TAS Releases Draft Youth Justice Amendment (Searches in Custody) Bill for Public Consultation

Thursday 15 October 2020 @ 2.56 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

Tasmania’s Department of Justice has released a draft version of the Youth Justice Amendment (Searches in Custody) Bill 2020 (Tas) (the “Draft Bill”) for public comment and consultation from interested stake-holders. The Draft Bill proposes amendments to the Youth Justice Act 1997 (Tas), with submissions closing on 27 October 2020.

Background

The object of the Bill, according to the Department of Justice website, is:

“… amending the Youth Justice Act 1997 in relation to the searches of youth in custody in custodial facilities. These amendments are part of the Government’s response to the Commissioner of Children and Young People’s Memorandum of Advice to government in relation to the searches of children and young people in custody in custodial facilities dated May 2019”.

The purpose of the Memorandum of Advice (“Memorandum”) is “to assist Tasmanian Government agencies to better promote and protect the well-being and best interests of children and young people in their custody in custodial facilities, by ensuring relevant legislation, policies and procedures regarding searches, particularly strip searches, are in line with well-established human rights standards and principles and contemporary best practice”.

The Memorandum made a total of eight recommendations to Government, with Recommendation 1 noting:

“The practice of routine strip searching of children and young people in custody cannot be justified and should cease.”

Recommendation 4 noted:

“Consideration should be given to investing in alternative security strategies or technologies such as body scanners which would further minimise reliance on more invasive searches such as strip searches.”

Commenting on the Draft Bill, Elise Archer (Attorney-General and Minister for Corrections) said in a Media Release:

“The Draft Bill provides a consolidated and consistent power to search a youth in custody in custodial facilities, or in transit between facilities, when there are reasonable grounds that the search is necessary, and for a legitimate purpose. The amendments are intended to minimise any associated trauma, distress or harm in relation to searches conducted of youth in custodial facilities in Tasmania.”

Overview of the Proposed Amendments

Some of the proposed amendments include:

providing a consolidated discretionary power for an authorised officer to search a youth in custody in custodial facilities or in transit between custodial facilities;
expressly provide that the amendments do not authorize the carrying out of a body cavity search that is not specially authorized under a provision of an Act or instrument of an Act. As such, these type of searches remain within the existing legal frameworks and the relevant authority and protections; and
providing that the search is to be conducted when there are reasonable grounds that the search is necessary for a defined purpose.

Amendments to the Youth Justice Act 1997, include inserting new “Section 25A-Search of youths in, or in transit between, custodial facilities”; inserting new “Section 25B-Matters related to searches of youths under section 25A” and amending “Section 131-Search of facility and possessions of detainee”.

Comment on the Draft Bill

Speaking to The Examiner, Children's Commissioner Leanne McLean said she was pleased the government had heeded her advice. Ms McLean said:

“I commend the collaborative work undertaken by government agencies to respond to the issues raised in my advice”.

The Examiner also reports Ms McLean was provided with information showing that the rates of strip-searches of children at both the Hobart and Launceston Reception Prisons had dropped to about 10-15 per cent, Ms McLean said:

“This represents a very different approach to the one taken before 1 July, 2019 when all children admitted to reception prisons were subject to strip searches regardless of the level of risk present.”

Public Comment on Searches

An ABC News article of June 2020 reported on the case of a teenager who had been strip searched on multiple occasions. The child's parent told ABC News that "it causes shocking anxiety for him and for me", and eventually both of them decided to make a complaint.

After a review of one search which was conducted at the Hobart Reception Prison, an apology from the Director of Prisons was issued to her son, where it was found procedures were “not fully complied with” and may have caused him “distress and confusion”.

The parent was quoted as saying:

“Even though, yes, they may have done the wrong thing to be going there [reception prison], he's still a child, he's still my child”.

Speaking to ABC News, both Rodney Dillon (Aboriginal advisor to Amnesty International) and Ms McLean said technology like that used in airport screening should be replacing strip searches.

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