Historically, children were regarded as being both responsible for their own criminal behaviour and at risk of being led into criminal behaviour by unscrupulous adults. As early as 1847 in WA it was recognized that young offenders should receive different treatment to adults, and the Children's Court was established in 1907, hearing its first case in 1908.
Over time, the institutions to accommodate juvenile offenders in the 'care' of the state have been called reformatories, juvenile lock-up, training centres, juvenile justice facilities/institutions, treatment institutions, treatment centres and detention centres.
During World War Two, there was an increasing Parliamentary interest in delinquent children, culminating in the Royal Commission appointed to Inquire into the Care and Reform of Youthful Delinquents in 1943. In November 1940, the Minister for Labour responded to a parliamentary question about the placement of young offenders in WA. In his response, the Minister said that 'where delinquents are of school age it is customary to send them to an ordinary orphanage, except when the circumstances are such that detention in an industrial school is essential'. At that stage, there were three industrial schools: the Seaforth Salvation Army Boys and Girls homes at Gosnells; and the Home of the Good Shepherd Industrial School for Girls, in Leederville.
In the last quarter of the twentieth century and into the twenty-first century, the issue of young people being both victims and offenders has continued to influence policies about youth offending. During these years, the number of Aboriginal children and young people in custody and in 'care' rose disproportionately. In 1983, a 16 year-old boy, John Pat, died at the police lock-up in Roebourne and his death helped spark the Royal Commission into Aboriginal Deaths in Custody. In its Regional Report of Inquiry into Underlying Issues in Western Australia (6.11.1 Juvenile offenders, 1991), evidence given to the Royal Commission painted a bleak picture for Aboriginal youth offenders in WA but the cycle of institutionalisation that is described could apply to any young person ('the department' in this quote refers to the Department for Community Services and the 'institutions' are youth detention centres): 'What was in fact happening with a number of these youths were that they were institutionalised, they would come out of the institution before there would be involvement by the department, they would offend, be picked up by the police, then back into the institution. So it was a circular event in which there needed to be some point of intervention in regard to trying to halt that continual cycle of movement of the child back into the institution.'
In the case of young people coming into detention from regional Western Australia there is the additional afffect of being removed from home and family to detention centres in Perth. This has been found (Atkinson, p.15) to have a particular impact on Aboriginal children and young people, as they represent the largest number of 'country admissions' to detention centres.
The death of John Pat, a 16 year old boy who died in custody after a fist fight with police in Western Australia, was one of the cases examined by the Royal Commission into Aboriginal Deaths in Custody.
The role of the media in Western Australia in whipping up public sentiment against young offenders, coupled with some serious, and tragic, offending behaviours by a minority of young people, resulted in the passage of the Crime (Serious Repeat Offenders) Sentencing Act 1992 with an aim of imposing mandatory sentencing on 'repeat offenders'. This Act expired in June, 1994 with only one young person and one adult sentenced under its guidelines. However, the spirit of the Act was retained in one of the sentencing principles in the Young Offenders Act 1994: section 7(d) requires that 'the community must be protected from illegal behaviour'. This is balanced by other sentencing principles which Wells (1999, p.4) said attempted to 'ensure provision is made for the age, maturation and circumstances of the child'.
In 1991, the danger posed by young offenders was debated in the Legislative Assembly of the WA parliament. In answer to a question from the Opposition, the Minister for Community Services, the Hon. Eric Ripper (Hansard 20 March 1991, pp.287-288) described how young people committed to the State's four detention centres (Longmore Remand and Assessment Centre, the Longmore Training Centre, Nyandi and Riverbank) were categorised. When this speech was made, there were 113 young people in secure detention. All young people sent to Riverbank were classed as high security detainees and others would fit into this category if they had been remanded to a higher court or to appear before the judge of the Children's Court; if they had committed serious offences against a person; if they had a record of absconding or escaping legal custody, or were suspected of planning to escape; if they were violent or had an aggressive temperament. Once in detention, the Minister said, the 'issue of whether they are dangerous is subjective and open to speculation. In terms of the department's security classification high security risk indicates detainees may be a danger to: the security of the institution; themselves; other detainees and staff; the community generally.' There were 18 detainees amongst the 64 young people in Longmore Remand and Assessment Centre, the Longmore Training Centre and Nyandi who had been classed as a high security risk at that time, along with all detainees at Riverbank.
Until July 1993, children and young people's offending behaviours were dealt with by the departments responsible for child welfare. A 1982 inquiry, The Treatment of Juvenile Offenders (Edwards Report) had found that young people who needed care and protection should be separated from young people who had committed offences or who were engaging in socially inappropriate behaviours (to avoid what Richards, in 2011, called 'peer contagion'). The Edwards Report also found that young people in WA were regularly detained indefinitely. Subsequent reviews of practice found that there was difficulty obtaining a balance between children's welfare and holding children accountable for their actions. The response of the child welfare authorities was to impose a series of administrative restructures to try and separate where children were placed and introduce a range of non-custodial support programs. From 1988, the Department for Community Services had identified juvenile justice as a defined program on its organisational chart, clearly separate from substitute care services. By 1991, the juvenile justice unit was known as young offenders services. Wells (1999, p.3), who spent many years working in youth justice in Western Australia, describes the tensions:
'The 'welfare' model emphasised 'needs' over 'deeds' and promoted rehabilitation and treatment; whereas the 'justice' model places more emphasis on the offence rather than the offender; and 'due process' and 'just desserts'. This is a simplistic representation of very complex issues, however it demonstrates the difficulties in working with children in the justice system'. '
In 1991, the Children's Court of Western Australia Act 1988 separated the court's care and protection responsibilities and its juvenile justice responsibilities. This gave the court more discretion over diversionary (non-custodial) options for young offenders and the appointment of a President of the Children's Court who was empowered to review sentences, enabled the court to set finite periods of detention.
Part 5 of the Young Offenders Act 1994 enshrines in legislation a number of ways in which young offenders may be dealt with without taking court proceedings. Division 1 not only empowers police to issue cautions in most circumstances, but requires them (s.22B) to consider alternatives to court proceedings from the outset of their interaction with a young person whom they deem to be displaying offending behaviour. Division 2 enables young offenders to be referred to a Juvenile Justice Team instead of going to court but only (s.25.4) if the alleged offender accepts responsibility for the act or omission constituting the offence and agrees to be referred.
On 1 July 1993, the custodial institutions previously run by the Department for Community Development and the resources for managing young offenders were transferred to the Ministry of Justice. In 2014, these responsibilities were undertaken by the Department of Corrective Services.
11 April 2022
Cite this: http://www.findandconnect.gov.au/guide/wa/WE00451
First published by the Find & Connect Web Resource Project for the Commonwealth of Australia, 2011
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