Report on youth justice facilities at the Grevillea unit of Barwon Prison, Malmsbury and Parkville

Letter to the Legislative Council and the Legislative Assembly

To

The Honourable the President of the Legislative Council

and

The Honourable the Speaker of the Legislative Assembly

Pursuant to sections 25 and 25AA of the Ombudsman Act 1973 (Vic), I present to Parliament my Report on youth justice facilities at the Grevillea unit of Barwon Prison, Malmsbury and Parkville.

Deborah Glass OBE
Ombudsman

6 February 2017

Foreword

The riots at the Parkville Youth Justice Centre in November 2016 and the Government’s subsequent establishment of a youth justice centre within Barwon Prison have prompted reviews, inquiries, and legal proceedings, by numerous agencies. These include the responsible department, the Commission for Children and Young People, the Victorian Equal Opportunity and Human Rights Commission and Parliament. It is not the purpose of this report to add to those inquiries; rather, it is intended to inform Parliament – and through them the public – of the response to recent events by oversight agencies, and to put facts into the public domain to help inform the debate.

The public debate that has accompanied these events is predictably polarised, from one perspective that youth crime is out of control and a strong response is needed, to the claim that the Government’s response is an overreaction that arbitrarily infringed the human rights of the young people concerned.

The facts that emerge from independent sources provide succour to both sides of the debate: while youth crime is decreasing overall, more is being committed, more violently, by a small cohort of repeat offenders, who the system is plainly failing to deal with. This was presciently noted by the previous Ombudsman, George Brouwer, in 2013, when he said:

"It is evident that the youth justice system is limited in its capacity to deal with a small, but increasing, cohort of young people exhibiting violent behaviours. It is important that the youth justice system respond appropriately to these children rather than abrogate its responsibility by transferring them to the adult system¹"

This is illustrated by the startling statistic that some 25 per cent of offences are committed by less than two per cent of offenders – 182 young people – so we should not tar all young offenders with the same brush.

It is not the purpose of this report to examine the causes of the recent Parkville riots, but the Ombudsman’s concerns about the suitability of Parkville are a matter of public record, including the view expressed by my predecessor in 2010 that:

"the design and location of the Precinct is inappropriate for a custodial facility which houses vulnerable children.

" ... the only practical way to address the conditions at the Precinct in the long term is to develop a new facility at another site².

Among other things, the report noted design features such as a low roof-line allowing detainees to climb onto the roof and ill-placed staircases creating blind spots and posing a safety risk to detainees and staff. It is a matter of record that while the government’s response to that report was in many respects substantial – for example, the establishment of Parkville College that transformed the educational services available to young people – the precinct itself still exists and young people are still able to climb onto the roof.

The record so far is patchy – while improvements have undoubtedly been made, successive governments have failed to make the significant investment needed to address the long-term issues that are increasingly apparent. There is no short-term quick fix to the serious problems affecting youth justice, which have their origins not only in ageing infrastructure but in the complex interplay of health and human services, education and the justice system. Increasing numbers of detainees are also on remand making for an increasingly volatile and unsettled cohort.

I welcome the government’s review of youth justice – commissioned last year before the recent troubles and led by an eminent behavioural scientist – with its focus on long term and joined-up solutions. The chorus of blame will not make us safer as we worry about youth crime. Nor will it make either the staff or the young people safer – an essential prerequisite if youth justice facilities are to provide an environment that promotes rehabilitation. Safety will lie in a system that makes it less likely these young people will be repeat offenders. It is neither in the interests of public safety nor the public purse for young people to become entrenched in a life of crime, cycling through youth justice centres into adult prisons to which all too often they return.

Reform must also recognise not only the alarming trend to more ‘calculated and callous offending’ by young offenders, but also the systemic changes needed to address this deeply disturbing behaviour. My 2015 report into rehabilitation in prisons illustrated how ill-equipped the correctional system is to deal with young adult prisoners; Victoria’s dual track system must go on recognising that children – even dangerous children – are different from adults.

This report is of a different nature to most reports I present to Parliament. It is the product of enquiries and information shared by other oversight bodies rather than a formal investigation. I hope it will also assist the Parliamentary Inquiry in their work.

It is also intended to give Parliament and the public a window into the actual state of affairs within Victoria’s youth justice facilities and how oversight agencies hold government to account. The report evidences the close scrutiny of the Grevillea unit in Barwon Prison by the Commission for Children and Young People since the unit was hastily set up last November.

It also evidences the pressures on the Parkville and Malmsbury facilities: while staff shortages have long been a problem there, this has plainly been exacerbated by the creation of Grevillea, with the predictable effect that young people are kept in lockdown for longer periods, creating further unrest.

This report covers the period to 20 January 2017, and was being finalised when the serious disturbances at Malmsbury occurred on 25 January. While it is sadly inevitable that short-term solutions will continue to be sought to deal with urgent situations that arise, it is vital that the government keep its sights set on long-term reform that addresses the causes of young offender behaviour. Reform should not be derailed by knee-jerk responses to events, which will not make us safer in the long run.

The situation continues to evolve, and will no doubt have evolved further by the time this report is tabled. I anticipate that this will not be the last report I provide on this troubled issue.

Deborah Glass
Ombudsman

Background

Youth crime and reoffending in Victoria

1. Victorian law – which defines a child as a person under 18 years of age – recognises that children and young offenders have particular needs different from those of adult offenders. As the Ombudsman pointed out in a previous report³:
   
   "It has been recognised that the behavioural and emotional characteristics of children require different approaches from custodial services to those applied to adults."
   
2. In Victoria, the law distinguishes between a ‘child’ and a ‘young offender’:
   • the Children, Youth and Families Act 2005 defines a ‘child’ as someone aged 10 to 17 at the time of the alleged offence and aged under 19 when Children’s Court proceedings begin
   • the Sentencing Act 1991 defines a ‘young offender’ as someone aged under 21 at the time of sentencing⁴.
3. The Sentencing Act allows for some young offenders convicted of serious offences to be detained in a youth justice centre instead of an adult prison if the court believes there are reasonable prospects for rehabilitation, or if they are particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison⁵.
4. Children and young offenders are collectively referred to as ‘young people’. This is reflected in this report.
5. Of those in the youth justice system in Victoria, many have complex needs and/or come from backgrounds of significant disadvantage. The latest annual report of the Youth Parole Board included a survey of 176 young people on sentence or remand in October 2015 that showed:
   • 63 per cent were victims of abuse, trauma or neglect
   • 62 per cent had previously been suspended or expelled from school
   • 30 per cent presented with mental health issues
   • 18 per cent had a history of self-harm or suicidal ideation
     
   • 24 per cent presented with issues concerning their intellectual functioning
   • 66 per cent had a history of both alcohol and drug misuse
     
   • 45 per cent had been previously involved with child protection
   • 12 per cent were parents
   • 38 per cent had a family history of parental or sibling imprisonment
   • 10 per cent were homeless with no fixed address or residing in insecure housing prior to custody⁶.
6. Since 2010, there has been a steady decline in the number of young offenders. Reports by the Sentencing Advisory Council⁷ show:
   • There has been a 43 per cent reduction over five years to 2015 in the number of young people and children sentenced.
   • This smaller number of offenders are being sentenced for more offences per case.
   • Once children are in the youth justice system, 40 per cent reoffend within two years and 61 per cent reoffend within six years.
7. The Sentencing Advisory Council also reports that the earlier children start offending, the more likely they are to reoffend. Of young offenders with prior convictions, 79 per cent reoffended. Sentencing data shows that:
   
   Children who enter the criminal justice system early:
   • commit a wider range of offences
   • are more likely to reoffend violently
   • are more likely to continue reoffending into adulthood
   • are more likely to end up in an adult prison before their 22nd birthday ⁸ .
8. Research by the Crime Statistics Agency⁹ into patterns of offending by young Victorians categorises young offenders into four groups:
   • Low – those with a very low level of offending across all ages, with an average of 2.2 offences.
   • Adolescent limited – those who offend early and whose offending declines after fifteen.
   • Late developing – who start offending after fifteen and whose offending then rapidly increases.
   • High – whose offending increases rapidly from 12 years of age with an average of 76.5 offences.
9. It is the ‘High’ group of 182 young people – less than two percent of young offenders – that is responsible for one in four offences, or some 14,000 offences.
10. The Crime Statistics Agency reports that young people who fell into all but the ‘Low’ group were statistically more likely to be male, to identify as Aboriginal or Torres Strait Islander and to live in the most socio-economically disadvantaged when they started offending¹⁰.
11. There has also been a significant increase in children and young people held on remand. In 10 years, the number of remand orders made has increased by almost two thirds, from 381 in 2006-07 to 979 in 2015-16¹¹. The Department of Health and Human Services (the Department) reports that the number of individual young people remanded has almost doubled in five years, from 115 in the first quarter of 2010 (July to September) to 210 in the first quarter of 2016, the highest it has been in five years¹². It also reports that on average, since 2012-13, only about 20 per cent of those remanded are sentenced to custody¹³.
12. Further trends in youth crime are coming to light as a result of current work within the Department, described in paragraphs 18 to 22 below. In response to the draft report the Department advised:
    
    " … In many instances, stakeholder consultations have revealed a move away from opportunistic (typical adolescent) offending and towards more sophisticated, socially networked, calculated and callous offending, characterised by rapidly escalating levels of violence and disregard for authority and consequence.
    
    "Departmental data also show that in 2015-16, over 71 per cent of youth justice clients have been charged with crimes against the person. Of this cohort, 73 per cent committed acts intended to cause injury as their most serious offence.
    
    "As at 20 January 2017, 39 per cent of young people detained in youth justice facilities were aged over 18 years."

Youth justice facilities in Victoria

13. The Children, Youth and Families Act gives the Department the statutory responsibility for the care, custody and supervision of children who have been sentenced or remanded to a youth justice centre for a criminal offence.
14. Prior to November 2016, the Department operated custodial facilities for young offenders in Parkville and Malmsbury. The Parkville Youth Justice Precinct houses 10 to 18 year old males and 10 to 20 year old females. About 80 per cent are on remand¹⁴. At the Malmsbury site, the Department operates a Senior Youth Justice Centre for 18 to 20 year old males and a Secure Youth Justice Centre for 15 to 20 year old males. Most of the young people at Malmsbury are serving sentences.
15. According to the Report on Government Services 2016, Victoria spends about $75 million per annum on youth justice detention services. This included bed capacity for 257 young people across both facilities; 123 at Parkville and 134 at Malmsbury. The capacity at Malmsbury consists of 89 low security/open beds and 45 beds at the secure centre.
16. On 10 January 2017 there were 190 young people detained in youth justice facilities, 91 on remand and 99 sentenced.
17. The Department advised that as at 17 January 2017, the current bed capacity at Parkville is 63, with 134 beds at Malmsbury and 36 at Grevillea.
18. The Department began a review of youth support, youth diversion and youth justice services in October 2016. According to the Department, this was in recognition of the shifts in youth crime and the profile of young offenders, and the lack of a current youth justice framework (the most recent framework, A Balanced Approach to Youth Justice, was created in 2000).
19. According to the Department:
    
    "The primary objective for the review will be to create an overarching policy framework for the development of a contemporary youth justice program and accompanying service delivery model. The framework will need to be responsive to current cohorts of young people and their families, consider the current systems challenges and also position the Victorian system on a path towards longer-term reform.
    
    "The review will aim to understand the needs of cohorts of young people, and segments of young offenders, that are particularly vulnerable to exploitation and are at heightened risk of involvement with the criminal justice system. The review will assess whether the current model is best positioned to respond to the needs of children, young people and their families to address and reduce risk of offending into the future.
    
    "The review will deliver a strategy to enhance and position the department’s youth support, youth diversion and youth justice services to respond to the needs of vulnerable cohorts into the future, drawing on opportunities across portfolios such as mental health, child protection and housing. The strategy will also consider opportunities to strengthen the department’s interface and coordination of response across other agencies¹⁵."
    
20. According to its terms of reference, the review will:
    • examine the needs of the varying cohorts of young people involved with crime
    • consider the capabilities, priorities and resources needed to deliver contemporary youth justice services
    • compare Victoria’s approach to global best practice, and
    • assess programs and services delivered or funded by the Department at the pre-charge, pre-court, pre-sentence and post-sentence stages.
21. The review is being led by Professor James Ogloff, Director of the Centre for Forensic Behavioural Science, who has expertise in forensic psychology, forensic mental health and the assessment and management of offenders, and Penny Armytage, former senior executive within the Victorian Government.
22. The review is expected to be completed in the first half of 2017¹⁶.

Oversight of youth justice

23. Oversight of the youth justice system is provided by a number of agencies with different, although sometimes overlapping, roles: principally, the Commission for Children and Young People, the Victorian Equal Opportunity and Human Rights Commission and the Victorian Ombudsman.
24. The Victorian Auditor-General has also reported publicly on services in youth justice. Its 2008 report, Services to Young Offenders, examined the effectiveness of diversion and rehabilitative services provided by the Department to young offenders.

Commission for Children and Young People

25. The Commission for Children and Young People (CCYP) was established in 2013 to promote improvement and innovation in policies and practices relating to the safety and wellbeing of Victorian children and young people. It is the principal frontline overseer of youth justice facilities and the CCYP strategic priorities for 2016-17 include a commitment to increase oversight of youth justice¹⁷. Its oversight activities in relation to children in youth justice detention include:
    • undertaking inquiries which examine services provided to children in youth justice detention
    • visiting youth justice facilities to observe conditions and hear from children and young people
    • coordinating an Independent Visitor Program
    • reviewing all serious incidents for children in youth justice detention
    • monitoring the transfer of children to adult prisons and the management of any children transferred into the adult prison system
    • providing advice to government and promoting children’s rights, safety and wellbeing, including by advocating for reform to laws, policies and practices which impact on children in youth justice detention.
26. CCYP does not have a formal complaint handling role.
27. The Independent Visitor Program has operated at Parkville since 2012 and Malmsbury since 2013. The volunteer independent visitors, including Aboriginal independent visitors, visit the centres monthly. They talk to young people about their experiences in custody, support them to have issues addressed and report on issues and conditions to CCYP. The visitors also undertake fortnightly exit interviews with young people prior to their release, giving young people the opportunity to provide anonymous feedback about their experiences in custody.
28. CCYP is currently completing an inquiry into the use of isolation, separation and lockdowns in youth justice centres, with a report due in the next few months.
29. The Principal Commissioner and the Commissioner for Aboriginal Children and Young People also sit on the advisory group for the Department’s review of youth support, youth diversion and youth justice services.

Victorian Equal Opportunity and Human Rights Commission

30. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) educates people about the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter), intervenes in court cases where the Charter is considered and reports annually to the government about the operation of the Charter.
31. VEOHRC has a continuing focus on human rights in closed environments including youth justice. Its reports to the government over the last few years have included issues relating to an increase in young people on remand, isolation and separation practices in youth justice¹⁸, access to education in youth justice¹⁹, and its review in 2013 of practices within youth justice and their compatibility with human rights²⁰.

Victorian Ombudsman’s role in youth justice

32. The Ombudsman has jurisdiction over youth justice facilities operated by the Department, as well as statutory agencies such as CCYP and VEOHRC.
33. Section 482(2) of the Children Youth and Families Act sets out entitlements due to young people who are detained in facilities operated under that Act. Alongside the right to have their development needs met and to receive visits from legal representatives and family, is the right to complain to the Ombudsman about ‘… the standard of care, accommodation or treatment which they are receiving in the centre’. Their complaints frequently engage the Charter and therefore require the Ombudsman to determine whether an action is incompatible with rights protected by the Charter.
34. The Ombudsman’s direct role in youth justice matters is somewhat circumscribed by an amendment to the Ombudsman Act in 2012 that prohibits this office from interviewing witnesses who are younger than sixteen years of age.

Previous Ombudsman work involving youth justice

35. The Ombudsman’s office has had a longstanding interest in, and presence within, youth justice custodial services. Over the years, this office has responded to all manner of complaints ranging from the mundane to the extremely concerning.
36. For example, the third Ombudsman, Dr Barry Perry, commented extensively in his 2002 annual report on how he had acted to ensure proper action in response to allegations of staff trafficking drugs and mistreating young people. It was Dr Perry who instituted the practice of regular visits by the office to these facilities.
37. In 2004, the fourth Ombudsman, Mr George Brouwer, continued the office’s close interest in the youth justice system, reporting on cases where young people were injured by staff during incidents at a youth justice centre. The issues identified included that staff concerned had not received adequate training in the use of restraint techniques. Subsequently, a project to improve skills in this area was funded, with Mr Brouwer reporting a reduction in complaints in his 2005 report.
38. Despite the reported improvement in this aspect of youth justice operations, the high risk nature of this population was highlighted in his 2005 report about a young person who had sexually assaulted a fellow Malmsbury detainee. Staff from the office visited Malmsbury on several occasions to monitor improvements implemented as a result of the incident.
39. Mr Brouwer tabled two reports regarding youth justice issues. His 2010 Investigation into conditions at the Melbourne youth justice precinct identified a wide variety of serious deficiencies including health and safety concerns, improper conduct and availability of contraband, many of which also amounted to human rights breaches.
40. In 2013, Mr Brouwer tabled an Investigation into children transferred from the youth justice system to the adult prison system. His conclusions included:
    
    "It is evident that the youth justice system is limited in its capacity to deal with a small, but increasing, cohort of young people exhibiting violent behaviours. It is important that the youth justice system respond appropriately to these children rather than abrogate its responsibility by transferring them to the adult system.
    
    "I am of the view that there are no circumstances that justify the placement of a child in the adult prison system."
    
41. The Ombudsman’s office has continued to visit the youth justice centres while young people have access to the office via telephone. In 2015-16 we received 62 complaints about youth justice centres. Consistent with previous years, many of the issues raised were about food, clothing, conditions, health services and alleged assault or abuse.

Human rights perspective

42. In the international context, children’s rights are set out in the United Nations Convention on the Rights of the Child, which sets out a number of rights relating to people under 18 years of age, a number of which are relevant to young offenders. These include where appropriate, diversion from judicial proceedings, an emphasis on rehabilitation, and the use of detention as a last resort and for minimal time. Although not directly incorporated into Australian law, many of the principles are reflected in Victoria’s Children, Youth and Families Act.
43. Children’s rights are also reflected in the Victorian Charter. The Charter provisions were tested in the recent Supreme Court proceedings (see paragraph 52 below), when the Court concluded that the Minister’s recommendation to make the Orders in Council failed to give proper consideration to the human rights of the young people to be detained at Grevillea specifically²¹:
    
    10 Protection from torture and cruel, inhuman or degrading treatment
    A person must not be –
    (b) treated or punished in a cruel, inhuman or degrading way
    
    17 Protection of families and children
    (2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.
    
    22 Humane treatment when deprived of liberty
    (1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

44. In response to the draft report the Department said:
    
    "The Supreme Court determined that the Minister’s recommendation failed to give proper consideration to the human rights of young people, however in fact within the department and behind the recommendation significant work was done in respect of the application of the [Charter] … The department is keenly aware of its obligation to consider the impact of relevant decisions on the rights of children (as set out in the Charter) in its care and custody."
    
45. The Court of Appeal adjourned its hearing on this issue to after February 2017 but in January 2017 the application to appeal was discontinued.
46. In addition to the above rights, the Charter confers special rights on children in the context of youth justice. As well as the right to protection (section 17(2)), this includes:
    
    23 Children in the criminal process
    (3) A child who has been convicted of an offence must be treated in a way that is appropriate for his or her age.
    
    25 Rights in criminal proceedings
    (3) A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.

47. In practice, giving effect to these rights includes ensuring children and young people in youth justice centres have access to treatment, health services, education, vocational training and leisure activities and can receive visits from their family.
48. The Ombudsman also has an important express role in respect to the Charter as, unlike in other states, the office provides a human rights focused remedy for complaints that people in custody may wish to raise. Examples of complaints to the office that engage the Charter are included in this report.

Recent events

Incidents at Parkville and relocation of young people

49. In 2016 at least 13 incidents at youth justice centres were reported in the media, many of which were described as ‘riots’. One of the most widely reported occurred in mid-November at Parkville where detainees caused an estimated $2 million worth of damage to the facility in a series of incidents over three days. As a result, nearly one half of the accommodation at Parkville was lost.
50. On 17 November 2016, the Minister for Corrections announced that about 40 young offenders would be sent to a newly gazetted youth justice unit located at Barwon Prison named the Grevillea Youth Justice Centre. The Minister stated that this would be a temporary measure to allow fortification works to be undertaken in the Parkville precinct following recent riots. Young people began to be transferred to the newly gazetted facility on 21 November 2016²².

Legal proceedings

51. The Secretary of the Department subsequently settled an action brought by the Victorian Aboriginal Legal Service by giving an undertaking to the Court not to authorise or cause the removal of any Aboriginal or Torres Strait Islander children to any facility at Barwon Prison²³ unless the Aboriginal Commissioner for Children and Young People provided advice that the transfer was in the child’s best interests.
52. A further application, this time by the Human Rights Law Centre and Fitzroy Legal Service, was heard by the Supreme Court in December 2016 with the Victorian Equal Opportunity and Human Rights Commission intervening in proceedings. Among other things, the Court found that Orders in Council establishing Grevillea were invalid and of no effect, and that the Minister’s recommendation to make the Orders in Council failed to give proper consideration to the human rights of the young people to be detained at Grevillea.
53. On 29 December 2016, the Court of Appeal dismissed the Minister’s appeal against this decision, and adjourned its hearing on the human rights issue to after February 2017.
54. The Court gave the government until 30 December 2016 to re-house those young people placed at Grevillea, however the government obtained further Orders in Council that it states rectified the issues that led to the Court’s declaration of invalidity.

Other reviews and inquiries

55. Just prior to the mid-November 2016 incidents at Parkville, the Victorian Parliament announced that its Legal and Social Issues Committee would inquire into issues at Parkville and Malmsbury youth justice centres, with the Committee to report by August 2017. The Committee is to look at incidents and incident reporting, security and safety, reasons for and effects of the increase in the numbers of young people on remand, implications of incarcerating young people with mental health, trauma, and drug-related issues, or involvement with child protection, additional options for keeping young people out of youth justice centres, culture, policies, practices and reporting of management at the centres and the Department’s oversight role²⁴.
56. The incidents also prompted a two-stage review by the Department of Health and Human Services. The first stage is expected to be completed by the end of January and is to report on the facility’s security, current design and whether it is fit for purpose. The second stage will report by early March on the circumstances leading up to the incidents and compliance with procedures and guidelines leading up to, during and after the incidents.

Responding to the establishment of Grevillea Youth Justice Centre

57. The Ombudsman’s office has long experience overseeing custodial environments. It was therefore anticipated that implementing the arrangements announced by the Minister would be complex: the impact of the establishment of Grevillea would be felt across the youth justice system and not just within the new facility. Some of the foreseeable challenges included:
    • getting the right mix of experienced staff at Grevillea while retaining an adequate profile at the existing facilities
    • creating and resourcing an appropriate regime in the new facility including establishing the basic facilities necessary to provide custodial care
    • providing continuity of services for relocated young people as accommodation resources were juggled
    • difficulties that some young people may have adapting to change especially where minimal time was available for planning
    • disruptions to family and community support networks who may find established visiting arrangements altered at little notice
    • disruption to the provision of programs and support services
    • dealing with all of these issues in circumstances that left many of the affected young people and staff unsettled and anxious about their safety.

58. The Principal Commissioner for Children and Young People and staff from CCYP and our office completed a comprehensive inspection of Grevillea on 23 November – two days after the first young person was transferred to Grevillea – and met with nine of the boys. The next day, Ombudsman staff and Commission staff also inspected Malmsbury and met with the young people there, given a number of them had been transferred to Malmsbury following the Parkville riot.
59. Since 29 November 2016, the Principal Commissioner receives and reviews daily updates on Grevillea’s operation, including a list of young people at Grevillea, time out
    of cell, education, recreational activities, food, health services and infrastructure works. CCYP staff inspected Grevillea twice a week during November and December, and will continue to do so weekly in the coming months, raising concerns with the Minister for Families and Children and the Department. CCYP also receives daily updates on occupancy across the youth justice system. Ombudsman staff have also visited all three centres to ensure young people can access our office, and provide an opportunity for them to make a complaint should they wish to do so.
60. The VEOHRC Commissioner and some of her staff also visited Grevillea and Parkville on 29 November 2016, and she wrote to the Minister on 5 December 2016 expressing her concerns.
61. Mindful of the intersection of the Ombudsman’s jurisdiction and the work of other bodies, we have been liaising with both CCYP and VEOHRC to ensure there are neither gaps in oversight nor duplication. We agreed with the Principal Commissioner that it should be CCYP, with its express role to examine services provided to children in youth justice detention, that should take the lead operational role in relation to the issues that arise from the government’s response to the riots at Parkville.
62. On a practical level, this office has liaised with CCYP to ensure our visits to the Centres have been coordinated to limit the degree of overlap. We also used our new ability to share information with bodies as specified in the Ombudsman Act, so both organisations could target their visits and enquiries to best effect. CCYP staff have been very cooperative with Ombudsman officers, with the Chief Executive Officer meeting with one of the Deputy Ombudsmen weekly.
63. The Ombudsman has also liaised with the Victorian Equal Opportunity and Human Rights Commissioner about her office’s interest in the human rights issues arising from the establishment of Grevillea. We are focusing on individual complaints including Charter-related matters while the Commission has concentrated on its decision to intervene in the legal challenge to Grevillea’s establishment.

Conditions at Grevillea Youth Justice Centre

64. The evolving situation at the Grevillea facility within Barwon Prison can best be described by the exchanges of letters between the Principal Commissioner and the Minister from 25 November 2016 to 20 January 2017, which are reproduced below.
65. The letters illustrate a number of issues related to the establishment and management of the centre in that period including: appropriate staffing; the amount of time young people were spending in lockdown; the provision of food; information given to the young people about why they had been transferred; access to bedding, clothing and education services; and Separation and Safety Management Plans.
66. An example of a Separation Safety Management Plan is attached at Appendix 1.
67. Between its letters of 1 and 9 December 2016, in an email exchange with the Department, CCYP also ensured that Corrections Victoria’s Security and Emergency Services Group (SESG) – referred to in CCYP’s letter of 1 December 2016 – would not have any role in direct care of the young people at Grevillea and specifically excluded the use of unclothed searches and the use of dogs, bean bags and gas²⁵.
68. Ombudsman officers visited Grevillea on 23 November and 15 December 2016. They examined the local telephone systems and ensured that young people were able to contact this office as they wish. They also received five complaints; four in November and one in December.
69. Each of the young people who complained mentioned an excessive amount of time spent locked down while other complaints included the cold temperature in cells, lost or inaccessible property, lack of visitors and lack of access to items required for religious practices.

Conditions at Malmsbury Youth Justice Centre

70. The activities of CCYP staff in relation to Malmsbury included two visits by its staff, two days of visits by independent visitors, and several direct contacts from parents or young people. From these contacts CCYP reports:
    
    "A number of issues were identified in the weeks after the Parkville incident in mid-November 2016. The issues were most acute in the fortnight immediately after the riot, but some continue to be of concern in January 2017 when staffing issues continued to cause unit lockdowns. In the initial fortnight, most young people on the secure site were allowed only 1-2 hours per day out of their room. Young people told the Commission that in some instances, they had no time out of their rooms for three days consecutively. Staff also raised concern about shortages.
    
    "In late November 2016, Commission staff were advised that lockdown regimes had reduced to between three to five hours depending on individual behaviour assessments. The Commission is currently awaiting Secure Services records relating to lockdowns, isolations and separation plans for the period 1-14 December 2016, to ascertain the full extent of the time young people were contained in their rooms. By 12 January, Commission staff and the Principal Commissioner were advised that the use of lockdown regimes in separation plans had significantly reduced.
    
    "Young people at Malmsbury advised that, immediately after the mid November incident, they were required to sleep in rooms other than bedrooms, without toilets and in some circumstances without mattresses or bedding. Young people also raised concerns about not receiving toilet paper and clean clothing. The Commission raised these issues with Secure Services, who confirmed they had been addressed within four days.
    
    "There was limited access to education at Malmsbury for at least one month after the riot, due to unrelated repairs to the Programs area in the Secure Site and reported behaviour issues of young people. Parkville College staff attempted to address these issues by attending units to deliver classes and provided educational material to young people during this time.
    
    "Immediately after the mid-November incident, parents of children and young people were not all advised of the whereabouts or welfare of their children, creating significant anxiety. The Commission was also advised that young people at Malmsbury were not permitted visits with family, or access to phone calls, for at least a week following the incident.
    
    "The above issues have been raised with the General Managers, Malmsbury on the day of a visit and/or by email with the department following visits or contacts²⁶."

71. CCYP’s observations were consistent with those of Ombudsman officers who attended Malmsbury on 24 November and 12 December 2016. It was apparent on those visits that young people and staff at Malmsbury were dealing with a significant range of pressures in the aftermath of the events at Parkville in November.
72. Ombudsman officers were advised that young people had been locked down and permitted as little as one hour a day out of cell hours since. This was increased to three hours with a plan to return to normal operating arrangements in the following days.
73. The pressures on the centre were evidenced by:
    • inappropriate sleeping arrangements – one young person was housed in an isolation cell
    • the temporary closure of the centre’s visitor centre
    • the ‘education hub’ was damaged and unusable
    • confusion among young people about their placement arrangements
    • delay in the administration of medication
    • graffiti.
74. Fifteen complaints were made across the visits with four resolved on the day. We have made enquiries in the others. Similar to Parkville, complaints ranged from concerns about safety and lockdowns, to access to programs and services. In some cases, Ombudsman officers can simply facilitate a practical resolution by bringing the young person’s concerns to the attention of an appropriate person.

75. The following is one of the more serious matters raised with Ombudsman staff.

76. Since Ombudsman officers visited Malmsbury, a number of young people have contacted our office to express further concerns about the amount of time they are spending in lock down.

Conditions at Parkville Youth Justice Centre

77. CCYP reports the following in relation to Parkville:
    
    "Activities in relation to Parkville included the Principal Commissioner and Commissioner for Aboriginal Children and Young People’s visit to observe damage to units at Parkville the day after the incident and one day of visits by independent visitors.
    
    "Issues observed at Parkville Youth Justice Centre were similar to those at Malmsbury.
    
    "Only five of the usual nine units are in operation, each with very high occupancy rates. Like Malmsbury, young people at Parkville have been required to sleep in isolation and holding cells, and continue to do so in January 2017.
    
    "Young people at Parkville have also reported high rates of lockdowns due to staff shortages²⁷.
    
    "The above issues have been raised with the General Manager, Parkville on the day of each visit and/or by email with the department following visits or contacts."

78. Again, this is consistent with the observations of Ombudsman officers, who attended Parkville on 8 and 22 December 2016, and received 17 complaints during these visits.
79. The officers observed an evident degree of tension between young people and staff. Many young people either complained about, or simply mentioned, that they had experienced extensive lock downs either due to staff shortages or as a consequence of repair works being undertaken.
80. Parkville’s Acting General Manager informed the officers that extended lockdowns had been an issue following the riots as 37 Parkville staff had been reassigned to Grevillea. New staff were undertaking training which was expected to relieve these pressures.
81. Also of concern on the first visit was finding that two of the nine telephones young people use to contact my office were defective. This was rectified prior to the officers’ second visit and an agreement has been reached regarding periodic testing of these lines in the future. In response to the draft report the Department advised:
    
    "Commencing 16 January 2017, the department has established a practice instruction that requires the phone number for the office of the Victorian Ombudsman to be tested each Friday on each Arunta phone in the unit. The unit manager has responsibility for ensuring this instruction is carried out on a weekly basis."

82. The formal complaints received ranged from concerns about lockdowns, safety and staff conduct, to facilities, food and cultural practices.
83. Nine of the above matters were readily resolved through discussion with Department staff on site and the remainder have been subject to follow up enquiries. The following is an example of a matter simply resolved:

84. The following is an example of a serious complaint where we are undertaking further enquiries.

Further action

85. This report sets out oversight activities in youth justice centres in Victoria since the November disturbances at Parkville to 20 January 2017. As at 20 January the Victorian Ombudsman’s office has resolved 38 complaints and is carrying out enquiries into another 29 complaints received from young people during visits to the centres or by telephone in this period. Most of the enquiries are particular to the circumstances of individual young people, however some complaints raise systemic issues including the amount of time young people were in lockdown during November and December 2016. While some individual issues will have been resolved by the time this report is tabled, the level of complaints, made formally to Ombudsman staff or informally to independent visitors and others, is illustrative of a system under serious strain.
86. Complaints about lockdowns are a prime example of this: it is evident that this is affected by a toxic combination of staff shortages and increasing overcrowding. It is predictable that a regime of lockdowns for young people will create unrest, and equally predictable that more lockdowns will follow any unrest. The consequence of that, as the complaints tell us, is that young people not involved in rioting or unrest are punished along with their peers, to the obvious detriment of their rehabilitation.
87. While it is sadly inevitable that short-term solutions will continue to be sought to deal with urgent situations that arise, it is vital that the Government keep its sights set on long-term reform involving joined-up solutions²⁸. The ongoing review of youth justice services led by an eminent behavioural scientist aims to deliver a much-needed long-term strategy; I will be keeping the progress of that under review.
88. In the near term, CCYP advises:
    
    "The CCYP will continue to monitor conditions in Victoria’s youth justice facilities. In coming months this will include weekly visits to Grevillea by CCYP staff and monthly visits by the independent visitors. Concerns will be communicated to the Minister for Families and Children, to ensure she is aware of any ongoing need for improvements in the treatment of children in the Grevillea Unit. The CCYP will continue to receive and review daily updates from the department detailing improvements to conditions at Grevillea, the children and young people being detained at Grevillea, and capacity across the system. The CCYP will also request samples of separation plans or other documents to monitor the extent to which children in the unit are subject to isolation and seclusion.
    
    "In relation to the Parkville and Malmsbury Youth Justice Centres, the CCYP will continue to coordinate independent visitors’ monthly visits and regular visits by CCYP staff, and will raise issues of concern with government. Specific issues of concern may become the subject of formal inquiries.
    
    "Other monitoring and oversight activities will continue, including scrutiny of all serious incidents in youth justice detention and the ongoing inquiry into the use of isolation, separation and lockdowns in youth justice. The scope of this inquiry has been expanded to examine the use of these practices across Parkville Youth Justice Centre, Malmsbury Youth Justice Centre and the Grevillea Unit in December 2016, in the period shortly after the mid November Parkville incidents²⁹.
    
89. The Ombudsman will continue to be regularly briefed on these activities. Ombudsman officers will also continue to be available in person or on the telephone to provide young people in custody with opportunities to make complaints.
90. As these matters progress, I will consider whether a further report to Parliament is required.

Appendix 1

An example of a Separation Safety Management Plan