Urgent: Ashley detention centre and Tasmania’s broken youth justice system
A submission to the Senate's Legal and Constitutional Affairs Committee inquiry
(Edited for republication)
Children in detention in Tasmania are currently unsafe, despite decades of promises, reviews and inquiries into how to improve relevant laws and systems – and extensive evidence suggests the state is either incapable or unwilling to do what is required to protect them. The treatment of children in detention in Tasmania is regularly in contravention of the principles of the United Nations Convention on the Rights of the Child, the Australian Human Rights Commission Act 1986 and the guiding principles for child protection laid out in the Family Law Act 1975.
National oversight and enforceable standards of child protection in youth detention facilities are required urgently.
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The Ashley Youth Detention Centre (AYDC) in northern Tasmania is that state’s only youth detention centre, and for years – decades, in fact – it has been unsafe for children. The Tasmanian government, faced with its manifest failures, has promised since 2021 to close it down, but its actions speak for themselves: AYDC remains open for the foreseeable future, and conditions are as dangerous as ever.
The recent Commission of Inquiry (COI) into the Tasmanian government’s responses to child sexual abuse in institutional settings spent three years investigating and documenting such abuses. It exposed literally thousands of cases of physical and sexual abuse, and the worst institution by far was the Ashley Youth Detention Centre. Yet a year on from the conclusion of that Inquiry, not a single person has been held accountable for any crimes committed at Ashley. Not a single person – from the workers on the ground up through department managers – has been either permanently dismissed from employment or charged for any crimes. This is despite undeniable evidence of widespread abuse documented in (and referred out from) the Commission of Inquiry, and despite the thousands of documents held by the government in the form of redress scheme reports (state and federal), civil claims, police reports, department records, independent commissions and government reviews, and a recent class action of AYDC victim-survivors.
The Tasmanian government has accepted the claims made in redress schemes, in many civil claims and the AYDC class action – it has already paid out on them (or agreed to), to the tune of hundreds of millions of dollars. These follow accounts of abuse of over 500 children (and up to 1000) in AYDC documented since 2004, and involve allegations against up to 70 different staff members, current and historical. An audit commissioned by the government recently estimated the state’s abuse‑related liability for all current and future redress and civil claims at $646.9 million. Yet despite this financial cost and what it implies, despite the lives destroyed in this institution, and despite government promises every year since 2021 to close it down, AYDC remains open and without proper oversight – and plans for a replacement facility have been delayed indefinitely. As described below, the Tasmanian state has proven itself incapable of making the changes necessary to protect children. Its systemic lack of accountability and failure of political will can only be remedied by federal intervention.
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Over 15 government inquiries since 2003 have been held into conditions at AYDC, and each has found massive failures. Recent accounts barely vary from those made in the 1990s and 2000s. The following is a summary of common and notable findings.
Children as young as 10 are placed in AYDC, mostly on remand (meaning they haven’t yet faced trial or been found guilty of any charges). Most come from troubled families or foster care. Aboriginal children are over-represented. Most residents are traumatised and already suffer from developmental disorders, mental health problems, and drug or alcohol abuse. Most are also returning: the recidivism rate is around 75 per cent within a year.
It’s a cohort of children with complex behaviours and needs, who are often a risk to themselves or others, and are challenging to manage. They require a trauma-informed and rehabilitation-focused response, and are not receiving it. On the contrary, AYDC is where many children are “upskilled” in crime, as one former children’s commissioner put it, and introduced to networks of criminals and a life of violence and incarceration that many will never escape. “Every single detainee I met in Ashley I now know in Risdon [the adult prison],” one witness told the COI.
Staff are generally unqualified and ill-equipped. Over the years, most have been drawn from the local Deloraine community, recruited not for skill or experience but through a social or sporting connection. Apart from a few under-resourced counsellors and support workers, staff are uninterested in restorative justice or therapeutic models of care. Many are functionally illiterate and incapable of reading the applicable policies and regulations, let alone making detailed written reports. (This is not unusual in Tasmania; the region’s adult literacy rate is around 50 per cent.) The “youth workers” are essentially prison guards, with no training to look after children. A recent advertisement for youth workers at the centre required no qualifications, listing only a preference for people with “life skills”.
Until recently there was a core of centre managers who had known and worked with each other for years, who protected one another and intimidated anyone who challenged their behaviour or methods. They rarely reported even serious incidents of violence or sexual assault to the department or police, and as documented in the COI, had no hesitation falsifying or destroying incident reports if allegations were made by residents to external parties. The centre has a memorandum of understanding with the local police making AYDC the lead agency in investigating and reporting events involving detainees, staff and management within the confines of the centre; this essentially leaves it up to the discretion of the senior staff. And at AYDC, many senior staff have been alleged abusers themselves. Police told the commission they have since sought to improve information-sharing processes with the centre and child protection but have shown no evidence of advancing any investigations into crimes allegedly committed at AYDC, even in recent months. The department (DECYP) responsible for AYDC has been, and remains, either incompetent or negligent.
For decades, there has been virtually no practical operational oversight of the centre by any external authority, despite the legal requirement around the mandatory reporting of crimes involving children.
Basic human rights have been ignored. Former detainees told the COI they were regularly strip-searched, including upon arrival, completely naked in a room with several male guards, and often digitally penetrated. One former resident recently alleged that they were routinely photographed while this happened. To this day, residents are regularly locked down 23 hours a day for days at a time – a practice that fits the United Nations definition of torture. Visits by family are restricted arbitrarily, schooling is badly disrupted, welfare and counselling services are minimal, and the conditions are described as being worse than Risdon Prison Complex, near Hobart. Young detainees have been known to request transfer to Risdon instead of AYDC.
Centre management encouraged a hierarchy among the young residents, in which the older and more experienced ones were rewarded for “keeping the younger ones in line”. The COI heard that 11- and 12-year-olds would be placed in units with the worst offenders, enabling vicious sexual and physical assaults and psychological intimidation. Children were taken on excursions then sexually abused by staff offsite. More often it happened onsite. Medication, food and bedding were withheld, solitary confinement imposed, and the threat of violence, rape and sexualised strip searches was ever-present. The gradual normalisation of callous brutality among the staff “operated to erode normal human reactions”, said the commission.
It’s impossible to do justice here to the scope and horror of crimes committed at AYDC over the years. Every AYDC witness at the COI spoke of the terrible abuse they suffered and witnessed (and in some cases perpetrated). The COI called it widespread, at times methodical and systematic, as did a recent report commissioned and delivered by Tasmania’s own Department of Premier and Cabinet. It remains unsafe for either detainees or staff to safely report abuse in the centre.
The Tasmanian authorities responsible for these children’s safety have been aware of this. They have known which staff members facilitated the abuse – and that some had been abusing children themselves – for years. They have records of which staff members were doing it. The government’s response, over decades, has amounted to a sophisticated protection scheme for the abusers.
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The reasons behind the inability or unwillingness to hold anyone accountable or “fix” AYDC are numerous, varied and deep-seated. They range from simple explanations – such as that AYDC is a big employer in an economically undeveloped part of the state – to complex systemic failures which can only be roughly outlined here. The problems are legislative, bureaucratic and political; they involve overlapping derelictions by ministers, departments, police, regulators and oversight bodies. As such, it’s difficult to pin the blame on any particular individuals or organisations when so many have failed and so many were complicit. Solutions are constantly promised, and real outcomes never delivered.
The only reasonable conclusion is that these failures are the result of systems built by the state to protect itself. Some were built to fail. Some systems fail due to a lack of funding and resources; more insidiously, it is due to legal and structural features that inhibit proper functioning.
A case in point is the Registration to Work with Vulnerable People scheme, established in Tasmania as a result of a recommendation from the national Royal Commission into Institutional Responses to Child Sexual Abuse. The registrar is responsible for screening and monitoring those who engage with vulnerable people, including children, and is supposed to undertake risk assessments on the basis of information reported to it by Tasmania Police and state service agencies. From its inception in 2015 until late 2020, the registrar received just a single report relating to staff at Ashley Youth Detention Centre.
As outlined, many staff at Ashley at the time were the subject of multiple allegations of abuse of children, both historical and contemporary, but reports hadn’t been made to the registrar, on the grounds of “fair process”. If an allegation of serious sexual assault was made against a staff member, the working with vulnerable people registrar wouldn’t receive a report until after an investigation was completed by the department (if that ever happened), and only if the department secretary reached a verdict of guilt beyond reasonable doubt.
(In December 2020, as a result of the growing furore around AYDC, a change in the government’s interpretation of what constituted “reportable” employee conduct led to the release of relevant historical records. The working with vulnerable people registrar was inundated with more than 300 reports of allegations in relation to 69 current and former Ashley staff. In time, partly as a result of these notifications, the entire management team would either resign or be stood down. However none would be fired, and many had their registrations reinstated after mock investigations.)
The Tasmanian Integrity Commission and the ombudsman’s office are also nominally responsible for ensuring the proper operations of the public sector. The Integrity Commission, tasked with preventing and investigating misconduct in the public sector, has the worst record of any state integrity body in the country. In its 14 years of operations, it has never held a public hearing and has only ever made adverse findings against two public servants. It completes less than 10 per cent of the number of investigations done by mainland integrity bodies.
Tasmania’s ombudsman is also, simultaneously, its health complaints commissioner, energy ombudsman, and custodial inspector. This individual is in charge of the state’s official visitor programs and adjudicates on complaints about the right to information office and is also charged with fulfilling Tasmania’s obligations pursuant to the OPCAT Implementation Act 2021, following Australia’s ratification of the United Nations’ Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
The effect of this awesome load of responsibilities, combined with a level of underfunding that was noted by the ombudsman himself in seven consecutive annual reports, is a lack of capacity to investigate and resolve many complaints at all. None of these statutory offices has engaged in or investigated the abuses occurring at AYDC in any significant manner.
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Tasmania’s Office of the Solicitor-General is an even larger problem. It is a little-known and poorly understood fact that in Tasmania every government agency – every department, every statutory authority – must get its legal advice from the state’s unelected Office of the Solicitor-General (OSG): “The Solicitor-General is required to act as counsel for the Crown” and “Government must accept legal advice provided by the Solicitor-General’s Office as accurately stating the law”.
This is justified on the grounds of financial management and accountability for public funds, but its effects go well beyond the financial: where there’s uncertainty about any legal matter, government bodies are bound to seek and accept the OSG’s advice about the legal powers, functions and responsibilities of the Crown, or the lawfulness of any action or proposed action. This applies not only to every single department, including the Department of Premier and Cabinet, but also the ombudsman’s office, the Environment Protection Authority, the Audit Office, the Director of Public Prosecutions, even Tourism Tasmania. Most startlingly, this directive also applies to the Integrity Commission, meaning the body whose sole task is to “prevent and investigate public sector misconduct” must get its legal advice from the government it’s overseeing. “Our role is independent of State and local government, and operates outside the control of Ministers or government departments”, the Integrity Commission states, but plainly it isn’t.
The relationship between the OSG and the rest of the government is not a traditional lawyer–client one. In this case, the client must accept the OSG’s advice and there’s no recusing in cases of conflict of interest. In summing up this relationship as it pertained to the Commission of Inquiry, the counsel assisting asserted that “the Office of the Solicitor-General both advises and decides on the conduct of civil litigation involving child sex abuse matters, including the amount of compensation that might be paid despite what might be the contrary views of a secretary or department head. Even though the Office both advises and decides, it appears from the evidence that it only considers legal and financial considerations and not other matters like the state’s reputation or values, morality, the public interest.”
It was the OSG that advised departments they weren’t able to remove or discipline abusive staff without sworn evidence establishing criminal action beyond reasonable doubt. It was the OSG that conducted heavy-handed, adversarial negotiations with victim-survivors, re-traumatising those who’d been abused in institutional care, in an effort to mitigate or discourage their claims.
The OSG also took control of workers’ compensation cases involving whistleblowers such as Alysha (surname withheld), who suffered reprisals and workplace harassment for performing their legal duties. Alysha was a key witness to the COI, yet the OSG conducted what can only be described as lawfare over three years to intimidate and punish her for whistleblowing. She was forced to sit excessive and unnecessary psychiatric evaluations (to prove she deserved workers’ compensation) and pressured (unsuccessfully) to surrender critical evidence and sign non-disclosure agreements, while her own reports and complaints – later substantiated and corroborated by the commission – were ignored and dismissed. The campaign sent her close to financial, physical and psychological ruin.
It was the OSG that dictated which notifications could (or couldn’t) be sent to bodies such as the working with vulnerable people registrar or AHPRA, and what information should be provided by departments in civil litigation suits, or indeed what information about abuse allegations in public institutions should be made public at all. It advised departments, too, that state employees could only face disciplinary action for misconduct that occurred “in the course of employment”, which was interpreted as meaning, for example, only abuse that occurred at the school where an abusive teacher worked, or the actual hospital where the (now deceased) paedophile nurse James Griffin was employed. In general, the OSG’s advice has favoured the rights of alleged perpetrators over the safety of children, has not been trauma-informed, and sets the threshold for further investigation or disciplinary action far too high.
In the theoretical case of a child abuse claim in which the OSG is both advising the department and deciding the outcome, where the victim was also a ward of the state, who is the OSG truly representing? Doesn’t it represent a conflict, if the office is pleading for both the state and the plaintiff?
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The Tasmanian government avoids accountability in many and varied ways. It constantly restructures departments without notice or explanation, and regularly quietly shifts senior executives when the political heat rises. The ministerial cabinet has been subject to at least five major reshuffles in the past four years, meaning ministers are rarely held accountable for any portfolio.
Mostly, however, the Tasmanian government avoids accountability for alleged crimes against children by overseeing a legal and regulatory environment in which its employees generally escape responsibility. This is a result of a combination of poorly formulated laws and a troubling interpretations of these laws. As demonstrated in the (widely varying) advice to state servants across different departments, mandatory reporting laws are an inconsistent, loophole-filled mess, often resulting in crimes going entirely unreported, or reports simply being passed up the bureaucratic line and then left uninvestigated. Employment investigations against alleged abusers are compromised and obstructed by privacy laws that protect alleged abusers over victims. Information is not shared across departments, meaning red flags against staff are often not transmitted and investigations unable to be completed; complaints and investigations rely too heavily on victim-survivors and whistleblowers, for whom it is rarely safe to report abuse, and whose confidentiality is often denied.
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This state of affairs has been ignored by the rest of the nation for too long, and will not change without a federal intervention in the form of minimum enforceable standards of child protection. The need for action is urgent.