The WA government has admitted to unlawfully confining three young people to their cells for dozens of days this year, with one girl harming herself after not being able to shower.
WARNING: This story contains details some readers may find distressing.
The state's Aboriginal Legal Service is representing three young people who have been detained in either Banksia Hill Detention Centre, or a separate isolated facility at the adult Casuarina Prison, for months.
The ALS has argued on dozens of days over a period spanning months, the three were kept in their cells for periods that were illegal under the government's own laws — in some cases being allowed out for just 10 or 15 minutes, and not at all on other days.
Such detention was legal in some circumstances, where particular procedures were followed, but the Department of Justice admitted that in some circumstances that had not happened.
The government said issues with staffing, infrastructure and detainee behaviour was continuing to contribute to detainees spending long hours in their cells.
'Damaging' to mental health
WA's Supreme Court on Friday heard the impact long periods of confinement in their cells was having on the children.
The ALS's lawyer, Marina Georgiou, presented evidence that one girl in the case, as recently as early December, started ripping up her bedding in her cell and threatening to harm herself, and on at least two occasions she went more than a day without showering.
She said at one point the girl became so frustrated she bit off part of her knuckle.
It was suggested that staffing issues meant the girl could not be let out of her cell, which did not have a shower, to use one.
Ms Georgiou said that was just one of many incidents that showed the impact keeping teenagers in their cells was having.
She said in many instances detainees did not know how long they would be locked down in their cells for, noting the damaging effect that had on their mental health.
The service had been seeking an order from the court requiring the state government follow its own laws.
But lawyers representing the Department of Justice argued that was inappropriate because it would make the superintendent of Banksia Hill, who had only been in the role a week, criminally liable for breaching the orders.
They said it would add to the existing "difficulty and demands" of the role, and noted the new superintendent had already taken steps to issue new instructions to staff creating more rigorous procedures around confining detainees to their cells within the bounds of the law.
'Too late' to compensate
Justice Paul Tottle said the issue of ascribing criminal liability "troubled" him, and instead proposed what he described as a "rather unorthodox solution".
Instead, he will order that the prison's superintendent report to the court on the detention of the three teenagers, including conditions around any confinement to their cells.
Justice Tottle said the level of supervision afforded by such an order would allow the court to ensure the law was being followed, without imposing the risk of criminal liability.
He said it would also allow him time to consider how to resolve a number of issues in the case, pending a full hearing in late January.
Lawyers for the Department of Justice had earlier argued that no orders should be made, given that monetary damages awarded after the fact would be appropriate compensation for any prolonged detention that was found to be unlawful.
Ms Georgiou said damages would be "completely inadequate", saying that "if the unfortunate does happen" it would be too late for money to compensate.
The cases traces its roots back to an August decision of the Supreme Court, which found long periods of detention within cells amounted to unlawful solitary confinement.
