20.69 Legal processes in detention, particularly in relation to complaints and discipline, raise significant issues in relation to the well-being and rights of detainees. Proper complaints mechanisms are needed to provide redress for children who suffer mistreatment in detention. Disciplinary procedures must be consistent with the child’s dignity and rights and must incorporate natural justice processes. Regulation of the discretion for dealing with offences committed in detention is also necessary.
20.70 Detention policies and procedures manuals in most jurisdictions provide for complaints procedures in detention centres. However, submissions to the Inquiry revealed concern about the apparent inadequacy of complaint mechanisms for children in detention. In particular, submissions pointed out that detainees often have little information about available complaint processes and relevant advocacy bodies. Accessibility of complaints mechanisms depends in large part on how well-informed detainees are about their rights and the availability of support mechanisms for lodging complaints.
20.71 Managers of juvenile detention centres retain wide discretion in dealing with complaints by detainees. The NSW Ombudsman’s Inquiry was critical of these wide powers.
Both the legislation and the policy appear to view the Centre Manager as having almost complete discretion to hear and determine any complaints by detainees…It assumes that the Centre Manager is the appropriate first contact for all detainee complaints, and the final contact for the vast majority of them. This fails to appreciate that the Centre Manager will not always be the most appropriate person to deal with a complaint. Detainees should be able to go directly to higher people within the Department, or go directly to outside agencies.
The report noted the lack of set complaints mechanisms within detention centres.
The Act and Regulations are silent as to the right of a detainee to complain about his or her treatment. The Department’s current policy and practice in relation to complaints by detainees is also greatly inadequate. In most cases, no record exists of complaints received or resolved…There is no person or unit within the Department that is specifically responsible for or trained in the investigation and resolution of complaints. Quite serious complaints involving allegations of serious abuse or harassment have been poorly handled and delayed because of this.
In response to this, NSW has recently developed a set of guidelines for complaints by children in juvenile detention centres. They provide for comprehensive recording, review and appeal mechanisms.
20.72 A number of submissions, from both government and non-government organisations, recognised the need for proper complaints mechanisms and for recourse to an independent body or person. Submissions advocated adequate and cost-free legal representation before an independent Ombudsman, expansion and better use of the Official Visitor Scheme and an independent duty lawyer scheme to attend to these complaints, particularly where a judicial review is warranted.
20.73 The draft QOC Standards attempt to deal with these issues. They provide, among other things, that each young person is to be given a document detailing the complaints procedures, the right to access and involvement of an advocate or support person of his or her choice to raise and assist in resolving complaints, the right to independent appeal procedures, reporting of complaints by external visitors and annual review of complaints procedures. Standards also provide that complaints procedures must account for the different needs of young people from non-English speaking backgrounds and young people with disabilities. These standards appear to be consistent with a number of provisions under CROC and the UN Rules for the Protection of Juveniles Deprived of their Liberty. The Inquiry considers the QOC standards provide quality, comprehensive guidelines for complaints procedures. These procedures will need to be reviewed regularly and their implementation monitored by OFC.
20.74 All jurisdictions have prescribed the conduct which constitutes a disciplinary offence and the action which may be taken in relation to that conduct. However, generally speaking, there is little formal regulation of the disposal of these cases within centres and no access to legal representation for a child in any formal internal disciplinary hearings. If a child commits an offence while in detention, he or she can generally be dealt with in any of three ways: informally within the centre, formally within the centre or by being charged with a criminal offence. Whether an offence is treated as a disciplinary or criminal matter has very different consequences.
20.75 Most detention centres ensure discipline through the use of cautions, restrictions on sport or recreational activities or giving extra duties. All jurisdictions prohibit corporal punishment in detention centres. Some juris-dictions permit the use of reasonable force in certain circumstances, for instance, where reasonably necessary to protect another person or maintain order in the centre. Other jurisdictions prohibit withdrawal of food or clothing as a form of punishment and the use of psychological pressure or emotional abuse. However, in some jurisdictions, certain acts are treated as criminal offences and can result in more serious consequences, such as extension of the detention period.
20.76 Many submissions to the Inquiry argued for greater regulation of the discretion for dealing with offences committed by children in detention. One submission pointed out that detention centres lacked appropriate accountability mechanisms, making it difficult to monitor the exercise of discretions. The NSW Ombudsman’s Inquiry identified serious shortcomings.
Staff have significant discretion in how they choose to respond to particular behaviour. Policies and guidelines about the appropriate use of this discretion are required.
“Abusive, indecent or threatening language” and “disobeying rules or instructions” were the most common form of minor misconduct reported, accounting for 66% of all reported minor misbehaviour within all centres in the period 1-14 December 1995…This…raises some question as to the manner in which staff interact with detainees on a daily basis and may be linked in some way with the general “culture” of the centres.
Group punishments (where an entire group of detainees are punished for the conduct of one or two) are still used in some centres…
20.77 The draft QOC Standards address these issues to some extent. They prohibit many forms of punishment, including corporal punishment, the deprivation of essential items or activities, use of physical, verbal, racial or sexual harassment, psychological or physical abuse or neglect and psychological pressure intended to humiliate or intimidate. Staff are not permitted to use other people to administer or supervise punishment to young people. The draft standards also set out detailed provisions in relation to the use of physical restraint. The effectiveness of the QOC Standards, however, is dependent on implementation by staff. Training staff in behaviour management techniques is necessary to ensure proper implementation of the Standards.
Recommendation 264 Staff in detention centres should be provided with adequate training in behaviour management techniques to ensure disciplinary procedures are used correctly and effectively.
Isolation, ‘time out’ and separation
20.78 Juvenile detention centres use two methods of separating detainees as part of behaviour management. ‘Time out’ is generally used to refer to a period of isolation in a detainee’s bedroom or isolation room. Some jurisdictions also refer to this as segregation. Isolation rooms usually have no furniture, apart a bed if the isolation period is overnight. Detainees can also be placed on longer term separation programs which allow continuation of centre programs but restrict contact with other detainees.
20.79 Most jurisdictions prohibit the use of isolation as a form of punishment but permit it for behavioural management, for instance, to protect the safety of other detainees or staff members. Regulation of this practice varies markedly as between jurisdictions. Some permit isolation when the detainee refuses to participate in a program or causes damage to property. In some jurisdictions isolation over a certain period requires approval of senior officials. Others set minimum observation periods. In NSW an isolated detainee is to be placed in a physical environment that is ‘no less favourable’ than the physical environment of other places in the detention centre. Some jurisdictions place time limits on the actual period of isolation. Maximums range from periods of 3 and 6 hours in some jurisdictions, 12 hours to 24 hours and 48 hours in others. The ACT alone limits the time a detainee can be placed in isolation to a maximum of 5 minutes. The NSW Ombudsman’s report found high levels of use of confinement, even though its use is restricted under the legislation and it is recognised as a serious penalty.
In reality, confinement is used much more frequently than is envisaged by the wording of the Act, and some of the “safeguards” set out in the legislation are not routinely provided.
20.80 Article 37(a) of CROC provides that no child shall be subjected to cruel, inhuman or degrading treatment or punishment. The UN Rules for the Protection of Juveniles Deprived of Their Liberty provide that confinement constitutes cruel, inhuman or degrading treatment and, as such, is to be strictly prohibited.
20.81 The draft QOC Standards regulate the use of isolation to some extent. The standards provide for minimum observation intervals and communication with staff and parents for those in isolation or on separation programs and adequate levels of activity and stimulation for those on a separation program for longer than one hour. An earlier draft of the QOC Standards required the use of isolation to be recorded. However, this is not included in the current draft. Some jurisdictions provide for the recording of isolation. However, this is not a uniform practice. The QOC Standards also do not provide for approval mechanisms for the use of isolation, although some detention centre manuals do. Because of the seriousness of isolation as a behaviour management tool and its propensity to harm children, the Inquiry considers that strict time limits should be placed on any period of isolation. As a further protection, the young person’s family, probation officer, legal practitioner or person of their choice should be notified if he or she is isolated for more than a specified period. All incidents of isolation should be recorded.
Recommendation 265 The national standards for juvenile justice should provide that
each use of isolation is to be recorded on a register
isolation should be subject to appropriate approval requirements
maximum periods for which young people in detention can be placed in isolation should be set
where a young person under 16 years of age is isolated for more than 3 hours or, if aged 16-17, for more than 6 hours, the family and probation officer or legal practitioner for the young person or a person nominated by the young person must be notified immediately.
Natural justice and due process
20.82 As well as being subject to disciplinary procedures, children in detention can also be charged with a criminal offence. A number of jurisdictions set out detention centre offences in their legislation. In most jurisdictions, escape from custody is listed as an offence and the matter is heard before a court. However, it is often up to the discretion of the centre manager whether an offence is treated as a disciplinary or criminal matter.
20.83 This discretion is of even more significance in some jurisdictions, such as Western Australia, which set out a number of much broader detention centre offences. Under the Western Australian legislation the manager of the centre can hear and determine the charge or refer the charge to a visiting justice for hearing or determination. If the detainee elects to have the matter dealt with by a visiting justice and not the centre manager he or she can do so under the legislation. However, in many cases detainees may not know their rights or may be reluctant to exercise this option.
20.84 Furthermore, although all jurisdictions recognise that children should have legal representation in criminal proceedings before courts, this right is not extended to detention centre offences. The legislation in Western Australia goes further than this by stating explicitly that a detainee is not to be represented by a legal practitioner at a hearing for such an offence. This means that the discretion of the centre manager in relation to offences is largely unreviewed. Although the centre manager is limited under the Western Australian legislation to a certain length of sentence, the lack of regulation poses a number of concerns for children’s legal rights.
20.85 Submissions to the Inquiry addressed this issue, stating that detainees should have basic legal rights in relation to disciplinary procedures. In particular, they emphasised that principles of natural justice should always be extended to children. One submission also noted that young people in detention should be accorded certain basic rights when being dealt with for non-criminal disciplinary offences, including the right to be informed upon entry to the centre of expected standards of behaviour and consequences of failure to comply, the right to a clear statement of the offence, an opportunity to reply to the allegation, the opportunity to use supporting evidence, the right to confidentiality and the right to seek redress. Another submission suggested that offences committed while in detention which do not go before a court should come before a visiting justice and the young person should be entitled to legal representation. The Inquiry agrees that disciplinary offences, both criminal and non-criminal, should be subject to due process and natural justice requirements.
20.86 CROC provides that every child accused of infringing the law is to be guaranteed a number of procedural safeguards. The UN Rules for the Protection of Juveniles Deprived of their Liberty also provide that young people in detention should be assisted to understand the disciplinary requirements and procedures.
20.87 Some of these rights have been incorporated to varying degrees in the draft QOC Standards. The Standards provide that young people are to be given an explanation about what types of behaviour are unacceptable in the centre, the range of rewards for positive behaviour and the range of consequences for negative behaviour and how they are likely to be applied. This explanation should be made available to the young person in both written and oral forms within 24 hours of the child’s admission to the detention centre.
20.88 However, the QOC Standards do not deal specifically with the procedures for criminal offences committed while in detention. In particular, they do not guarantee access to legal representation in relation to these offences. The Standard Guidelines for Corrections in Australia for adult prisoners, by contrast, provide that a prisoner must not be punished unless informed in writing of the alleged offence and given an opportunity to present a case, that where necessary a prisoner must be allowed to use an interpreter to make a case and that, where the punishment may entail an extra sentence, there must be a judicial hearing with a right to legal representation for the prisoner charged with the offence. Children therefore have a lesser standard of protection than adults. Juvenile justice procedures manuals in Tasmania and NSW provide comprehensive provisions in relation to criminal offences in detention. However, many others do not.The Inquiry considers that these important safeguards should be extended to all children in detention in all jurisdictions.
Recommendation 266 The national standards on juvenile justice should include the following.
All young detainees should be afforded natural justice and due process in all disciplinary procedures, including the right to be informed of the behaviour which led to the disciplinary measures, to be heard in the decision making process and to have the assistance of an advocate in formal disciplinary procedures.
Detainees should be guaranteed legal representation in any disciplinary proceedings that could result in an extension to the period of detention.
Discretion for dealing with criminal offences committed by children in detention should be regulated.
Implementation. In developing the national standards in this area, regard should be had to the detention procedures manuals in Tasmania and NSW and to the Standard Guidelines for Corrections in Australia.
Review of programs and procedures
20.89 The Inquiry considers that the QOC Standards should be supplemented by avenues for review of important services and procedures in detention. The QOC Standards provide that detention centres conduct annual reviews of complaints procedures. However, this does not deal with a number of other important issues, such as discipline, leave and parole. It also provides no avenue for other interested parties to request a review of procedures. Providing such a review process would assist those detainees who do not wish to make a complaint to seek review of the particular service and would also assist centres to meet the national standards for juvenile justice. By introducing accountability mechanisms, deficiencies in services could be addressed as soon as problems arise. A detainee, his or her family or the centre manager should be able to initiate the review.
Recommendation 267 Case plans for detainees, medical regimes, disciplinary procedures, isolation, leave, visiting arrangements and parole should be reviewed upon application by the detainee, the detainee’s family or legal representative or the manager of the detention centre.
 eg The Integrated Approach: The Philosophy and Directions of Juvenile Detention Qld Corrective Services Commission Brisbane 1997, 29; Secure Care Standard Procedures SA Dept Family and Community Services Adelaide procedure 26; Draft Complaints Handling Policy and Procedures NSW Dept of Juvenile Justice Sydney 1997.
 eg Youth Advocacy Centre IP Submission 120; Church Network for Youth Justice IP Submission 212.
 NSW Ombudsman Inquiry into Juvenile Detention Centres vol 2NSW Ombudsman Sydney 1996, 513–514.
 id xiii–xiv.
 Juvenile Justice Centre Operational Procedures Manual NSW Dept of Juvenile Justice Sydney 1997.
 eg Youth Advocacy Centre IP Submission 120; WA Ministry of Justice IP Submission 184; Church Network for Youth Justice IP Submission 212.
 Townsville Community Legal Service IP Submission 181.
 eg Youth Advocacy Centre IP Submission 120; Church Network for Youth Justice IP Submission 212.
 Youth Advocacy Centre IP Submission 120.
 Draft QOC Standards 1.2.7, 1.2.11, 1.2.12, 1.4.2–1.4.7. Persons to whom the young person can make the complaint are said to include (but not be limited to) official visitors, ombudsman, visiting magistrates, welfare officers (social workers), ministers of religion and members of parliament.
 Draft QOC Standards1.3.1–1.3.4.
 eg Standards 1.1.1.–1.2.13 appear to be consistent with art 12(2) of CROC, Standards 1.2.7 and 1.3.1–1.3.4 appear to fulfil the basis requirements of r 24 of the 1990 UN Rules and Standard 1.4.2 appears to be consistent with r 75, 76, 78.
 See rec 267.
 See rec 256.
 eg Children (Detention Centres) Act 1987 (NSW) s 21. In Tas, permitted punishments include cancellation of leave: Ashley Detention Manual (draft) Tas Dept Community Services and Health Hobart 1997 Pts 14.5-6.
 eg Children (Detention Centres) Act 1987 (NSW) s 22;Juvenile Justice Act 1992 (NT) s 66; Juvenile Justice Centres Operations Manual VicDept of Health and Community Services Melbourne 1994 Pt 3.6; Juvenile Justice Regulation 1993 (Qld) reg 13(3); Secure Care Standard Procedures SA procedure 13; Ashley Youth Detention Centre Manual (draft)Tas Dept Community and Health Services Hobart 1997 Pt 24.3.
 Children (Detention Centres) Regulation 1995(NSW) regs 37, 38; Juvenile Justice Centres Operations Manual vol 1 Vic Dept of Health and Community Services Melbourne 1994 Pt 3.6; Quamby Youth Detention Centre Policy and Procedures Manual ACTYouth Justice Services Canberra Pt 1.4; Ashley Youth Detention Centre Manual (draft)TasDept Community and Health Services Hobart 1997 Pt 3.8. The Vic Manual emphasises that force is not permitted in response to verbal abuse, failure to comply with instructions or breach of centre rules.
 eg Children (Detention Centres) Act 1987 (NSW) s 22(1)(d); Secure Care Standard Procedures SA Dept of Family and Community Services Adelaide 1997 procedures 13, 19.
 eg Children (Detention Centres) Act 1987 (NSW) s 22(1)(f); Ashley Youth Detention Centre (draft) Tas Dept of Community and Health Services Hobart 1997 Pt 3.8.
 Juvenile Justice Regulation 1993(Qld) reg 13(3); Ashley Youth Detention Centre Manual (draft)TasDept Community and Health Services Hobart 1997 Pt 3.8.
 Children (Detention Centres) Act 1987 (NSW) ss 33, 37A; Young Offenders Act 1994 (WA) s 173.
 eg Oz Child Legal Service IP Submission 195; Church Network for Youth Justice IP Submission 212.
 Youth Advocacy Centre IP Submission 120.
 NSW Ombudsman Inquiry into Juvenile Detention Centres vol 1 NSW Ombudsman Sydney 1996, xiii.
 Draft QOCStandards 6.3.1.–6.3.11.
 Standards, 6.5.1–6.5.7.
 eg Children (Detention Centres) Act 1987 (NSW) s 19.
 eg a detainee who assaults a staff member in SA can be placed on a separation program for a minimum of three and a maximum of seven days, depending on the severity of the incident: Secure Care Standard Procedures SA Dept of Family and Community Services Adelaide procedure 13.
 eg Children (Detention Centres) Act 1987 (NSW) s 19(2); Juvenile Justice Regulation 1993(Qld) reg 16; Juvenile Justice Centre Operations Manual vol 1 Vic Dept of Health and Community Services Melbourne 1994 Pt 3.8; Ashley Youth Detention Centre Manual(draft) Tas Dept Community and Health Services Hobart 1997 Pt 3.7.
 Quamby Youth Detention Centre Policy and Procedures ManualACT Youth Justice Services Canberra 1997. Note that in this case the isolation is limited to 5 minutes.
 eg Juvenile Justice Regulation 1993(Qld) reg 16(3): isolation for more than 2 hours requires the centre manager’s approval, for more than 12 hours, the notification of the chief executive, and for more than 24 hours the approval of the chief executive; Juvenile Justice Centre Operations Manual vol 1 Vic Dept of Health and Community Services Melbourne 1994: periods of between 2 to 6 hours, must be authorised by the CEO, from 6 to 12 hours by the Regional Director and from 12 to 24 hours by the Secretary; Secure Care Standard Procedures SA Dept of Family and Community Services Adelaide 1997procedures 7, 15: isolation of detainees aged between 12 to 14 must be approved by the unit manager and isolation of detainees 15 and over up to 24 hours must be approved by the unit manager or, if from 24 to 48 hours, by the Director.
 eg Juvenile Justice Centres Operations Manual vol 1 Vic Dept of Health and Community Services Melbourne 1994 provides for observation every 15 minutes; Secure Care Standard Procedures SA Dept of Family and Community Services Adelaide procedure 6 provides observation every 5 minutes.
 Children (Detention Centres) Act 1987 (NSW) s 21(2)(b).
 Children (Detention Centres) Act 1987 (NSW) s 21(1): confinement is limited to 3 hours for detainees under 16 and 12 hours for those over 16.
 eg Juvenile Justice Regulation 1993(Qld) reg 16(3) provides that a staff member must not isolate a child for more than 12 hours overnight.
 eg Secure Care Standard Procedures SA Dept of Family and Community Services Adelaide 1997 procedures 7, 15: detainees aged between 12 to 14 cannot be isolated for more than 24 hours, those over 15 years cannot be isolated for more than 48 hours.
 Quamby Youth Detention Centre Policy and Procedures Manual (draft) ACT Youth Justice Services Canberra 1997 Pt 4.10.
 NSW Ombudsman Inquiry into Juvenile Detention Centres vol 1 NSW Ombudsman Sydney 1996, xii–xiii.
 r 67.
 Draft QOC Standards 6.4.1.–6.4.6.
 Earlier draft of the QOC Standards provided to the Inquiry, Standard 6.4.2.
 eg Secure Care Standard Procedures SA Dept of Family and Community Services Adelaide procedure 7; Children (Detention Centres) Act 1987 (NSW) s 19(3); Juvenile Justice Regulation 1993 (Qld) reg 16(5). The NSW Act also requires that the superintendent of the centre shall forward copies of the record to the detainee and the Director-General within 24 hours of the isolation: Children (Detention Centres) Act 1987 (NSW) s 19(3).
 eg Juvenile Justice Centres Operational Manual NSW Dept of Juvenile Justice Sydney 1997.
 This is supported by D Sandor DRP Submission 30.
 eg Children (Detention Centres) Act (NSW) ss 33, 37A; Juvenile Justice Act 1992 (Qld) s 219; Juvenile Justice Act 1992 (NT) s 91. The period of imprisonment for these offences ranges from 3 months to a year.
 eg Juvenile Justice Act 1992 (NT) s 91.
 This discretion is noted in Children (Detention Centres) Act 1987 (NSW) s 37A which states that a breach of conditions of leave can be dealt with as misbehaviour rather than as an offence.
 Young Offenders Act 1994 (WA) s 170. These include disobeying a rule, using insulting or threatening language, making a false or frivolous complaint, an act or omission of insubordination or misconduct subversive of the order of the centre or behaviour of an disorderly or riotous manner.
 Young Offenders Act 1994 (WA) s 171.
 Young Offenders Act 1994 (WA) s 172(2).
 In some jurisdictions this right is legislatively recognised: eg Juvenile Justice Act 1992 (NT) s 40; Juvenile Justice Act (Qld) s 66.
 eg in NSW, when serious offences such as assault are referred to the police no opportunity is provided by the centre for the detainee to speak to a lawyer or contact anyone for advice during this time: M Maneschi ‘Juvenile “Justice” Centres —False Labelling Paper Children and the Law: Where’s the Justice? Conference Sydney 28 April 1997, 7.
 Young Offenders Act 1994 (WA) s 174(3). Young Offenders Regulations 1995 (WA) reg 39 also provides that a suitable person other than a legal practitioner can assist and represent the young offender at the disciplinary hearing. This prohibition on legal representation applies despite the fact that the procedure is very similar in nature to judicial proceedings: reg 40.
 Young Offenders Act 1994 (WA) s 173: punishment for a detention centre offence includes altering the earlier release day of the detainee. An order of the superintendent is limited to 3 days, and to 14 days if made by a visiting justice.
 Youth Advocacy Centre IP Submission 120; Townsville Community Legal Service IP Submission 181.
 SA Dept of Family and Community Services IP Submission 110.
 Oz Child Legal Service IP Submission 195.
 See para 20.8.
 r 24.
 Draft QOC Standards 6.1.1–6.1.5.
 Standard Guidelines for Corrections in Australia Corrective Services Ministers’ Conference 1994 Guidelines 5.37–5.39.
 Juvenile Justice Centres Operational Manual NSW Dept of Juvenile Justice Sydney 1997; Ashley Youth Detention Centre Manual Tas Dept of Community and Health Services Hobart 1997.
 Draft QOC Standard 1.4.3.