Prohibited Behaviour Orders Bill 2010 - Second Reading

Date:

Tuesday, November 9, 2010

Hon Jon Ford; Hon Col Holt; Hon Sue Ellery; President; Hon Alison Xamon

Resumed from 21 October.

HON ALISON XAMON (East Metropolitan) [4.00 pm]: As already noted by my colleague Hon Giz Watson the Greens do not support the Prohibited Behaviour Orders Bill 2010. There are many reasons for our concern about this bill, but I will not be going into all of them. I think it is of significant concern that similar legislation has been deemed to be an utter failure in other jurisdictions.

I will focus particularly on my concerns about the impact of this bill on young people and on people who have potential mental health issues. The PBO bill provides that unless a court orders otherwise the department’s chief executive officer must publish on the website details of the PBO, including the person’s name, photograph and suburb of residence. I am particularly concerned about these provisions because—as already identified in this place—of the ease with which this information can be forwarded not only to multiple recipients, but also, potentially, indefinitely. We know that in making a PBO the judge or magistrate can order that all specified details relating to the restrained person must not be published if it is believed that the circumstances justify suppression. I am aware that in the case of a youth, the judge or magistrate has to have regard for the wellbeing of the youth when deciding whether to publish the details of the PBO. I am not convinced that that is enough protection. According to the parliamentary secretary, the purpose of publication is to enable members of the public to report breaches of a PBO to police. The Greens have strong concerns about the name and shame aspects of this legislation; in particular, the provisions for the naming of juveniles. The protection of privacy for juvenile offenders is a fundamental right and one that I believe we need to defend absolutely. As noted by Hon Giz Watson and others in this place, the importance of protecting the privacy of children is already reflected in the tenor of not only our state laws regarding young offenders, but in federal and state family law, and in article 40 of the United Nations Convention on the Rights of the Child. I am not flippant about these international conventions; I think that they are critically important. They set minimum standards that we recognise as humans and as such I think they need to be treated with far greater seriousness than they are.

I acknowledge the Attorney General’s comments that PBOs are not designed to be punitive and that the government intends their impact to be solely one of deterrence. However, I am yet to see any research to convince me that publicly naming offenders will be an effective way to deter young people from committing crimes. In fact, on the contrary, I am concerned about the negative impact of labelling young people as criminal or delinquent. In that regard, PBOs appeared to be a very blunt—in fact some would say draconian—instrument to use when attempting to modify behaviour.

In many ways we are very fortunate to have, as a society, broad access to the internet. On the downside, and as many people who have had a moment of poor judgement have found—whether it be from the publishing of a rather unflattering photograph of a drunken person on Facebook or something similar—once something appears on the internet it can never be completely erased; it is in the public domain forever. I do not want people to take comfort from the idea that something removed from a website can never be found. A few years ago, I wanted to hunt down some information from an old website and was disappointed to discover that I could not find the information. The guy I was working with at the time told me it was okay and that he could get the information in a moment. I thought he was kidding because even the domain was down. Within 30 seconds he managed to get up the entire original information. I think it important to note that, because once information appears on the internet it is there forever. People should be very mindful of that. We also know that prospective employers and perhaps even prospective friends or partners know how to use Google. I have used Google as a tool to find more information not about prospective partners, but prospective employees. It is a fairly common practice. The sorts of things that appear can be very interesting. In my case, it has been quite useful to know the full extent of the wonderful activist work done previously by potential employees. It is, however, important to note that that information is out there and is readily available and we do not have any control over how it appears on Google. In effect, this means that this PBO legislation with its name and shame provisions for juveniles has the potential to effectively grant lifelong punishment to young people for having engaged in antisocial behaviour.

The structure of our society, our laws and policy frameworks, reflect the broad understanding, by most, that children and young people must be treated differently from adults. According to the Commissioner for Children and Young People, children and young people constitute a distinct and vulnerable group and differ from adults in their psychological and physical development, and their emotional and educational needs. Of course, the commissioner is right; this is well documented. We would do well to heed the expertise of people such as the commissioner.

Recent research demonstrates what we have all known for a long time, which is that young people are inclined to take risks and to experiment. We also know that much youth offending is transitory and minor in nature. The bill is aimed solely at low-level offences. It is a bad bill. It has the potential to make low-level transitory crime into something that will have a significant and lifelong impact. I believe we have a duty to protect our young people and to support them through their youth and this period of risk-taking and experimentation. We need to put in place strategies to minimise the potential lifelong negative impact of what happens during our youth.

I want to talk a little about youth and public spaces. I am concerned that laws such as this entrench a negative stereotype of young people. Such laws send the message that young people are antisocial and scary and perhaps even dangerous. I understand that may not be the government’s intention, but I believe it is a very real consequence of this type of legislation.

Unfortunately, too often the language used does not reflect that the vast majority of young people have had little or no contact with police, that they contribute positively to the community and that they are leading productive lives. Indeed, my experience working with young people has been an overwhelmingly positive one. I have had the honour to meet and work with some incredibly smart, articulate and passionate young people. I have always taken the view that our future is in very good hands. I have great concerns about the type of language this government uses about young people. I have found some of the commentary around the need for this legislation to be quite disturbing. I am not necessarily talking about things said in this place, but rather those I have heard on talkback radio; for example, the particular suggestion that our young people have no right to congregate in public spaces is very concerning. I think that we sometimes forget that our public spaces are just that. They are public and should be equally open to all of us to use. Our young people should not be driven away or made to feel unwelcome because they choose to congregate in public spaces and other generations do not understand them.

The even more relevant point, according to YACWA—the Youth Affairs Council of Western Australia—is that more than 5 500 young people are homeless in WA on any given night. We have to face the fact that for too many young people in our community—often the ones who have the potential to be captured by this legislation—home is not a safe and loving place, and things are simply not as they should be. Of course, a small proportion of young people do the wrong thing and come before the justice system. For some of them this happens multiple times. I do not want to understate the impact that these young people who repeatedly offend have on the community. I am certainly not at all suggesting that they should simply get away with this behaviour, because people deserve to be protected from antisocial behaviour. What we do need to do is to address the root causes of this behaviour in order to adequately address it. Overwhelmingly, these young people have faced significant challenges already in their short lives. Many of them will have come from a dysfunctional home, not of their doing. They suffer from disadvantage and poverty, and also potentially mental illness. The reasons for repeat offending are complex. I am not of course suggesting that it is therefore an easy thing for us to address. It does require multipronged strategies and long-term, sustainable funding.

A few members have already referred to the piece in Wangle by Hylton Quail from the Law Society of Western Australia. I also wish to refer to it, particularly when he asks us why, when existing laws have failed to stop antisocial behaviour such as graffiti, does the government expect that prohibited behaviour orders are going to be effective. Why do we expect them to be a deterrent when existing laws are not? Why do we think that a small group of people who are going to be targeted by this legislation, persistent offenders who are usually already the most marginalised in our society, are going to suddenly respond positively to naming and shaming? It will have the opposite effect. All it will do is entrench stigmatisation and alienation. It seems quite straightforward that measures that alienate young people and that are not based on principles of social inclusion are unlikely to be effective in reducing antisocial behaviour. They are more likely to have the opposite effect.

The Attorney General also suggested in the other place that there is already a raft of successful intervention and diversionary strategies in place. I read that as the Attorney General basically throwing up his hands and saying that the government has tried everything and that there is nothing more that can be done for the prolific offenders who are being targeted by this bill. I find this really hard to believe, particularly given calls by the Youth Legal Service, the Youth Affairs Council of Western Australia, the Commissioner for Children and Young People, and the Aboriginal Legal Service, to name just a few, for better funding and service delivery for these strategies. These kids are not lost causes. Passing a bill, whose endpoint is likely to be imprisonment, is not going to help them. I am devastated that we are giving up on our children in this way.

I would like to share with members some comments made by a Carnarvon police officer that were reported earlier this year in an article in The West Australian written by Jessica Strutt. I found it very moving. The officer talked about the approximately 100 prolific young offenders that the police had identified in the local area. His comments were that most of them are good kids, but he felt that they just needed some guidance and some parenting. He also commented that the older role models were not there. These kids are victims. They need assistance. They need to be given a hand up. They do not need to be named and shamed. To paraphrase the Commissioner for Children and Young People, our youth justice system is not effective; detention is still the main strategy on which the system is based and more effective alternatives are simply not being made available; community-based approaches are not developed appropriately and are hampered by funding that can be uncertain and given for only limited periods of time. According to my notes, to quote the commissioner —

Given that the problem is multifaceted, the solution must rely on providing a range of interventions in a holistic and integrated way (in both funding and service delivery), so the often complex causes of young people’s offending behaviour are addressed and young people are supported in developing skills that will help them engage with the community in positive ways … We need to be investing more in evidence-based programs and services that are delivering proven, positive outcomes for young people and for the wider community …

Why are we not going down that path? Why are we automatically moving into a punitive response with the capacity to potentially alienate our children for life before we have even put in place the necessary funding and support for interventionist strategies that have the potential to actually work?

I would also like to share with members a quote from Cheryl Cassidy-Vernon from the Youth Legal Service, which was posted on the Commissioner for Children and Young People’s website. She wrote —

Locking young people up —

I would add, making a PBO against them —

does not resolve the welfare and care and protection issues that many of our clients deal with, nor does it help to re-integrate young people that otherwise with maturity would grow to be law abiding citizens.

Western Australia already has a really poor record when it comes to putting young people in detention, and particularly with young Aboriginal males, where our record is consistently described as being the worst in the country. The Aboriginal Legal Service has raised concerns that these laws will target Aboriginal youth disproportionately. I think we will need to consider very carefully any legislation that has the potential to further contribute to the gross and worsening overrepresentation of Indigenous people in our criminal justice system.

I am also concerned about the potential impact of this legislation on relations between police and young people. We have successful programs, such as the midnight basketball program run in Midland and Geraldton, that are helping police to develop really positive relationships with at-risk young people. The evidence has demonstrated that this has resulted in decreases in crime rates in the local area. The potential for this legislation to impact negatively on the relations between police and young people also concerns me. I understand that research from the United Kingdom has shown that Anti-Social Behaviour Orders have had a major negative impact on these fragile relationships. That was found in a study by Crawford titled “Criminalising Sociability through Anti-social Behaviour Legislation”.

Another issue closely interlinked with that of antisocial behaviour of young people is that of engagement in the education system. The Auditor General last year identified that 28 per cent of students in our public schools are at educational risk because they are not attending school regularly. The report highlighted the lack of effective strategies to address the causes of non-attendance. I understand that the Minister for Education has been working on improving policy in this area; however, the State School Teachers’ Union of WA and the Western Australian Council of Social Service have both recently raised with me their concerns regarding school attendance and what they say is the lack of progress in addressing these concerns. They believe we need more participation officers and more funding for other programs to help at-risk kids and to improve school attendance and retention rates. Clearly, truancy and antisocial behaviour are interlinked issues. Why is more not being done?

There is also a strong economic argument against legislation that is likely to result in more young people being sent to detention. We know that investment in prevention and diversionary programs is far more effective and less costly in the long term than spending on enforcement. We have finite resources and we should be using them in the best, most effective way. If people do not care about human beings and they do not care about children but all they care about is money, why not at least look at the overall economic arguments, particularly in the long term?

As I have already mentioned, I am also gravely concerned about the impact that this bill is likely to have on members of our community with mental health issues. I understand that research on ASBOs in the United Kingdom has demonstrated that the legislation impacted on a high number of people with mental health issues — acquired brain injury, substance abuse or learning disabilities. I question very much the fairness of introducing legislation that we have every reason to suspect will target particular, vulnerable members of our population. There is already emerging evidence that this will be the case. We should not be naming and shaming people with mental illness. We should not be preventing them from accessing public places, or putting other constraints on them that are not going to go any way to improving their condition. We should be treating them, and, in particular, ensuring that they are provided with adequate follow-up care and have access to appropriate and safe accommodation, including in rural areas.

I know that people have read the frequent and ongoing heartfelt pleas from parents of mentally ill young people in letters to the editor in newspapers, and have heard them on talkback radio. Many people in our society are falling through the cracks in the mental health system. That is particularly the case when they clash with the justice system. It would be far better to improve the availability of services for these people than to basically impose life-long stigmatisation on these people through the use of PBOs. I would like an assurance from the government that when a PBO is made against a young person, a person with a mental illness or a person with an acquired brain injury, that person will fully understand the serious repercussions of breaking that PBO. We all want safer communities. That goes without saying. I do not deny that dealing with antisocial behaviour is a significant and complex challenge. People should not have to put up with graffiti, intimidation, property damage, hooning, shoplifting and the other unacceptable behaviours that this bill is targeting. I am not saying that when youths commit this sort of crime, we should excuse them solely because of their age, or because of other mitigating factors such as substance abuse, mental illness or homelessness. But what this bill highlights is that we do not have enough strategies in place to deal effectively with the small group of young people who come into contact with the justice system repeatedly.

I am calling on the government to put in place measures to deal with antisocial behaviour that are based on evidence, that are effective and that are designed to have a long-term, positive impact on our young people, rather than put in place legislation that has at its core the potential to label, stigmatise and punish our young people and cause their mistakes to follow them for the remainder of their lives. I am not comfortable with criminalising behaviour that would otherwise be lawful. I am not comfortable with naming and shaming people, particularly young people, who have committed low-level crimes. This bill is not good legislation that is based on sound empirical evidence. It is purely a knee-jerk response to populist views.

It would be very useful if we could be given some evidence in support of this bill. Although this bill was debated thoroughly in the other place, the Attorney General was the only person who spoke about the research that is available at this time. Stanley v Brent—the United Kingdom case that is cited in Liberal Party policy in support of this concept—does not support a default arrangement whereby publication will occur unless a court orders otherwise, as is proposed in this bill. In that case, the claimants were members of a gang who had been responsible for serious antisocial behaviour over a long period, and media reporting had already occurred. That case makes no reference to research about the likelihood that publicity will fulfil the purpose of enforcement or deterrence. This point was conceded by the appellants, who instead ran an argument based on necessity and proportionality, bearing in mind the rights of both the constrained person and the public.

So the question is not whether it is government policy to seek to reduce crime by inducing shame or humiliation in offenders, but rather what the impact of this legislation will be. The concern about PBOs is that the stigma produced from the naming and shaming approach could reduce the offenders’ prospects of rehabilitation, particularly if the offenders are juveniles, either through the consequences of negative labelling, or by the offenders treating the PBO as a badge of honour. Some members in this place have also raised their concerns about this matter.

I turn now to specific risks to juveniles. It has long has been accepted in this state and internationally that the privacy of children needs to be protected. As I have already mentioned, the proposed clause in the bill that deals with this matter is contrary to the tenor of state, federal and international law regarding young offenders. We need to look at the reasons for that. In 2008, the United Nations’ Committee on the Rights of the Child, in its concluding observations on the United Kingdom of Great Britain and Northern Ireland, expressed concern that the state party had not taken sufficient measures to protect children constrained by anti-social behaviour orders from negative media representation and public naming and shaming. That report recommended that intensified efforts be made to respect children’s privacy in the media, particularly by avoiding messages publicly exposing them to naming and shaming provisions. We are starting to get emerging evidence against this.

Also in 2008, the New South Wales Legislative Council’s Standing Committee on Law and Justice published its report titled “The prohibition on the publication of names of children involved in criminal proceedings”. Among other things, the committee decided, based on the evidence it heard, that naming juvenile offenders would stigmatise them, would have a negative impact on their rehabilitation, and was unlikely to act as a significant deterrent to offenders or would-be juvenile offenders. It recommended that the New South Wales law be amended to provide that 16 to 18-year-olds involved in criminal proceedings who wanted their name to be published could give that permission only in the presence of their choice of lawyer. The New South Wales government supported that recommendation, because it recognised that 16 to 18-year-olds are not able to give informed consent in the way that we would hope.

In 2009, Duncan Chappell and Robyn Lincoln published a report that referred to the above committee report and also cited other bodies of research. That report suggested strongly that the naming and shaming of young people involved in criminal proceedings has a negative impact, although they also noted a lack of direct evidence of the impact of the mass media naming of young people involved in criminal proceedings and sought further research. In their conclusion, they referred to a gathering movement by some—interestingly, they also referred to Western Australia’s Attorney General—to publicly name juvenile offenders, and expressed concern about the erosion of international conventions in favour of politically expedient and popular positions.

In the other place, and in his answer of 14 September 2010 to a question on notice from my colleague Hon Giz Watson, the Attorney General suggested that there is no major evidence for the idea that stigmatisation produces ongoing negative effects on recidivism and re-offending. However, we already have evidence that suggests otherwise. The long history of not naming juveniles naturally means that we are limited to the current empirical evidence that is available. Therefore, that is a bit of a disingenuous response. Western Australia’s longstanding convention of protecting the privacy of juveniles should not be overturned without at least carefully investigating the likely impacts based on the existing research and the most up-to-date knowledge of child psychology and brain development. If nothing else, the house needs to have the opportunity to hear the views of the Commissioner for Children and Young People. I would have thought that was the very reason that position was set up in the first place.

Again, in relation to the specific risks to people with mental health issues, a key finding of the 2008 Auditor General’s report titled “The Juvenile Justice System: Dealing with Young People under the Young Offenders Act 1994” noted that significant numbers of young people with high levels of offending have mental health or substance abuse problems; however, there is limited identification of this in the juvenile justice system, and no agency takes responsibility for case managing these young people to ensure that their mental health, substance abuse and other problems are managed.

The June 2009 final report of the Law Reform Commission of Western Australia into court intervention programs similarly identified high numbers of Western Australian offenders with underlying problems, including mental health problems, thereby increasing the risk of future offending. It also identified that court intervention programs may assist. Why do we not go down that path?

The Criminal Lawyers’ Association has advised that sentencing principles require that offenders with mental health issues or mental impairment should not be made examples of for the purpose of deterring them or others from offending. These sentencing principles, however, have been swept away by making PBOs a civil process rather than part of sentencing; however, the effect on the constrained person is the same.

The bill provides that the exact address of the constrained person is not to be published. However, in small communities—for example, in small country towns, in schools, and among minority groups, where most of the population is known to each other—the offender’s whereabouts will be readily ascertainable. Vigilantism and the risk of violence are therefore a possibility. Clearly, the impact of this legislation and the full repercussions of it have not been explored to the full extent that they need to be.

Discharge of Order and Referral to Standing Committee on Legislation — Motion

Hon ALISON XAMON: Therefore, I move without notice —

That the Prohibited Behaviour Orders Bill 2010 be discharged and referred to the Standing Committee
on Legislation for consideration and that it report not later than Tuesday, 15 February 2011.

Debate interrupted, pursuant to temporary orders.

[Continued on page 8264.]