A senior Perth judge has accused the West Australian government of "flouting the law" and "thumbing its nose at the court" in relation to the ongoing detention of juveniles inside an adult prison.
Children's Court President Hylton Quail made the comments last week when handing down his reasons for granting bail to a 17-year-old detained at Unit 18 inside Casuarina adult prison.
The juvenile unit was set up in July as "a short-term facility" to house a group of teenagers that authorities said could not be managed at Western Australia's dedicated youth detention centre, Banksia Hill.
The court transcript obtained by 7.30 showed the teenager before Judge Quail had a record of serious offending, including aggravated home burglary.
He had been detained at Casuarina Prison's Unit 18 since mid-October after being transferred there from Banksia Hill.
Judge Quail granted the teen bail despite the fact he had a record of disobeying bail conditions.
"The choice is stark," Judge Quail said.
"Between a risk that the community might not be protected if I grant [him] bail, and on the other hand a certainty that [he] will continue to be harmed by unlawful solitary confinement in circumstances where the Department of Corrective Services is deliberately flouting the law, thumbing its nose at the court and undermining the separation of powers in this state."
Judge Quail said the teenager had been subjected to consecutive days of solitary confinement while detained at Unit 18 and described the conditions as "arbitrarily punitive, cruel and a form of child abuse".
A detention management report stated the teen was transferred to Unit 18 for behaviour including staff abuse, not following instructions, and discussing plans to damage cells with other detainees.
Judge Quail questioned the department's mechanism for sending juveniles to Unit 18, which he said involved an "in-house" team of staff deciding whether a detainee's behaviour warranted the move.
He said this approach was not in line with the Youth Offenders Act, which stipulated that only authorised visiting judges can hear and determine detention offences.
"Since November of 2020, not a single detention offence has been heard by one of the authorised visiting justices," he said.
"It seems that the process that Banksia Hill has used is to bypass completely the provisions in [the Act] in relation to the investigation of incidents and detention offences and instead ... to use an in-house multidisciplinary team to deal with these issues."
Judge Quail said the judiciary should be able to hear and determine detention centre offences and impose appropriate penalties.
"It is not the role of the executive government," he said.
"Insofar as the department has taken this role for itself, it has seriously undermined the rule of law in Western Australia.
"And insofar as the department says routinely that the behaviour of the cohort of young people at Banksia Hill is lawless, well, the people presiding over the lawless jungle are behaving in a not dissimilar way insofar as they are completely failing to comply with the provisions of the Young Offenders Act in relation to the investigation and determination of detention offences."
McGowan disagrees with some of court's decisions
Judge Quail's latest criticism of the state government came after WA Premier Mark McGowan recently said he disagreed with the way the state's children's court was handling some juvenile detainees.
Mr McGowan said juvenile detainees were sent to Unit 18 "if they behave so badly, destroy their cells and attack staff so much they can't be managed in Banksia [Hill]".
"I want them to have a new chance in life. I want them to get the educational and psychological support that you get at Banksia," he said last month.
"But you've got to be prepared to participate.
"If you just go there and attack everyone and wreck everything and destroy everything, what are we supposed to do? Just allow that to continue to happen?"
In a statement, a spokeswoman for the Department of Justice told 7.30 the Young Offenders Act included provision for the superintendent to hear detention centre charges, as well as visiting justices.
"However, personal support plans for young people are generally used in preference to formal detention centre charges in managing disruptive behaviour, in recognition of the complex factors that may contribute to this behaviour," the spokeswoman said.
"While the multi-disciplinary team does not investigate detention charges, it does consider the best supports and placement for the young person's individual needs.
"Some allegations of serious assault and damage offences by detainees are also referred to the WA Police Force for investigation.
"Detainees are only transferred to Unit 18 where they cannot be safely and securely managed at Banksia Hill Detention Centre, which is undergoing urgent infrastructure works to bring the facility up to contemporary standards."
In July, the director general of the Justice Department, Adam Tomison, told 7.30 the decision to move the children to Casuarina was not one he took lightly and was about keeping staff and detainees safe.
He said the detention of juveniles at Casuarina Prison was temporary while an upgrade of Banksia Hill was being developed.
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