The Young Offenders Act 1994 (YOA) was drafted against the background provided by a number of international standards which have particular relevance to the interpretation of the provisions of the YOA. In addition, there is a national set of model service standards for juvenile custodial facilities which embodies many of the international standards. The Department accepts that the management of its youth custodial facilities shall be consistent with the principles of these model standards.
Young persons in detention are entitled to the same ‘rights’ as any other citizen, with the qualification that those rights are subject to the legislative and administrative rules that relate to their detention. Unlike legislation in some other Australian jurisdictions, the YOA does not prescribe specific ‘rights’ available to detainees. Sections 6 and 7 of the YOA list a set of ‘objectives’ and a list of ‘general principles of juvenile justice’ which reflect international standards, as well as making provision for specific matters.
The purpose of detention is to provide an environment for young people who are sentenced or on remand, which is safe and secure but which also satisfies certain standards. These are that young people, while they are in custody, will not be subject to abuse or harassment, will be given sufficient opportunities to participate in education and rehabilitative programmes and will be able to participate in regular physical and passive recreational and leisure activities. It is arguable that when the environment at a detention centre does not meet these standards, the centre is not fulfilling its purpose.
The Department has developed a complicated array of Youth Custodial Rules, Standing Orders, Operational Procedures and other notices and instructions, designed to provide guidance to youth custodial officers. However, the layer upon layer of these rules and procedures can be difficult to unravel for those who must apply them, let alone the detainees who are subject to them.
The usefulness and reliability of the rules and procedures is not assisted by the apparent lack of regular review. Youth Custodial Services is currently operating with Standing Orders which are dated 30 June 2009 and are still headed so as to apply to ‘Banksia Hill Detention and Rangeview Remand’. The current Youth Custodial Rules are expressed as being ‘effective from 27 August 2012’. However, they were not published by the Department and readily available to staff and detainees until 5 March 2013.
Although some steps have been taken by the Department to review its rules and procedures, the Inquiry has shown that there remains cause for considerable concern about the efficacy of those reviews and whether some of the rules and procedures are in fact compliant with the law and national and international practice.
From 20 January to 12 February 2013 all detainees at Banksia Hill and Hakea JF had been kept in a 23 to 24 hour lockdown. Scheduled and unscheduled lockdowns have continued since that time. There is an apparent lack of authority for the use of scheduled or unscheduled lockdowns (beyond that for unlock and lockup times) and no accountability for their use as part of a daily regime for the detainees. Having regard to the objectives of the YOA and the general principles of juvenile justice this is an untenable position.
The use of mechanical restraints is only authorised in the circumstances provided by s 11D(1) of the YOA. Those circumstances concern the application of restraints during an immediate period when a detainee is imminently presenting a risk of physical injury to himself or others, on medical grounds and during external escorts. Currently, there appears to be no authority for use of mechanical restraints on detainees as part of a management regime designed to maintain order and custody within the detention centres.
The practice of routine strip search of detainees before and after social visits, without a proper evaluation of whether the search is needed in a particular case or situation, appears to be contrary to the intent of r 86(2) of the Young Offenders Regulations 1995 and international standards.