The Youth Offenders Act (ss. 19, 21, 118A, 118 and 178) draws a clear distinction between a prison created under the Prisons Act 1981 and a detention centre created under the Youth Offenders Act (YOA). However, the YOA is less clear in identifying the characteristics which distinguish a detention centre from a prison.
In an article addressing the operations of the Kariong Juvenile Correctional Centre in New South Wales, Dambach illustrated the distinction between detention and imprisonment as follows:
The distinction between detention and imprisonment was dealt with in the immigration case of Al-Kateb v Godwin, 2004, where the majority concluded that unlawful non-citizens are not imprisoned but are held or detained for the purpose of their removal, which was considered to be less punitive. McHugh J stated (at ) that the:
… law requiring the detention of the alien takes it character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive.
Therefore, when assessing the true nature of a detention order, it is important to look at the purpose of detention. The purpose for detaining children in juvenile detention centres is clearly outlined on the Juvenile Justice website, with the rationale for custodial services being to ‘provide age and gender appropriate programs that aim to address the offending and developmental needs of young people in custody’.
International standards recognise that young persons in custody should be kept separate from adults, detained in ‘open’ facilities with minimal security measures and treated in a way which does not subject them to cruel, inhuman or degrading treatment. The aim of detention should be the young persons’ reformation and social rehabilitation.
The Australasian Juvenile Justice Administrators (AJJA) Standards relevantly also require that a detention centre should provide:
- an environment in which young people, staff and others feel safe, secure and not threatened by any form of abuse or harassment (Standard 1.1);
- specialised programs that assist young people to understand why they offend and what measures they can take to stop or reduce their offending (Standard 4.3);
- a broad range of coordinated physical and passive recreational and leisure activities that are enjoyable and improve the fitness levels , skills, self-esteem and community integration of young people (Standard 4.5);
- disciplinary responses to unacceptable behaviour are in accord with international principles, local laws, and the centre’s policies and procedures, which are applied in an impartial and fair manner (Standard 7.3);
- a physical environment that is safe and secure and that has due regard to the rehabilitative expectations of custodial care… (Standard 9.1); and
- a sufficient number of trained staff to ensure that young people are treated as individuals and are assisted with their involvement in the centre’s programs and activities (Standard 10.4).
The Department has accepted that the management of its detention centres will be consistent with the AJJA Standards.
The YOA does not identify the characteristics which distinguish a detention centre from a prison. It seems clear however, that the purpose of a detention centre 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 persons, 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.
During the course of the Inquiry, the President of the Children’s Court, his Honour Judge D J Reynolds, expressed the view that Hakea Juvenile Facility did not satisfy the requirements for a juvenile detention centre. In The State of Western Australia v BAJG (BAJG case), when dealing with the sentencing of three young persons, Judge Reynolds heard evidence about the conditions for detainees at Banksia Hill and Hakea JF, including evidence of a high level of lockdown time, the over-use of restraints and strip-searches, inadequate education time and a lack of rehabilitation programmes. He described the juvenile detention facilities as being in ‘a state of crisis’ and said:
The first thing I want to say is that the Hakea Detention Centre is in the Hakea Prison. The two units – unit 11 and unit 12 – were built for an adult prison population in an adult prison. To get to those units from outside, you need to enter and then move through the adult prison itself. Space in and about the units is no doubt very limited. The two units were not intended to be and are not a facility. Rather, they were built as part of a facility, namely the Hakea adult prison facility, so in that sense they could not be properly described as a facility.
The point is also to be made that the detention units in Hakea prison would have the feel of a prison, and not that of a juvenile detention centre, and that is the point Mr Tyers has mentioned on behalf of NJG. Whatever you call a place, and in this case, whatever you call the detention centre, it does not change what it actually is in reality, and by reference to its physical construct.
When that is considered in combination with the regimes including in particular the paucity of education programs, recreational programs and rehabilitation programs, and also including the extensive lockdowns in a cell, and outside of a cell but locked in a unit, which I have mentioned, the facility and its conditions or regimes are very harsh and onerous for young detainees in my view. Also in my view, the facility and its regimes do not satisfy the requirements and properly serve the purposes of the statutory framework in the Young Offenders Act for a juvenile detention centre.