VYZ BY Next Friend XYZ v Chief Executive Officer of the Department of Justice
[2022] WASC 274
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: VYZ BY NEXT FRIEND XYZ -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE [2022] WASC 274
CORAM: TOTTLE J
HEARD: 14 JULY 2022
DELIVERED : 25 AUGUST 2022
FILE NO/S: CIV 1644 of 2022
BETWEEN: VYZ BY NEXT FRIEND XYZ
Applicant
AND
CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT OF JUSTICE
First Respondent
WADE REID
Second Respondent
Catchwords:
Administrative law - Judicial review - Whether confinement of detainee to his sleeping quarters authorised by Young Offenders Act 1994 (WA) - Whether declaratory relief should be granted - Confinement not authorised by Young Offenders Act 1994 (WA) - Declaratory relief granted
Legislation:
Bail Act 1982 (WA), sch 1, pt C, cl 2
Court Security and Custodial Services Act 1999 (WA), s 3, s 15(2), s 16(2)(b), s 25(1)(d), s 31, s 90(2)(g), sch 2, cl 12
Prisons Act (Qld), s 15, s 16
Prisons Act 1981 (WA), s 43
Work Health and Safety Act 2020 (WA), s 19, s 20
Young Offender Regulations 1995 (WA), reg 73, reg 74, reg 75, reg 76, reg 77, reg 78, reg 79, reg 90
Young Offenders Act 1994 (WA), s 3, s 5, s 6, s 7, s 9, s 10, s 11B(d), s 11C, s 11D, s 13, s 15(1), s 16(1)(a), s 19, s 21, s 155, s 168, s 169, s 169A, s 170, s 171, s 172, s 173(2)(e), s 179(5), s 181, s 188(2), s 196(2)(e), s 197(1)
Result:
Application granted
Declaration made
Category: A
Representation:
Counsel:
| Applicant | : | M Georgiou |
| First Respondent | : | CJ Thatcher SC |
| Second Respondent | : | CJ Thatcher SC |
Solicitors:
| Applicant | : | Aboriginal Legal Service - Perth |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1
Barreto v McMullan [2013] WASC 26
Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089
Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378
Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719
Mohammadi v Bethune [2018] WASCA 98
Rich v Scaife [2012] VSCA 92
Sleiman v Commissioner of Corrective Services [2009] NSWSC 304
Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317
Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278
Wilson v Francis, Minister for Corrective Services for the State of Western Australia [2013] WASC 157
TOTTLE J:
Introduction
The applicant was detained on remand in the Banksia Hill Detention Centre (the Detention Centre) between 20 January and 19 July 2022. While so detained there were days on which the applicant was locked in his cell for periods of more than 20 hours and, on some days, for between 23 and 24 hours. The applicant was 14 years of age when remanded and turned 15 years of age on 9 March 2022.
The applicant applied for a declaration that locking him in his cell on the days specified in the application was not authorised under the Young Offenders Act 1994 (WA) (the Act) and was thus unlawful.[1] The applicant was not locked in his cell for any breach of discipline.
[1] Amended application for judicial review filed 14 July 2022.
For the reasons set out below I have concluded that the Act did not authorise the respondents to lock the applicant in his cell on the days specified in the application and I will make a declaration to that effect.
The evidence
The parties agreed many of the facts.[2] Nevertheless both sides relied on affidavit evidence which elaborated on the central facts. The applicant relied on an affidavit sworn by him on 22 June 2022 and on an affidavit sworn by his solicitor, Ms Eloise Langoulant on 23 June 2022. The respondents relied on an affidavit affirmed by the second respondent, Mr Wade Reid, on 11 July 2022 and on an affidavit affirmed by Ms Christine Ginbey, the Acting Deputy Commissioner Women and Young People, Department of Justice on 12 July 2022. Many of the powers of the first respondent under the Act have been delegated to Ms Ginbey.[3] Ms Ginbey is a member of the Banksia Hill Risk Management group, a group of senior officers of the Department which monitors conditions in, and the management of, the Detention Centre.
[2] Statement of agreed facts filed 8 July 2022.
[3] Affidavit of Christine Ginbey affirmed on 12 July 2022, CG1.
Mr Reid attached to his affidavit the records of the time spent by the applicant in his cell on the days specified in the application. Much of Mr Reid's evidence, however, was directed to the operational problems which had necessitated the practice of 'rolling-lockdowns' at the Detention Centre and the steps taken to address those problems. Ms Ginbey's evidence was directed to the same issues. In addition, Ms Ginbey gave evidence of the steps being taken by the State Government to address the operational problems and improve the conditions at the Detention Centre.
Objection was taken to much of the evidence of Mr Reid and Ms Ginbey on the ground that it was irrelevant to the relatively narrow issues raised by the application - predominantly issues of statutory construction. While there is some force in the applicant's objections, the lawfulness of the impugned conduct cannot be divorced from the context in which it occurs - importantly it cannot be divorced from the causes of the conduct. The scope of relevant evidence cannot be delineated with precision and in assessing relevance some latitude is to be afforded to the respondents. In this respect, it may be observed that Ms Langoulant's evidence also dealt with matters of background that extended beyond what was directly relevant to the applicant.
I will admit the evidence of Mr Reid and Ms Ginbey to which relevance objections were made by the applicant in so far as the evidence provides an explanation of the operational problems that resulted in the applicant and other detainees being 'locked down' for long periods. I will strike out those paragraphs which comment in general terms on the social and psychological backgrounds of the detainees. I will also strike out those paragraphs which explain the steps being taken to address the operational problems identified in the evidence. That is not to diminish the importance of those steps in the broader public policy context, but they are not relevant to the lawfulness of the past conduct which is the subject of the application. In addition, I will strike out those paragraphs of Mr Reid's affidavit which contain evidence of the applicant's criminal history and evidence of his conduct while detained at the Detention Centre - none of this evidence explains why the applicant was 'locked-down'. As noted earlier, it is not contended that the applicant was locked in his cell because he had committed a disciplinary offence. On that basis:
(a)I will strike out paragraphs 25, 122, 126, 127 - 129, 131, 132 and 141 of Mr Reid's affidavit; and
(b)I will strike out paragraphs 12 - 23, 70 - 122 of Ms Ginbey's affidavit.
The facts
The Detention Centre is a 'detention centre' for the purposes of s 13 of the Act.[4] It is the only detention centre for children and young people in Western Australia.
[4] Western Australia, Government Gazette, No 9 (22 January 2013) 236.
Mr Reid has been the superintendent, that is the person in charge of the Detention Centre, since 1 November 2021.
The Detention Centre consists of an entry gatehouse area, two main administration blocks, (official and social visits building), a gymnasium, admissions building, health centre and multiple living units. There are nine general living units. There is also an 'Intensive Support Unit' (ISU), a multi-purpose unit which houses detainees with issues including those at risk of self-harm, and detainees who require a higher level of supervision, care and observation.
Each standard living unit has a number of wings. Within each wing there are cells,[5] a recreation room with a lounge area, a telephone, a table tennis table and a food preparation area, an adjacent yard, a laundry, and a staff control room. Each cell has a toilet, hand basin, television, cell call button, window, shelf, desk, and (with the exception of the ISU and one other unit) a shower.
[5] In the Act the rooms within which detainees sleep are referred to as 'sleeping quarters'. In the evidence the terms 'sleeping quarters' and 'cell' were used interchangeably and I followed that approach in these reasons.
Two of the standard living units within which the applicant was housed are known as Karakin and Jasper. Each of these units has three wings, each containing eight cells.
The ISU has four wings. The ISU A and C wings are designated general living wings for detainees requiring a higher level of supervision and engagement. Personal Support Plans are prepared in relation to these detainees with the object of facilitating their transition back into the mainstream accommodation units. Mr Reid attached to his affidavit extracts from the Personal Support Plan prepared in respect of the applicant. The ISU A and C wings may also house detainees who have opted to be placed or remain in ISU for personal, psychological, or physical reasons. The ISU B wing contains observation cells which provide staff with 'direct line of sight' to detainees housed within them. The ISU D wing is used for the short-term placement of detainees.
The number of detainees in the Detention Centre fluctuates. On 8 June 2022 there were 116 detainees, 106 were male (79 on remand and 27 sentenced) and 10 were female (eight on remand and two sentenced).
The timetable followed on a 'normal' weekday at the Detention Centre is as follows. Cells are unlocked at 7.45 am following which detainees have breakfast and attend to various chores. Between 9.00 am and 3.00 pm education services are provided. Between 3.00 pm and 6.45 pm detainees engage in a 'unit program' consisting of sports, movies, board games and other scheduled activities. The process of locking detainees in their cells commences at 6.45 pm and detainees are locked in their cells by 7.00 pm - thus detainees are locked in their cells overnight for approximately 13 hours. Detainees are also locked in their cell for a period each day for staff breaks (generally two 40-minute periods). Once a week, usually on Fridays, detainees are also locked in their cell for two and a half hours to facilitate staff training.
Between 21 January 2022 to 23 February 2022 the applicant was placed in the Karakin Unit. The applicant deposed:
While I was in Karakin Unit there were rolling lockdowns most days. By lockdown I mean that I had to stay in my cell all day and night and would only be allowed out for about 10 - 30 minutes each day to make a phone call. They are called rolling lockdowns because they 'roll' through the wings, letting each person up for just enough time to make a phone call.
Whenever I was allowed out of my cell to make my phone call, I was not allowed to go outside or leave the wing. I would just use the phone in the wing, and then go back to my cell. Then the next boy would be allowed up to make his call.
I accept the applicant's description of 'rolling lockdowns'. It may be noted that on days on which there were rolling lockdowns although the applicant was allowed out of his cell for a short time to make a telephone call he was not allowed out of the Karakin unit itself.
Mr Reid attached to his affidavit a table containing the number of 'lockdown minutes', being the time spent by the applicant locked in his cell during daytime hours (7.45 am to 6.45 pm) when the applicant was in the Karakin Unit. The table set out beneath this paragraph reproduces that information. I find that on the days listed in the table the applicant was locked in his cell for the hours set out in column 4 of the table. The bold typeface highlights the days on which the applicant was locked in his cell for more than 20 hours. It may be noted that the applicant was locked in his cell for long hours on successive days. Between 4 and 6 February 2022 the records show that the applicant was locked in his cell for approximately 70 of 72 hours. Mr Reid attached to his affidavit Daily Executive Summaries prepared in relation to the operation of the Detention Centre. These contained details of the numbers of custodial officers required to operate the Detention Centre that day and the number of custodial officers on duty. The days on which the applicant was locked in his cell for long hours correspond to the days on which there were severe shortages of staff and staff shortages were the primary cause of the applicant being locked in his cell on those days.
Date Scheduled nightly lockdown hours (hours) Daytime lockdown hours (hours) Total (hours) 21 Jan 2022 13 10.50 23.50 22 Jan 2022 13 6.08 19.08 23 Jan 2022 13 7.98 20.98 24 Jan 2022 13 2.33 15.33 25 Jan 2022 13 3.16 16.16 26 Jan 2022 13 1.83 14.83 27 Jan 2022 13 6.98 19.98 28 Jan 2022 13 7.81 20.81 29 Jan 2022 13 9.25 22.25 30 Jan 2022 13 8.25 21.25 31 Jan 2022 13 9.91 22.91 1 Feb 2022 13 11.00 24.00 2 Feb 2022 13 5.00 18.00 3 Feb 2022 13 5.66 18.66 4 Feb 2022 13 9.33 22.33 5 Feb 2022 13 11.23 24.00 6 Feb 2022 13 11.23 24.00 7 Feb 2022 13 3.33 16.33 8 Feb 2022 13 1.33 14.33 9 Feb 2022 13 3.33 16.33 10 Feb 2022 13 8.41 21.41 11 Feb 2022 13 9.41 22.41 12 Feb 2022 13 7.16 20.16 13 Feb 2022 13 7.50 20.50 14 Feb 2022 13 1.08 14.08 15 Feb 2022 13 3.00 16.00 16 Feb 2022 13 7.25 20.25 17 Feb 2022 13 4.83 17.83 18 Feb 2022 13 10.00 23.00 19 Feb 2022 13 9.06 22.06 20 Feb 2022 13 7.56 20.56 21 Feb 2022 13 8.08 21.08 22 Feb 2022 13 3.33 16.33 23 Feb 2022 13 6.06 19.06
On the afternoon of 23 February 2022 the applicant was moved to the ISU. On 23 February 2022 the applicant was allowed out of his cell in the ISU between approximately 4.00 pm and 5.30 pm for recreation in the ISU yard. There was a severe shortage of staff in the ISU on 23 February 2022.
On 25 February 2022 the applicant was locked in his cell for approximately 22 hours and 25 minutes. At about 9.00 am he was allowed out of his cell for 75 minutes, which he spent in the unit yard and at about 1.40 pm he was allowed out of his cell for approximately 20 minutes for a shower.[6] The applicant had his breakfast, lunch and dinner in his cell. The 'Comments' section of the applicant's Personal Support Plan contained the following notes:
Note: Due to staff shortages and staff training out of cell times have been impacted.
…
Note: Due to a serious staff assault in the ISU already low staffing numbers have reduced which has drastically affected out of cell time for all ISU detainees.
[6] Affidavit of Wade Raymond Reid affirmed on 11 July 2022, Attachment WR-18, 214 - 216.
On 26 February 2022 the applicant was locked in his cell for approximately 23 hours and 30 minutes. At about 11.00 am he was allowed out of his cell for approximately 30 minutes for a shower.[7] The 'Comments' section of the applicant's Personal Support Plan contained the following note:
Due to staffing numbers all activity in Awing, Bwing, Cwing, and Dwing today will be delayed and restricted significantly in regards to cell cleans, showers, time out of cell and exercise yard time.
[7] Affidavit of Wade Raymond Reid affirmed on 11 July 2022, Attachment WR-18, 217 - 218.
On 27 February 2022 the applicant was locked in his cell for approximately 23 hours 30 minutes. At 11.35 am he was allowed out of his cell for approximately 15 minutes and at 2.45 pm he was allowed out of his cell to make a phone call for 15 minutes.[8] The 'Comments' section of the applicant's Personal Support Plan contained the following note:
Due to critical short staffing levels, several cells and areas out of order, rolling lock downs will be conducted in ISU today.
[8] Affidavit of Wade Raymond Reid affirmed on 11 July 2022, Attachment WR-18, 219 - 221.
On 11 March 2022 the applicant's solicitor submitted a complaint about the conditions in ISU and the Karakin Unit to the Department of Justice - Deputy Commissioner for Women and Young People.[9] A major focus of the complaint was the amount of time that the applicant was locked in his cell. This aspect of the complaint was expressed as follows:[10]
·During a 'lockdown' day, [VYZ] will only be permitted out of his cell for a very limited time, 45 minutes or less. The remainder of the day is spent in his cell, and he eats all of his meals in his cell.
·On these days, the young people will often be required to do chores as part of their 45 minutes out of their cell. This includes sweeping and mopping the wing. If the young people refuse to do these chores, they are returned to their cell.
·Some days, [VYZ] is only allowed to leave his cell for 10 minutes to make a telephone call and then he is returned to his cell. On these days, he does not spend any time with the other boys from his unit, as they are only allowed out of their cell one at a time. During these brief periods out of his cell, the officers do not speak to [VYZ] beyond saying 'be good, behave'. If [VYZ] asks to be allowed to make a second telephone call, the officers say 'no'.
·While the unit is in lockdown, [VYZ] does not attend school or receive any education. The teacher does not come to the unit. [VYZ] has been to school only four or five times in total during his current period at BHDC, and on some of those occasions, he has been given 'colouring in and art' to do.
·When the unit is lockdown, [VYZ] does not have any conversations with the officers. They will sometimes say things through the door to him and then walk away.
·Being locked down in his cells for such long periods, for days at a time, makes [VYZ] feel 'mad', which often causes him to act out and get into trouble. When he has been in his cell all day, [VYZ] will 'feel like the walls are coming in at him' and his 'head starts spinning'.
·Previously, if [VYZ] requested to see the psychologist, he would always receive an appointment within a day or so. Recently, [VYZ] has asked to see his psychologist many times but he has only seen her once or twice.
[9] Affidavit of Eloise Langoulant sworn on 23 June 2022, EL07.
[10] Affidavit of Eloise Langoulant sworn on 23 June 2022, EL07.
On 25 March 2022 Mr Andrew Beck, Deputy Commissioner of Corrective Services responded to the complaint made on behalf of the applicant (and to similar complaints made on behalf of other detainees) and stated:[11]
In relation to the above complaints and requests for information, the Department is continuing to prioritise a response to your office at its earliest opportunity given the number of young people involved and the level of information requested.
I wish to take this opportunity to inform you of the progressive actions being undertaken at BHDC.
To drive service improvements and achieve better outcomes for young people, the Department has progressed a range of immediate actions to enable BHDC to facilitate an engaging and purposeful regime.
This includes, but not limited to the recruitment and training of 23 additional staff who commenced on site on 5 March 2022 with another 16 due to commence in April 2022. An additional three 3-month training programs are scheduled for 2022.
The identification, engagement, coordination and commencement with a variety of enrichment activities for all young people at BHDC continues to be pivotal in supporting their needs. These programs are in addition to a number of therapeutic programs and internal activities.
A key initiative being undertaken by the Department is the development of a new operational philosophy and service model for BHDC. This will be based on best practice and underpin a service delivery model that is contemporary for effective rehabilitation and reintegration of young people.
[11] Affidavit of Eloise Langoulant sworn on 23 June 2022, EL10.
From 6 April 2022 the applicant was placed in the Jasper Unit.
On 12 May 2022 detainees in the Jasper Unit were locked in their cells during the day for nearly 10 hours - approximately five of these hours was attributable to staff shortages, four to the management of an incident and one to staff breaks. At 8.18 am the applicant was allowed out of his cell for approximately 10 minutes to make a telephone call and at 10.21 am he was allowed out of his cell for approximately 10 minutes to make another telephone call. At 2.38 pm the applicant damaged his cell and was moved to the ISU. The applicant did not leave his cell in the ISU for the remainder of the day.
The applicant's explanation for his conduct on 12 May 2022 is instructive, albeit his recollection that he was allowed out for one 10 minute telephone call as opposed to two 10 minute telephone calls may (understandably) be incorrect. The applicant deposed:[12]
On Thursday 12 May I was locked down all day except for 10 minutes when I was allowed out to make a phone call. I became so upset and frustrated that I smashed up my cell. I was told there were lockdowns because some of the other boys at BHDC climbed on the roof. Because I smashed up my cell, I was moved to the ISU.
[12] Applicant's affidavit sworn on 22 June 2022 [18].
On 12 May 2022 there was a 'critical incident' in the ISU involving a detainee assaulting three custodial officers.
On 15 May 2022 the applicant was locked in his cell for approximately 23 hours and 20 minutes. He was allowed out of his cell to have breakfast and make a phone call between approximately 10.15 am to 10.55 am.[13] The applicant's Personal Support Plan contains the following note:
1230 - Authorised by the deputy super . . . to keep everyone in the Intensive support Unit locked in their cells for the remainder of the day.
…
1915 - Due to incidents at the centre. The detainees are yet to be fed. They will be shortly.
[13] Affidavit of Wade Raymond Reid affirmed on 11 July 2022, Attachment WR-20, 234 - 236.
On 12 June 2022 the applicant was locked in his cell for 23 hours. He was allowed out of his cell to have breakfast, to clean his cell and to make phone calls between 9.45 am and 10.45 am.[14] The applicant's Personal Support Plan contains the following note:
**Out of cell hours effected [sic] due to staff shortages and ongoing incidents** Please note that continuous welfare checks were impossible to complete throughout the day due to all the inoperable cameras and staff shortages**
[14] Affidavit of Wade Raymond Reid affirmed on 11 July 2022, Attachment WR-20, 237 - 239.
On 13 June 2022 the applicant was locked in his cell all day.[15] The applicant's Personal Support Plan for 13 June 2022 contains the following note:
Out of cell hours effected [sic] due to staff shortages, many Official visits to facilitate and multiple ongoing incidents.
Please note that continuous welfare checks were impossible to complete throughout the day due to all the inoperable cameras and staff shortages.
[15] Affidavit of Wade Raymond Reid affirmed on 11 July 2022, Attachment WR-20, 240 - 242.
The applicant remained in the ISU until 20 June 2022. In evidence which I accept, the applicant described his experience in the ISU as follows:[16]
Both times I was in ISU, when I was allowed out of my cell, I was not allowed to leave the wing or go outside. I would use the phone in the wing for my phone calls. The only time I would ever go outside was if I had to go up to Case Planning for court or to see my lawyer, or if l had to go to Medical. I'd just be walked there in cuffs, and afterwards, walked back to my cell in cuffs. If l was up before my lawyer came, then I would always be locked back down when I got back to the unit, like I'd used my out of cell time seeing my lawyer. This was the same, no matter which wing of ISU I was in.
In ISU, the windows in the wings are all screwed shut, so you can't even open them to let the breeze in. That's why we play up and kick the window out, to get outside. When we are on the roof, we say to the guards things like 'We did this because you wouldn't let us out'.
[16] Applicant's affidavit sworn on 22 June 2022 [22] - [23].
In effect the applicant and the other detainees were segregated from each other for the duration of the lockdown.
In her affidavit Ms Langoulant detailed concerns that the Aboriginal Legal Service of Western Australia (ALSWA) had expressed about the conditions at the Detention Centre from December 2021 onwards. Those concerns were raised with the Minister for Corrective Services, the Honourable Bill Johnston MLA and with the Corrective Services Deputy Commissioner Women and Young People. Ms Langoulant's evidence included references to the explanations given by the Department as to the underlying causes of the conditions at the Detention Centre and in particular to the difficulties created by staff shortages. I accept Ms Langoulant's evidence.
In his affidavit Mr Reid provided a detailed analysis of what he described as the 'Challenges faced at [the Detention Centre] since November 2021'. As evidenced by the references to staffing levels in the preceding paragraphs one of the most significant challenges was a shortage of staff. There were many days when the Detention Centre was operating with very significantly reduced staff numbers. I find that chronic staff shortages were the primary cause of the rolling lockdowns.
A further challenge identified by Mr Reid was the number of 'critical incidents'. 'Critical incidents' were incidents that resulted in a staff member or detainee requiring hospitalisation or requiring immediate or ongoing medical treatment or involved the use of a weapon or posed a significant threat to good order and security of a youth custodial facility or any person. Mr Reid deposed that in the first six months of 2022 there had been 251 critical incidents at the Detention Centre compared to 112 in the same period in 2021. The 251 critical incidents at the Detention Centre amounted to approximately 25% of the critical incidents at the State's prisons.
A further challenge identified by Mr Reid were the number of incidents of cell damage. Mr Reid deposed that in the first six months of 2022 there had been 530 incidents of cell damage at the Detention Centre compared to 260 incidents over the entire calendar year of 2021.
Mr Reid deposed that there had been an increasing number of incidents of detainees engaging in self-harm and assaults on staff and other detainees. Mr Reid deposed that there had been 35 assaults on staff and 127 other assaults in the first six months of 2022 compared to 37 assaults on staff and 201 other assaults for the entire calendar year of 2021.
I accept Mr Reid's evidence of the challenges he and the staff have faced in operating the Detention Centre. Mr Reid gave the following explanation, which I accept, of how in the light of the challenges identified by him decisions as to daily planning are made. He deposed:[17]
[17] Affidavit of Wade Raymond Reid affirmed on 11 July 2022.
111.Every morning, the Deputy Superintendent Operations will consult with Senior Officers and/or the Assistant Superintendent Operations and determine the routine to run the day.
112.Each weekday morning I usually discuss the staffing and regime with them, on the weekends I look at the [Daily Executive Summary Sheet 'DE Summaries'].
113.If there is anything out of the ordinary, the Deputy Superintendent Operations will consult with me.
114.These decisions involve consideration of what staff are available, and what court appearances, medical appointments and visits are booked, for example. There are things which are not negotiable and essential including court attendances, feeding detainees, providing medication, and making observations. After Staff are allocated to the range of essential services, we can start to allocate staff to letting the detainees out of the wing, having visits and recreation.
115.These decisions will be impacted by staff leave including COVID and whether there have been any critical incidents, as discussed above.
116.Unlocking detainees safely involves taking into consideration, amongst other things:
(a)Conflicts between detainees (including familial and cultural conflicts);
(b)Active incident management;
(c)Number of staff required to safely escort detainees;
(d)The high prevalence of roof ascent or assault incidents;
(e)Intelligence indicating a potential significant risk.
117.Because of the ongoing difficulties, there has been insufficient staff to facilitate the usual regime, and it has been necessary, based on the number of available staff, to make decisions to unlock detainees by wings or units or to lock detainees in their cells/sleeping quarters in order to provide the crucial services.
118.In the past 6 months, it has been necessary based on the number of staff to make decisions to lockdown detainees throughout the day, in order to be able to provide the crucial services.
. . .
120.A rolling lockdown generally consists of having one of the wings in a unit unlocked at a time, with the unlocked wing rotated over the course of the day on a rolling basis. For example, A wing would be unlocked from 8:00am to 9:00am, after which B wing would be unlocked from 9:00am to 10:00am and then C wing would be unlocked from 10:00am to 11:00am.
The Act
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 a superintendent, or other officer with custodial functions, appointed under section 11(1) or, a person who is appointed under section 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 section 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 section 4.
Section 4 provides:
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 sections 6 and 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.[18]
[18] 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.
Division 4 of pt 3 governs the management, control, security and wellbeing of young offenders. Although the expression 'young offenders' is used in the heading to div 4 of pt 3 of the Act, the expression is not defined in the Act. Based on the definition of 'young person' in s 3 and noting that the expression is used in provisions that appear to govern those who have been charged with offences as well as those who have been convicted, in my view, when used in the Act, the expression 'young offender' means a person who commits, or who allegedly commits, an offence before attaining the age of 18 years.
Section 11C provides:
11C. Use of force
(1) A custodial officer is authorised to use no more than prescribed force in the management, control and security of a facility or detention centre.
(2) A custodial officer must not use force on a young offender unless that force is used in the prescribed circumstances.
Section 11D provides:
11D. Use of restraints
(1) The chief executive officer, or a superintendent, may authorise and direct the restraint of a young offender where in his or her opinion such restraint is necessary —
(a) to prevent the young offender injuring himself or herself, or any other person; or
(b) upon considering advice from a medical practitioner, on medical grounds; or
(c) to prevent the escape of a young offender during his or her movement to or from a facility or detention centre, or during his or her temporary absence from a facility or detention centre.
(2) Restraint involving the use of medication must not be used on medical grounds unless the approval of a medical practitioner is obtained first.
(3) If restraint is used in relation to a young offender for a continuing period of more than 24 hours, the use and the circumstances must be reported as soon as practicable to the chief executive officer by the superintendent who has overall responsibility for the young offender at the time.
Section 13 provides that the Minister may declare a place to be a detention centre.
Part 4 of the Act governs young persons being held in custody before being dealt with for an offence. Section 19 provides:
19.Detention of young offenders apprehended by police
(1)The Commissioner of Police is to make rules, orders, or regulations under section 9 of the Police Act 1892 in respect of the apprehension of young persons for offences and their detention in custody and a member of the Police Force is to have regard to any such rules, orders, or regulations.
(2)A young person in custody who is not released on bail, whether or not bail has been refused under the Bail Act 1982, is, subject to subsection (3) and section 49, to be taken to and placed in a detention centre as soon as practicable after the person's apprehension.
(3)A young person may be held in the custody of the police until arrangements can be made for the person to be taken to and placed in a detention centre in accordance with subsection (2).
Section 21 provides that a young person may be detained in a detention centre during the period for which the person has been remanded by a court or on committal for trial. It provides:
21.Young person in custody awaiting trial
(1)Subject to the Bail Act 1982, a young person may be detained in a detention centre during the period for which the person has been remanded by a court, or during the period of the person's detention on committal for trial in the Supreme Court or the District Court.
(2)If a young person reaches the age of 18 years while detained in a detention centre as described in subsection (1), the court, upon the application of the chief executive officer, may direct that the person be transferred to a prison under the Prisons Act 1981 and treated as an adult prisoner on remand.
(Under the Bail Act 1982 (WA) a child has a qualified right to bail).[19]
[19] Bail Act 1982 (WA), sch 1, pt C, cl 2.
Part 9 of the Act regulates the operation of detention centres.
Sections 166 to 169A govern the appointment of visiting justices and the investigation of alleged incidents at a detention centre. Sections 170, 171 and 172 govern detention offences. Section 170 lists conduct constituting a detention offence. Section 171 establishes the procedure that must be followed in bringing and dealing with a charge of a detention offence. Section 171 confers a discretion on the superintendent as to how to deal with a detention offence. These include hearing and determining a charge for a detention offence or referring the charge to a visiting justice. The superintendent must refer the charge to a visiting justice if the detainee elects to have the matter dealt with by a visiting justice. Section 172 confers power on a visiting justice to hear a detention offence.
Section 173 governs the way in which a matter may be dealt with once either the detainee has admitted to a charge or the charge is found to be proved. The options are limited to giving the detainee a caution,[20] reprimanding the detainee,[21] altering the earliest release day for the detainee's sentence,[22] cancelling the detainee's gratuities[23] or:[24]
(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;
[20] Young Offenders Act 1994 (WA) s 173(2)(a).
[21] Young Offenders Act 1994 (WA) s 173(2)(b).
[22] Young Offenders Act 1994 (WA) s 173(2)(c).
[23] Young Offenders Act 1994 (WA) s 173(2)(d).
[24] Young Offenders Act 1994 (WA) s 173(2)(e).
Part 10 contains miscellaneous provisions including the power to make regulations which 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.[25]
[25] Young Offenders Act 1994 (WA) s 197(1).
The Young Offender Regulations 1995 (WA) (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 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:
75Application
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.
Regulation 80 governs the monitoring regime required for confinement imposed under r 79.
The application
The application was amended at the hearing. As amended, the grounds were expressed as follows:[26]
[26] Amended application for judicial review filed 13 July 2022; ts 40 - 42.
Date: 21 January to 27 February 2022
Where made or occurring: Banksia Hill Detention Centre
Written law governing: Young Offenders Act 1994 (WA) sections 173(2)(e) and 196(2)(e); Young Offenders Regulations 1995 (WA) regulations 74, 76, 78 and 79.
Description: On various dates 21 January to 27 February 2022, the applicant was confined to his sleeping quarters at the Banksia Hill Detention Centre when no order for confinement had been made. On at least 2 of those days, the applicant was confined to his cell all day except for 10 minutes of each day.
Date: 12 May 2022
Where made or occurring: Banksia Hill Detention Centre
Written law governing: Young Offenders Act 1994 (WA) section 173(2)(e) and 196(2)(e); Young Offenders Regulations 1995 (WA) regulation 74, 76, 78 and 79.
Description: On 12 May 2022 and on other dates, the applicant was confined to his sleeping quarters at the Banksia Hill Detention Centre when no order for confinement had been made.
Date: 15 May 2022
Where made or occurring: Banksia Hill Detention Centre
Written law: Young Offenders Act 1994 (WA) sections 173(2)(e) and 196(2)(e); Young Offenders Regulations 1995 (WA) regulations 74, 76, 78 and 79.
Description: On 15 May 2022, the applicant was confined to his sleeping quarters at the Banksia Hill Detention Centre when no order for confinement had been made.
Date: 12 to 13 June 2022
Where made or occurring: Banksia Hill Detention Centre
Written law governing: Young Offenders Act 1994 (WA) section 173(2)(e) and 196(2)(e); Young Offenders Regulations 1995 (WA) regulation 74, 76, 78 and 79.
Description: On 12 to 13 June 2022, the applicant was confined to his sleeping quarters at the Banksia Hill Detention Centre when no order for confinement had been made.
Overview of the opposing arguments
The applicant's principal contentions were to the following effect:
(a)While there is a general principle that decisions taken in the management and good governance of a prison may not always attract judicial review, an act done in breach of the authorising legislation will be reviewable.[27]
(b)The only circumstances in which it is lawful to confine a detainee to sleeping quarters is when an order has been made under s 173(2)(e) and div 2 of pt 9 of the Regulations ('detention confinement') or an order has been made under div 3 of pt 9 of the Regulations ('good government, good order or security confinement').[28]
(c)The existence of regimes for detention confinement and good government, good order or security confinement subject to limitations and qualifications negates the existence of a general power (unrestricted by such limitations and qualifications) to order confinement.[29]
(d)The terms of s 196(2)(e) specifying that regulations may be made 'conferring authority' on the 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 suggests that no such power is to be found in the Act, otherwise the regulation making power would be redundant.[30]
(e)An order for confinement of a detainee must either be in respect of detention confinement or good government, good order or security confinement. In either case, the order must be made in respect of a specific detainee, identify the specific place where the confinement is to occur and the express time limits and observe the mandatory requirements for breaks. In addition, in respect of an order for good government, good order or security confinement, the superintendent must inform the detainee of the reason for confinement.[31]
(f)Although there are no mandatory minimum 'unlock hours', having regard to the importance of the object of rehabilitation, the existence of mandatory requirements for fresh air, exercise and staff company in the case of detention confinement in addition to exercise in the case of good government, good order or security confinement, and the limitation on the superintendent's power to order confinement for a period of more than 24 hours – if a detainee is not the subject of a confinement order, the detainee may not be confined to their cells for 24 hours.[32]
(g)There is no room for presumptions in favour of the executive where the liberty of the subject is concerned, particularly, where the liberty of a child is in issue and given the objectives and principles of the Act and the importance attached to the rehabilitation of young offenders.[33]
(h)The power to make a confinement order under the Act and Regulations is to be contrasted with the power conferred on the chief executive officer to order the separate confinement of an adult prisoner and the requirement that an adult prisoner who is confined is to have the means of taking air and exercise for not less than one hour each day.[34]
(i)Section 11D of the Act governs the application of restraints such as handcuffs or shackles and does not confer power on the chief executive officer or the superintendent to order that a detainee be confined to sleeping quarters.[35]
(j)If the court holds that locking the applicant in his sleeping quarters in the manner alleged in the application is not authorised by the Act there is no reason in principle why a declaration to that effect should not be made. Rather there are compelling reasons for making a declaration.[36]
[27] Applicant's outline of submissions filed 12 July 2022 [34] - [35].
[28] Applicant's outline of submissions filed 12 July 2022 [43].
[29] Applicant's outline of submissions filed 12 July 2022 [36] - [37].
[30] Applicant's outline of submissions filed 12 July 2022 [44].
[31] Applicant's outline of submissions filed 12 July 2022 [47].
[32] Applicant's outline of submissions filed 12 July 2022 [55].
[33] Applicant's outline of submissions filed 12 July 2022 [38] - [39].
[34] Applicant's outline of submissions filed 12 July 2022 [50], [57]; Prisons Act 1981 (WA) s 43.
[35] Applicant's responsive submissions filed 13 July 2022 [3] - [13].
[36] Applicant's responsive submissions filed 13 July 2022 [14] - [20].
The respondents' principal contentions were to the following effect:
(a)Neither the Act nor the Regulations contain a provision that specifies that a detainee can only be locked in the detainee's sleeping quarters in accordance with div 2 and 3 of pt 9 of the Regulations.[37]
[37] First and second respondents' submissions filed 12 July 2022 [31].
(b)The term 'unlock hours' implies that there will be hours when a detainee is not able to leave the detainee's sleeping quarters without being confined under the terms of a confinement order as well as times when the detainee will be able to do so.[38]
[38] First and second respondents' submissions filed 12 July 2022 [36].
(c)The term 'restraint' as used in s 11D connotes confinement to sleeping quarters as well as other means of physical restraint.[39]
[39] First and second respondents' submissions filed 12 July 2022 [41].
(d)Section 11D affords power to authorise the superintendent to confine the applicant to maintain the security of the facility or detention centre and for the purposes of the Act, and to prevent the applicant injuring himself or other persons. In the circumstances as they existed at the Detention Centre on the relevant days, the use of this power to confine the detainee is reasonable.[40]
[40] First and second respondents' submissions filed 12 July 2022 [45].
(e)Construing s 11D as conferring power on the superintendent to order that the applicant be confined to his sleeping quarters is consistent with the Act as a whole, noting that section 11B of the Act provides for the powers and duties of a custodial officer (i.e. including a superintendent) including the responsibility to maintain the security of the facility or detention centre and the power to issue a detainee such orders as are necessary for the purposes of the Act, including the security, good order or management of a facility or detention centre. A person who has responsibility for the custody of a detainee is liable to prosecution and penalty for negligently or knowingly permitting a detainee to escape. This construction also recognises that the respondents have obligations under s 19 and s 20 of the Work Health and Safety Act 2020 (WA) in relation to the detainees, staff and contractors which exposed them to prosecution and penalty for breaches.[41]
[41] First and second respondents' submissions filed 12 July 2022 [46] - [47].
(f)The management decisions made to lockdown units of the Detention Centre on a rolling basis have been made having regard to the risk that detainees might hurt themselves or others, as well as taking appropriate account of the need to ensure the safety of staff and the protection of the community. The limited options available in the circumstances as they existed on the relevant days have constrained the respondents' capacity 'to provide optimal services'.[42]
[42] First and second respondents' submissions filed 12 July 2022 [48].
(g)The circumstances as they existed at the Detention Centre on the relevant days confirm what is apparent from the statutory text itself: the Act and Regulations cannot be interpreted, as the applicant contends, as only authorising confinement of a detainee when an order is made under s 173(2)(e) of the Act or in accordance with reg 74 to reg 80 of the Regulations.[43]
[43] First and second respondents' submissions filed 12 July 2022 [49].
(h)The absence of a written record of the chief executive officer or the chief executive officer's delegate or of the superintendent forming an opinion that the restraint of the applicant was required on the days specified in the application does not invalidate the exercise of the power conferred by s 11D. It was not practical to record the formation of the required opinion (sometimes on multiple occasions in one day). The evidence supports the conclusion that an opinion was formed by the Deputy Superintendent that there was a need for restraint to prevent the applicant from injuring himself or others and this was confirmed by the superintendent and later by Ms Ginbey.[44]
[44] First and second respondents' submissions filed 12 July 2022 [54]; affidavit of Christine Ginbey affirmed on 12 July 2022 [24] - [69].
(i)In the event that the court concludes that the applicant has been confined to his sleeping quarters in circumstances which make this action unlawful, no declaration should be made in the exercise of the Court's discretion.[45]
[45] First and second respondents' submissions filed 12 July 2022 [59].
(j)The courts have no legitimate involvement in the review of the bona fide acts performed by persons involved in the administration of detention centres in the course of steps taken to avoid injuries to a detainee or detainees generally as opposed to steps taken to punish a detainee which would attract review. Locking the applicant in his sleeping quarters was not a step taken to punish the applicant. Rather Mr Reid acted bona fide in the performance of his duties as superintendent to prevent the applicant or other detainees from injuring themselves or others. In the absence of any evidence of bad faith the court should not grant declaratory relief.[46]
(k)The practice of locking detainees in their sleeping quarters is a regular occurrence and declaring such a practice unlawful would require the respondents to unlock detainees even if:
(i)a detainee has tested positive for COVID and is still an infection risk;
(ii)there were insufficient staff to safely supervise the detainees;
(iii)staff supervising detainees were required to assist with a disturbance caused by one or more detainees; and
(iv)there was a hazard which detainees needed to be protected from.[47]
(l)The consequences of the relief, if granted, would be disproportionate to the consequences of the unlawful decision, and therefore against the public interest. Accordingly, the relief sought should not be granted.[48]
(m)The operational difficulties in the management of the Detention Centre involve complex issues and it is not appropriate to examine 'a slither of those issues' on their own.[49]
[46] First and second respondents' submissions filed 12 July 2022 [65] - [67].
[47] First and second respondents' submissions filed 12 July 2022 [68].
[48] First and second respondents' submissions filed 12 July 2022 [69].
[49] ts 73.
Analysis and disposition
Preliminary observations
These preliminary observations must be made.
First, confining detainees or prisoners to their sleeping quarters or cells for long hours is a distinct form of confinement which involves a significant reduction in liberty and amenity. It is a severe measure. Confining children to their sleeping quarters in a detention centre for long hours, thus effectively confining them in isolation, can only be characterised as an extraordinary measure - one that should only be implemented in rare or exceptional circumstances. Among the many reasons why it should be so characterised is because of the very significant harm such confinement can do to children in detention, many of whom are already psychologically vulnerable. Further, the Act recognises that young people have a different sense of time,[50] and it is a significantly more difficult and challenging experience for a young person to spend 24 hours in isolation than it is for an adult.
[50] Young Offenders Act 1994 (WA) s 7(k).
There are two reasons for making this otherwise obvious point. First, the principle that '[t]he right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes',[51] applies to those who are in custody in a detention centre or a prison.[52] Clear statutory authority is required for the exercise of the extraordinary power to confine a detainee to sleeping quarters for up to 24 hours. It is a power far removed in nature from the kind of powers that may be held to arise by implication. Secondly, framing the practice of locking detainees, who are children, in the sleeping quarters for between 20 and 24 hours a day on a regular basis, by reference to an inability to provide 'optimal services', grossly distorts the perspective from which the practice should be assessed. Rather the correct perspective is that described by Adams J in Sleiman v Commissioner of Corrective Services (Sleiman),[53] (cited with approval by White J in Campbell v Northern Territory of Australia (No 3)).[54] Sleiman was a case in which the lawfulness of the segregation of an adult prisoner was in issue. Adams J said:[55]
So far as prisons are concerned, the Parliament has instituted a structure of laws to govern the responsibilities of those to whom is delegated the custodianship of prisoners of the State. They are given great power and considerable freedom of action. But it is not untrammelled. It is self-evident that the isolation of a person from communication with others is a severe and possibly dangerous step. It must be done with considerable care and only when it is truly necessary. It cannot be doubted that for these reasons the Parliament has made specific provision in the Act dealing with the exercise of this power. This demonstrates, amongst other things, that segregated custody is regarded by the Parliament as an exceptional form of custody and requires a unique system of implementation and control, in particular by necessitating a report to the Minister, regular reviews and giving the prisoner the right to apply to the Review Council for a review. In virtually every other aspect of managing a prisoner's custody the Commissioner has almost unfettered control and authority (albeit subject to various forms of supervision) except where the prisoner is to be segregated.
Having regard to the exceptional character of segregated custody so far as the well-being of the prisoner is concerned and the unique regime instituted by the Parliament as a safeguard, it is obvious that compliance with its requirements is no mere matter of legal technicality but of fundamental importance. To place a prisoner in segregation without such compliance and set at nought the safeguards of the Act is a serious departure from the law.
This case is about what the law will do to require obedience to and redress departures from the obligations it imposes. It has nothing to do with the personal merits, or lack of them for that matter, of the prisoner. The law is blind to such considerations. The law will be enforced, not because of what is owed to the prisoner, but because of what it owes itself and the community it serves.
[51] Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278, 292 (Mason & Brennan JJ).
[52] Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089 [431] - [471] (White J) and the discussion of the authorities in those paragraphs.
[53] Sleiman v Commissioner of Corrective Services [2009] NSWSC 304.
[54] Campbell v Northern Territory of Australia (No 3) [470] (White J).
[55] Sleiman v Commissioner of Corrective Services [60] - [62].
Secondly, it may be accepted that it is not the role of the court to become involved in the management of detention centres and prisons.[56] It is important to state, however, that there is no general principle that decisions made in good faith by those responsible for the administration and management of prisons are not susceptible to judicial review. Indeed, the respondents accepted that the courts may intervene when the actions of prison authorities are unlawful and beyond power.[57] Brief reference to the authorities establishes this is so.
[56] Barreto v McMullan [2013] WASC 26 [37] (McKechnie J); Wilson v Francis, Minister for Corrective Services for the State of Western Australia [2013] WASC 157 [11] (Martin CJ).
[57] First and second respondents' submissions filed 12 July 2022 [61].
McEvoy v Lobban (McEvoy)[58] is a decision relied on by the respondents in support of the contention that the decisions to implement rolling lockdowns were decisions taken in good faith by Mr Reid in the performance of his duties and thus the court should not exercise its discretion to grant declaratory relief. McEvoy is not authority for the proposition that decisions made in good faith are beyond review. In McEvoy the appellant was isolated from other prisoners due to a fear on the part of the prison authorities that a riot was planned and the appellant was regarded as a ringleader in instigating the disruption even though there was not sufficient information to substantiate any charge under the Prisons Act 1958 (Qld) or the Prisons Regulations 1959 (Qld). The appellant applied for a declaration that his segregation was unlawful on the grounds that it was only permissible to place him in segregation if he had been convicted of a breach of discipline. Thomas J, with whom Macrossan CJ (while adding some reasons of his own) and Lee J agreed, held that s 15 and s 16 of the Prisons Act 1958 (Qld) afforded the prison authorities ample general power to segregate the appellant to prevent an anticipated breach of the peace within the prison.[59] Section 15 of the Prisons Act 1958 (Qld) provided:
Subject to this Act and subject to the direction of the Minister, the Comptroller-General shall administer this Act and the prison service and shall have the care, direction, control and management of all prisons and security patients' hospitals including the responsibility for the security of prisons and security patients' hospitals, and the safe custody, welfare and employment of prisoners and the safe custody of security patients.
[58] McEvoy v Lobban [1990] 2 Qd R 235.
[59] McEvoy v Lobban (235) (Macrossan CJ), (239) (Thomas J), (242) (Lee J).
Section 16 gave the Comptroller-General the express power to order the removal of any prisoner from one prison to another.
Thomas J went on to consider whether the conduct of the prison authorities was reviewable at all by the courts and referred to earlier cases in which there had been a reluctance on the part of the courts to become involved in a review of matters that arise in the administration of prisons,[60] adding in a later passage in the judgment that the earlier authorities were required to be read with caution.[61] Thomas J concluded that it was not open to say that the exercise of the power of segregation was unreviewable by the courts but held that on the facts the decision taken by the prison authorities did not attract the operation of the rules of natural justice. His Honour said:[62]
In short the type of decision that was taken in the present case was not of the kind which the law requires to be exercised in accordance with the rules of natural justice. I do not rule out the possibility of review, but I find it impossible to envisage any legitimate involvement of the courts in the review of the bona fide acts performed by persons involved in the administration of prisons in the course of steps taken to avoid a breach of the peace. Steps taken to punish a prisoner are something different and naturally may attract review. Further, if a prison officer by cynical pretence abuses his powers to victimise a prisoner under the guise of ordinary management, the court will in an appropriate case intervene. I do not imply that this is the only point at which courts would exercise prerogative powers, but it affords a clear example where the courts intervention would be called for.
[60] McEvoy v Lobban (239 - 240) (Thomas J).
[61] McEvoy v Lobban (242) (Thomas J).
[62] McEvoy v Lobban (241) (Thomas J).
In Rich v Scaife,[63] the Victorian Court of Appeal reviewed a decision made by a senior prison officer to withdraw a prisoner's privilege to speak by telephone to a nominated person on a designated telephone number when the decision had not been made in accordance with the applicable statutory procedure and granted a declaration to the effect that the decision was void.
[63] Rich v Scaife [2012] VSCA 92.
In Sleiman Adams J granted a prisoner leave to seek administrative law relief and damages for false imprisonment in respect of periods during which he was segregated from other prisoners otherwise than in accordance with the provisions of the applicable legislation.
Thirdly, a central theme of the respondents' submissions was that when construing the Act the court should have regard to the circumstances presently prevailing at the Detention Centre. This was one of the bases upon which the respondents contended that the evidence of Mr Reid and Ms Ginbey was relevant. In support of this argument the respondents relied on the observations of Martin CJ in Wilson v Francis, Minister for Corrective Services for the State of Western Australia concerning a declaration by the Minister made in 2013 that certain units at Hakea adult prison constituted a 'suitable' place (within the meaning of s 7(i) of the Act) for the detention of young persons. Martin CJ said:[64]
The assessment of whether a particular place is 'suitable' for detention of young persons within the meaning of s 7(i) of the Act, having regard to the objectives specified in s 6 and the other principles specified in s 7 of the Act, cannot be undertaken on an abstract or theoretical basis. In the circumstances which prevailed following the riot, an assessment of whether the facility is 'suitable' must necessarily be undertaken by a process of considering all reasonable alternatives. That is precisely what occurred. Put another way, in the circumstances which prevailed following the riot, 'suitability' within the meaning of s 7(i) of the Act was a relative rather than absolute concept.
[64] Wilson v Francis, Minister for Corrective Services for the State of Western Australia [6].
Whether a place is 'suitable' involves an evaluative judgment that, as Martin CJ held, necessarily involves a consideration of the prevailing factual circumstances, however, there are no parallels between a question of that nature and the analysis required to determine the existence of a statutory power. When construing a statute regard must be had to its purpose and the field within which it is to operate but the submission that the prevailing factual circumstances must be considered goes much further than is permitted by the recognised principles of statutory construction.[65] Apart from anything else, such an approach could result in different constructions being adopted depending on variations in the prevailing factual circumstances.
[65] As to which see Mohammadi v Bethune [2018] WASCA 98 [31] - [36] (Martin CJ, Mazza & Beech JJA).
Fourthly, this application is about whether locking the applicant in his sleeping quarters on the days specified in the application was authorised by the Act. No aspect of the applicant's case involves personal criticism of Mr Reid or Ms Ginbey (both of whom were appointed to their respective roles after the operational problems had arisen) or any members of the staff working at the Detention Centre and nothing in these reasons should be taken as criticism of them. They serve the community in demanding and difficult roles that few have the inclination, capacity or fortitude to undertake and, as is demonstrated by the evidence in this case, they serve the community in very difficult circumstances. The applicant did not question their bona fides.[66]
Section 11D does not confer a power to confine
[66] ts 84.
Ultimately the respondents' case rested on the submission that s 11D of the Act confers power on the superintendent to order that a detainee be confined to the detainee's sleeping quarters. I do not accept that submission for the following reasons.
(a)While there is an overlap in the dictionary definitions of 'restrain' and 'confine' and their cognates,[67] the use of different terms in different provisions in the Act implies the terms are concerned with different subject matters. Confine is a word ordinarily used in conjunction with a physical location. It is used in this manner in s 173(2)(e) and s 196(2)(e), 'the 'detainee be confined to the detainee's sleeping quarters'. In its broadest connotation 'to restrain' includes 'to confine' a person to a location but the word restrain is more commonly used in the narrower sense of restricting freedom of bodily movement (the movement of a person's limbs) and that is how I consider it is used in s 11D.
(b)The existence of a specific provision (s 173(2)(e)) conferring power to confine a detainee to sleeping quarters (conditioned by the requirement of a finding that the detainee has committed a detention offence) and the existence of the specific provision (s 196(2)(e)) conferring power to make regulations conferring authority on the superintendent to order that a detainee be confined to sleeping quarters or a designated room for a period not exceeding 24 hours in order to maintain good government, good order or security in a detention centre, imply that the power to confine a detainee to sleeping quarters is not to be found elsewhere in the Act.[68] This conclusion is consistent with the Anthony Hordern principle,[69] that is:[70]
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same Instrument which might otherwise have been relied upon for the same power.
(c)The power to authorise the restraint of a young offender under s 11D may only be exercised by the chief executive officer or the superintendent (or their respective delegates) in very limited circumstances, that is, when in his or her opinion such restraint is necessary to prevent the young offender injuring himself or herself or any other person (s 11D(1)(a)), on medical grounds (s 11D(1)(b)) or to prevent escape (s 11D(1)(c)). The power conferred by s 11D is not a wide power. Rather it is a narrow power conditioned by the formation of an opinion in respect of a particular detainee. Contrary to the respondents' contention, it is not correct to characterise the power as a power to authorise the superintendent to confine a detainee 'in order to maintain the security of the detention centre'.[71]
(d)That one of the circumstances in which s 11D permits the chief executive officer or the superintendent to authorise the restraint of a young offender is, if it 'is necessary to prevent the escape of a young offender during his or her movement to or from a facility or a detention centre', implies that the methods of restraint contemplated by the section are the restraint of bodily movement rather than confinement to sleeping quarters or to some other specific location.
(e)The Act contains a number of references to the Court Security and Custodial Services Act 1999 (WA).[72] Likewise, the Court Security and Custodial Services Act contains a number of references to the Act.[73] The cross-references and their subject matter are sufficient to establish that the statutes are intended to operate together as part of a legislative scheme regulating the management of persons in custody and the means by which the security and safety of persons in custody and those with whom they come into contact, is ensured. The two statutes should be construed in a manner that promotes their harmonious operation and, absent textual indications to the contrary, if the same term is used in each statute, it should be taken to have the same meaning.[74] Division 2 of sch 2 of the Court Security and Custodial Services Act contains powers that may be exercised by authorised persons in relation to persons kept in custody. Clause 12 of div 2 of sch 2 confers the power to restrain a person in custody in terms not materially different from s 11D(1) of the Act and cl 12(7) makes it clear that the restraint contemplated by the provision is the restraint of bodily movement by the use of devices rather than confinement in a particular location. In my view the term 'restraint' when used in s 11D of the Act should be construed as having the same meaning as it bears when used in the Court Security and Custodial Services Act, that is, the restraint of bodily movement by the use of devices or medication.
Section 11D not in fact relied on by the respondents
[67] The Macquarie Dictionary Online definitions of restrain include: 1. to hold back from action; keep in check or under control; keep down; repress, and 2. to deprive of liberty as a person. The Macquarie Dictionary Online definitions of confine include: 1. to enclose within bounds; limit or restrict, and 2. to shut or keep in; imprison. The Oxford English Dictionary Online definition of restrain, v.1(1.a.) is: to restrict, limit, confine and the definition of confine, v.(5.) include: to keep or restrain (a person) within his dwelling, etc; to oblige to stay in indoors, or in one's room or bed.
[68] Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317, 328 (Hutley JA), 320 (Moffitt P), 331 (Glass JA).
[69] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1.
[70] Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (7) (Gavan Duffy CJ & Dixon J).
[71] First and second respondents' outline of submissions [45].
[72] See Young Offenders Act 1994 (WA) s 3, s 15(1), s 16(1)(a), s 171(1), s 179(5) and s 188(2).
[73] See Court Security and Custodial Services Act 1999 (WA) s 3, s 15(2), s 16(2)(b), s 25(1)(d), s 31 and s 90(2)(g).
[74] Commissioner of Stamp Duties v Permanent Trustee Co Ltd (1987) 9 NSWLR 719, 722 - 724 (Kirby P); Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [97] - [102] (Kiefel J); Mohammadi v Bethune [36] (Martin CJ, Mazza & Beech JJA).
Separately, and as a matter of fact, it appears that neither Mr Reid nor Ms Ginbey considered that the rolling lockdowns were undertaken pursuant to a power conferred by s 11D. It is clear from the Incident Reports attached to the Daily Executive Summaries that the 'authorised use of restraints' in relation to specific detainees was a relatively frequent response to incidents at the Detention Centre.[75] I infer from the use of this expression, rather than the use of an expression such as 'confined to cell/sleeping quarters', that it conveyed that staff were authorised to use devices to restrain the detainees in question rather than being authorised to confine the detainees in question in their sleeping quarters. Neither Mr Reid nor Ms Ginbey gave evidence to the effect that s 11D was the source of the power to authorise rolling lockdowns. There is no evidence to support a finding that either the chief executive officer or Mr Reid formed an opinion in respect of the applicant that it was necessary for him to be restrained by confining him in his sleeping quarters for one of the reasons specified in s 11D.
Section 11B(d) does not confer power to confine for periods not exceeding 24 hours
[75] See for example the Incident Reports for 3, 4, 7 and 8 February 2022 - affidavit of Wade Reid affirmed on 11 July 2022, 54, 64, 69, 73.
The respondents did not contend that the power conferred on custodial officers by s 11B(d) to issue such orders as are necessary for the purposes of the Act, including the security, good order, or management of a facility or detention centre was the power relied on to confine the applicant to his sleeping quarters but I raised the possibility that s 11B(d) might be a source of power at the hearing. However, for the reasons I have already touched on, (the extraordinary nature of the power to order confinement and the existence of the express powers concerning confinement) the power to issue orders under s 11B(d) does not extend to ordering that a detainee be confined in the manner and for the periods that the applicant was confined on the days identified in the application. Further, the power to order the confinement of a detainee under s 173(2)(e) is conferred on a visiting justice and the superintendent and s 196(2)(e) contemplates the conferral of authority to order the confinement of a detainee for periods not exceeding 24 hours to maintain the good government, good order or security in a detention centre on the superintendent. It would be incongruous that, even though these specific statutory powers were expressly conferred on a visiting justice and the superintendent, a like power was conferred by s 11B(d) on every 'custodial officer'.
Good government, good order and security
One theme running through the respondents' submissions, both the submissions directed to the construction of the Act and the submissions directed to why declaratory relief should be denied, was that the power to confine detainees to their sleeping quarters was required to enable the Detention Centre to operate. This theme was explicit in the submission referred to at [70(k)]. The difficulty with the submission is that it does not sufficiently acknowledge the powers conferred by the Act on custodial officers and on the superintendent.
The precise ambit of the power conferred by s 11B(d) cannot be defined. In my view, however, s 11B(d) provides not only the power to confine detainees in their sleeping quarters overnight but also provides custodial officers with the power to order detainees to be confined in their sleeping quarters in the event of a disturbance or the existence of a hazard from which the detainees need to be protected. For the reasons given above, however, it does not extend to ordering that a detainee be locked in his or her sleeping quarters, in effect, resulting in the detainees being kept in a state of solitary confinement all day. The extraordinary nature of the power to confine a detainee for periods not exceeding 24 hours to maintain the 'good government, good order or security' of a detention centre is recognised by the fact that it is conferred on the superintendent. While the power so conferred on the superintendent is a broad discretionary power (broad enough, for example, to authorise the confinement of detainees suffering from an infectious condition such as Covid), it must be exercised for the purpose for which it was conferred and in accordance with the conditions set out in the Regulations.
Declaratory relief should be granted
I do not accept the respondents' contention that even if the court concluded that the confinement of the applicant to his sleeping quarters in the manner described in these reasons was not authorised by the Act the court should decline to grant declaratory relief because 'locking detainees in their sleeping quarters is a regular occurrence' and the practical problems that granting a declaration would create would be 'disproportionate to the consequences of the unlawful decision'. Read in one way the submission might be understood to suggest that even if the practice of locking detainees in their sleeping quarters was beyond the respondents' statutory power, it is a practice that would continue unless a declaration was made. If that is the way in which the submission was intended to be understood it is to be deprecated in the strongest terms.
I accept that granting declaratory relief may cause practical problems especially in the light of the chronic staff shortages referred to in the evidence and that is a matter that cannot do otherwise than weigh heavily. So too, however, does the harm that may be caused to detainees by confining them to their sleeping quarters on a regular basis for long hours in the manner in which the applicant was confined. That harm may affect the lives of the detainees for years to come. Ultimately, the answer to the concern about practical problems is that the Detention Centre must be administered in accordance with the Act and the Regulations. The chief executive officer is under a statutory duty to administer the Act in accordance with its terms and is empowered to appoint such officers as are necessary for that purpose. It is simply not open for those who are responsible for the care and welfare of detainees to adopt practices which are not authorised by the Act.
It follows that I do not accept that it is not in the public interest to grant declaratory relief. To the contrary, the public interest in granting relief is compelling. The potential for considerable harm to be suffered by detainees who are confined to the sleeping quarters for periods of almost 24 hours a day on a regular basis is ample justification for granting declaratory relief.
Conclusion
I will make a declaration in the following terms:
It is declared that the confinement of the applicant to his sleeping quarters at the Banksia Hill Detention Centre on 21, 23, 28, 29, 30, and 31 January 2022, 1, 4, 5, 6, 10, 11, 12, 13, 16, 18, 19, 20, 21, 25, 26 and 27 February 2022, 12, 15 May 2022 and 12 and 13 June 2022 was unlawful.
The amended application did not specify days in January and February 2022 on which it was alleged the applicant was confined unlawfully. I have referred in the proposed declaration to the days in January and February 2022 when the applicant was confined to his sleeping quarters for more than 20 hours a day because the days on which the applicant was confined to his sleeping quarters for long hours were the focus of the applicant's case.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RC
Associate to the Honourable Justice Tottle
25 AUGUST 2022
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