Scope of chapter

20.1 Detention is at the most extreme end of children’s contact with legal processes. The particular characteristics of children, for example their heightened vulnerability to physical and emotional harm and different perceptions of time, make detention a more confronting and difficult experience for them than for adults. Institutional environments, such as juvenile detention centres, can harm some children, with serious social and developmental consequences.[1]

20.2 In the past, detention centres operated as closed systems without external scrutiny, guarantees of natural justice or recognition of young people’s right to participate in decisions affecting them. Discipline was the responsibility of centre managers with broad discretion and little accountability.

20.3 In recent years, there have been changes. However, conditions in juvenile detention centres continue to vary markedly across States and Territories. While efforts have been made by way of improvements to policy and procedures manuals, there is still a large gap between the principles and policies of some centres and their operation in practice. Often the standards and programs in the centres do not meet the minimum standards required by international human rights law. These deficiencies are the result, in large part, of lack of monitoring of the implementation of these policies and principles.

20.4 For this Inquiry, the key issue in relation to detention centres is the need for national minimum standards for children in detention, the form those standards should take and how compliance with the standards should be ensured. National Design Guidelines and Quality of Care Standards set out comprehensive provisions relating to many important issues of detention.[2] However, a number of significant areas are not addressed. This chapter will deal with those areas requiring improvement.

20.5 This chapter does not examine comprehensively all issues about the conditions and standard of facilities for young people in detention. Some conditions and services provided in detention have been examined by other inquiries, such as the Senate Inquiry into Education and Training in Correctional Facilities[3] and the Inquiry by the NSW Ombudsman into Juvenile Detention Centres in NSW.[4]

Federal responsibilities

20.6 The terms of reference of the Inquiry require us to consider the treatment of children and young people convicted of federal offences.[5] Under section 20C of the Crimes Act, those convicted of a federal offence and sentenced to detention serve their detention order in a State or Territory detention centre.[6]

20.7 Australia has committed itself to a number of international human rights instruments under which the Commonwealth has certain obligations for the care and treatment of all children in juvenile detention facilities throughout Australia and not simply those who have been convicted of federal offences.[7]

20.8 Articles 37 and 40 of CROC set out a number of protections for every child deprived of liberty.[8] In particular, CROC states

[e]very child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.[9]

20.9 The Beijing Rules and the UN Rules for the Protection of Juveniles Deprived of their Liberty 1990 deal more specifically and in detail with the conditions of children in detention. In particular, the Beijing Rules note that detention centres should provide

care, protection, education and vocational skills, with a view to [children] assuming socially constructive and productive roles in society.[10]

20.10 The UN Rules for the Protection of Juveniles Deprived of their Liberty state that children deprived of their liberty shall have the right to services and facilities that meet all their requirements of health and human dignity. They contain detailed requirements about accommodation, education, training, religion, recreation and medical care and make rules for discipline, complaints and return to the community.

Operation of detention centres

20.11 Provisions for children in detention vary markedly across the States and Territories. The relevant principles and procedures are scattered through various pieces of legislation, regulations and departmental policies. Legislation provides the framework and underlying principles by which the detention centres are to be operated.[11] Some jurisdictions have also developed policy documents and management philosophies.[12] The day-to-day operation of the centres is governed by internal guidelines in detention centre procedures manuals, which include the working instructions for centre staff. All jurisdictions have developed or are in the process of developing these manuals.[13]

20.12 The head of the relevant government department has certain legal powers and responsibilities for children placed in detention. Some of those are delegated to the manager of the centre with responsibility for the care and control of the young person.[14] This arrangement means that the manager of the centre has a great deal of power in relation to children in detention.

[1] See paras 18.2, 19.47–48.

[2] See paras 20.26–29.

[3] Senate Employment Education and Training References Committee Report of the Inquiry into Education and Training in Correctional Facilities Senate Employment Education and Training References Committee Canberra 1996.

[4] NSW Ombudsman Inquiry into Juvenile Detention Centres NSW Ombudsman Sydney 1996.

[5] Terms of Reference (vi).

[6] See paras 18.6–7.

[7] See para 18.8.

[8] In addition, ICCPR contains similar provisions of a more general nature. art 7 provides that no-one shall be subjected to cruel, inhuman or degrading treatment or punishment. art 10(1) provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. art 10(3) provides that the essential aim of detention should be the ‘reformation and social rehabilitation’ of detainees and that juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

[9] art 37(c).

[10] r 26.1.

[11] eg Children (Detention Centres) Act 1987 (NSW); Children (Detention Centres) Regulation 1995 (NSW); Juvenile Justice Act 1992 (NT); Juvenile Justice Act 1992 (Qld); Young Offenders Act 1993 (SA); Children and Young Persons Act 1989 (Vic); Young Offenders Act 1994 (WA); Young Offenders Regulations 1994 (WA); Children’s Services Act 1986 (ACT); Child Welfare Act 1960 (Tas).

[12] eg The Integrated Approach: The Philosophy and Directions of Juvenile Detention Qld Corrective Services CommissionBrisbane 1997; Management Philosophy of the Juvenile Justice Directorate WA Ministry of JusticePerth 1993.

[13] Juvenile Justice Centres Operational Procedures Manual NSW Dept of Juvenile Justice Sydney 1997; Juvenile Justice Centre Operations Manual Vic Dept Health and Community Services Melbourne 1994; Secure Care Standard Procedures SA Dept of Family and Community Services Adelaide 1997; Juvenile Justice Procedures Manual (draft) NT Correctional Services Darwin 1997; Quamby Youth Detention Centre Policy and Procedures Manual ACT Youth Justice Services Canberra 1997; Ashley Detention Centre Procedures Manual (draft) Tas Dept of Community and Health Services Hobart 1997; Programme Outlines for Longmore Detention Centre, Rangeview Remand Centre and Riverbank Detention Centre Perth. Note that NSW, Tas, WA, NT and ACT are currently in the process of updating their manuals. Tas and NT provided manuals in draft form to the Inquiry. WA and Qld were not able to provide updated manuals to the Inquiry and NSW and ACT provided only completed sections. Where updated manuals were not provided, regard was had to other available policies and guidelines previously provided to the Inquiry by those jurisdictions.

[14] eg Juvenile Justice Act 1992 (Qld) s 203; Children (Detention Centres) Act 1987 (NSW) ss 14–15; Juvenile Justice Act 1992 (NT) s 64; Children’s Services Act (ACT) s 58. In some jurisdictions the manager is referred to as the Chief Executive, eg, Juvenile Justice Act 1992 (Qld) s 203 or Superintendent, eg, Children (Detention Centres) Act 1987(NSW) ss 14–15.