Youth Justice Amendment (Searches in Custody) Bill 2022 (No 9)

Thursday 26 May 2022, Second reading speech

[12.32 p.m.]

Ms ARMITAGE (Launceston) - Mr President, a further comment to the member for Nelson, if people do want to find out more about these children, they can also join the independent persons register I am on to meet them personally and go and sit with them when they are charged. You certainly do get a new insight into the young people before the justice system.

As I have mentioned in the past, the youngest I have sat with is 10.

Mrs Hiscutt - Is the member saying - do they call people like you randomly, or is it for every child? How does that system work?

Ms ARMITAGE - It is not random, no, and let us say being A for Armitage, I do get called quite regularly. I have suggested at times maybe they start at the bottom of the list. There is a register and I have been on it now for about 25 years and I might get called once a month. Actually, I have been called about five times over the last three weeks, so it depends and there is a daytime and a night-time roster, so you can get called during the night.

I got off the night-time roster, because they were calling me when I was in Hobart and I was waking up at two in the morning to say, 'No, I cannot come'. There is always a need for these people because many of the youth, if they do have a parent, they may not wish them to go, but often they do not have a guardian and the police cannot proceed with interviewing them unless they actually have someone there to make sure their rights are upheld.

Mrs Hiscutt - That is what I wanted to know.

Ms ARMITAGE - Yes. I thank the Leader for the briefings this morning and I believe this is very important legislation introduced to protect vulnerable young people which has been developed over a significant amount of time. It is essential we have robust legislation governing the search of youths in custody.

We have heard with shock and dismay some of the stories coming from the commission of inquiry into the abuse of at-risk, vulnerable, and at times, sick children by adults who are in positions of trust and power and in the employ of the public sector. There is an inherent power imbalance between detainer and detainee, between adults and children and between a person who is searching and a person who is being searched. The United Nations defines body autonomy as the power and agency a person has over their body and future, without violence or coercion.

All people, including children, have the right to live free from physical acts or interference, such as touch, to which they do not freely consent. Moreover, consent is only valid if it is informed and lawful. In the context of the justice system and custody, consent to touch becomes a far different practice. After all, being arrested or detained is merely a lawful deprivation of liberty. It becomes then a question of how to manage things like body searches in these circumstances that still keeps the rights and protection of young people at its centre. Nothing, not even being placed in custody, justifies putting a child, or young person, in harm's way. This is absolutely what we need to make sure this bill covers. Strip searches, unclothing and intimate inspection of young vulnerable people's bodies need to be performed in line with the most robust principles of human rights and laws possible and carried out with sensitivity and respect.

I am of the opinion they should be used only as a matter of last resort and understand that this is what the bill promotes, although the words 'last resort' do not appear in it. I appreciate if the Leader could please provide some context or reasoning for this. I believe that the best way to actually make sure the intent of the bill is executed is to actually spell it out in the statute itself. I note also from the briefings body cavity searches can only be authorised by a magistrate and only conducted in health facilities by medical practitioners and that no search officer should ever be conducting body cavity searches.

I also note the comments from the member for Nelson and as I said, I have had no involvement at all with body searches. I know when I am there, the police when they take these young people in custody go to extreme pains, sometimes asking four and five times to make sure that every question is understood and that everything they are asking, when they are talking to them about what they may have done - and sometimes it is a witness, it is not always a perpetrator, I must admit. Sometimes there is a witness to something, but they do go to pains to make sure that everything is clearly understood. Sometimes to the extent you think, 'for goodness sake, yes they understand,' because they then ask us, as the guardian, or the person with them to make sure again the young person understands. I can say from that part, obviously I have not been involved in custody searches, but when they are interviewing they really do go to the nth degree to make sure.

Mrs Hiscutt - That is probably a good response to the question from the member for Nelson.

Ms ARMITAGE - As I said, it does not relate to the custodies, but it does relate to interviews.

Ms Webb - I want a response from the Government. I do not regard that as a sufficient answer to my question.

Ms ARMITAGE - No, I was simply pointing -

Ms Webb - No, I appreciate your comments, I wanted the Government to answer my -

Ms ARMITAGE - That is fine. That is from my perspective from what I have seen. As I said, they really go above and beyond in ensuring they understand. Ultimately, having young people in the custody of detention is a very sad event. When we discussed the age of criminal responsibility not too long ago, many of us reflected on the failings in the system which compels a young person to commit crimes, to harm other people or property, partake in drugs or alcohol and to give up on their futures by participating in other types of criminal activity. I could talk for hours about some of the young people I have seen that feel they have no future. These might be people 12 or 13 who have said they have no future. It is extremely sad, when you consider some of the lives they come from and the fact someone like myself has to be called in, because even if they have a parent - one I had recently, when I asked, 'Does this young person not have a parent?' and they said, 'They only have a mother and mum was under the influence of alcohol,' and could not come in. The situations at home are often very sad.

When young people arrive in a custodial facility we want that to serve as an opportunity for rehabilitation and even healing. Many of these young people carry trauma with them in some form or another. The last thing we want to do is compound this trauma and stress and limit the possibility for rehabilitation through mishandled intimate searches. This is ultimately what this legislation ought to be about. I do not think I can properly speak about this bill without addressing all the hard work which was done by the Commissioner for Children and Young People. It was as a result of the commissioner's work and of the staff at the office regarding searches of children in custodial facilities in Tasmania, I believe that this bill actually came about.

The commissioner identified a number of problems with eight recommendations accepted by the Government that outline a nuanced and reasonable approach to sensitively handling searches of children and young people in a custodial setting. To this end, the commitment of $1.3 million to body scanning technology will ensure that searches can still be conducted, and will minimise the need for unclothed searches to take place. The framework incorporated into the bill expressly states the kind of searches to which the bill applies; establishes authority to search where authorisation can be sought; requirements as to gender of a search officer; how searches are to be conducted and in what circumstances force can be applied; which purposes are relevant for undertaking a search; determines the least intrusive type of manner of search; how youths are to be informed of searches; and establishes a register of searches.

This is a comprehensive bill which incorporates the commissioner's recommendations to a significant degree. It is an extremely positive step towards promoting best practice and keeps the welfare and dignity of young people at the centre when they are placed in custody or detention.

It is important to remember that children and young people have their lives ahead of them. Even if they get caught up in unlawful activities, we need to do our best to give them every opportunity to heal and have a brighter future, especially as many of them are already disadvantaged. We limit their chances of success if we allow them to be subjected to situations where they might be in harm's way.

This bill expresses what might be an extremely traumatic experience. While I understand that it may be necessary for unclothed searches to be conducted from time to time, I am pleased that they will occur in situations of last resort, will be strictly managed, authorised and conducted to ensure that people who are being searched are informed of their rights in the search process. It is hard for me when I read this not to bring examples, because I can remember examples of people that I have been in interviews with that had knives and all sorts of things on them. However, I will be very cautious not to go into examples of cases.

Mr President, I support the bill.