The Youth Offenders Act (YOA) does not contain any provision which authorises the CEO or Superintendent of a detention centre to order the lockdown (lockup in their cells) of all detainees for a period of time for reasons relating to the management or security of the centre.
Part 9 of the Regulations contains provisions dealing with the imposition of confinement, as a way of dealing with a detainee who has committed a detention offence (r 74(1)) or ‘in order to maintain good government, good order or security in a detention centre’ (r 74(2)). The Regulations give the Superintendent power to order that a detainee be confined to his or her sleeping quarters or a designated room.
The Part 9 Regulations and the supporting Youth custodial services rule 206 appear to only apply to the management of disruptive behaviour of individual detainees in circumstances where there is a need for that individual to be ‘confined from other detainees’. This type of ‘management confinement’ is also one of the punishments that can be imposed following the conviction of a detainee for a detention offence (s. 173 YOA Act). The ‘management confinement’ of detainees was discussed in the report relating to the inspection of Banksia Hill in 2011.
Section 181 of the YOA provides that the CEO, with the approval of the Minister, may ‘make rules for the management, control, and security of detention centres generally or a specified detention centre and for the management, control, and security of detainees and the management of officers of the Department’. However, none of the Juvenile custodial service rules in place at the time dealt with the issue of lockdowns.
Standing order 4 (June 2009) prescribes a centre timetable for Banksia Hill and Rangeview Remand Centre. The timetable provides for the scheduled unlock of detainees commencing at 7.15 am and lockup for the evening commencing at 8.00 pm. Provision is made for a late lockup between 8.00 pm and 11.00 pm ‘dependant on availability of staffing’. An Assistant Superintendent’s Notice issued for Banksia Hill in September and November 2012 changed unlock and lockup times to 7.30 am and 7.15 pm respectively.
The Local Order 106 issued for Hakea Prison (see the comments above about the application of this order) attaches a timetable for the ‘Structured Day’ for detainees in Units 11 and 12. In contrast to Standing order 4 it shows a scheduled unlock of detainees at 7.15 am and lockup procedures for the evening commencing at 6.20 pm.
Apart from these timetables relating to unlock and lockup times, there are no other administrative procedures (including the revised Youth custodial service rules) that make provision for the management of scheduled or unscheduled lockdowns of detainees.
As mentioned above, International Standards recognise that young persons in custody must be treated in a way which does not subject them to cruel, inhuman or degrading treatment.
Section 7(j) of the YOA provides that ‘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’.
In Bekink v R, an adult prisoner in Casuarina Prison had been sentenced to three years imprisonment with eligibility for parole. Prior to his being sentenced there had been a riot in the prison and the authorities responded by imposing a lockdown on half of the prisoners in the prison. There was no particular reason why one half was chosen rather than the other. The lockdown was imposed to offset structural changes to make the prison more secure and not to punish prisoners. There was a shortage of beds in the prison at the time. The prisoner was included in the lockdown despite any misconduct on his part. In fact, the lockdown had already commenced before he was imprisoned. Up until the time of his appeal the prisoner had been subjected to the lockdown for about three months.
The court allowed fresh evidence to be adduced to establish the harsh conditions applicable to the prisoner’s imprisonment. Ipp J noted that the prisoner was confined to his cell for 21 hours per day and that he had no recreational or physical activity apart from walking up and down the corridor together with other prisoners. He stated that ‘Confinement in a cell for a substantial period is a severe form of punishment. This is recognised by the Prisons Act 1981 (WA) which provides for confinement as a form of punishment for offences committed in prison.’ Ipp J went on to add that:
… the lockdown conditions are very close to those imposed on persons who have committed prison offences, yet the prisoners in the lockdown category are subject to those conditions without having committed prison offences and have to endure them for a longer period than offenders who are sentenced to solitary confinement under the Prisons Act. This means that the lockdown conditions are significantly more severe than those contemplated by the Parliament as the ordinary conditions of imprisonment when it passed the Prisons Act.
Bekink’s case illustrates the view which was taken of an oppressive lockdown regime in an adult prison. Section 7(c) of YOA provides that 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. Such a regime applied in a detention centre can only be regarded as even more oppressive and contrary to the principles in s 7 of the YOA as well as international principles requiring that children not be subjected to cruel, in human and degrading treatment.
In addition, it is of grave concern that there is an apparent lack of authority for the use scheduled or unscheduled lockdowns (beyond that for unlock and lockup) in the detention centres and no proper accountability for their use as part of a daily regime for the detainees. The imposition of lockdowns as part of a ‘management regime’ can be arbitrary and lengthy. The reasons for lockdowns are not recorded and no accurate record is kept of the times involved. Having regard to the objectives of the YOA and the general principles of juvenile justice this is an untenable position.