Northern Territory laws to clarify how and when guards can use force, restraints and isolation on children

This article is more than 1 year old

This article is more than 1 year old

The Northern Territory is set to pass controversial youth justice laws that clarify how and when guards can use force, restraints and “separation” (isolation) on children in its two detention centres, Don Dale and Alice Springs.

“This is about backing our frontline staff and their ability to make decisions under difficult circumstances,” the territory families minister, Dale Wakefield, told NT parliament on Thursday morning.

But legal and human rights groups say the laws give guards and staff greater discretionary powers, and directly contradict the recommendations of the 2017 Royal commission into juvenile detention.

“It’s a dark day for justice in the NT,” the president of the Criminal Lawyers Association NT (CLANT), Marty Aust, said.

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“This bill extends the use of force, restraint and torturous confinement, potentially to levels beyond the practices that so horrified the nation that it resulted in a royal commission being called.”

CLANT and the NT Council of Social Service said the bill was rushed through without proper scrutiny by legal and community groups.

“The retrospective reforms are obviously targeted at legitimising ongoing failings and repeated abuses of powers against our most troubled children,” Aust said.

“This government has learnt nothing from the $50m plus wasted on the royal commission.

“Don Dale and the Alice Springs youth detention centres are unsafe and unfit for purpose, yet there is no concrete plan for closure or improvement of either.

“Contrary to its supposed purpose, this bill in no way provides clarification regarding use of force; indeed, the only clarification it offers is that force can effectively be used at all times, at the discretion of an authorised person.

“Restraint devices, shackles, hoods and solitary confinement are back, which can only lead to fear, trauma and pain.”

But Wakefield later told parliament these amendments give clarity to workers to decide when these powers should be exercised. “This is not a subjective test. It is based on training, and must be based on reasonable grounds.

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“We are making sure they are able to apply training, and we are not asking them to do unreasonable things. The use of force for discipline is banned, but there can be use of force to maintain good running of the centre.”

In 2017, the royal commission recommended that Don Dale should close. Its final report found “shocking and systemic failures” over many years that were known about but ignored at the highest levels, the commissioners Margaret White and Mick Gooda said.

It upheld allegations raised during the 12 weeks of public hearings, including verbal abuse, physical control, inappropriate force and restraint, and the bribing or daring of children to carry out humiliating or degrading acts, or to commit violence against one another.

“Children and young people were subjected to regular, repeated and distressing mistreatment in detention and there was a failure to follow the procedures and requirements of the law in many instances,” the commissioners said. “These things happened on our watch, in our country, to our children.”

In March last year, the NT government banned routine strip searches and solitary confinement in youth detention, a decision Wakefield said at the time was “based on evidence that overly punitive measures in youth detention are counterproductive and, on the contrary, contribute to further, more serious offending”.

However, today she told parliament that while the government had a responsibility to the community that the youth justice system doesn’t traumatise children and “doesn’t tie them to chairs”, it should trust the judgment of staff.

Wakefield said non-government organisations and individuals were frequently going into Don Dale. “There are many, many more eyes on this system than under the previous government.”

She said the government was acting to make sure the intent of the royal commission was applied, but “the solutions to these problems that we face are not going to be found in a courthouse down south. Legislation does not lead to good practice, it supports good practice.”

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The amendments remove the prohibition on the use of restraint “for the purpose of maintaining good order of a detention centre”, and cover scenarios like detainees snatching keys from a staff member or climbing onto the roof, as happened in November last year.

Staff are being trained to use skilful verbal engagement, restorative processes and therapeutic approaches to resolve issues and need a clear framework to respond proportionately to the level of risk and threat to safety and security of detainees’ behaviours, Wakefield said.

“This makes it clear that if there is a reasonable belief that a detainee is likely to try and escape inside or outside a youth detention centre, then restraint devices may be appropriately used.”

Among the changes, a superintendent or senior officer no longer needs to attempt all other “practical measures” to deal with an emergency situation before employing force. Nor are they required to give a clear warning to the detainee.

The royal commission made more than 230 recommendations, including raising the age of criminal responsibility to 12 and banning the detention of under-14s except for serious crimes.

A commissioner for children and young people was to be given free access to detention centres and detainees, and the use of force to maintain “good order” and any use of teargas was to be banned.

The law also winds back amendments made by this NT government last year, which had sought to correct controversial changes made by the previous CLP minister, John Elferink.

Elferink’s amendments allowed for the use of force or restraint to maintain the “good order” of a centre. The NT government prohibited that in 2018, only to reverse their prohibition on Thursday.

“Until the health, safety and wellbeing of children in detention can be protected, and appropriate detention centres and specialist staff members can be provided, it is hard to see a light at the end of the tunnel or real hope for rehabilitation of youth offenders in the NT,” CLANT’s Aust said.

The amendments also address the controversial practice of transferring detainees thousands of kilometres between centres, often away from family and support networks.

The new law appears to leave the decision to transfer at the discretion of the superintendent, despite protections in the act that it only occur in the best interests of the child.

Alice Springs youth detention centre is often at its maximum capacity of 18 children, prompting the transfer of detainees to Don Dale in Darwin.

Ruth Barson, from the Human Rights Law Centre, said there was “absolutely no need for these reforms”. “The government should be doing everything it can to stop abuse against children behind bars, but instead it’s watering down much-needed protections.”

Barson accused the government of straying at the first opportunity to follow the royal commission’s road map and close the “dark chapter of Don Dale”.