The School Education Act 1999 requires compulsory aged students to attend school, or participate in an educational programme of a school, on the days on which the school is open for instruction, unless a written arrangement has been entered into for the student (ss 23 and 26). Since 2008, education has been compulsory for students from the beginning of the school year they turn 6 years 6 months, until the end of the year in which they turn 17.
Regulation 26 of the School Education Regulations 2000 provides that the minimum hours prescribed for the instruction of children in primary or secondary school education programmes is at least 4 hours 10 minutes per day and at least 25 hours and 50 minutes per week.
Young people in detention are unable to attend external school programmes but their right to continue their education is recognised both internationally and nationally. Article 28 of the United Nations Convention on the Rights of the Child (CRC) recognises the right of all children to an education and rules 38 and 39 of the Havana Rules affirm that right for juveniles in detention. They require that education and training in detention be integrated into the mainstream education system and that these programs take account of different cultural backgrounds and the special needs of detainees with literacy or learning difficulties.
Section 7(j) of the Youth Offenders Act (YOA) provides that the ‘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’. One of the principles to be applied in the sentencing of young offenders is that the rehabilitation of the offender is facilitated by giving him or her opportunities to engage in educational programmes (s 46(5) YOA). These provisions are reflected in the Department of Corrections’ current youth custodial services (YCS) rules 102 dealing with the Youth Justice Service’s Philosophy.
At Banksia Hill prior to 20 January 2013, detainees were involved in an education programme from 9.00 am to 3.00 pm each week day apart from Wednesday afternoon, which was reserved for staff training. At Hakea Juvenile Facility that programme was reduced to ‘one structured on a rotational basis with which involves each unit wing being placed in a classroom for 2 hours each day, Monday to Friday’. The Department explained that the reduction in education programme time was ‘due to room availability’.
Given the School Education Regulations 2000 requirement that the minimum hours prescribed for the instruction of children in primary or secondary school education programmes is at least 4 hours 10 minutes per day, the provision of two hours per day is grossly inadequate.
Rehabilitation is not just about education. It requires other types of recreational and remedial programmes for personal development and which might also assist sentenced detainees to apply for supervised release in terms of Part 8 of the YOA. The provision of recreational and remedial programmes is recognised in YCS Rule 102 and in the Australasian Juvenile Justice Administrators Standards. At Hakea Juvenile Facility, in the period up until 27 March 2013, no rehabilitative programmes for detainees had been delivered by the Department. Recreational activities however, had commenced and was said to consist of 3 hours indoor and one hour outdoor recreation on Monday, Thursday, Friday, Saturday and Sunday and 2 hours indoor recreation on Tuesday and Wednesday.
The failure to ensure that detainees are able to access and participate in rehabilitative programmes is contrary to s 7(j) of the YOA and to relevant national and international standards.