CRU BY Next Friend CRU2 v Chief Executive Officer of the Department of Justice
[2023] WASC 257
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: CRU BY NEXT FRIEND CRU2 -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE [2023] WASC 257
CORAM: TOTTLE J
HEARD: 11 MAY 2023
DELIVERED : 11 JULY 2023
FILE NO/S: CIV 2288 of 2022
BETWEEN: CRU BY NEXT FRIEND CRU2
Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE
First Respondent
SUPERINTENDENT BANKSIA HILL DETENTION CENTRE
Second Respondent
DOUGLAS COYNE, SUPERINTENDENT OF BANKSIA HILL DETENTION CENTRE AND UNIT 18 OF CASUARINA PRISON
Third Respondent
FILE NO/S: CIV 2289 of 2022
BETWEEN: HBS BY NEXT FRIEND HBS3
Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE
First Respondent
SUPERINTENDENT BANKSIA HILL DETENTION CENTRE
Second Respondent
DOUGLAS COYNE, SUPERINTENDENT OF BANKSIA HILL DETENTION CENTRE AND UNIT 18 OF CASUARINA PRISON
Third Respondent
FILE NO/S: CIV 2290 of 2022
BETWEEN: OPS BY NEXT FRIEND OPS2
Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE
First Respondent
SUPERINTENDENT BANKSIA HILL DETENTION CENTRE
Second Respondent
DOUGLAS COYNE, SUPERINTENDENT OF BANKSIA HILL DETENTION CENTRE AND UNIT 18 OF CASUARINA PRISON
Third Respondent
Catchwords:
Administrative law - Youth Detention Centres - Where detainees confined to their sleeping quarters otherwise than in accordance with the Young Offenders Regulations 1995 (WA) - Declaratory relief granted - Whether order of prohibition or injunctive relief should be granted - Injunctive relief granted
Statutory interpretation - Young Offenders Regulations 1995 (WA) - Whether the term 'exercise' requires detainees to be allowed out of their sleeping quarters for exercise - Whether entitlement to one hour of exercise each six hours subject to any implied limitation - Detainees must be allowed out of sleeping quarters to exercise - Entitlement to exercise not subject to any implied limitation
Statutory interpretation - Young Offenders Regulations 1995 (WA) - Observations on the power of a superintendent to order that a detainee be confined to sleeping quarters in order to maintain good government, good order or security in a detention centre
Legislation:
Interpretation Act 1984 (WA), s 10(c)
Young Offenders Act 1994 (WA), s 3, s 4, s 6, s 7, s 9, s 10, s 11, s 11B, s 13, s 171, s 173(2)(e), s 196
Young Offenders Regulations 1995 (WA), reg 73, reg 74(2), reg 75, reg 76, reg 77, reg 78, reg 79(4), reg 90
Result:
Applications granted
Declarations made
Injunctions granted
Category: A
Representation:
CIV 2288 of 2022
Counsel:
| Applicant | : | M Georgiou |
| First Respondent | : | C S Bydder SC & J N Harman |
| Second Respondent | : | C S Bydder SC & J N Harman |
| Third Respondent | : | C S Bydder SC & J N Harman |
Solicitors:
| Applicant | : | Aboriginal Legal Service - Perth |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | State Solicitor's Office |
CIV 2289 of 2022
Counsel:
| Applicant | : | M Georgiou |
| First Respondent | : | C S Bydder SC & J N Harman |
| Second Respondent | : | C S Bydder SC & J N Harman |
| Third Respondent | : | C S Bydder SC & J N Harman |
Solicitors:
| Applicant | : | Aboriginal Legal Service - Perth |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | State Solicitor's Office |
CIV 2290 of 2022
Counsel:
| Applicant | : | M Georgiou |
| First Respondent | : | C S Bydder SC & J N Harman |
| Second Respondent | : | C S Bydder SC & J N Harman |
| Third Respondent | : | C S Bydder SC & J N Harman |
Solicitors:
| Applicant | : | Aboriginal Legal Service - Perth |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| Third Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Browne v Dunn (1893) 6 R 67 (HL)
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135
R (Walker) v Secretary of State for Justice [2010] 1 AC 553
VYZ v Chief Executive Officer of the Department of Justice [2022] WASC 274
TOTTLE J:
Overview
Three young people, one female (HBS) and two male (CRU and OPS) have applied for declarations that locking them in their cells in detention centres established under the Young Offenders Act 1994 (WA) (the Act) for prolonged periods, in effect in solitary confinement, on the days specified in their applications was not authorised by the Act or the Young Offenders Regulations 1995 (WA) (the Regulations) and was unlawful. In summary they contend that on the days in question either the confinement was not authorised by an order made by the superintendent or, if the confinement was so authorised, they were not provided with the opportunity to exercise in accordance with the Regulations. The respondents accept that on many of the days the subject of the applications HBS, OPS and CRU were confined unlawfully.
CRU was released from detention on 3 February 2023 and he seeks only declaratory relief. HBS and OPS remain in detention. In addition to their applications for declaratory relief, HBS and OPS seek orders of prohibition or injunctions restraining any repetition of the episodes of unlawful confinement.
HBS was detained at the Banksia Hill Detention Centre. OPS and CRU were detained at times in the Banksia Hill Detention Centre and at other times in the detention centre located at unit 18 of Casuarina Prison (the Unit 18 Detention Centre).
The periods of confinement in question were not periods of confinement imposed as punishment for the commissions of detention offences. The applications concern periods of confinement resulting from 'rolling lockdowns'. This term describes the practice of confining detainees in their cells during those hours when they would otherwise be allowed to leave their cells and engage in educational or recreational activities. Detainees are released on a unit by unit or cell by cell basis for brief periods only before being confined again. The source of the authority relied on to confine detainees during a rolling lockdown is reg 74(2) that authorises the superintendent of a detention centre to make an order confining a detainee to his or her sleeping quarters as a way of maintaining good government, good order or security of a detention centre.[1] Regulation 79 sets out the procedures to be followed if an order for confinement under reg 74(2) is made. Among other matters the procedures provide that a detainee whose confinement is for 12 hours or longer is entitled to at least one hour of exercise each six hours during 'unlock hours'.[2]
[1] In these reasons I will use the terms 'sleeping quarters' and 'cell' interchangeably. Sleeping quarters is the term used in the Regulations. In the evidence the term cell was used more frequently.
[2] Young Offenders Regulations 1995 (WA) reg 79(4).
The Act includes a statement of its objectives and a statement of the general principles that must be observed in the performance of the functions for which it provides including the detention of young persons.[3] These emphasise the importance of rehabilitating young offenders, providing them with an opportunity to develop a sense of social responsibility, and otherwise develop in beneficial and socially acceptable ways. The objectives and general principles contain clear statements that young offenders are not to be treated more severely than adult offenders, that they are to be dealt with in a culturally appropriate manner which recognises and enhances their cultural identity, and that the legal rights of young persons are to be observed.
[3] Young Offenders Act 1994 (WA) s 6 and s 7.
Assessed against the objectives and governing principles enshrined in the Act, the imposition of frequent periods of solitary confinement on young people evidences a systemic failure. The seriousness of the systemic failure is made manifest by the recognition that solitary confinement is an exceptional form of detention rarely sanctioned even in adult prisons and is reinforced by the frequency of the occasions on which the applicants were subjected to such confinement. To give but one example - OPS was confined to his cell for 23 out of the 31 days in July 2022 for more than 20 hours each day and in most instances for more than 22 hours each day. Nineteen of those days were successive days between 1 and 19 July 2022.
Subjecting young people - children - to solitary confinement on a frequent basis is not only inconsistent with the objectives and principles of the Act but also with basic notions of the humane treatment of young people. It has the capacity to cause immeasurable and lasting damage to an already psychologically vulnerable group. Depriving children of the opportunity to socialise by confining them in their cells for long hours is calculated to undermine the development of a sense of social responsibility and frustrate the Act's objective of rehabilitation.
The observations about systemic failure are directly relevant to the issue of what relief can be granted to the applicants. The court may grant declaratory relief - as this court will - condemning unlawful conduct resulting from a systemic failure of a public institution but its powers are otherwise limited.[4]
[4] R (Walker) v Secretary of State for Justice [2010] 1 AC 553 [36] - [37] (Lord Brown of Eaton-under-Heywood, with whom Lord Hope of Craighead, Lord Mance and Lord Carswell agreed).
The causes of the systemic failure are an endemic shortage of suitably qualified staff, inadequate infrastructure and a consequent inability to manage detainees with difficult behavioural problems. It is beyond the court's power to grant remedial orders addressing these causes. No order this court can make within the proper exercise of its powers has the capacity to prevent rolling lockdowns from occurring in the future. In this respect two points must be made clear. First, the court does not have the power to direct the application of the resources necessary to prevent rolling lockdowns. Secondly, it is common ground in these proceedings that if future periods of confinement of HBS and OPS are authorised by orders made under reg 74(2) and they are afforded their entitlement to exercise then such periods of confinement will be lawful. The most the court can do is grant relief directed to ensuring that any future periods of confinement of HBS and OPS caused by rolling lockdowns will be authorised and administered in accordance with the Act and the Regulations. Consequently, HBS and OPS face the possibility of frequent and long periods of lawful confinement. I am compelled to add, however, that I very much doubt that Parliament envisaged that a superintendent's power to order a young person to be confined in his or her cell would be exercised as frequently or in the circumstances in which it has, and is likely to continue to be, exercised. This is a matter on which I make some further observations at [47] - [49].
Remedying the system to ensure that rolling lockdowns do not occur is a matter for the executive government which, of course, is obliged to administer all aspects of juvenile justice in this State as Parliament intended, that is, in accordance with the Act, its objectives and governing principles.
I find that HBS was confined in her cell unlawfully on 12 days, that OPS was confined to his cell unlawfully on 133 days and that CRU was confined to his cell unlawfully on 22 days. The periods of confinement were unlawful either because no order for confinement had been made or, in the case of OPS and CRU they were deprived of their entitlement to exercise. I will make declarations in accordance with these findings.
In addition, I will grant the injunctive relief in terms substantially as sought by HBS and OPS. My reasons for doing so are set out at [178] - [195].
There is a final matter that it is important to record in this overview. It is that symptoms of systemic failure to which I have referred were identified and reported on by the Inspector of Custodial Services in 2017.[5] There is no evidence to suggest that responsibility for the systemic failure can be attributed to those currently responsible for the management of the detention centres, the superintendents or their staff. As I have stated elsewhere, they serve the community in demanding and difficult roles that few wish, or have the capacity or fortitude, to undertake and, as the evidence adduced in this case makes very plain, they do so in often dangerous circumstances.[6]
[5] Supplementary affidavit of Alice Vivienne Barter sworn 27 February 2023 in CIV 2290 of 2022, 'Attachment AVB14', 189 - 259.
[6] VYZ v Chief Executive Officer of the Department of Justice [2022] WASC 274 [81].
Procedural history
The applications were commenced on 6 December 2022. Applications for writs of habeas corpus were also commenced by HBS and CRU but these have been discontinued. The applications were listed for hearing on 23 December 2022 but rather than proceeding to a final hearing on that date each applicant applied for interlocutory injunctions. In summary the applicants sought orders restraining the superintendent from confining them to their sleeping quarters otherwise than in accordance with the Act and the Regulations.
At the conclusion of the hearing on 23 December 2022 rather than granting the interlocutory relief sought by the applicants, I proposed that the superintendent be subject to an obligation to report to the court the dates and times between 19 December 2022 and 2 January 2023 on which:
(a)each applicant was confined to their sleeping quarters;
(b)whether an order for such periods of confinement were made; and
(c)identifying the person who made any such order, the reason for it, and detailing compliance with the conditions of confinement specified in the Regulations.
The reporting was to take the form of affidavits to be filed and served by the superintendent. The parties prepared a minute of orders reflecting the proposal and orders were made accordingly.
The superintendent, Ms Jaide Lancaster, filed and served affidavits in accordance with those orders. Further orders in similar terms were made on 13 January 2023 in respect of the period between 3 and 17 January 2023. Ms Lancaster filed and served affidavits in accordance with those further orders. No breaches of the Act or the Regulations were disclosed in Ms Lancaster's affidavits.
Amended applications were filed on 9 March 2023. The application made by HBS was further amended on 9 May 2023. The applications were heard on 11 May 2023.
In their written submissions the respondents contended that the evidence demonstrated that they intended to comply with the law and had complied with the law following Ms Lancaster's appointment as superintendent.[7] Further, the respondents contended they had an intention to maximise the time detainees have outside their cells. [8] HBS and OPS disputed that the requirements of reg 79(4) in relation to exercise were being observed. Leave was given to the parties to adduce evidence of occasions since the interlocutory injunction hearing on which HBS and OPS had been deprived of their entitlement to exercise. Further affidavits were filed by HBS,[9] OPS[10] and their solicitor Ms Barter[11] in support of their claims and Ms Lancaster filed responsive affidavits.[12]
[7] Respondents' outline of submissions filed 1 May 2023 [70].
[8] Respondents' outline of submissions filed 1 May 2023 [70].
[9] Further supplementary affidavit of HBS affirmed 5 May 2023.
[10] Supplementary affidavit of OPS affirmed 2 May 2023.
[11] Affidavit of Alice Vivienne Barter sworn 5 May 2023.
[12] Affidavit of Jaide Nicole Lancaster affirmed 10 May 2023 in CIV 2289 of 2022; affidavit of Jaide Nicole Lancaster affirmed 10 May 2023 in CIV 2290 of 2022.
On 1 May 2023, Mr Doug Coyne was appointed the superintendent of the Unit 18 Detention Centre and an order will be made joining him as a respondent to OPS's application.[13]
[13] Affidavit of Jaide Nicole Lancaster affirmed 10 May 2023 in CIV 2290 of 2022 [105].
The Act and the Regulations
Although these applications are concerned with the application and operation of reg 74(2) and reg 79, I will summarise the statutory framework within which those regulations operate.
The long title of the Act states that it is an Act: relating to young persons who commit offences against the law, to amend certain Acts, and for related purposes.
Part 1 of the Act deals with preliminary matters. Section 3 contains definitions of terms used in the Act, including, relevantly, the following:
(a)'chief executive officer' means the chief executive officer of the Department;
(b)'custodial officer' means:
(i)a superintendent, or other officer with custodial functions, appointed under s 11(1); or,
(ii)a person who is appointed under s 11(1a)(a) as a custodial officer;
(c)'detainee' means a person who is detained in a detention centre;
(d)'detention centre' means a place declared to be a detention centre under s 13;
(e)'superintendent' means the person in charge of a detention centre; and
(f)'young person' means a person who has not reached the age of 18 years or a person to whom this Act applies because of s 4.
Section 4 provides:
4.Young offenders reaching 18
If a person commits or allegedly commits an offence before reaching the age of 18 years, this Act applies to the person as a young person for purposes connected with that offence or any order that was made in dealing with the person for that offence.
The objectives and principles of the Act are stated in s 6 and s 7 as follows:
6. Objectives
The main objectives of this Act are -
(a) to provide for the administration of juvenile justice; and
(b) to set out provisions, embodying the general principles of juvenile justice, for dealing with young persons who have, or are alleged to have, committed offences; and
(c) to ensure that the legal rights of young persons involved with the criminal justice system are observed; and
(d) to enhance and reinforce the roles of responsible adults, families, and communities in -
(i) minimising the incidence of juvenile crime; and
(ii) punishing and managing young persons who have committed offences; and
(iii) rehabilitating young persons who have committed offences towards the goal of their becoming responsible citizens;
and
(e) to integrate young persons who have committed offences into the community; and
(f) to ensure that young persons are dealt with in a manner that is culturally appropriate and which recognises and enhances their cultural identity.
7. General principles of juvenile justice
The general principles that are to be observed in performing functions under this Act are that -
(a) there should be special provision to ensure the fair treatment of young persons who have, or are alleged to have, committed offences; and
(b)a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct; and
(c) a young person who commits an offence is not to be treated more severely because of the offence than the person would have been treated if an adult; and
(d)the community must be protected from illegal behaviour; and
(e)victims of offences committed by young persons should be given the opportunity to participate in the process of dealing with the offenders to the extent that the law provides for them to do so; and
(f)responsible adults should be encouraged to fulfil their responsibility for the care and supervision of young persons, and supported in their efforts to do so; and
(g)consideration should be given, when dealing with a young person for an offence, to the possibility of taking measures other than judicial proceedings for the offence if the circumstances of the case and the background of the alleged offender make it appropriate to dispose of the matter in that way and it would not jeopardise the protection of the community to do so; and
(h) detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary; and
(i) detention of a young person in custody, if required, is to be in a facility that is suitable for a young person and at which the young person is not exposed to contact with any adult detained in the facility, although a young person who has reached the age of 16 years may be held in a prison for adults but is not to share living quarters with an adult prisoner; and
(j) punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways; and
(k) a young person who is dealt with for an offence should be dealt with in a time frame that is appropriate to the young person's sense of time; and
(l) in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered; and
(m)a young person who commits an offence is to be dealt with in a way that -
(i)strengthens the family and family group of the young person; and
(ii)fosters the ability of families and family groups to develop their own means of dealing with offending by their young persons; and
(iii)recognises the right of the young person to belong to a family.
Part 3 of the Act contains provisions governing the administration of the Act generally. Section 9 imposes a duty on the chief executive officer in the following terms:
It is the duty of the chief executive officer, under the direction of the Minister, to carry into operation the provisions of this Act so far as the duty is not expressly committed to any other person.
Section 10 provides that the chief executive officer may delegate to an officer of the Department, by a signed instrument of delegation, any power or duty under the Act, other than the power of delegation.
Division 2 of pt 3 governs the appointment of other officers and employees. Section 11 confers on the chief executive officer the power to appoint 'such officers and other persons as are necessary to implement or administer this Act'. It is convenient to interpolate that the chief executive officer may make rules for the 'management, control, and security' of detainees, detention centres generally or a specified detention centre and may make rules for the management of officers of the Department.[14]
[14] Young Offenders Act 1994 (WA) s 181.
Section 11B provides:
11B. Powers and duties of custodial officers
A custodial officer -
(a) has a responsibility to maintain the security of the facility or detention centre where he or she is employed; and
(b) is liable to answer for the escape of a detainee placed in his or her charge or for whom when on duty he or she has a responsibility; and
(c) must obey all lawful orders given to him or her by the officer under whose control or supervision he or she is placed; and
(d) may issue to a detainee such orders as are necessary for the purposes of this Act, including the security, good order, or management of a facility or detention centre, and may use such force as is prescribed under section 11C as is necessary to ensure that lawful orders given to a detainee are complied with.
Section 13 provides that the Minister may declare a place to be a detention centre.
Part 9 contains provisions governing detention centres established under the Act. Among other matters it contains provisions creating detention offences and specifies the procedures to be followed for determining whether a detention offence has been committed and, if so, how the detainee should be dealt with. Relevantly, s 171 provides that the superintendent of a detention centre may deal with a detention offence or refer the charge of a detention offence to a visiting justice appointed under s 166. Section 173 specifies the ways in which a detainee may be dealt with if a charge is admitted or proved and by s 173(2)(e) these include:
(e)by ordering that the detainee be confined to the detainee's sleeping quarters, or to a designated room -
(i)for a period not exceeding 24 hours if the order is made by the superintendent; or
(ii)for a period not exceeding 48 hours if the order is made by a visiting justice.
Part 10 contains miscellaneous provisions including the power to make regulations. This power is conferred by s 196 which provides:
(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.
(2) Without limiting subsection (1), regulations may be made -
…
(e) conferring authority on a superintendent to order that a detainee be confined to the detainee's sleeping quarters, or to a designated room, for a period not exceeding 24 hours in order to maintain good government, good order or security in a detention centre.
The superintendent may delegate to an officer, by instrument in writing, any of the powers prescribed in s 196 including the power to order that a detainee be confined for a period not exceeding 24 hours as specified by s 196(2)(e).[15]
[15] Young Offenders Act 1994 (WA) s 197(1).
The Regulations were made under the regulation making power conferred by s 196 of the Act. Part 9 of the Regulations governs the 'confinement' of detainees. Division 1 of pt 9 contains reg 73 which defines the term 'unlock hours' as follows:
In this Part -
unlock hours means the period during which detainees who are not subject to confinement or restraint are able to leave their sleeping quarters.
Regulation 74 provides for 'detention offence confinement' and 'good government, good order or security confinement' as follows:
(1) A superintendent or a visiting justice may order that a detainee be confined to that detainee's sleeping quarters or to a designated room as a way of dealing with a detainee who has been found to have committed a detention offence.
(2) A superintendent may order that a detainee be confined to that detainee's sleeping quarters or to a designated room in order to maintain good government, good order or security in a detention centre.
Division 2 of pt 9 of the Regulations governs 'detention offence confinement'. Regulation 75 provides:
75.Application
This Division applies to an order by a superintendent or a visiting justice that a detainee be confined to that detainee's sleeping quarters or to a designated room as a way of dealing with a detainee who has been found to have committed a detention offence.
Regulation 76 governs the procedures that must be followed when confinement is imposed in response to a detention offence:
76. Confinement procedures
(1) A superintendent must make and maintain a record of an order to confine a detainee.
(2) Where the confinement is ordered to take place in a designated room, the room used for the confinement must be assessed by the superintendent to be of an appropriate size and sufficiently ventilated and lit that the detainee can be confined in that room without injury to health.
(3) A detainee confined under this Division is entitled to fresh air, exercise and staff company for a period of at least 30 minutes every 3 hours during unlock hours.
Regulation 77 governs the monitoring regime required during confinement for detention offences.
Division 3 of pt 9 of the Regulations governs 'good government, good order or security confinement'. Regulation 78 provides:
78.Application
(1)This Division applies to an order by a superintendent that a detainee be confined to that detainee's sleeping quarters or to a designated room as a way of maintaining good government, good order or security.
(2)A superintendent may order that a combined period of separate confinement and a period of work time be imposed on a detainee for the purpose of this Division but, in that case, the period of work time is to be counted as confinement time for the purposes of section 196(2)(e) of the Act.
Regulation 79 governs the confinement procedures to be followed in respect of 'good government, good order or security confinement' and provides:
79. Confinement procedures
(1) A superintendent must make and maintain a record of an order to confine a detainee.
(2) The superintendent that ordered confinement must inform the detainee of the reason for the confinement.
(3) Where the confinement is ordered to take place in a designated room, the room used for the confinement must be assessed by the superintendent to be of an appropriate size and sufficiently ventilated and lit that the detainee can be confined in that room without injury to health.
(4) A detainee whose confinement is for 12 hours or longer is entitled to at least one hour of exercise each 6 hours during unlock hours.
(5) The superintendent may at any time cut short a period of confinement or a period of work time that has been ordered and return the detainee to the appropriate program area.
The meaning of 'exercise'
There is a dispute between the parties as to the construction of the word 'exercise' as it appears in reg 79(4).
The applicants contend:[16]
31.'Exercise' is defined to mean 'bodily or mental exertion, especially for the sake of training or improvement.' [Macquarie Dictionary (online at 18 April 2023) 'exercise'] Properly construed, 'exercise' under r 79(4) means bodily exertion and requires that the detainee has access to an area outside their sleeping quarters to carry out bodily exertion.
32.That interpretation is supported by:
a)regulations 78(2) and 79(5) which provide for a combined period of work time and confinement, implying that work time does not include exercise; and
b)a contrast to the confinement procedures for a detention offence, which contemplate that the confinement will be Solitary Confinement and so specify that a detainee confined pursuant to a detention offence is entitled to 'fresh air, exercise and staff company'. There, activities constituting mental exertion are included as separate requirements, in contrast to 'exercise'.
[16] Applicants' outline of submissions filed 18 April 2023 [31] - [32].
The respondents refer to the applicants' reliance on the definition of 'exercise' in the Macquarie Dictionary Online and develop their contentions by reference to definitions in the Oxford English Dictionary Online which included the following further definition:[17]
Exertion of the muscles, limbs, and bodily powers, regarded with reference to its effect on the subject; esp. such exertion undertaken with a view to the maintenance or improvement of health. Often with distinguishing words, as carriage-exercise, horse-exercise, open air exercise, walking, etc., exercise (emphasis in original).
[17] Respondents' outline of submissions filed 1 May 2023 [41].
The respondents contend that the Oxford English Dictionary Online definition is to be preferred because of the reference to the maintenance of health which they argue is consistent with the reference to health in reg 79(3).[18] The respondents argue:[19]
43.This understanding of 'exercise' and the entitlement in r 79(4) is directed to avoiding injury to health and is subject to at least two implied limitations. Regulation 79(4):
(a)confers an entitlement and should not be construed as requiring that a detainee avail themselves of that entitlement (and youth custodial officers to compel them to do so), or that the entitlement be provided only in one hour blocks of time or at a specific point in the 6 hour period; and
(b)should not be construed as imposing an absolute requirement that exercise occur outside of the detainee's sleeping quarters, particularly where there is a risk outside the sleeping quarters from which the detainee needs to be protected.
[18] Respondents' outline of submissions filed 1 May 2023 [41].
[19] Respondents' outline of submissions filed 1 May 2023 [43].
The respondents support the proposition in (b) in the above quotation from their submissions with a reference to the observations I made in VYZ v Chief Executive Officer of the Department of Justice (VYZ),[20] to the effect that the power conferred on custodial officers by s 11B(d) extended to confine detainees to their sleeping quarters in the event of a disturbance or the existence of a hazard from which detainees need to be protected.
[20] VYZ v Chief Executive Officer of the Department of Justice [86].
In my judgment:
(a)The term 'exercise' is to be understood as the exertion of muscles, limbs and bodily powers with a view to the maintenance or improvement of health as distinct from for the purpose of training or improvement in a particular skill.
(b)An essential element of 'exercise' is that it occurs outside of a detainee's sleeping quarters. Being outside of his or her sleeping quarters provides a detainee with relief from the oppressive solitude of long hours of confinement which is essential to the preservation of mental health. In my respectful view to hold that reg 79(4) does not impose an absolute requirement that exercise should occur outside of a detainee's sleeping quarters would be a short step away from negating the benefits of the entitlement to exercise entirely.
(c)The express inclusion to an entitlement to 'fresh air' in reg 76(3), which applies to detention offence confinement, and the absence of a reference to 'fresh air' in reg 79(4), leads to the conclusion that the entitlement to exercise does not extend to exercise outdoors.
(d)The entitlement to exercise in reg 79(4) is an absolute entitlement and is not subject to any implied limitations. Construing the Regulations in the context of the Act, the power to confine a young person under reg 74(2) is to be viewed as one to be exercised both sparingly and in a manner that preserves the health and welfare of the young person. The entitlement to one hour of exercise for each six hours of confinement is important for safeguarding the physical and mental health of detainees. If it had been intended that in certain circumstances the entitlement to exercise would be restricted one would have expected an express provision to have been made for those circumstances. In my judgment the Regulations should not be construed as contemplating that the detention of young people might take place in circumstances in which the safeguards incorporated in reg 79 could not be observed. Put another way, Parliament should not be taken to have contemplated the systemic failure that has occurred and which led to HBS, OPS and CRU being deprived of their entitlement to exercise by reason of circumstances beyond the control of the superintendent and her staff. I appreciate that against the background of some of the events that have taken place, particularly in the Unit 18 Detention Centre, it may seem harsh (especially in those instances in which OPS and CRU have contributed to the circumstances in which their entitlement to exercise could not be met) but if there is a failure to ensure the entitlement to exercise is observed then the confinement is unlawful.
(e)A detainee is not obliged and cannot be compelled to exercise - reg 79(4) is expressed in terms of an entitlement.
The ambit of the power to order confinement for the good government, good order or security of a detention centre
As noted in the overview section of these reasons it was common ground between the parties that if an order for confinement had been made and a detainee is afforded the entitlement to exercise as required by reg 79(4) then the confinement is lawful. That is the basis upon which I have decided these applications. It is, however, at least questionable whether pt 9 of the Regulations confers power to confine groups of detainees or all detainees in a detention centre to their cells at the same time under the power conferred by reg 74(2).
Notwithstanding that s 10(c) of the Interpretation Act 1984 (WA) provides that a reference to 'a detainee' includes 'detainees' there are indications in the Regulations that the power conferred by reg 74(2) is to be exercised in respect of an individual detainee as opposed to groups of detainees or an entire detention centre. Those indications are:
(a)Regulation 73 defines 'unlock hours' as the period during which detainees who are not subject to confinement or restraint are able to leave their sleeping quarters. If all detainees or all detainees in a unit were to be confined to their sleeping quarters the definition would have no application.
(b)The inclusion of a 'designated room' as an alternative to a detainee's sleeping quarters as a location for confinement suggests that the reg 74(2) power is exercisable in relation to a single detainee rather than groups of detainees.
(c)The discretion conferred on a superintendent by reg 78(2) to order that a combined period of separate confinement and a period of work time be imposed on a detainee suggests that the discretion is to be exercised in respect of a single detainee according to his or her particular circumstances.
(d)Similarly, the requirement that the superintendent that ordered confinement must inform the detainee of the reason for that confinement suggests that not only the power is to be used sparingly but that Parliament contemplated that it would be used in respect of a single detainee.
(e)The discretion conferred on the superintendent to cut short a period of confinement or a period of work time and 'return the detainee to the appropriate program area' is inconsistent with the notion of the confinement power being exercised in respect of an entire detention centre or a unit within a detention centre.
The question I have raised was not the subject of argument at the hearing and, as stated above, I have not taken the observations made in the preceding paragraph into account in my disposition of these applications.
The evidence
The applications were supported by the following affidavits sworn or affirmed by the applicants and their lawyers:
(a)HBS affirmed affidavits on 5 and 12 December 2022, 12 January and 5 May 2023. In addition, her application is supported by affidavits affirmed by Ms Eloise Langoulant on 5 and 22 December 2022 and Ms Alice Barter sworn on 5 May 2023. Ms Langoulant and Ms Barter are lawyers who have conduct of the applications.
(b)OPS affirmed affidavits on 13 December 2022, 22 February and 2 May 2023. In addition, his application is supported by affidavits by Ms Alice Barter sworn on 6 and 22 December 2022, 27 February and 5 May 2023.
(c)CRU has sworn four affidavits on 5 and 13 December 2022, 27 January and 23 February 2023. Additionally, his application is supported by two affidavits sworn by Ms Alice Barter on 5 and 22 December 2022.
It was agreed that it was not appropriate for the applicants to be cross‑examined and that no submission would be made to the effect that the respondents' evidence should not be accepted on the ground that the applicants were not provided with the opportunity to respond to it in cross-examination in accordance with the rule in Browne v Dunn.[21]
[21] Browne v Dunn (1893) 6 R 67 (HL).
I consider the evidence of each applicant is generally reliable, however, where the applicants' accounts of when and for how long they were confined to their cells is contradicted by a documentary record, in most but not all instances, I have made findings in accordance with the documentary record. This approach implies no criticism of the applicants personally. It is understandable that the recollections of young people confined to their cells for long periods often on successive days with little to distinguish between the days may be inaccurate.
The main body of the respondents' evidence is contained in an affidavit sworn by Ms Melanie O'Connell on 20 December 2022 and Ms O'Connell's three supplementary affidavits all sworn on 4 April 2023. The respondents' evidence is supplemented by an affidavit affirmed on 19 December 2022 by Ms Christine Ginbey and the affidavits affirmed by Ms Lancaster referred to in [17] filed and served in accordance with my orders of 23 December 2022. In addition, the respondents rely on the affidavits of Ms Lancaster affirmed in response to the further evidence adduced by the applicants.
Ms O'Connell has been acting in the role of Director Youth Custodial Operations since February 2022 overseeing operational matters at an executive level, reviewing and compiling and analysing data relating to youth custodial, leading business needs analysis to improve the outcomes within youth custodial (including data integrity, technological advancements, improvements in recording and reporting) and providing strategic support to Ms Ginbey. Ms O'Connell has a long history of working within the youth justice system in various regional, remote and metropolitan locations. Significantly, for nine years up to 2008, Ms O'Connell worked as a custodial officer at the Banksia Hill Detention Centre. Prior to taking up the role of Acting Director Youth Custodial Operations Ms O'Connell had been undertaking similar duties (though in a different capacity) since 2020.
Ms Ginbey is the Deputy Commissioner Women and Young People in the Department of Justice. She was appointed the Acting Deputy Commissioner Women and Young People in June 2022 and was appointed to the position permanently on 19 December 2022. Ms Ginbey has responsibility for youth justice services, which includes the services at the Banksia Hill Detention Centre and the Unit 18 Detention Centre. She is a member of the Banksia Hill Risk Management Group which meets twice weekly to discuss the range of issues affecting the running of the two detention centres including daily updates received from staff, COVID vaccination, recruitment of key positions at Banksia Hill, young people eligible for bail, cell damage updates, rostering and contracts for the provision of services at Banksia Hill and Unit 18 and the status of infrastructure and works to improve that infrastructure.
Ms Lancaster was appointed as the superintendent of the Banksia Hill Detention Centre and the Unit 18 Detention Centre on 16 December 2022. At the time of her appointment she held the position of Director, Youth Services within the Department of Justice for three years. Ms Lancaster's first role in the Department was as a juvenile justice officer, and she has in the intervening years worked in every area of youth justice from prevention and diversion, statutory, youth court services and youth custodial services, in roles ranging from team leader, manager and to superintendent of detention centres.
I accept the evidence of Ms Ginbey, Ms O'Connell and Ms Lancaster though I have some reservations about the reliability of information derived from some of the records kept at the detention centres.
A computer programme known as the Total Offender Management System (TOMS) is used to record all information relating to young people detained in the detention centres. TOMS contains different modules, including an Out of Cell Hours module, a Personal Monitoring Form module, an 'At Risk Management System' (ARMS module) and an Incidents and Charges module. For most detainees in the Banksia Hill Detention Centre and in the Unit 18 Detention Centre (excluding those in the Intensive Support Unit and the Cue Unit) lockdown times are recorded by staff in the Out of Cell Hours module.[22]
[22] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [63].
Notwithstanding the name given to it, the Out of Cell Hours module records the times that detainees are locked in their cells during the normal unlock hours.
A different approach to recording out of cell hours is taken for those detainees who require a higher level of supervision, care and observation and who, if they are male, are housed in a unit known as the Intensive Support Unit and, if they are female, are housed in an equivalent unit known as Cue. The lockdown hours of young people housed either in the Intensive Support Unit or the Cue Unit are recorded in the Personal Monitoring Form module.[23] The Personal Monitoring Form is used to record all a detainee's activities while he or she is housed in one of those units and it is possible to derive a figure for the total lockdown hours from the Personal Monitoring Form module. Ms O'Connell pointed out, however, that time constraints on staff completing the Personal Monitoring Forms have the capacity to adversely affect the accuracy of the information recorded in the module.[24] Ms Ginbey expressed the same point as follows:[25]
There are problems with the recording of that information, especially in relation to time out of cell. In addition to difficulties with TOMS, the time and access to resources available to YCOs to record when young people are in and out of their cells is limited because of their other duties and the emphasis on getting young people out of their cells over recording that they are out. The effect of these difficulties and the time constraints for YCOs is that the Department's records tend to overstate the time young people detained at Banksia Hill and Unit 18 spend in their cells.
[23] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [64] - [65].
[24] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [87].
[25] Affidavit of Christine Deborah Ginbey affirmed 19 December 2022 [38].
In the Unit 18 Detention Centre, in addition to recording the time spent by detainees in their cells in the Out of Cell Hours module, activity sheets are maintained for each detainee recording in units of five minutes what activity, if any, each detainee is engaged in.[26]
[26] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [89].
Ms O'Connell attached to her affidavit reports and spreadsheets of the applicants' lockdown hours derived from the data recorded in the Out of Cell Hours module and the Personal Monitoring Form module (Lockdown Hours Spreadsheet).
Both Ms Ginbey and Ms O'Connell acknowledged that there had been problems with the recording of time spent by detainees in their cells in the Out of Hours Cell hours module and these problems were described in some detail in the evidence and were the subject of comment in submissions. It is presently unnecessary to recite this evidence.
In addition to the information contained in the Lockdown Hours Spreadsheet derived from the Out of Cell hours module and Personal Monitoring Form module the respondents rely on:
(a)Personal Support Plan Check Sheets - being printed versions of the electronic Personal Monitoring Forms in the Personal Monitoring Form module;
(b)Activity Sheets - being the records kept by staff at the Unit 18 Detention Centre described above;
(c)Detainee Telephony System reports ('telephone log') - these are the records of telephone calls made by detainees, detainees are identified by their use of a Personal Identification Number given to them and thereby the system records the time, date, duration (measured in seconds) of each call and the identity of the person whom they called;
(d)ARMS Supervision Logs - these are used by staff to record specific information about a detainee's presentation, interactions, demeanour and services while they are subject to ARMS, staff record the time at which the observations made in the logs were made; and
(e)Visits History records - these record when a detainee has a visitor, the purpose of the visit and whether the visit was successful. Ms O'Connell explained that although the time allocated to a particular visit is recorded there is no record of the duration of the visit. Thus, one hour may be allocated to a particular visit but it may only last 40 minutes.[27]
[27] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022 [7] - [10].
In addition to the records described above since 20 November 2022 a confinement register has been maintained at each detention centre. The confinement register records periods of confinement occurring in the detention centre if the approval has been sought or granted for the confinement. The purpose of the register is to record confinement during non-routine lockdowns. Ms O'Connell provided a detailed description of the form of the confinement register and the information recorded in it. For present purposes, it is sufficient to say that it is designed to capture all relevant information including: the date and time of the confinement, the reason for the confinement, the duration of the confinement, the names of the detainees confined or the wing or unit confined and who authorised the confinement.[28]
[28] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [101] - [111].
In respect of those dates as to which there is a dispute about the duration of confinement, or about whether one of the applicants was deprived of his or her entitlement to exercise, the evidence is frequently exiguous and there are inconsistencies between various records. In making factual findings about the disputed dates I have placed greater reliance on those records least likely to be affected by error, the visits history records, the telephone log, the ARMS Supervision Logs and less reliance on the Lockdown Hours Spreadsheet and the applicants' own evidence. While I have not referred to the detail of the evidence about problems with the recording of information in the Out of Cell Hours module, the Personal Monitoring Forms, and the Activity Sheets maintained in the Unit 18 Detention Centre, the potential for human error on the part of officers working under intense pressure is obvious. For the sake of completeness, I should also mention that I have considered the records of incidents at the detention centres and the records maintained of the average lockdown hours in the Unit 18 Detention Centre.
The facts
The detention centres
Between October 2012 and July 2022 the Banksia Hill Detention Centre was the only place declared to be a detention centre. In July 2022 Unit 18 of the Casuarina Prison was declared to be a detention centre and thereafter a number of male detainees were transferred from the Banksia Hill Detention Centre to the Unit 18 Detention Centre.
On 16 December 2022 Ms Lancaster was appointed as the superintendent of both detention centres. On 23 December 2022 Ms Lancaster pursuant to the power conferred by s 197 of the Act delegated the powers conferred on her by reg 74(2), reg 78(2) and reg 79(5) to the persons holding the positions of Deputy Superintendent, Assistant Superintendent Operations, and Assistant Superintendent Security from time to time.[29]
[29] Affidavit of Jaide Nicole Lancaster affirmed 25 January 2023, 'Attachment JL1', 19.
On 1 May 2023 Mr Doug Coyne was appointed as superintendent of the Unit 18 Detention Centre.
Unlock hours
Custodial staff employed at the detention centres are required to comply with policies and procedures determined by the Commissioner for Corrective Services, the Commissioner's Operating Policies and Procedures, 'COPPs'. Among other matters COPP 6.9 sets out the usual regime or timetable governing the unlock and lockdown times of detainees at the detention centres. The ability to unlock detainees depends on factors including the risk of detainees to each other and from each other, having an ability for staff to supervise and manage detainees to be out of their cells safely and still enable staff to respond to incidents that might otherwise impact on the program or safety, and also monitor those in cell who are at risk or have threatening behaviours.[30]
[30] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [24].
Until 11 November 2022 the usual regime followed at the Banksia Hill Detention Centre was as follows:[31]
(a)detainees were released from their cells at 7.45 am;
(b)between 7.45 am and 9.00 am the detainees had breakfast, cleaned their cells and did morning chores, and had a brief period of socialisation before going to the day programmes;
(c)lockdowns commenced at 6.45 pm, with all detainees secured in their cells by 7.00 pm;
(d)there were two 40-minute staff breaks each day, during which detainees were locked in their cells; and
(e)each Friday detainees were locked in their cells between 9.00 am and 12.00 pm while staff training took place.
[31] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [14] - [16].
In summary the usual regime meant that detainees would be locked in their sleeping quarters for 12 hours and 45 minutes overnight and during the day would be unlocked for nine hours and 55 minutes (taking into account lockdown for staff breaks) except on Fridays when lockdowns for staff training reduced the out of cell time by three hours to six hours and 55 minutes.
In July 2022 the daily average out of cell hours for detainees accommodated in general units was just over seven hours. This figure had increased to just over eight hours by December 2022.[32]
[32] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO10, MO11 and MO12', 116 - 118.
Prior to 16 November 2022[33] the daily routine at the Unit 18 Detention Centre depended on the number of detainees, the behaviour of the detainees, the services attending to see specific detainees and the number of staff on duty. Subject to those factors the daily routine was as follows:[34]
(a)for those detainees not going to a social or official visit, they would remain in cell until 10.00 am;
(b)after 10.00 am detainees were unlocked in groups of two to three young people at a time throughout the day for the purposes of attending education or specialist services appointments they were required to attend;
(c)detainees would be locked down to facilitate staff meal breaks between 12.00 pm to 12.40 pm and 4.00 pm to 4.40 pm; and
(d)any detainee out of cell during the afternoon unlock period would be moved to a cell between 6.15 pm and 6.30 pm and secured in cell by no later than 6.45 pm.
[33] See affidavit of Melanie Brooke O'Connell sworn 17 January 2023.
[34] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [17].
In the Unit 18 Detention Centre there were no regular lockdowns for staff training.
In July 2022 the daily average 'out of cell hours' for detainees placed in the Unit 18 Detention Centre was just under four hours a day. This figure had increased to just over four hours by December 2022.[35]
[35] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO9', 115.
On 11 November 2022 the scope for increasing the 'unlock hours' was reviewed and, with effect from 16 November 2022, it was decided:[36]
(a)to unlock detainees at the Banksia Hill Detention Centre at 7.30 am; and
(b)to have detainees at the Unit 18 Detention Centre out of their sleeping quarters to have breakfast together where possible.
Non-routine confinement
[36] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [18] - [20].
Non-routine confinement is the term used to describe the confinement of young people to their cells when, had the usual regime been followed, they would not have been so confined. The term is synonymous with confinement due to rolling lockdowns. Based largely on Ms Ginbey's evidence, I find that the causes of non-routine confinement are threefold, an endemic shortage of staff, inadequate infrastructure and an increase in the number of incidents involving detainees that disrupt the normal routine.[37]
Staff shortages
[37] Affidavit of Christine Deborah Ginbey affirmed 19 December 2022 [47].
As to staff shortages, for present purposes, it is sufficient to record that the Department of Justice has 253 substantive Youth Custodial Officer 'full time equivalent positions' and that in December 2022, there was a shortfall of 88 full time equivalent employees.[38] The consequences of this shortfall were explained by Ms Ginbey as follows:[39]
As Banksia Hill is not at maximum capacity and two units have been closed, fewer YCOs are required to run the daily routine and avoid lockdowns in the absence of an incident. As I have deposed above, the minimum requirement during the day shift to operate both Banksia Hill and Unit 18 in this way is 48 YCOs. With the shortfall in FTEs, it is not always possible to meet this requirement. For any given roster, additional YCOs will also be on leave and others will be unavailable because of other reasons or because they are not permitted to commence another shift until at least 10 hours have passed since they completed their last shift. The requirement for at least 10 hours between shifts means that an incident at Banksia Hill or Unit 18 can affect the number of YCOs available at either or both sites in the 10 hours or so after the incident ends and the YCOs involved have completed any work that must be done before they end their shift (such as writing reports about the incident).
There also continues to be a problem of absenteeism - that is with YCOs who are rostered on, and not on any form of pre-approved leave, nevertheless failing to attend for work. This is a big problem and there are some days that it is particularly significant. On one day a month ago, for example, we had 11 YCOs book off on personal leave for one shift at Banksia Hill.
Absenteeism is particularly difficult to manage because it will not be apparent that this is occurring until the shift begins and can lead to unexpected shortages of YCOs for a shift, which may in tum lead to rolling lockdowns at a site. It is also difficult because Banksia Hill is a very difficult work environment and YCOs are exposed to daily abuse and to assaults. Given those difficulties and current media coverage, there may be days when some YCOs cannot face coming into work. We are looking to address that with better staff levels and better infrastructure and calming things down at Banksia Hill, including providing staff with additional support and training.
High staff attrition among YCOs also remains a significant issue for the Department. In 2022, 56 YCOs have resigned. I have also received resignations from 6 YCOs that will take effect in January 2023 and from one YCO that will take effect in March 2023.
[38] Affidavit of Christine Deborah Ginbey affirmed 19 December 2022 [59].
[39] Affidavit of Christine Deborah Ginbey affirmed 19 December 2022 [60] - [63].
In 2022 60 new Youth Custodial Officers graduated from training but the number of new graduates does not cover the number of Youth Custodial Officers who resigned.[40]
Inadequate infrastructure
[40] Affidavit of Christine Deborah Ginbey affirmed 19 December 2022 [68].
[Redacted].
Disruptive behaviour
Incidents involving detainees are classified as critical or non‑critical. A critical incident is anything that compromises the good order, safety and security of a detention centre, such as a significant staff assault, an attempted suicide or an incident that requires the redeployment of staff to assist in the management of the incident.[41] If the incident does not meet the criteria for a critical incident, it is a non‑critical incident. A young person threatening staff verbally or damaging the television in their cell are examples of non-critical incidents.[42]
[41] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [37].
[42] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022 [40].
In commenting on the disruptive effect of incidents involving detainees Ms Ginbey referred to the complex needs of the young people in the detention centres and adopted a description given by her in her evidence in VYZ as follows:[43]
They represent a highly vulnerable population with respect to mental health. Young people in custody have often experienced developmental trauma and maltreatment. Both of which are strongly linked to higher prevalence rates of: depression, anxiety, substance misuse, eating disorders, suicidal symptomatology, psychosis, post-traumatic stress disorder (PTSD) and risk of developing later personality disorders.
[43] Affidavit of Christine Deborah Ginbey affirmed 19 December 2022 [90].
It may be accepted that one cause of rolling lockdowns are incidents caused or aggravated by the psychological factors affecting detainees to which Ms Ginbey referred. It is indisputable, however, that the effect of rolling lockdowns has been the cause of further disruption intensifying the operational difficulties described in the respondents' evidence.
This is borne out by the evidence given by each of the applicants about the effect the lockdowns has had on them. While I am not required to make findings as to the effect on the applicants of being locked down for prolonged periods (and I am mindful that the applicants were not cross-examined) their evidence-in-chief was persuasive. Further, it is in the public interest that the evidence of the effect of the lockdowns is recorded. I reproduce below the section of the applicants' submissions dealing with the effect of lockdowns on the applicants:[44]
[44] Applicants' outline of submissions filed 18 April 2023 [66].
i)HBS has made numerous attempts to self-harm or die by suicide because of the conditions of confinement and as a direct consequence of stress caused by being confined to her room for prolonged periods of time:
(1)on 5 November 2022 she tied some ripped-up bedsheets around her neck and tried to strangle herself because she was angry and upset about being locked down for so long;[45]
[45] Affidavit of HBS affirmed 5 December 2022 [28].
(2)on 28 November 2022 she told an officer she was going to kill herself because of the lockdown;[46] and
[46] Affidavit of HBS affirmed 5 December 2022 [35].
(3)on 4 December 2022 she felt distressed from the lockdown and bit a portion of her knuckle off.[47]
[47] Supplementary affidavit of HBS affirmed 12 December 2022 [6] - [7].
ii)CRU has made attempts to self-harm because of the conditions of confinement and as a direct consequence of stress caused by being confined to his cell for prolonged periods of time:
(1)on 9 November 2022 he was distressed and self-harmed;[48]
[48] Supplementary affidavit of CRU sworn 23 February 2023 [1].
(2)on 27 November 2022 he self-harmed by cutting his arms;[49] and
[49] Affidavit of CRU sworn 5 December 2022 [18].
(3)When locked down he feels stressed and sometimes thinks about hurting himself.[50]
[50] Supplementary affidavit of CRU sworn 13 December 2022 [18]
iii)OPS has made numerous attempts to self-harm or suicide because of the conditions of confinement and as a direct consequence of stress caused by being confined to his cell for prolonged periods of time:
(1)on 15, 16 and 17 August 2022, he was in his cell all day with no time out, and on 17 August 2022 there is a recorded incident of actual self-harm;[51]
[51] Affidavit of Alice Vivienne Barter sworn 6 December 2022 in CIV 2290 of 2022, 'Attachment AVB07', 53.
(2)on 25 October 2022, he made a noose and tied it around his throat;[52]
[52] Affidavit of OPS affirmed 13 December 2022 [15].
(3)on 15 November 2022, he swallowed some glass and was taken to hospital;[53]
[53] Affidavit of OPS affirmed 13 December 2022 [28].
(4)from 29 November to 2 December 2022, he was detained in an observation cell because he was self harming;[54]
[54] Affidavit of OPS affirmed 13 December 2022 [35].
(5)on 2 December 2022, he tried to set his cell on fire while confined there;[55]
[55] Affidavit of OPS affirmed 13 December 2022 [38].
(6)the Department's records include numerous and additional incidents of actual self-harm and threats of self-harm;[56]
(7)a psychologist noted in the Detention Management Report [reports prepared for use in the Childrens Court]:
(i)OPS' risk to [self-harming] behaviour was largely precipitated by difficulty coping with: lack of out of cell time; lack of in cell activity (often no TV, radio, drawing materials) for multiple days in a row; chaotic centre conditions; and perceived unfair treatment.[57]
(ii)OPS appears to struggle particularly with long periods of time in cell, and his incidents of harm to self appear to increase at such times.[58]
(8)On 17, 29, 30 November 2022, 1, 2, 22, 23 December 2022 and 23 and 24 January 2023, OPS spent time in the Intensive Supervision Unit in response to incidents of self-harm.[59]
[56] Affidavit of Alice Vivienne Barter sworn 6 December 2022 in CIV 2290 of 2022, 'Attachment AVB07'.
[57] Affidavit of Alice Vivienne Barter sworn 6 December 2022 in CIV 2290 of 2022, 'Attachment AVB07', 35.
[58] Affidavit of Alice Vivienne Barter sworn 6 December 2022 in CIV 2290 of 2022, 'Attachment AVB07', 57.
[59] Supplementary affidavit of Alice Vivienne Barter sworn 27 February 2023, 'Attachment AVB10', 13.
When critical incidents occur involving damage to infrastructure, they impose severe limitations on the operation of a detention centre. This is demonstrated by Ms Lancaster's evidence about incidents that occurred at the Unit 18 Detention Centre in the months of January to May 2023 set out later in these reasons.
HBS
HBS was born on 19 April 2005 and is now 18 years of age. She was detained in the Banksia Hill Detention Centre on remand on 8 August 2022. She was sentenced to a period of detention on 26 October 2022 and was released into the community on 15 January 2023. On 21 February 2023 HBS was detained again in the Banksia Hill Detention Centre where she remains at present.
No order authorising confinement
There is no dispute between the parties that HBS was confined to her cell without the authority of an order made under reg 74(2) on 12 days, and for the periods on those days, listed in the table below.
| Date | Scheduled nightly lockdown hours | Out of cell time | Total period of confinement |
| 13 September 2022 | 12 hours and 45 minutes | 30 minutes | 23 hours and 30 minutes |
| 15 September 2022 | 12 hours and 45 minutes | 3 hours 15 minutes | 20 hours and 45 minutes |
| 10 October 2022 | 12 hours and 45 minutes | Nil | 24 hours |
| 4 November 2022 | 12 hours and 45 minutes | 2 hours | 22 hours |
| 5 November 2022 | 12 hours and 45 minutes | 10 minutes | 23 hours and 50 minutes |
| 6 November 2022 | 12 hours and 45 minutes | 1 hour | 23 hours |
| 7 November 2022 | 12 hours and 45 minutes | 2 hours 40 minutes | 21 hours and 20 minutes |
| 13 November 2022 | 12 hours and 30 minutes | Nil | 24 hours |
| 29 November 2022 | 12 hours and 30 minutes | Nil | 24 hours |
| 30 November 2022 | 12 hours and 30 minutes | 4 hours or less | ~ 20 hours |
| 3 December 2022 | 12 hours and 30 minutes | Nil | 24 hours |
| 4 December 2022 | 12 hours and 30 minutes | Nil | 24 hours |
The factual disputes about further periods of alleged unlawful confinement between HBS and the respondents up to 6 December 2022 are summarised in the following table:
Date
Scheduled nightly lockdown hours
Out of cell time alleged by HBS
Confinement period alleged by HBS
Out of cell time alleged by respondents
Confinement period alleged by respondents
14 September 2022
12 hours and 45 minutes
1 - 2 hours
22 - 23 hours
9 hours 15 minutes
14 hours and 45 minutes
8 October 2022
12 hours and 45 minutes
1 hour
23 hours
9 hours 15 minutes
14 hours and 45 minutes
9 October 2022
12 hours and 45 minutes
1 hour
23 hours
5 hours 15 minutes
18 hours and 45 minutes
21 October 2022
12 hours and 45 minutes
1 hour and 45 minutes
22 hours and 15 minutes
9 hours 45 minutes
14 hours and 15 minutes
22 October 2022
12 hours and 45 minutes
2 hours
22 hours
8 hours 25 minutes
15 hours and 35 minutes
23 October 2022
12 hours and 45 minutes
2 hours
22 hours
8 hours 35 minutes
15 hours and 25 minutes
12 November 2022
12 hours and 30 minutes
4 hours or less
20 hours or more
6 hours 35 minutes
17 hours and 25 minutes
14 September 2022
HBS' evidence was as follows: [60]
16.On 13 and 14 September 2022, I only got about 30 minutes out of my cell, with the other girls from my wing. We got 10 minutes to make a phone call, and 20 minutes to clean around our wing and in our cells. The rules are that we have to clean our cells, but we don't have to clean the wing, we just like to clean it when it gets dirty. When girls aren't cleaning they will use the phone to make calls.
[60] Affidavit of HBS affirmed 5 December 2022 [16].
The Lockdown Hours Spreadsheet records that HBS was housed in the Yeeda Unit and was confined to her cell between 12.00 pm and 1.00 pm and between 4.00 pm and 5.00 pm for staff breaks.[61]
[61] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO19 and MO20', 221 ‑ 222.
The telephone log records that HBS made telephone calls of the following duration on 14 September 2022:[62]
(a)2.19 pm for 16 seconds;
(b)2.20 pm for 9 minutes and 49 seconds;
(c)5.45 pm for 9 minutes and 42 seconds; and
(d)6.15 pm for 2 minutes and 10 seconds.
[62] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO2', 12.
The Visits History records HBS had a visit from a youth justice worker and a case worker for which the allocated time was 10.00 am to 11.00 am.[63] That the visit occurred is corroborated by a reference in the ARMS Supervision Log to HBS having had a visit from a named youth justice worker. I accept that the visit may not have lasted the full hour that was allocated to it.
[63] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO1', 11.
The ARMS Supervision Log records that a staff member observed HBS at 10.40 am and noted that HBS had spoken to an Aboriginal Youth Support Officer and that 'she has made some phone calls and has a visit [redacted] today in case planning ayt 10.00 am'. This record was made at 12.07 pm.[64] I note the making of phone calls is not borne out by the telephone log. The ARMS Supervision Log also records that HBS attended the psychology building for an ARMS review at 2.30 pm where she presented as 'angry and frustrated'. This record was made at 3.38 pm.[65]
[64] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO3', 13.
[65] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO3', 13.
Before leaving the Visits History record and the ARMS Supervision Log I note that they each record that HBS was housed in the Cue Unit. I accept the explanation provided by the respondents' counsel that Cue was the unit in which HBS was housed when the record was printed, that is 4 April 2023, rather than the unit in which she was housed when the record was originally made.[66]
[66] ts 151 - 152.
I accept that the Visits History, the ARMS Supervision Log and the telephone log generally record the events described in them accurately and provide support for what is recorded in the Lockdown Hours Spreadsheet. In the light of that evidence I find that HBS was not locked in her cell for all but 30 minutes as she deposed but was locked in her cell for two hours. I find that, entirely understandably, HBS was mistaken in her recollection. HBS was not confined unlawfully on 14 September 2022.
8 October 2022
HBS' evidence was as follows: [67]
17.From 20 September 2022 to about 5 October 2022, things started to get a little bit better. The wing would usually be locked down for about 16 to 17 hours a day, but some days it was more, and other days it was less.
18.After this, things started to get worse again. I would often get locked down for most of the day on the weekends.
19.On Saturday 8 October 2022 and Sunday 9 October 2022, I only got between 30 minutes and one hour out of my cell each day. On Sunday 9 October, I let some other girls into my cell when we had time out. I think this is why we got locked down on Sunday.
[67] Affidavit of HBS affirmed 5 December 2022 [17] - [19].
The Lockdown Hours Spreadsheet records that HBS was confined to her cell from 12.15 pm to 1.15 pm and from 4.00 pm to 5.00 pm for staff breaks.[68]
[68] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO19 and MO20', 221 ‑ 222.
The telephone log records that HBS made the following phone calls on 8 October 2022:[69]
[69] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO4', 14.
(a)8.33 am for 3 seconds;
(b)8.34 am for 9 minutes and 48 seconds;
(c)9.50 am for 16 seconds;
(d)9.53 am for 2 seconds;
(e)9.53 am for 3 seconds;
(f)10.01 am for 10 minutes;
(g)11.29 am for 3 seconds;
(h)11.30 am for 17 seconds;
(i)11.31 am for 3 seconds;
(j)11.32 am for 16 seconds;
(k)11.53 am for 4 seconds;
(l)11.54 am for 3 seconds;
(m)11.54 am for 17 seconds;
(n)11.55 am for 10 minutes and 3 seconds;
(o)1.41 pm for 3 seconds;
(p)1.43 pm for 3 seconds;
(q)1.43 pm for 9 minutes and 50 seconds;
(r)2.44 pm for 9 minutes and 58 seconds;
(s)3.18 pm for 9 minutes and 41 seconds;
(t)6.04 pm for 9 minutes 53 seconds;
(u)6.30 pm for 15 seconds; and
(v)6.31 pm for 9 minutes and 10 seconds.
That HBS made 22 telephone calls during the day, seven of which lasted approximately 10 minutes, provides some support for the accuracy of the information contained in the Lockdown Hours Spreadsheet and casts doubt on the reliability of HBS' recollection that she was locked in her cell for all but between 30 minutes and an hour. I am not satisfied that HBS was confined in her cell for more than two hours during unlock hours on 8 October 2022 and thus I am not satisfied that HBS was confined unlawfully on 8 October 2022.
9 October 2022
HBS contends that 9 October 2022 is another day she was confined to her cell all day except for approximately 30 minutes to one hour.[70]
[70] Affidavit of HBS affirmed 5 December 2022 [19].
The Lockdown Hours Spreadsheet records that HBS was confined to her cell for six hours as follows:[71]
(a)11.00 am to 12.00 pm due to staff shortages (one hour);
(b)12.00 pm to 2.30 pm for staff breaks (two hours and 30 minutes);
(c)4.00 pm to 5.00 pm for staff breaks (one hour); and
(c)5.15 pm to 6.45 pm due to a 'Code Amber' incident in B-wing (one hour and 30 minutes).
[71] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO19 and MO20', 221 ‑ 222.
The telephone log records that HBS made the following phone calls on 9 October 2022:[72]
(a)9.33 am for 10 minutes and 16 seconds;
(b)10.33 am for 9 minutes and 59 seconds;
(c)1.57 pm for 10 minutes and 1 second;
(d)4.49 pm for 15 seconds; and
(e)5.06 pm for 9 minutes and 49 seconds.
[72] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO5', 15.
The Visits History records that HBS was visited by her father and that the time allocated for the visit was 12.45 pm to 1.45 pm.[73]
[73] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO6', 16.
There are inconsistencies between the Lockdown Hours Spreadsheet, the telephone log and the Visits History. The Lockdown Hours Spreadsheet records HBS as being confined to her cell during the time allocated for her father's visit and at times when the telephone log records that she was out of her cell using the telephone. That HBS was visited by her father on 9 October 2022 and that she made four telephone calls lasting approximately 10 minutes each casts doubt on the reliability of her recollection about the events of the day and I am not satisfied that she was confined in her cell for more than six hours during unlock hours. Thus, I am not satisfied that HBS was confined unlawfully on 9 October 2022.
21 October 2022
HBS' evidence was as follows: [74]
22.On Friday 21 October 2022, I was locked down for most of the day. I got one hour out in the morning, and then 45 minutes out in the afternoon.
[74] Affidavit of HBS affirmed 5 December 2022 [22].
The Lockdown Hours Spreadsheet records that on 21 October 2022 HBS was confined to her cell for one hour and 30 minutes as follows:[75]
(a)1.07 pm to 1.47 pm for a staff break and to move detainees to different units (40 minutes); and
(b)4.10 pm to 5.00 pm for a staff break (50 minutes).
[75] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO19 and MO20', 221 ‑ 222.
The telephone log records that HBS made the following phone calls on 21 October 2022:[76]
(a)2.47 pm for 18 seconds;
(b)2.48 pm for 4 seconds;
(c)2.49 pm for 10 minutes and 15 seconds;
(d)6.01 pm for 18 seconds; and
(e)6.02 pm for 2 minutes and 11 seconds.
[76] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO8', 18.
The Visits History records that on 21 October 2022 HBS was visited by a Youth Justice Officer and that the time allocated for that visit was 10.00 am to 10.30 am.[77]
[77] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO7', 17.
The ARMS Supervision Log records the following:[78]
21/10/2022 11:30 - 21/10/2022 14:24
Seen in psychology building for ARMS review and presented as energetic and in a positive mood. She reported feeling happy and relieved to be off Tango escort and to be moving back to her standard cell this afternoon, following improved behaviour in recent days. [HBS] denied current SI/SH thoughts and was initially hesitant to acknowledge any current distress, reporting concern that this would result in her remaining in Cue. [HBS] subsequently acknowledged heightened stress relating to her upcoming sentencing (25/10) and uncertainty about whether she would actually be moved back to B-wing today. [HBS] reported that she is looking forward to social visits with her family and external supports tomorrow and was trying to ?think positive about court?.
She requested access to a TV when she is moved back to B‑wing to assist with her mood/coping over the weekend.
21/10/2022 14:16 21/10/2022 14:16
Moved out of cue back to B wing, appears happy with that, up now in wing after staff training and staff breaks, appears settled.
[HBS] asked for a scourer to clean her door and appears settled tidying her cell.
[HBS] provided dinner with nil issues. [HBS] has been engaging well with cue officer, having positive conversations through yard window.
[78] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO9', 19.
As is apparent from the entries in the ARMS Supervision Log HBS was in Cue Unit until early afternoon on 21 October 2022 when she was transferred back to Yeeda Unit. It appears from the last entry in the ARMS Supervision Log that HBS was not confined to her cell 'after staff training and staff breaks'. That HBS had a visit, was seen in the 'psychology building', was transferred from Cue to Yeeda, and was 'up now in the wing' at 2.16 pm casts doubt on the reliability of her recollection of that day. I am not satisfied that she was confined to her cell for most of the day and was only allowed out of her cell for approximately one hour and 30 minutes and I am not satisfied that HBS was confined unlawfully on 21 October 2022.
Parenthetically, I note that 21 October 2022 was a Friday and that the usual regime provided for detainees to be locked in their cells for three hours on Friday mornings to facilitate staff training. That regime does not appear to have been recorded in the Lockdown Hours Spreadsheet.
22 October 2022
HBS' evidence was as follows:[79]
23.On Saturday 22 October and Sunday 23 October 2022, there was more rolling lockdowns in my wing. By rolling lockdowns I mean the YCOs move through the four wings of the unit, letting each wing out of their cells for some time, and then they lock that wing down, and let the next wing out. Over that weekend, me and the other girls in my wing would get out of our cells at different times, and only for two hours per day.
[79] Affidavit of HBS affirmed 5 December 2022 [23].
The Lockdown Hours Spreadsheet records that on 22 October 2022 HBS was confined to her cell for two hours and 50 minutes as follows:[80]
(a)8.00 am to 9.30 am due to staff shortages (one hour and 30 minutes); and
(b)12.00 pm to 1.20 pm for staff breaks (one hour and 20 minutes).
[80] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO19 and MO20', 221 ‑ 222.
The telephone log records that HBS made the following phone calls:[81]
[81] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2289 of 2022, 'Attachment MO10', 20.
(a)10.21 am for 16 seconds;
(b)1.07 pm for 16 seconds;
(c)1.08 pm for 7 minutes and 26 seconds;
(d)2.56 pm for 16 seconds;
(e)2.58 pm for 9 minutes and 54 seconds;
(f)3.27 pm for 15 seconds;
(g)3.28 pm for 10 minutes and 15 seconds;
(h)5.16 pm for 10 minutes and 8 seconds; and
(i)6.17 pm for 16 seconds.
The Lockdown Hours Spreadsheet is inconsistent with the telephone log in that the former records HBS being confined between 12.00 pm and 1.20 pm when it is clear from the latter that HBS was using the telephone between 1.07 pm and 1.15 pm. HBS' recorded telephone use casts doubt on the reliability of her recollection of the events of 22 October 2022. I am not satisfied that she was confined to her cell for up to 22 hours on that day and I am not satisfied that she was confined unlawfully on 22 October 2022.
No exercise dates
It was contended on OPS' behalf that he was deprived of his entitlement to an hour's exercise on 20 and 21 January and on 1, 9, 13, 19 and 31 March and 1, 4, 16, 19, 21 and 22 April 2023. There was no substantive dispute that on the days specified by OPS he was either not afforded the opportunity to leave his cell to exercise or he declined to leave his cell. Of the 2023 dates, only 20 and 21 January 2023 are part of OPS' further amended application filed on 9 March 2023 for declaratory relief.
I will deal with each date and, for those days on which OPS was not permitted to exercise, I will set out Ms Lancaster's evidence as to why that occurred.
[Redacted].
[Redacted].
[Redacted].
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[Redacted].
[Redacted].
[Redacted].
[Redacted].
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CRU
CRU was born on 19 November 2004 and is now 18 years of age. He was detained in the Banksia Hill Detention Centre on remand on 2 October 2022 and was sentenced to a period of detention on 21 October 2022. He was transferred to the Unit 18 Detention Centre on 10 November 2022 and was detained there until his release in February 2023.
No order authorising confinement
There is no dispute between the parties that CRU was confined to his cell without the authority of an order made under reg 74(2) on 19 days, and for the periods on those days, listed in the table below.
| Date | Location | Scheduled nightly lockdown hours | Out of cell time | Total period of confinement |
| 13 October 2022 | Banksia Hill Detention Centre | 12 hours and 45 minutes | 2 hours 15 minutes | 21 hours and 45 minutes |
| 15 October 2022 | Banksia Hill Detention Centre | 12 hours and 45 minutes | 3 hours 45 minutes | 20 hours and 15 minutes |
| 25 October 2022 | Banksia Hill Detention Centre | 12 hours and 45 minutes | 3 hours 45 minutes | 20 hours and 15 minutes |
| 27 October 2022 | Banksia Hill Detention Centre | 12 hours and 45 minutes | 56 minutes | 23 hours and 4 minutes |
| 28 October 2022 | Banksia Hill Detention Centre | 12 hours and 45 minutes | 3 hours 25 minutes | 20 hours and 35 minutes |
| 1 November 2022 | Banksia Hill Detention Centre | 12 hours and 45 minutes | 15 minutes | 23 hours and 45 minutes |
| 6 November 2022 | Banksia Hill Detention Centre | 12 hours and 45 minutes | 1 hour 15 minutes | 22 hours and 45 minutes |
| 7 November 2022 | Banksia Hill Detention Centre | 12 hours and 45 minutes | 1 hour | 23 hours |
| 8 November 2022 | Banksia Hill Detention Centre | 12 hours and 45 minutes | 2 hours 30 minutes | 21 hours and 30 minutes |
| 9 November 2022 | Banksia Hill Detention Centre | 12 hours and 45 minutes | 2 hours | 22 hours |
| 10 November 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | 4 hours or less | ~ 20 hours |
| 12 November 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | 10 minutes | 23 hours and 50 minutes |
| 13 November 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | 15 minutes | 23 hours and 45 minutes |
| 3 December 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | 30 minutes or less | ~ 23 hours and 30 minutes |
| 4 December 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | Nil | 24 hours |
| 8 December 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | 30 - 40 minutes | 23 hours and 20 - 30 minutes |
| 9 December 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | 30 - 50 minutes | 23 hours and 10 - 30 minutes |
| 10 December 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | 10 minutes | 23 hours and 50 minutes |
| 12 December 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | 30 - 40 minutes | 23 hours and 20 - 30 minutes |
The factual disputes between CRU and the respondents about further periods of alleged unlawful confinement allegedly not authorised by an order under reg 74(2) are summarised in the following table:
| Date | Location | Scheduled nightly lockdown hours | Out of cell time alleged by CRU | Confinement period alleged by CRU | Out of cell time alleged by respondents | Confinement period alleged by respondents |
| 11 November 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | Nil | 24 hours | 8 hours 35 minutes | 15 hours and 25 minutes |
| 29 November 2022 | Unit 18 - Casuarina Prison | 15 hours and 15 minutes | 3 hours | 21 hours | 4 hours 53 minutes | 19 hours and 7 minutes |
11 November 2022
CRU's evidence was as follows: [93]
11.On 10 November 2022 I was transferred to Unit 18 at Casuarina Prison. I remember this date because I wrote it in my cell when I arrived there. I think I was moved to Unit 18 because I went onto the roof. This was my first time in Unit 18. I was first placed in a wing which I think is called D Wing.
…
13.On my first two days in Unit 18, about 10 and 11 November 2022, I was not allowed out of my cell at all.
[93] Affidavit of CRU sworn 5 December 2022 [11] and [13].
The Lockdown Hours Spreadsheet records that CRU was confined to his cell on 11 November 2022 for two hours and 40 minutes as follows:[94]
(a)8.10 am to 8.20 am for integrity checks, cell cleans and cell searches (10 minutes);
(b)12.50 pm to 1.25 pm for a staff break (35 minutes);
(c)1.40 pm to 1.50 pm for recreation and phone calls in the wing (10 minutes);
(d)4.10 pm to 5.00 pm for a staff break (50 minutes); and
(e)5.00 pm to 5.55 pm for dinner in the dayroom, recreation and phone calls in the wing (55 minutes).
[94] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO29 and MO30', 421 ‑ 425.
The Activity Sheet records that CRU engaged in the following activities on 11 November 2022:[95]
(a)between 8.10 am and 8.15 am he cleaned his cell or the wing;
(b)between 8.15 am and 8.20 am he was on the wing for recreation and to make phone calls;
(c)between 8.55 am and 9.25 am he had an appointment with a psychologist;
(d)between 9.25 am and 9.55 am he received education;
(e)between 1.45 pm and 2.05 pm he was on the wing for recreation and to make phone calls; and
(f)between 5.00 pm and 6.00 pm he was on the wing for recreation in the wing and to make phone calls.
[95] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2288 of 2022, 'Attachment MO4', 16 - 18.
There is little evidence that assists in making a finding as to whether the psychology appointment and the education took place in CRU's cell or on the wing. In the absence of any evidence to the contrary, I will take the view most favourable to CRU's application, and assume that the psychologist visited CRU in his cell. I make a finding to the same effect in relation to the 'education' that is, CRU received the education in his cell.
The telephone log records that CRU made the following phone calls on 11 November 2022:[96]
(a)8.14 am for 25 seconds;
(b)8.15 am for 4 seconds;
(c)8.16 am for 3 seconds;
(d)1.45 pm for 10 minutes and 13 seconds;
(e)5.45 pm for 8 minutes and 16 seconds; and
(f)6.21 pm for 10 minutes and 3 seconds.
[96] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2288 of 2022, 'Attachment MO5', 19.
A chart showing the daily average out of cell hours for the Unit 18 Detention Centre records that the average out of cell hours on 11 November 2022 was approximately six hours.[97]
[97] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO9', 115.
There are inconsistencies between the Lockdown Hours Spreadsheet, the telephone log and the Activity Sheet in that the Lockdown Hours Spreadsheet records CRU as being confined to his cell at times when the other records suggest he was not confined.
In combination, CRU's recorded use of the telephone, the entries on the Activity Sheet and the record of the average out of cell hours for the Unit 18 Detention Centre cast doubt on the reliability of CRU's recollection of the events on 11 November 2022. There is no dispute that CRU was confined to his cell on 10 November 2022 for 24 hours and on 12 November 2022 for 23 hours and 50 minutes. I think it likely (and quite understandable) that CRU has conflated the periods of confinement on 10 and 12 November 2022 with 11 November 2022. I am not satisfied that he was confined to his cell all day on 11 November 2022.
The evidence does not enable me to make a precise finding as to what period CRU was confined to his cell on 11 November 2022. Relying principally on the record of the average out of cell hours for that day it is likely that CRU was not confined to his cell for a period of no more than six hours. I am not satisfied that CRU was unlawfully confined on 11 November 2022.
29 November 2022
CRU's evidence was as follows: [98]
20.On 29 November 2022 I only got out of my cell for around 3 hours. I got up at about 10.00am until 12.00pm, and then got out for another hour in the afternoon. I was otherwise locked in my cell. I didn't get to attend school that day.
[98] Affidavit of CRU sworn 5 December 2022 [20].
The Lockdown Hours Spreadsheet records that on 29 November 2022 CRU was confined to his cell for six hours and 22 minutes as follows:[99]
(a)7.45 am to 12.00 pm for good order - a detainee had been threatening staff (four hours and 15 minutes);
(b)12.00 pm to 12.30 pm for a staff break (30 minutes);
(c)12.45 pm to 1.00 pm for a staff meeting (15 minutes);
(d)4.00 pm to 5.02 pm for good order (one hour and two minutes); and
(e)6.40 pm to 7.00 pm for good order (20 minutes).
[99] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO 29 and MO 30', 421 ‑ 425.
The Activity Sheet records that CRU engaged in the following activities on 29 November 2022:[100]
(a)between 1.10 pm and 2.10 pm he had an appointment with a psychologist;
(b)between 2.10 pm and 2.35 pm he had recreation on the wing and access to make phone calls;
(c)between 2.35 pm and 2.55 pm he had recreation in the yard and access to make phone calls;
(d)between 2.55 pm and 4.00 pm he had recreation on the wing and access to make phone calls - it is recorded that at 4.00 pm CRU made a request to go to his cell; and
(e)between 6.25 pm and 6.35 pm he had recreation on the wing and had access to make phone calls.
[100] Supplementary affidavit of Melanie Brooke O'Connell sworn 4 April 2023 in CIV 2288 of 2022, 'Attachment MO 8', 24 - 26.
There is no telephone log for 29 November 2022. Based on that I infer that CRU made no telephone calls that day.
I will assume that CRU was seen by the psychologist in his cell.
The state of the evidence is such that it is difficult to make firm findings. CRU deposed that he was not confined in his cell for two hours in the morning but the records suggest that he was confined during those hours. I think it likely that CRU was confined to his cell in the morning but was not confined to his cell after being seen by the psychologist and before he requested that he go to his cell. I think it is likely that he was allowed out of his cell again between just after 5.00 pm and 6.40 pm. On that basis CRU was out of his cell during the day on 29 November 2022 for approximately three hours 40 minutes (two hours between approximately 2.00 pm and 4.00 pm and one hour 40 minutes between approximately 5.00 pm and 6.40 pm) and had he not chosen to go to his cell at 4.00 pm he would have been allowed out of his cell for approximately four hours and 40 minutes. I am not satisfied that CRU was unlawfully confined on 29 November 2022.
No exercise dates
The respondents conceded that CRU was not provided one hour of exercise on 9, 12 December 2022, 20 and 21 January 2023. There is a dispute as to whether CRU was provided one hour of exercise on 10 and 11 December 2022 but as it is not in dispute that CRU's confinement on 10 December 2022 was unlawful because of the absence of an order for confinement it is only necessary to consider whether CRU was provided with one hour of exercise on 11 December 2022.
CRU's evidence about 11 December 2022 was as follows:[101]
14.On Sunday 11 December 2022 I was only allowed out of my cell for 10 minutes to make a phone call.
[101] Supplementary affidavit of CRU sworn 13 December 2022 [14].
The Lockdown Hours Spreadsheet records that on 11 December 2022 CRU was confined to his cell for eight hours and 30 minutes as follows:[102]
(a)7.45 am to 9.55 am for 'good order, safety, and security of the facility. Breakfast preparation, serving of breakfasts and RAT tests. Low staffing levels' (two hours and 10 minutes);
(b)9.55 am to 10.10 am for 'good order, safety, and security of the facility. Staffing levels and individual management of detainees due to Incidents yesterday and COVID' (15 minutes);
(c)10.35 am to 12.00 pm for 'good order, safety, and security of the facility. Staffing levels and individual management of detainees due to Incidents yesterday and COVID' (one hour and 25 minutes);
(d)12.00 pm to 12.30 pm for good order for 'lunch prep and feeding with staff shortages and COVID protocols' (30 minutes);
(e)12.30 pm to 1.00 pm for a staff break (30 minutes);
(f)1.00 pm to 3.25 pm for 'good order, safety, and security of the facility. Staffing levels and individual management of detainees due to Incidents yesterday and COVID' (two hours and 25 minutes);
(g)4.00 pm to 4.30 pm for a staff break (30 minutes); and
(h)4.30 pm to 5.15 pm for good order for 'evening meal prep, serving meals, COVID protocols and canteen/phone slips completed' (45 minutes).
[102] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO 29 and MO 30', 421 ‑ 425.
The only activities involving CRU being out of his cell recorded on the Activity Sheet for 11 December 2022 were:[103]
(a)10.10 am to 10.15 am for cell and/or wing clean (it is not specified where the clean occurred);
(b)10.15 am to 10.35 am for recreation in wing and phone calls; and
(c)3.25 pm to 4.05 pm for recreation in wing and phone calls.
[103] Affidavit of Melanie Brooke O'Connell sworn 20 December 2022, 'Attachment MO 35', 499 - 501.
Based on the Activity Sheet CRU was confined in his cell for all but approximately one hour on 11 December 2022. I find that he was not accorded his entitlement to exercise on 11 December 2022 and that his confinement in his cell on that day was unlawful.
Relief
Declaratory relief
The respondents did not dispute that the court should declare the confinement of the applicants unlawful if no order under reg 74(2) had been made authorising the periods of confinement the subject of the applications or if the applicants had not been permitted to exercise in accordance with reg 79(4). I will hear from the parties as to the final form of the declarations.
Orders of prohibition and injunctive relief
There was no material difference between the orders sought by OPS and HBS in their respective further amended applications. It is sufficient to reproduce the orders sought by OPS. They are as follows:
3.An order of absolute prohibition against the second respondent prohibiting her (including through her delegates or agents), until the applicant is released from detention or such further order, from confining the applicant to his sleeping quarters in order to maintain good government, good order or security in a detention centre, unless the second respondent or her delegate has made an order pursuant to regulation 74(2) of the Young Offenders Regulations 1995 (WA) or an order has been made under section 11B(d) of the Young Offenders Act 1994 (WA).
4.An order of absolute prohibition against the second respondent prohibiting her (including through her delegates or agents), until the applicant is released from detention or such further orders, from confining the applicant to his sleeping quarters pursuant to confinement orders under regulation 74(2) of the Young Offenders Regulations 1995 (WA) without providing him with access to at least one hour of exercise each 6 hours during unlock hours.
OR, in the alternative to proposed orders 3 and 4:
5.An injunction restraining the second respondent (including through her delegates or agents), until the applicant is released from detention or such further order, from confining the applicant to his sleeping quarters in order to maintain good government, good order or security in a detention centre, unless the Second Respondent or her delegate has made an order pursuant to regulation 74(2) of the Young Offenders Regulations 1995 (WA) or an order has been made under section 11B(d) of the Young Offenders Act 1994 (WA).
6.An injunction restraining the Second Respondent (including through her delegates or agents), until the applicant is released from detention or such further orders, from confining the applicant to his sleeping quarters pursuant to confinement orders under regulation 74(2) of the Young Offenders Regulations 1995 (WA) without providing him with access to at least one hour of exercise each 6 hours during unlock hours.
The competing arguments
The competing arguments may be summarised as follows. The contentions of OPS and HBS are to the following effect:
(a)They have demonstrated that there have been departures from the procedures specified in the Regulations and in those circumstances a writ of prohibition will issue 'almost as of right' although the court retains a discretion to refuse relief if that seems the proper course.
(b)There are no relevant discretionary considerations that justify a refusal of relief.
(c)The declaration made in VYZ had no effect on the respondents' practice of unlawfully confining the applicants therefore the court should exercise its coercive powers.
(d)The respondents complied with the Regulations when the superintendent was required to report to the court pursuant to the 23 December 2022 orders but following the expiry of the reporting periods there have been occasions on which the applicants were deprived of their entitlement to exercise. OPS and HBS contend that the respondents appear to regard the entitlement to exercise as optional.
(e)There is no evidence of any change in staffing or resources and the causes of prolonged periods of confinement remain.
(f)If the unlawful confinement continues HBS and OPS are at risk of serious injury and that risk outweighs any other factors that favour refusing relief.
(g)The alternative remedy of an injunction may be granted where, as in these cases, a decision-maker has exceeded the relevant statutory authority.
(h)Injunctive relief is sought to protect the legal rights of OPS and HBS and there is a strong probability that their rights will be infringed. Damages would not be an adequate remedy.
The respondents' contentions are to the following effect:
(a)The precise ambit of the power conferred by s 11B(d) of the Act cannot be defined and the power conferred by reg 74(2) is a broad discretionary power. The exercise of the powers depend on a range of factors and the court should not make a prohibition order or grant an injunction directed to the exercise of those powers in the abstract.
(b)The applicants appear to accept that there is now compliance with the requirement that an order be made under reg 74(2) if a superintendent determines that a detainee should be confined to his or her sleeping quarters and thus to that extent the relief sought by OPS and HBS is not required.
(c)The evidence demonstrates an intention to comply with the law, compliance with the law and an intention to maximise the time detainees spend outside their cells. When OPS and HBS have been deprived of their entitlement to exercise this has been the result of supervening events of the nature described in Ms Lancaster's evidence.
(d)There are practical difficulties involved in the imposition of an injunction on the superintendents. First, the power to make an order confining a detainee to his or her cell under s 11B(d) of the Act may be exercised by persons other than the superintendent. Second, the power under reg 74(2) can be exercised by any person to whom the superintendent has delegated power. Third, the superintendent cannot be at a detention centre at all times and while she can respond to episodes of non-compliance she is not in a position to ensure that the exercise requirement is complied with in respect of each and every detainee at all times.
(e)In the circumstances it is neither just nor expedient to render the superintendent criminally responsible by way of contempt as a result of the failure of others to comply with the Act and the Regulations.
(f)The nature of decision-making in a detention centre weighs against the grant of an injunction. The discretion to grant an injunction should be exercised in the context of specific decisions rather than generally where it is impossible for the court to assess the multitude of circumstances in which confinement may be required.
(g)The requirement of certainty in the expression of the court's orders is not met.
(h)It is just that OPS and HBS be confined to their remedies in damages.
(i)It is unnecessary for the court to make any order directing the respondents to comply with the law as they are in any case bound to do so and if they do not OPS and HBS have their remedies.
Consideration and disposition
In the light of the evidence that the practice of confining detainees without an order of the superintendent being made under reg 74(2) appears to have stopped and the evidence of Ms Ginbey, Ms O'Connell and Ms Lancaster of the steps taken to improve practices at the detention centres notwithstanding the operational difficulties they have described, the considerations bearing on whether to grant relief of the nature sought by OPS and HBS are finely balanced. In addition to considering whether OPS and HBS should be confined to the remedy of declaratory relief I have considered, as a potential alternative, the grant of some lesser form of injunctive relief (along the lines of the orders made on 23 December 2022) designed to highlight and expose to public scrutiny any future non-compliance with the Regulations, the rationale being that the prospect of exposure to public scrutiny is an effective preventative measure.
The decision has been a difficult one but I have come to the conclusion that injunctive relief substantially as sought by OPS and HBS should be granted. The factors that taken together have led me to exercise my discretion in favour of OPS and HBS are as follows.
The essential principle underpinning the approach to relief in applications of this nature was summarised by Gaudron J in Corporation of the City of Enfield v Development Assessment Commission: [104]
Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less. (citations omitted)
[104] Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 [56] (Gaudron J).
OPS and HBS are at risk of being the subject of non-compliance with the Regulations in the future and that being so the principle summarised by Gaudron J supports the grant of relief. To refuse relief may be perceived as tacit acquiescence by the court in a failure to administer the Act and the Regulations as Parliament intended.
As to the form of the relief, Gaudron J observed:[105]
As already indicated, the prerogative writs are not wholly effective as general public law remedies. Nor, perhaps, are equitable remedies which, in the absence of legislative provision to the contrary, are available only at the suit of a person with a direct or special interest in the subject matter in question. However, equitable remedies have long had a role to play in public law. And, because of the limitations and technicalities which beset the prerogative writs, that role is a continuing and important one. (citations omitted)
[105] Corporation of the City of Enfield v Development Assessment Commission [57] (Gaudron J).
The flexibility offered by the grant of injunctive relief makes it the preferable form of relief.
These applications concern the health and welfare of OPS and HBS. What is in their best interests is the factor to which most weight must be given in the consideration of the relief to be granted.
As explained earlier, granting the relief sought by OPS and HBS will not prevent them from being confined in their cells for prolonged periods due to rolling lockdowns in the future. This is not a reason to refuse the relief they seek. To the contrary the issue of relief must be approached on the basis that the power to confine conferred by reg 74(2) is an exceptional power, but if it is exercised, detainees must have the full benefit of the safeguards incorporated in reg 79. In this respect the evidence adduced by the applicants leaves no room for doubt that prolonged confinement due to rolling lockdowns causes serious harm to the physical and psychological health of detainees. OPS and HBS are young people and if the court can grant injunctive relief that reduces, even if it is only a small reduction, the risk to their health, then it should do so. Damages are plainly not an adequate remedy.
Relatedly, the grant of injunctive relief serves to emphasise that regular periods of prolonged confinement are not to be regarded as the norm and that allowing detainees out of their cells to exercise is not to be regarded as an aspiration rather than a statutory requirement.
With all respect to Ms Ginbey, Ms O'Connell and Ms Lancaster and the efforts made by them to address the systemic issues affecting the detention centres, the scale of past non-compliance with the requirements of the Regulations and the difficulties highlighted by Ms Lancaster in ensuring that detainees are provided with their entitlement to exercise leads me to conclude that there is a real risk that there will be occasions in the future on which OPS and HBS, when confined pursuant to an order made under reg 74(2), will not be provided with their reg 79(4) entitlement to exercise. I stress again the entitlement to exercise conferred by reg 79(4) is an absolute entitlement and not subject to any implied limitations. As I said earlier this may appear harsh, but it is not sufficient for the superintendents and their staff to do their best in difficult circumstances - the requirements of the Regulations must be observed.
I appreciate that as recently appointed superintendents, Ms Lancaster and Mr Coyne have inherited very difficult situations that are not of their making but they are the persons who are in charge of the detention centres. Further, the first respondent, under the direction of the Minister, is subject to the duty to carry into operation the provisions of the Act so far as that duty is not committed to any other person. In short, the respondents have statutory responsibilities and must administer the detention centres in accordance with the Act and the Regulations and in that endeavour they are supported by the resources of the State.
That the granting injunctive relief exposes the superintendents to the risk of contempt proceedings is not a matter to be regarded lightly. It is a factor that weighs in favour of a less coercive approach especially as the superintendents are inevitably required to rely on others. In my judgment, however, that factor is outweighed by the risk to the health and safety of OPS and HPS if the safeguarding requirements of the Regulations are not observed. Further, the superintendents are in a position to control the risk of non-compliance with the Regulations.
I am concerned the terms of the proposed injunctions in so far as they seek to restrain 'the second respondent (including through her delegates or agents)' gives rise to the risk that the superintendents may be liable for a breach of the injunctions for which responsibility lies with a person to whom the powers under reg 74(2), reg 78(2) and reg 79(5) have been delegated. This risk would be avoided if the injunctions were expressed to bind the delegates independently of the superintendents. It is, of course, very rare for a court to grant an injunction that binds persons who are not parties. In the unusual circumstances of this case, where the power to delegate has been exercised in favour of those who hold the positions specified in the instrument of delegation as distinct from named individuals and where the delegates and the superintendents are part of one organisational structure with there being no relevant distinction between their interests, framing the injunctions in terms that expressly and directly bind the delegates creates less risk of an injustice than exposing the superintendents to liability for contempt for a breach for which a delegate was responsible. That said, those to whom the powers have been delegated will be given leave to apply to vary or discharge the injunctions.
I do not accept that the grant of injunctive relief sought by OPS and HBS impinges on the discretionary decision-making that the superintendents are required to undertake in the daily management of the detention centres. The injunctions sought would not affect the making of a decision to order that a detainee be confined to his or her cell pursuant to reg 74(2). They are limited in their effect. They are directed to ensuring, first, that a superintendent does not purport to confine a detainee in his or her cell for a prolonged period without making an order pursuant to reg 74(2) and, second, that if such an order is made the entitlement to exercise is observed.
I do not accept that the reference in the injunctive relief sought by OPS and HBS to the possibility of a custodial officer making an order under s 11B(d) impinges on the operational discretions of the superintendents or their staff. It does not purport to regulate the exercise of that power in any way. It merely acknowledges that it exists. As I said in VYZ the precise ambit of the power conferred by s 11B(d) cannot be defined but it is not an alternative source of authority for confining detainees in their cells for prolonged periods. Nor can the exercise of the power conferred by s 11B(d) be invoked as a source of lawful authority for depriving a detainee of his or her entitlement to exercise in accordance with reg 79(4).
Conclusion
Subject to hearing from the parties, the form of the injunctive relief that will be granted in each case will be as follows:
1.An injunction restraining:
(a)the second respondent whether by herself of her agents, and
(b)those persons to whom the powers conferred by regulations 74(2), 78(2) and 79(5) of the Young Offenders Regulations1995 (WA) whether by themselves or their agents,
until the applicant is released from detention or such further order, from confining the applicant to their sleeping quarters in order to maintain good government, good order or security in a detention centre, unless the second respondent or her delegate has made an order pursuant to regulation 74(2) of the Young Offenders Regulations 1995 (WA) or an order has been made under section 11B(d) of the Young Offenders Act 1994 (WA).
2.An injunction restraining:
(a)the second respondent whether by herself or her agents, and
(b)those persons to whom the powers conferred by regulations 74(2), 78(2) and 79(5) of the Young Offenders Regulations 1995 (WA) whether by themselves or their agents,
until the applicant is released from detention or such further orders, from confining the applicant to their sleeping quarters pursuant to confinement orders under regulation 74(2) of the Young Offenders Regulations1995 (WA) without providing them with access to at least one hour of exercise each 6 hours during unlock hours.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
11 JULY 2023
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