custodial Centres in Tasmania (July 2018) 11 [3.1.1].

1626 Transcript of Richard Connock, 24 August 2022, 3293 [40–43].

1627 Department of Justice, Fifth Annual Progress Report and Action Plan 2023 (Report, December 2022) Appendix A, 58.

1628 Refer, for example, to the case examples of ‘Ben’ and ‘Max’ in Chapter 11, Case study 1.

1629 Office of the Custodial Inspector, Custody Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2018 (Report, August 2019) 29–31, 53–55.

1630 Transcript of Richard Connock, 24 August 2022, 3310 [16]–3311 [5].

1631 Transcript of ‘Warren’, 18 August 2022, 2769 [15–21].

1632 Transcript of ‘Erin’, 22 August 2022, 3021 [3–31].

1633 Transcript of ‘Erin’, 22 August 2022, 3022 [3–10].

1634 Transcript of ‘Max’, 23 August 2022, 3119 [13–21].

1635 Transcript of ‘Max’, 23 August 2022, 3119 [26].

1636 Transcript of Manager, Ashley Youth Detention Centre, 23 August 2022, 3196 [2–17].

1637 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 82.

1638 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 82.

1639 Tim Moore and Morag McArthur, Take notice, believe us and act! Exploring the safety of children and young people in government run organisations (Research Report prepared for the Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings, February 2023) 82–83.

1640 Marine Braun and Pierre-Yves Rosset, Children’s Rights Behind Bars. Human Rights of Children Deprived of Liberty: Improving Monitoring Mechanisms. A European Overview (Report, June 2015) 39.

1641 Transcript of Penelope Wright, 16 June 2022, 1416 [17–30].

1642 Transcript of Penny Wright, 16 June 2022, 1416 [11–30].

1643 Transcript of Leanne McLean, 24 August 2022, 3301 [42]–3302 [13]; Statement of Leanne McLean, 12 April 2022, 11 [34(k)], 25 [86].

1644 Statement of Catherine Moynihan, 10 June 2022, 7 [18]–16 [46]; Statement of Liana Buchanan, 4 May 2022, 25 [94].

1645 Public Guardian Act 2014 (Qld) ss 13(2)(a), 51, 56; Statement of Catherine Moynihan, 10 June 2022, 7 [18]–13 [32]; Statement of Liana Buchanan, 4 May 2022, 25 [94].

1646 Statement of Penelope Wright, 6 June 2022, 6 [32]–14 [67].

1647 Public Guardian Act 2014 (Qld) ss 109(1)(b), 113(1).

1648 Public Guardian Act 2014 (Qld) s 111(1).

1649 Public Guardian Act 2014 (Qld) ss 111(2) and (4).

1650 Public Guardian Act 2014 (Qld) s 56(1).

1651 Public Guardian Act 2014 (Qld) s 58(1).

1652 Statement of Catherine Moynihan, 10 June 2022, 14 [37].

1653 Public Guardian Act 2014 (Qld) s 60(1).

1654 Public Guardian Act 2014 (Qld) s 67(1).

1655 Public Guardian Act 2014 (Qld) s 67(1); United Nations Committee on the Rights of the Child, General Comment No. 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) 15 [95(e)].

1656 Transcript of Leanne McLean, 24 August 2022, 3304 [43]–3305 [4], 3306 [11–28].

1657 Transcript of Richard Connock, 24 August 2022, 3300 [44-46].

1658 Transcript of Richard Connock, 24 August 2022, 3300 [47]–3301 [3].

1659 Office of the Custodial Inspector, Custody Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2018 (Report, August 2019) 46.

1660 Office of the Custodial Inspector, Custody Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2018 (Report, August 2019) 46.

1661 Office of the Custodial Inspector, Custody Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2018 (Report, August 2019) 46.

1662 Office of the Custodial Inspector, Custody Inspection Report: Inspection of Youth Custodial Services in Tasmania, 2018 (Report, August 2019) 47.

1663 Department of Justice, Fifth Annual Progress Report and Action Plan 2023 (Report, December 2022) Appendix A, 65.

1664 Department for Education, Children and Young People, Procedural Fairness Response, 17 June 2023, 7.

1665 Department for Education, Children and Young People, Procedural Fairness Response, 17 June 2023, 7.

1666 Ombudsman Act 1978 s 14.

1667 Transcript of Richard Connock, 5 May 2022, 420 [8-11].

1668 Office of the Custodial Inspector, Annual Report 2020–21 (Report, 30 June 2021) 4, 6–8.

1669 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 141.

1670 Commission for Children and Young People Act 2012 (Vic) s 8(1).

1671 Commission for Children and Young People Act 2012 (Vic) ss 3, 5.

1672 Commission for Children and Young People Act 2012 (Vic) s 8(1)(c).

1673 Commission for Children and Young People, Victoria, Annual Report 2021–22 (Report, September 2022) 47.

1674 Commission for Children and Young People, Victoria, Annual Report 2021–22 (Report, September 2022) 47.

1675 Commission for Children and Young People Act 2012 (Vic) s 39(1).

1676 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021).

1677 Commission for Children and Young People, Victoria, Our Youth, Our Way: Inquiry into the Over-representation of Aboriginal Children and Young People in the Victorian Youth Justice System (Report, June 2021) 60.

1678 Commission for Children and Young People Act 2012 (Vic) s 37.

1679 Office of the Children’s Commissioner, Northern Territory, Annual Report 2021–22 (Report, 2022) 61.

1680 Office of the Children’s Commissioner, Northern Territory, Annual Report 2021–22 (Report, 2022) 61–65.

1681 Office of the Children’s Commissioner, Northern Territory, Annual Report 2021–22 (Report, 2022) 61–62.

1682 Statement of Leanne McLean, 12 April 2022, 24 [85].

1683 Statement of Leanne McLean, 12 April 2022, 24 [85].

1684 Statement of Leanne McLean, 12 April 2022, 25 [89]–26 [96].

1685 These could be de-identified, where necessary.

1686 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/46, UN Doc A/RES/39/46 (26 June 1987, adopted 10 December 1984); United Nations Human Rights Treaty Bodies, Ratification Status for Australia (Web Page) <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=9&Lang=EN>.

1687 United Nations General Assembly, Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, UN Doc A/RES/57/199 (9 January 2003) art 3.

1688 Office of the United Nations High Commissioner for Human Rights, Preventing Torture: The Role of National Preventive Mechanisms (Professional Training Series No. 21, 2018) 6; OPCAT Implementation Act 2021 s 9(1).

1689 United Nations General Assembly, Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, UN Doc A/RES/57/199 (9 January 2003) art 17.

1690 United Nations Committee against Torture, Decision Adopted by the Committee on the Request Submitted by Australia under Article 24 (2) of the Optional Protocol to the Convention, UN Doc CAT/C/73/3 (3 June 2022).

1691 United Nations General Assembly, Optional Protocol to the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, UN Doc A/RES/57/199 (9 January 2003) arts 5–16.

1692 United Nations Office of the High Commissioner, ‘UN Torture Prevention Body Terminates Visit to Australia, Confirms Missions to South Africa, Kazakhstan, Madagascar, Croatia, Georgia, Guatemala, Palestine, and the Philippines’ (Media Release, 20 February 2023) <https://www.ohchr.org/en/press-releases/2023/02/un-torture-prevention-body-terminates-visit-australia-confirms-missions>.

1693 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017) vol 15, 55, Recommendation 15.2.

1694 Australian Human Rights Commission, Road Map to OPCAT Compliance (Report, 17 October 2022) 6.

1695 Australian Human Rights Commission, Road Map to OPCAT Compliance (Report, 17 October 2022) 6.

1696 Australian Human Rights Commission, Road Map to OPCAT Compliance (Report, 17 October 2022) 9.

1697 OPCAT Implementation Act 2021 s 3.

1698 OPCAT Implementation Act 2021 s 8(1).

1699 OPCAT Implementation Act 2021 s 9(1).

1700 Elise Archer, ‘Appointment of the Tasmanian National Preventive Mechanism’ (Media Release, 7 February 2022) <https://www.premier.tas.gov.au/site_resources_2015/additional_releases/appointment_of_the_tasmanian_national_preventive_mechanism>.

1701 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 3 November 2022) 1.

1702 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 3 November 2022) 9.

1703 Ombudsman Tasmania, Annual Report 2021–2022 (Report, 3 November 2022) 9.

1704 Transcript of Richard Connock, 24 August 2022, 3318 [23–25].

1705 United Nations Office of the High Commissioner, ‘UN Torture Prevention Body Terminates Visit to Australia, Confirms Missions to South Africa, Kazakhstan, Madagascar, Croatia, Georgia, Guatemala, Palestine, and the Philippines’ (Media Release, 20 February 2023) <https://www.ohchr.org/en/press-releases/2023/02/un-torture-prevention-body-terminates-visit-australia-confirms-missions>; Tamsin Rose, ‘UN Accuses Australia of “Clear Breach” of Human Rights Obligations as it Suspends Tour of Detention Facilities’, The Guardian (online, 23 October 2022) <https://www.theguardian.com/australia-news/2022/oct/23/un-accuses-australia-of-clear-breach-of-human-rights-obligations-as-it-suspends-tour-of-detention-facilities>.

1706 United Nations Office of the High Commissioner, ‘UN Torture Prevention Body Terminates Visit to Australia, Confirms Missions to South Africa, Kazakhstan, Madagascar, Croatia, Georgia, Guatemala, Palestine, and the Philippines’ (Media Release, 20 February 2023) <https://www.ohchr.org/en/press-releases/2023/02/un-torture-prevention-body-terminates-visit-australia-confirms-missions>; Tamsin Rose, ‘UN Accuses Australia of “Clear Breach” of Human Rights Obligations as it Suspends Tour of Detention Facilities’, The Guardian (online, 23 October 2022) <https://www.theguardian.com/australia-news/2022/oct/23/un-accuses-australia-of-clear-breach-of-human-rights-obligations-as-it-suspends-tour-of-detention-facilities>.

1707 Erin Handley, ‘UN Torture Prevention Body Suspends Australia Trip Citing “Clear Breach” of OPCAT Obligations,’ ABC News (online, 24 October 2022) <https://www.abc.net.au/news/2022-10-24/opcat-un-torture-prevention-suspends-australia-trip-clear-breach/101569880>.

1708 United Nations Office of the High Commissioner, ‘UN Torture Prevention Body Terminates Visit to Australia, Confirms Missions to South Africa, Kazakhstan, Madagascar, Croatia, Georgia, Guatemala, Palestine, and the Philippines’ (Media Release, 20 February 2023) <https://www.ohchr.org/en/press-releases/2023/02/un-torture-prevention-body-terminates-visit-australia-confirms-missions>.

1709 Commonwealth of Australia, Annual Report of the Commonwealth National Preventive Mechanism under the Optional Protocol to the Convention against Torture (OPCAT), 1 July 2021–30 June 2022 (Report, 2023) 40 <https://www.ombudsman.gov.au/__data/assets/pdf_file/0022/290137/Commonwealth-NPM-Report.pdf>.

1710 Commonwealth of Australia, Annual Report of the Commonwealth National Preventive Mechanism under the Optional Protocol to the Convention against Torture (OPCAT), 1 July 2021–30 June 2022 (Report, 2023) 40 <https://www.ombudsman.gov.au/__data/assets/pdf_file/0022/290137/Commonwealth-NPM-Report.pdf>.

1711 Transcript of Richard Connock, Michael Easton and Leanne McLean, 5 May 2022, 422 [35]–423 [45].

1712 Transcript of Richard Connock, 5 May 2022, 423 [14–27].

1713 Transcript of Leanne McLean, 5 May 2022, 423 [33–37].

1714 Transcript of Leanne McLean, 5 May 2022, 423 [37–43].

1715 Transcript of Leanne McLean, 5 May 2022, 424 [28–31].

1716 Transcript of Leanne McLean, 24 August 2022, 3302 [21–31].

1717 Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (Report, November 2017) vol 2B, 468–469.

Acknowledgment of country

We acknowledge and pay respect to the Tasmanian Aboriginal people as the traditional and original owners, and continuing custodians of this land and acknowledge Elders, past and present.

Chapter 12 – The way forward: Children in youth detention

Security as the paramount consideration

A punitive culture

Inconsistent treatment of children and young people

Socialisation of new staff into a longstanding culture

Bullying and unprofessional behaviour

Resistance to change

Staffing challenges and an unsafe environment for youth workers

Efforts to address cultural problems at Ashley Youth Detention Centre

Youth workers’ qualifications and training

Qualifications and induction programs in other jurisdictions

Efforts to strengthen youth worker qualifications and skills in Tasmania

Understaffing and resourcing challenges in detention

Efforts to address staff shortages in detention

Support for staff

Definition of isolation and amendments to the Youth Justice Act

Changes to the Isolation Procedure

Staff understanding and implementation of isolation procedures

Changes to reporting and oversight

Changes to address lockdowns

Notes

On this page

Acknowledgment of country