The WA government broke its own laws by locking a boy in his cell for up to 24 hours a day at the troubled Banksia Hill Detention Centre, the WA Supreme Court has found.
Justice Paul Tottle handed down his decision on Wednesday in a civil case brought by the Aboriginal Legal Service of WA, on behalf of the now 15-year-old boy, against the Department of Justice.
Justice Tottle said the practice of locking detainees in their cells for long hours – as this boy was on 26 occasions between January and June — could cause "considerable harm".
"That harm may affect the lives of the detainees for years to come," he said.
He said that locking children in their cells for a long time was a "severe" measure which should only be used seldom because of its potential to hurt already vulnerable young people.
"Confining children to their sleeping quarters in a detention centre for long hours, thus effectively confining them in isolation, can only be characterised as an extraordinary measure — one that should only be implemented in rare or exceptional circumstances," Justice Tottle wrote.
His comments add to a growing body of criticism of WA's juvenile justice system.
Earlier this month, retired Judge Denis Reynolds said the system was "broken".
In February, current Children's Court president Hylton Quail described the impact of a child being held in what he called "solitary confinement" in Banksia Hill's Intensive Supervision Unit (ISU).
"When you treat a damaged child like an animal, they will behave like an animal," Judge Quail said.
Justice Tottle found that while custodial officers have the power to confine juvenile detainees in their cells, these should only be used in very specific circumstances.
"…it does not extend to ordering that a detainee be locked in his or her sleeping quarters, in effect, resulting in the detainees being kept in a state of solitary confinement all day."
His judgement detailed how broadly these powers were being used.
Boy in cell 'day and night' for three days
For example, the boy, identified as VYZ, was locked in his cell for 70 of 72 hours over three days in early February.
During this time, he was in the centre's Karakin Unit, a general wing of Banksia Hill.
"While I was in Karakin Unit there were rolling lockdowns most days," the boy was quoted as saying.
"By lockdown I mean that I had to stay in my cell all day and night and would only be allowed out for about 10 to 30 minutes each day to make a phone call."
Justice Tottle found these rolling lockdowns were primarily caused by "chronic staff shortages".
On February 23, VYZ was moved to the ISU, where he frequently spent longer than 23 hours a day in his cell, with only brief breaks to have a shower or make a phone call.
Two days later, he ate breakfast, lunch and dinner in his cell and spent about an hour and a half outside of it.
The boy gave evidence about what life was like being locked in the ISU.
"In ISU, the windows in the wings are all screwed shut, so you can't even open them to let the breeze in," he said.
"That's why we play up and kick the window out, to get outside.
"When we are on the roof, we say to the guards things like 'We did this because you wouldn't let us out'."
Staff shortages blamed for lock-up practice
The judgement outlined what a normal day in Banksia Hill should entail.
- 7.45am – cells unlocked. Detainees have breakfast and do chores
- 9am to 3pm – education services
- 3pm – sport, movies, board games and other scheduled activities
- 6.45pm – detainees are locked in the cells for the night.
The WA government gave evidence that staff shortages, as well as more than double the number of critical incidents and instances of cell damage compared to the previous year, had contributed to detainees being locked in their cells for long periods of time.
An incident is deemed critical if a detainee or staff member needs medical treatment or hospitalisation, or if there is a threat to order and security.
Wade Reid from the Department of Justice gave evidence that staff shortages meant it had been necessary to lock detainees in their cells.
"In the past six months, it has been necessary based on the number of staff to make decisions to lockdown detainees throughout the day, in order to be able to provide the crucial services," he said.
More legal action could follow
The ALSWA has indicated future legal action could result from this case.
Director of legal services Peter Collins said VYZ was not the only young person to be locked up for too long.
"We've got a number of clients that we're currently acting for that we believe have been subjected to similar regimes as this client," he said.
"So we'll be in contact with the government and their legal advisors."
Mr Collins said VYZ's case was yet another example in "the long history of the appalling treatment of Aboriginal people in custody".
He said it showed the WA Government needed to change how it managed juvenile detainees.
"It's a scandalous state of affairs and an indictment on the government for a Supreme Court justice to find that a government has acted unlawfully and for a young person in its care to be treated this way," Mr Collins said.
Corrective Services Minister Bill Johnston said he had long acknowledged this was a difficult time for Banksia Hill detainees.
"Banksia Hill continues to see improvements in staffing levels since 38 new probationary officers commenced in April and May 2022," he said.
"A further 10 probationary officers commenced their three-week orientation on 15 August 2022 and will commence their rostered duties on completion."
The Department of Justice said it would closely examine the judgement in relation to managing the care of young detainees and safely operating detention facilities.
Father's relief as judgement is handed down
The father of a young offender told the ABC he was relieved to hear the plight of children inside Banksia Hill had been recognised through the case.
"We as family hear firsthand how devastating it is to the children," he said.
"It's depriving kids of natural [family contact] that humans should be getting.
"Unfortunately, animals in zoos get treated better than our poor children in these institutions."
The man, who can't be named for legal reasons, said he didn't believe it was fair for children to bear the brunt of the department's staffing crisis.
"That's just not a good enough reason to subject our kids to several day lockdowns, in those sorts of conditions – that's just not on."
He called for a government inquiry into youth justice services in Western Australia.
Earlier this year the McGowan government committed to building a new youth justice facility in the Kimberley, with many children in the far north currently flown down to Perth to complete their detention.
"I hope there is some light at the end of the tunnel for our kids," the father said.
