Aboriginal children in detention despite granted bail in Australia

According to the Aboriginal Legal Service, Aboriginal children in Western Australia have been kept in jail after being given bail because child protection officials did not know where to place them.

This month, the Aboriginal Legal Service of Western Australia wrote to the state’s minister for children, Simone McGurk, as well as the attorney general and the Department of Communities, expressing “grave concerns” that the department had failed to find suitable housing for children involved in the criminal justice system.

Since June 2019, ALSWA has informed the department regarding eight minors who have been imprisoned at Banksia Hill adolescent detention centre despite being granted release due to a lack of acceptable homes.

In one case, despite being granted bail at his initial appearance before the court, a 14-year-old kid with only one offence on his criminal record was detained in prison for three weeks because the department failed to sign his bail undertaking.

Children cannot be released on bond unless an adult, generally a parent or guardian, agrees to be responsible for ensuring that they follow all bail conditions, including attending all future court dates. If a kid is in the state’s custody, the state is their guardian, and the undertaking must be signed by the state.

The department’s refusal to sign the bail undertaking, according to ALSWA’s director of legal services, Peter Collins, was contrary to the state’s obligations under the Children and Community Services Act, which requires the department to “consider the best interest of the child as the paramount consideration,” and also contradicted the principle that detaining a young person in custody must be a last resort.

Collins said, “We wish to convey our concern with the department’s recurrent failures to meet their commitments to provide acceptable placements for young people in its care.”

“It beggars belief that ALSWA lawyers have frequently been instrumental in securing placements for young people in similar situations, and that these placements are frequently with family members who are already known to the department.”

“We strongly advise you to address the aforementioned concerns as soon as possible.”

The letter was sent on December 13th. ALSWA had not received a response as of the 24th of December.

According to a spokesman for the department, there may be a delay between a child being granted bond and being released from detention in order to arrange proper housing and transportation.

“It’s common to assume that once a child or young person is granted bond, they’ll be freed from custody right away,” added the spokeswoman. “Before Communities can securely provide bail for children in care – both for the child or young person and the broader community – a number of considerations, including transportation arrangements and care preparation, must be arranged.”

“However, there are occasions where the level of support required may not be available at the point that bail is granted and Communities cannot adequately ensure the safety of the young person or the community,” the department said, adding that it tried to keep the child in his previous foster placement.

“The Department of Communities’ top priority is always the safety and well-being of children.”

Collins stated that the legal service had written to the department four times since June 2019 about the situation, and that the department had “ample chance to put systems in place to provide acceptable care for young people with complex needs.”

Many of the children involved, he noted, had extremely complex needs, including cognitive and behavioural issues as well as mental health issues, which were best addressed through a community-based detention order rather than being confined in custody.

At its state party conference in September, the Western Australian Labor Party passed a motion to raise the age of criminal responsibility from 10 to 14.

John Quigley, the state’s attorney general, led a working group of the National Council of Attorneys General, which advocated that the age of criminal responsibility be raised to 14, or if that is not possible, to 12, with a minimum age of imprisonment of 14. Only the Australian Capital Territory has committed to implementing the reform so far.

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