ALSWA MEDIA STATEMENT 25 August 2022
SUPREME COURT OF WA DECLARES THAT LOCKDOWNS AT BANKSIA HILL DETENTION CENTRE ARE UNLAWFUL
Today, 25 August 2022, the Supreme Court of WA has declared the lockdowns imposed on children at Banksia Hill Detention Centre are unlawful.
Barrister Marina Georgiou instructed by the Aboriginal Legal Service of Western Australia Ltd (ALSWA) successfully argued that the practice of implementing extensive ‘rolling’ lockdowns, which were caused by staff shortages, contravenes the Young Offenders Act 1994 (WA).
On 23 June 2022 ALSWA filed an application for judicial review in the Supreme Court of WA seeking a declaration that the current lockdowns at Banksia Hill Detention Centre contravene the Young Offenders Act 1994 (WA) and the Young Offenders Regulations 1995 (WA), and are unlawful. The matter was urgently listed for hearing on 14 July 2022.
In the course of the litigation the Department of Justice agreed that the applicant in this matter was locked in his cell all day on 13 June 2022 and not allowed out at all. The Department also agreed that he only had 30 minutes out of his cell on 26 and 27 February 2022.
Justice Tottle delivered his judgment today and declared that the confinement of the applicant to his sleeping quarters for over 20 hours a day at the Banksia Hill Detention Centre on 26 dates in January, February, May and June 2022 was unlawful.
Justice Tottle (at paragraph 18) 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’ and that ‘staff shortages were the primary cause of the applicant being locked in his cell on those days’.
Justice Tottle also stated (at paragraph 71) that confining detainees to their cells for long hours involves a significant reduction in liberty and amenity and is a severe measure. Justice Tottle continued:
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 … because of very significant harm such confinement can do to children in detention, many of whom are already psychologically vulnerable … 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.
Since December 2021 ALSWA repeatedly raised serious concerns over the legality of the conditions with the Minister for Corrective Services, Bill Johnston, and the Department of Justice, and after seeing no improvement, had no choice but to seek a declaration by the Supreme Court of WA.
ALSWA acts for over 20 other children who have submitted individual complaints about the lockdowns, lack of mental health services, education and recreation over the last six months. ALSWA is continuing to submit further complaints.
The solution is simple: employ staff who are trained in trauma-informed, culturally-appropriate therapeutic care who are interested in mentoring these young people – not just punishing them.
To resolve any ongoing staff shortages that the Department relies on to justify its lockdown practices, the Department should urgently employ suitable staff on secondment from other areas and partner with Aboriginal and other community organisations to provide mentors who want to work with these kids to make a positive difference in their lives.
CEO, Dennis Eggington said:
‘The conditions at Banksia Hill breach international human rights standards and amount to unlawful solitary confinement. The proposal to move some children to Casuarina Prison, a maximum-security adult prison, is alarming. It is not a solution to the Department’s failure to run Banksia Hill properly, which has been ongoing now for over a decade. ALSWA will partner with the Department to get strong, Aboriginal mentors in to work with the children’.
‘These children deserve to be treated with respect and dignity, not locked in a cell all day with only 10 minutes out or none at all. They need fresh air, human connection, education and adults to mentor them. If they are provided with these basic things, they will not act out.’
ALSWA recommends the following:
- Department of Justice should act immediately to provide adequate numbers of staff, professionals and youth workers and ensure the young people in detention are not being locked down in their cells. This could be in partnership with ALSWA’s YEP program, Wungening Aboriginal Corporation, Non-Government Organisations with expertise in youth work and specialist paediatricians and psychiatrists/psychologists.
- All children in detention, wherever they are held, should have access to holistic medical and mental health services as well as education and recreation.
- In the long-term, the government should invest in early intervention, therapeutic culturally-appropriate trauma-informed support for children across the state.
- BHDC and Youth Justice to be managed by the Department of Communities to shift the focus away from punishment and towards a recovery-oriented approach.
- Youth custodial officers to be replaced with youth justice officers with a new JDF and youth work/social work backgrounds and to wear plain clothes.
- The current case management team to be integrated into the youth justice teams
- Staff/child ratio increased. Hire casual staff to assist with this.
- Staff and children to be based in teams in one unit with minimal movement to provide stability and continuity.
- All staff trained in:
- trauma-informed care;
- culturally-appropriate care for Aboriginal children and other CALD groups;
- working with people with disability; and
- At least 5% Aboriginal staff to be employed.
- Aboriginal cultural advisors to be employed.
- Partnership with ACCOs.
- No use of the Special Operations Group unless a serious emergency.
- Every child to be outside of their cell for at least 12 hours a day.
- Every child to have access to paediatricians, GPs, psychiatrists and psychologists on a daily basis including screening on admission.
- Every child to attend school every weekday.
- Education to be managed the Department of Education.
- Every child to have a minimum of 2 hours outside in fresh air every day.
- Every child to have access to sport and recreation programs.
- Limit the use of strip-searches/removal of clothing.
- Abolish prolonged solitary confinement.
- No use of restraints.
- Ensure appropriate wrap-around services for children at risk in the community and for when children are released from detention including appropriate accommodation and access to medical services.
- Ensure the physical infrastructure is trauma-informed, clean and fit-for-purpose.
- When there are ‘detention offences’, children should have a right to legal representation and the aim should be on rehabilitation.
- Raise the age of criminal responsibility to at least 14 years of age.
- Urgently review the Young Offenders Act 1994 (WA).