DE v State of New South Wales

There was no issue that when the brawl was brought under control on 25 June, the entire Mandela Unit was locked down, with all detainees being placed into their rooms some time before the ordinary nightly Centre-wide lockdown, in order to restore order. DE and another detainee involved in the brawl were transferred that night to the Jamison Unit.

DE finally made no complaint about those aspects of the response to the safety risks which had materialised on 25 June. They were authorised by Mr Rawlings, the Shift Supervisor, and Ms Scott, the Duty Manager, who then had operational control of the Centre. But what remained in issue was who made other decisions about DE’s ongoing treatment, which he did challenge and claimed had resulted in his wrongful imprisonment and assault.

In the Jamison Unit, DE was kept segregated in his room until the risks he posed were assessed at a meeting called for the following Monday morning by a team of staff led by Mr Vita, the Centre Manager. A behaviour management plan known as a DRMP was developed for DE at the 27 June meeting. It provided for his further segregation in the Taralga Unit, where others whose behaviour had resulted in them being placed on such plans were ordinarily detained at Cobham.

This plan contemplated both DE’s segregation and handcuffing when outside his room until 12 July, subject to a review at the next regular DRMP meeting on 5 July. DE challenged not only the 27 June decision, but all those which resulted in his ongoing segregation from 26 June until 18 July.

It was on 5 July that the length and conditions of DE’s segregation began to be cautiously relaxed, while further risk assessments were pursued. On DE’s case, this approach to risk assessment was neither required nor lawful, because he had posed no heightened risk after 25 June.

While DE disputed this and the evidence was unclear, for reasons which I will explain, I have concluded that it was Mr Vita who made all of the challenged decisions. As well as the decision on 18 July to bring DE’s segregation to an end.

Whether the requirements of the Detention Centres Act had all been complied with, given the delegations which had been made under s 39A of that Act in 2016 (now s 101), was in issue. As was his claim for damages. DE’s case being that the statutory requirements had not been complied with as they had to be, with the resulting invalidity of the challenged decisions, as well as his wrongful imprisonment and assault, when he was handcuffed and also ankle cuffed.

The State’s case was that DE was never ankle cuffed, always lawfully detained and never assaulted. The requirements of the Detention Centres Act having been complied with and even if any requirement had been breached, the challenged decisions not being invalid. With the result that DE was not entitled to the claimed damages, given that he had not been wrongfully imprisoned and that such damages were not contemplated by the Detention Centres Act.

Further, that even if wrongful imprisonment was established for any period, DE was not entitled to anything more than nominal damages, given that he would have been kept in lawful detention anyway, even if he had not been segregated as he was. That being the result of the orders of the Children’s Court which had refused him bail.

The State also challenged the utility of the declaratory relief DE pursued.

What is disputed has to be resolved in light of there being no issue that, as part of the normal operation of Cobham, detainees were all kept in their rooms apart from other detainees at various times, over the course of every day, including overnight. DE finally did not claim that he was wrongfully imprisoned at such times.

The D**etention Centres Act also expressly permitted detainees to be kept either in confinement, separation or segregation in specified circumstances. Both the Act and the Regulations also provided for the use of force at centres, including by use of hand and ankle cuffs.

Whether a detainee could ever be unlawfully imprisoned while held on remand as DE was, even when in segregation, was thus in issue.

It should be noted that in Flynn v The King (1949) 79 CLR 1; [1949] HCA 38, in refusing an application for special leave to appeal from an order refusing a writ of habeas corpus, by an offender who had been sentenced to life imprisonment and claimed his custody had become unlawful, Dixon J referred to Horwitz v Conno**r (1908) 6 CLR 38; [1908] HCA 33. In relation to regulations made under the Prisons Act 1903-1918 (WA) it was observed at p 7-8, that:

The evidence the State led on which DE also relied to advance aspects of his case, has to be assessed in the usual way. That is, with regard being paid to matters such as:

The fallibility of human memory which increases with the passage of time: Watson v Foxman (1995) 49 NSWLR 315 at 318-319 and Turner v Richards [2025] NSWCA 83 at [58];

A court not being bound to accept even uncontradicted evidence, including for reasons such as its inherent implausibility, its objective likelihood, or the required state of actual persuasion not being arrived at: GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [59];

The seriousness of the allegation, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding being relevant, because “reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman at 319;

Contemporaneous documents thus generally furnishing the most reliable source of evidence as to what occurred or, at the very least, providing a generally reliable reference point from which to assess the reliability of witness’ testimony: ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 at [25]; (2021) 388 ALR 128;

Oral testimony may still be of value and importance, given the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness. This is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth: ET-China.com International Holdings Ltd at [27] referring to Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22]; and

Documents and events also must be understood in context, evidence of which will often be furnished in oral evidence. This is otherwise not necessarily apparent to a court many years later when hearing the case: ET-China.com International Holdings Ltd at [29].

It was the cross-examination of the State’s witnesses which established the context in which the challenged decisions were made; shed light on what the records did and did not show; as well as on the shortcomings of the CIMS system and record keeping generally at Cobham in 2016.

The records did not accurately capture when and by whom particular decisions were made, or the times when they were approved. This resulted in the parties joining issue about who made the challenged decisions and whether the statutory requirements had been complied with. This is not only because of the time limit imposed by s 19(1)(b), but because of delegations made under s 39A, which impacted the approval of segregation decisions.

But DE did not pursue habeas corpus.

DE rather claimed that despite his lawful detention, the approach taken in McHugh had to be applied, the claim he pursued being that his imprisonment had become unlawful because he was kept in isolation. The tort he claimed the State had committed, protecting as it does the liberty of the subject.

As a result, while the onus on a judicial review application would fall on him to prove the breaches of the Act his case depended on, because his claim was that they had resulted in his wrongful imprisonment, the onus fell on the State. The State disputed this, arguing there was no issue that DE’s detention was lawful and that his challenge to the administrative acts of those employed at Cobham, ordinarily required him on judicial review to prove conduct involving jurisdictional error.

It seems to me that despite DE’s segregation being claimed to amount to wrongful imprisonment, the onus of establishing that it was unlawful because the requirements of s 19 of the Detention Centres Act were not all complied with, must fall on him.

DE’s claims depend not only on who made the challenged decisions, but also on the existence of required beliefs held on reasonable grounds and whether required approvals of the decisions were obtained. What is in issue turns on the proper construction of s 19, including whether, if breach is established, the challenged decisions were as a result invalid, thereby entitling him to damages.

Given the nature of DE’s challenge to the decisions made about the conditions of his detention in 2016, the onus must fall on him to establish his claims. As it would have, had he then sought judicial review of those decisions: Minister for Immigration and Border Protection v SZMTA (2019) 266 CLR 273; [2019] HCA 3 at [41], referring to Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 616; [2011] HCA 1.

It seems to me that this result is not altered by DE’s challenge to the conditions of his detention only years later, when he seeks to pursue considerable damages. That claim also turning as it does on the proper construction of the legislative scheme, as well as on its interaction with the Work Health and Safety Act, which also had to be complied with in 2016.

That wrongful imprisonment is now claimed to be the result of the alleged breaches of the statutory scheme does not appear to me to warrant any alteration in the onus, which I consider would ordinarily fall on DE, to prove the legislative breaches on which his challenges to the disputed decisions depend.

Even if I am wrong in that view, despite the difficulties which the assessment of the evidence presented, given that none of the witnesses any longer had a clear recollection of all of the relevant events, and that the contemporaneous records did not accurately reflect them all, I am satisfied that:

DE was always lawfully detained; and

the evidence established that the only breaches of s 19 in 2016 were the result of a failure to obtain the approval required of some of the challenged segregation decisions, within the time specified in s 19(1)(b).

I have also concluded that despite these breaches, none of the challenged decisions were invalid, with the result that DE is not entitled to the damages he pursues.

It follows that detention which results from a Court’s refusal of a bail application made under the Bail Act 2013 (NSW) is lawful, that being the result of the exercise of judicial power and not punitive. Such an order is protective of the community, in a similar way to extended detention ordered after a convicted offender’s completion of a sentence, following orders made by this Court under the Crimes (High Risk Offenders) Act 2006 (NSW).

DE’s wrongful imprisonment claim turns on how the risks he posed in 2016, which materialised at Cobham on 25 June, were managed. His case being, essentially, that those who had to manage his risks were mistaken both in their assessment of and approach to those risks. Further, that they also failed to adhere to the requirements of ss 16 and 19 of the Detention Centres Act when he was kept isolated from other detainees from 26 June to 18 July, despite the gradual relaxation of those conditions.

But still DE did not put in issue that both the requirements of the Detention Centres Act and the duties imposed by the Work Health and Safety Act*,* which have to operate harmoniously, all have had to be observed by those working at Cobham when they managed the risks to safety which he posed.

They must be undertaken in the context of the very different objects of the Detention Centres Act and the Work Health and Safety Act*,* which I will explain, as well as in accordance with the very different requirements of ss 16 and 19 of the Detention Centres Act*,* to which I will return. But it should be noted that there is every possibility that an offender who has to be dealt with under the High Risk Offenders Act*,* will at an earlier time have been held in detention under the Detention Centres Act*.* That sheds light on the nature of the risk assessments which may have to be undertaken under that Act.

In Cleland v The Queen (1982) 151 CLR 1; [1982] HCA 67, it was explained that it is of critical importance to the existence and protection of personal liberty under the law that the restraints which the law imposes on powers of arrest and detention be scrupulously observed: at 27.

It is also settled that the detention of a prisoner in a place where he or she is not lawfully able to be detained is likely to be unlawful, and so could constitute wrongful imprisonment: Collins v Downs & Ors (Supreme Court of New South Wales, Roden J, 14 December 1982), referred to in State of New South Wales v TD (2013) 83 NSWLR 566; [2013] NSWCA 32 at [61].

There is no suggestion, however, that even when DE was held in the Taralga Unit, where those on DRMPs providing for segregation were typically housed at Cobham in 2016, he was ever detained in a place where he could not lawfully be held.

In Prisoners A-X**X Inclusive v State of New South Wales (1995) 38 NSWLR 622, the Court of Appeal found it unnecessary to consider whether a prisoner enjoys a right of “residual liberty” in relation to the State and whether the writ of habeas corpus runs where a person is illegally held in “a prison within a prison”. Notwithstanding the reference there made to the decision of the Supreme Court of Canada in Miller v The Queen (1985) 24 DLR (4th) 9 on which DE relied, which was acknowledged as providing powerful authority to support that proposition: at 633.

Earlier, in Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317, it was noted at 328 that s 22 of the Prisons Act 1952 (NSW) authorised the segregation of prisoners under the conditions there specified. That implied that “prisoners will not be segregated, unless those conditions are fulfilled”: at 327. It was concluded that whether any segregation the section did not authorise implies rights to a civil remedy sounding in damages did not arise to be determined “because we are of the opinion there was in fact no segregation”: at 327.

That is the question which is now squarely raised by DE’s case, in respect of s 19 of the Detention Centres Act*,* there being no issue that DE was in fact segregated as the result of the challenged decisions.

In Sleiman v Commissioner of Corrective Services [2009] NSWSC 304, Adams J granted leave under the Felons Act 1981 (NSW) to permit Mr Sleiman to institute proceedings in which he sought relief by way of declaration. Adams J making ancillary orders in respect of both the place and conditions of his imprisonment, his segregation in the alleged absence of lawful authority, and false imprisonment: at [65].

Adams J observed that, unlike other aspects of managing a prisoner’s custody in respect of which there was almost unfettered control, segregation was very differently regulated: at [60]. Concluding that the exceptional character of segregated custody, so far as the wellbeing of the prisoner was concerned, and the unique statutory regime which regulated it, meant that “compliance with its requirements is no mere matter of legal technicality but of fundamental importance. To place a prisoner in segregation without such compliance and set at nought the safeguards of the Act is a serious departure from the law”: at [61].

In TD, the Court of Appeal also explained that the lawfulness of detention depends upon compliance with the terms of the Court’s order. TD had been required to be detained in a hospital, with the result that her detention in the prison where she was actually held was not authorised. It was concluded that the mere fact that she could and should have been detained in another place, did not prevent her actual detention being unlawful: at [76].

But DE did not pursue such claimed unlawfulness, which reflects that it is always the Secretary’s role under the Detention Centres Act to determine where a detainee is to be held on remand after the Children’s Court refuses a bail application: ss 9 and 11.

There was thus no issue that even if DE had not been separated, segregated or kept in in his room during the challenged times as he was, he would still have been kept in lawful detention and entirely deprived of his liberty as a result. While bail refused, he was always deemed to be “in the custody of” the Centre Manager, in his case Mr Vita: s 15 of the Detention Centres Act.

While DE accepted that this was relevant to the assessment of his damages, his case was that s 15 could still not preclude his wrongful imprisonment claim.

In TD, reference was also made at [55]-[57] to Regina v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58, on which the State relied. It was there concluded that the transfer of a prisoner believed to be a troublemaker to another prison, where he was held for 28 days in segregation from other prisoners, the legality of which was challenged, could not result in damages for false imprisonment.

The result was that despite the conclusion that the segregation order had been invalid, damages for unlawful imprisonment were refused.

In Ex parte Hague, the appeal to the House of Lords failed because it concluded that a prisoner lawfully within a prison could not complain that his legal rights were infringed by a restraint which confined him at any particular time within a particular part of the prison. The relevant question being whether it was the legislature’s intention to confer private rights, that is, rights giving rise to claims in tort if breached. The answer being that even if a particular provision of the Act in question was intended to protect individuals, this in itself was not sufficient to necessarily confer rights. Further, nothing in the regulatory scheme in issue suggested that a breach would confer a cause of action sounding in damages, with the Rules in question being regulatory and not intending to give prisoners a right of action: at 163 and 165-166.

It was also concluded in Ex parte Hague that the “concept of the prisoner’s ‘residual liberty’ as a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain” was illusory. The prisoner was “at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere”. This not being “the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another”: at 163.

In TD, it was accepted at [73] that “other than in truly exceptional circumstances, lawful detention will not cease to be such because of the conditions in which the person is held.” Reference there being made to Cobbett v Grey (1850) 4 Exch 729 and Osborne v Milman (1886) 17 QBD 514, where prisoners had complained they were falsely imprisoned in a part of a prison where they could not lawfully be confined. Such decisions having been accepted in Arbon v Anderson [1943] KB 252, 254 as relating to the nature of the imprisonment, rather than to the conditions thereof.

The questions arising for determination in DE’s case thus include whether he being held in segregation, as he was for some weeks in 2016 when all the requirements of s 19 had not been complied with, amount to “truly exceptional circumstances” of the kind contemplated in TD. And if that was established, whether his detention ceased to be lawful as a result.

For reasons which I will explain, I am satisfied that this was not established on the evidence. DE not claiming to have suffered any particular injury as the result of the treatment he complains about and having chosen not to give evidence to advance his case, support that conclusion.

In TD, it was also noted that the distinction between conditions of imprisonment and the nature of the imprisonment had been accepted in Hague. As a result, being imprisoned in the wrong part of a prison, where there is strict classification according to law, is false imprisonment for which damages may be awarded: at [61]. But DE did not advance such a claim.

Under the Detention Centres Act*,* the centre where a detainee is housed on remand having to be determined by the Secretary: ss 9 and 11. That also requiring a consideration of the risks to safety which he or she poses: s 16. That first being assessed on entry into detention through the classification system. It follows that housing DE on the Jamison, Taralga and Carter Units during his segregation, rather than on the Mandela Unit, as he preferred, could not result in his detention becoming unlawful, or provide a basis for the damages he pursues.

DE also relied on SU v The Commonwealth [2016] NSWSC 8; (2016) 307 FLR 357 to establish the claimed wrongful imprisonment. There it was concluded that the Migration Act 1958 (Cth) did not alter the result of an unlawful arrest. Namely, the plaintiff was unlawfully held on remand and entitled to damages for wrongful imprisonment, until the time that the detention became lawful pursuant to a later court order.

DE claimed that he was kept in separation or segregation as the result of decisions which were not made by the required person, or which had not received the required approval, with the result that his imprisonment was unlawful. He also claimed the decision-maker did not hold the required beliefs on reasonable grounds, as the Act also required, arguing such beliefs were not capable of existing in his circumstances.

DE relied on the explanation in TD at [64], that a person lawfully committed to a prison may later cease to be held in lawful custody: R v Templeton [1956] VLR 709; [1956] ALR 706 and Day v The Queen (1984) 153 CLR 475; [1984] HCA 3. This turning on “(i) the relevant statutory provisions, (ii) the terms of the order or warrant of commitment and (iii) the manner in which what had commenced as lawful custody may have become unlawful”: Powch v The Queen (1987) 163 CLR 496 at 498; [1987] HCA 41.

DE also asserted that the process pursued at Cobham in 2016 did not adhere either to standard operating procedures applicable to all centres. Further, that the unlawfulness which resulted from the failures to adhere to the requirements of ss 16 and 19 were not cured by the approvals which were given, which were recorded only after the expiry of the required three hours of the decisions to segregate him.

That, too, was disputed.

In Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250; [2021] QSC 273, Martin J had to consider authorities here relied on by DE. His Honour noted that Canadian decisions support the idea of the existence of a “residual liberty” and a right inherent in a prisoner not to be subjected to further deprivation or harsher conditions, unless the statutory provisions which allow for such action have been fulfilled. Further, although United Kingdom and New Zealand authorities did not accept the existence of such residual liberty, some Australian single judge decisions did favour its existence: at [225].

His Honour preferred the reasoning of the New Zealand Court of Appeal in Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616. There it was concluded that habeas corpus was not available to release prisoners from maximum security or non-voluntary segregation in an isolation cell where they were subject to a lawfully imposed sentence. A change to the conditions on which an inmate was being detained, either by segregation, reclassification or transfer to another institution, not creating a new detention: at 633.

Although, it was observed that if one of the prisoners had sought judicial review instead of restricting himself to habeas corpus, “we would have ordered that his cell confinement should cease immediately”: at 619.

The proposed construction of the statutory scheme in issue before Martin J was thus rejected. His Honour concluding that a person lawfully detained could not be released from prison. Nor could the Court engage in an assessment of various levels of imprisonment, to determine which was most appropriate for the prisoner, and potentially ordering his or her release into the general prison population: at [234].

DE raised the undoubted difficulty of the Court having to examine decisions which were unchallenged in 2016. Decisions which the evidence established were made bona fide by the Centre Manager who had actual custody of DE and who was obligated under statute, at risk of the commission of an offence, to ensure safety at the Centre. A breach of which would have involved an offence, potentially a very serious one, if DE had injured another detainee when released from segregation.

It is in that context that the claimed right to residual liberty has to be considered. The challenged decisions made after DE’s conduct on 25 June established the serious ongoing risks to safety which he then posed, having assaulted one detainee in an unprovoked attack and then joining a brawl in which other detainees were attacking another victim. The risks he posed while held in detention had thereby materialised.

DE challenged the views arrived at in 2016 that, after the risks he posed had materialised, they had to be managed by his segregation until the Centre Manager was satisfied that they could again be safely managed when DE was released to mix with the general detainee population, without restriction.

It is DE’s claim that the statutory requirements were not all strictly complied with, which thus now squarely raises the question raised in Ex parte Hague. Namely, did the Parliament intend that breaches of ss 16 or 19 of the Detention Centre**s Act of the kind which DE pursues, would confer on a detainee a cause of action for wrongful imprisonment, sounding in damages? His claimed right to residual liberty having wrongly been infringed.

To establish this, DE relied on Campbell v Northern Territory of Australia (No 3) [2021] FCA 1089; (2021) 295 A Crim R 1, where White J had to consider whether a period during which a young person was kept in isolation involved false imprisonment.

That turned on the proper construction of the Youth Justice Act 2005 (NT). What had to be considered included whether the periods of isolation in question had been authorised; whether the young person had been placed under unauthorised additional restraint of a more stringent kind which was only permitted by that Act in limited circumstances, that involving “a more stringent form of detentions”: Campbell at [466]; and whether, absent the circumstances which permitted that form of detention, it lacked statutory authority: at [469].

The result, White J concluded, was a form of false imprisonment which sounded in damages: at [471].

DE urged that similar conclusions had to be arrived at in his case, which the State resisted. It contending that White J’s views about residual liberty were obiter and not available under the Detention Centres Act.

In DE’s case, the respective requirements and necessary interaction between the provisions of the Detention Centres Act and the Work Health and Safety Act also having to be considered. These were not matters considered in Campbell*.* Nor were submissions there directed to the underlying principles, as White J explained. Further, the Northern Territory did not submit that keeping the applicant in isolation could not constitute unlawful imprisonment: at [472].

The result, I accept, is that the decision in Campbell is of limited assistance in resolving what is in issue here about DE’s claimed right to residual liberty.

It was finally DE’s case that these arrangements permitted the conclusion that he had been impermissibly confined to his room from 25 June, in order to both punish him and control his behaviour, by providing him with incentives and disincentives. But, accepting Mr Vita’s evidence as I do, I am unable to accept that the challenged decisions were made to punish him. Even though he accepted that their intended results included encouraging DE to behave and to provide a disincentive for further misbehaviour. That this involved any breach of the Act was disputed.

On all of the evidence I am satisfied that the nature and purpose of DE’s ongoing segregation was to ensure safety at Cobham, as both the Detention Centres Act and the Work Health and Safety Act variously required and permitted. And that the incentives and disincentives which resulted from his segregation under the conditions imposed, did not involve any breach of the Detention Centres Act*.*

I am not persuaded that this was established by any evidence.

DE’s ongoing compliant behaviour in segregation plainly reflected a desire that his segregation come to an end. This was taken into account, Mr Vita explained, in the assessments made about the ongoing risks which DE posed. First on 27 June and later, while his segregation continued under the relaxing conditions he explained. The evidence shed considerable light on the complexity and difficulty of those ongoing assessments.

Such risk assessments had to be undertaken at Cobham in respect of all those detained there, throughout their detention. Given not only the risks which they each individually posed, but also those which arose when they interacted with each other.

Since DE led no evidence to challenge the evidence led by the State, Mr Vita’s evidence about the complexity and difficulty of such assessments has to be accepted, consistent with his undisputed roles and experience in this State’s detention centres.

DE’s approach ignored the nature of the risks he was assessed to pose in 2016 when initially classified and then when reclassified, which had to be managed throughout his detention at Cobham. It also ignored the practical consequences of the onerous duties imposed by the Work Health and Safety Act on the State and those who worked at Cobham, as well as the light his violence in detention had shed on the risks he continued to pose, even when his behaviour was compliant.

Both the documentary evidence and that given by witnesses explained why a cautious approach was thus necessary to the management of the ongoing risks which DE posed. Regard having to be paid to his prior record of violence; resulting risk classifications; how he might safely mix with others given known affiliations and the retaliation he was at risk of; and to when known risks were more likely to materialise in detention, given past experience.

This reflected a proper approach to the duties imposed by the Work Health and Safety Act and cannot be criticised in the way invited by DE’s case. Had prior experience been ignored when making decisions about safety under the Detention Centres Act, further violence and offences under the Work Health and Safety Act would undoubtedly have been risked.

Mr Vita explained why decisions about risk management took account of relevant past experiences. His experience being that safety risks were more likely to materialise at dinner time, when detainees had access to cutlery which could be used as a weapon; that certain detainees had to be kept apart, for example, because of known gang affiliations; and that a detainee’s premature release from segregation could result in further violence, including as a result of retaliation.

I am satisfied that there can be no criticism of account being taken of such relevant matters.

DE’s earlier criminal record initially shed light on the nature of the safety risks which he would pose in detention. That was taken into account on his initial risk classification. Records maintained at Cobham shed light on his behaviour in detention, gang affiliations and interactions with psychologists and counsellors. His further offending in detention on 25 June then shed even more light on the real nature of the ongoing risks which he posed.

The CCTV footage established that the risks DE posed were greater than initially identified. The result was the realisation that the approach adopted to DE had to alter, if safety was to be ensured. The CCTV footage showing that:

Less than 2 weeks after he was refused bail, the risks which DE posed materialised during evening recreation after dinner when, unprovoked, he attacked and assaulted another detainee;

This assault occurred immediately after DE left a conversation with a number of other detainees, proceeding by himself to where his victim stood alone speaking on the phone, and DE attacking him by throwing a flurry of punches;

After being pulled away from that detainee with some difficulty, DE still managed to join others, including those he spoke to earlier, who were then attacking another detainee nearby;

DE then tried to pull an officer away, having to be subdued and placed in a room away from others. Others involved in that brawl also resisted officers attempting to stop their attack on the second detainee;

Officers who worked to restore order expended considerable effort to restrain and move the attacking detainees away, their own safety being put at risk by detainees including DE; and

That like other detainees involved, DE was powerfully built, adult-sized and of physically similar stature to officers who had to subdue those involved in the brawl.

This explained why the decisions later made about DE were also influenced by concerns he was at risk of retaliation for his conduct on 25 June. This contributed to the decision to remove him from the Mandela Unit, where he was not returned even after his segregation ceased, because that was assessed to be unsafe.

The approach pursued also accords with DE providing differing accounts of why he assaulted and attacked another detainee on 25 June, which were also inconsistent with reports received by officers from other detainees. Such reports included that DE’s assault was a diversion for the attack begun by the other detainees, their victim being a detainee held on national terrorist charges, with whom DE, and others involved in the brawl, had issues.

On 26 June, DE was asked by Mr Rawlings about his assault before police attended, with DE then accepting he was guilty of misbehaviour. Police later charged him with criminal offences which were eventually resolved by his entry of pleas to other offences, of which he was convicted and sentenced. As a result, he was not further dealt with internally for his misbehaviour.

DE’s case, that despite this he was impermissibly segregated to punish him rather than to manage the safety risks he posed, does not accord with either contemporaneous records or the witnesses’ evidence. Despite how he might understandably have perceived being isolated in his room. That the real purpose of his segregation was punitive must, accordingly, be rejected, notwithstanding his challenge to the lawfulness of the decisions made to segregate him.

The challenged decisions provided for DE’s segregation under increasingly relaxed arrangements and for shorter periods throughout the day, until 18 July. This reflected the results of the ongoing risk assessments Mr Vita pursued through the DRMP process. HIs decisions reflected altering views about the extent of the risks DE continued to pose, and how they could safely be managed, given how DE responded to his segregation and its gradual relaxation.

The segregation only came to an end when Mr Vita was satisfied it was safe for DE to mix with other detainees throughout the day as he had before the 25 June brawl. Albeit returning DE to the Mandela Unit, as it appears he desired, was never judged to be safe, given the risks which he continued to pose, reflected in his reclassification to A1 and the ongoing risk of retaliation, it was considered he was subject to.

Both the evidence and DE’s case did not suggest there was no reasonable basis for Mr Vita’s final decision, that his segregation could safely conclude on 18 July. Rather, DE’s case was that this decision ought to have been arrived at much sooner, as early as 26 June.

I am satisfied that the evidence does not permit this to be accepted, given all it discloses about the nature of the risks DE posed throughout his detention; how they materialised; and the challenge of assessing and then managing them safely at Cobham. That this was achieved accords with there being no suggestion that once the segregation came to an end, the risks which DE continued to pose materialised again.

Why DE was refused bail was not revealed by the evidence. However, detainees held on remand, like DE, are held in custody because it has been concluded by the relevant decision maker, in his case the Children’s Court, that he or she posed unacceptable risks and bail concerns of the kind specified in ss 17 and 19 of the Bail Act. These include risks of an alleged offender committing a serious offence or endangering the safety of victims, individuals or the community.

Assessment of such risks requires the decision maker’s consideration of specified matters, including whether an accused person has a history of violence, as DE did: s 18(1)(d) of the Bail Act. The difficulty of such risk assessment is well known, as is the community’s concern when such assessments fail to identify risks which later materialise in the commission of further offending in the community.

The evidence established that ongoing risk assessments in custody can be equally and perhaps even more demanding, despite how those refused bail are detained.

DE’s record of past violent offending thus had to be taken into account when he went into remand and was classified, as well as throughout his detention, where he soon engaged in further violence on 25 June 2016.

The risks DE posed had to be considered at Cobham whenever staff assessed and dealt with risks to safety arising from his behaviour, or that of other detainees towards him. It follows that DE’s violent assault and involvement in the 25 June brawl had to factor into all such subsequent decision making, no matter that his later behaviour may not have posed particular risks.

This reflects the Legislature having regulated risks to safety not only by the provisions made in the Detention Centre Act*,* but also in the Regulations and the Work Health and Safety Act. In some extreme cases, even after conviction and service of a sentence, such ongoing risks are further regulated by the Crimes (High Risk) Offenders Act, when the Supreme Court may have to undertake further difficult risk assessments for offenders who continue to pose particularly high risks to the safety of the community, if released.

In resolving what is in issue it is also pertinent to note that in detention centres, obligations to ensure safety and the resulting difficult risk assessments which have to be undertaken do not only arise in relation to children who are detained there, either on remand or after conviction. That is because some detainees are adults.

This is the result of the Children (Criminal Proceedings) Act 1987 (NSW) empowering a sentencing court to direct certain convicted persons over 18 and under 21 years of age to serve the whole or part of their sentence of imprisonment as a juvenile offender: s 19. A child is defined in s 3(1) to mean a person under the age of 18. This accords with the definition in the Detention Centres Act of a “juvenile inmate” defined to mean “an inmate who is under the age of 21 years”: s 3.

Section 9A of the Detention Centres Act also specifies circumstances in which those over the age of 18 may not be detained in a detention centre. The transfer of a juvenile inmate between a correctional centre and a detention centre is also provided for in s 10.

As a result, the risks managed daily by staff at detention centres can be similar to those posed by adults held in prisons. The safe interaction of such adults with children detained there must also be managed. This underscores the complex nature of the risk assessments necessarily undertaken at detention centres, potentially even more complex than those undertaken in a prison.

There was a risk assessment policy which applied at Cobham, but it is also not in evidence. It was no doubt directed at meeting the various obligations imposed on the State and those employed to work at detention centres, given the nature of the required risk assessments. The evidence that such assessments are complex and not foolproof must be accepted.

As the Regulations required, while DE was initially classified by the Department as falling into the second highest category of risk, A2, after 25 June, his classification was reviewed and increased through an exercise of discretion to the highest risk level, A1. That decision was not made by officers responsible for DE’s day-to-day detention at Cobham, but a matter they then had to pay attention to whenever dealing with DE.

It cannot be accepted that DE’s classifications were incorrect; that there was anything illogical or improper about his reclassification after 25 June; or that attention was wrongly paid to it, when later decisions were made about him, as was suggested to various witnesses.

DE’s reclassification reflected that on 25 June, the risks he posed had actually materialised while he was detained, despite the strict supervision under which detainees were held. As a result, DE was dealt with criminally, rather than being dealt with internally for misbehaviour under s 21 of the Detention Centres Act, and rr 73 and 74 and schedule 1 to the Regulations. The latter only being available for less serious misbehaviour at a centre.

DE’s conduct was not of this kind, as the CCTV footage and his later pleas established.

In cross-examination, Mr Vita thus agreed that the risk factors considered on DE’s reclassification after 25 June included the “serious violence threat” it was considered he posed. He agreed the discretion to increase his classification to A1, despite his scores still falling within the A2 range, rested on the 25 June incidents and the resulting exercise of a discretion. Mr Vita accepted, however, that the incident description in the reclassification document was “a little bit confusing”, it not having been DE who had kicked and stomped on the victim attacked in the brawl. Nothing turns on this.

The result, DE’s reclassification to A1 having to be taken into account whenever consideration was given to the management of the risks he posed, including during the DRMP process pursued after 25 June, cannot justly be criticised, given the requirements of the legislative scheme. The various units in which he was housed reflecting the requirements of s 16(2) of the Detention Centres Act, which required different classes of detainee to be detained separately from other classes of detainee, as far as reasonably practicable.

Detainee classification also impacted a detainee’s access to the school operated at Cobham under policies of the Department of Education, although these were also not in evidence. It also influenced decisions about which detainees could safely mix and how their behaviour needed to be managed, in relation to access to sharps, for example.

This must be understood in the context of how the Detention Centres Act and Regulations generally regulate the management and operation of centres. The Act requires adequate arrangements to be made for maintaining detainees’ wellbeing, promoting their development, maintaining discipline and good order, and facilitating the proper control and management of the centres: s 14.

Such aims may obviously be difficult to reconcile and cannot rest on a sole focus on individual detainees’ needs from time to time.

The Regulations also provide for matters such as:

general routines to be established for centres of which detainees are to be given notice: rr 4 and 5;

the provision of and access to appropriate education and vocational training at centres: rr 18 and 19; and

the use of force for specified purposes, including to quell a riot or disturbance and to protect officers or others from attack or harm: r 65(1). With juvenile justice officers being required to use no more force than is reasonably necessary in the circumstances: r 65(3).

The management of the risks which DE and other detainees posed also had to account for the obligations imposed by the Work Health and Safety Act. Its objects include protecting workers and other persons against harm to their health, safety and welfare, through the elimination or minimisation of risks arising from work: s 3(a).

While the objects specified in the Detention Centres Act are concerned with those on remand taking their places in the community as soon as possible, as persons who will observe the law and detainees preserving or developing satisfactory relationships with their families: s 4.

By way of comparison, the purpose of the Bail Act is “to provide a legislative framework for a decision as to whether a person who is accused of an offence or is otherwise required to appear before a court should be detained or released, with or without conditions”: s 3.

While the primary object specified in the High Risk Offenders Act is “to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community”: s 3(1). Another stated object is to “encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation”: s 3(2).

All of these statutory schemes are in considerable part concerned with safety, given the risks which those charged with and/or convicted of offences may pose, both within and outside detention.

In final oral submissions DE accepted that decisions made about safety had to be made consistently with all the statutory obligations which had to be observed at the centre.

What DE did not accept was that the required balance, if the obligations imposed by the Detention Centres Act and the Work Health and Safety Act did not all point in the same direction, could necessarily result in the segregation of a detainee such as him, in order to prevent all risks materialising. On DE’s approach, caution could not permit continued segregation when a detainee no longer posed any danger or risk to safety, as established by his or her behaviour during segregation.

I consider that this approach cannot be accepted. Behaviour in segregation alone being incapable of establishing that a detainee no longer poses any risks to safety which have to be managed by segregation.

Decision-making about what safety requires, based on behaviour in segregation for a period, is too simplistic to result in the required compliance with the statutory and common law obligations owed to others. When a detainee has actually pursued violence while held in detention, resulting in his or her segregation, as was DE’s position, the approach he urged risks the commission of an offence.

That is because of the onerous duties imposed by the Work Health and Safety Act upon individuals conducting businesses and undertakings where people work, including at detention centres operated by the State. The approach urged by DE would necessarily risk the commission of offences, including by those employed by the State. Because it would drive decision-makers to not pay necessary regard to all relevant considerations, which cannot be confined to behaviour in detention, particularly while segregated, although that is undoubtedly one important consideration.

This conclusion flows from the nature of the duties imposed by the Work Health and Safety Act, to ensure, so far as is reasonably practicable, workers’ health and safety while they are at work: s 19(1). This duty includes ensuring, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out at such centres: s 19(2). Such persons include detainees.

This also requires the provision and maintenance of safe systems of work, the provision of adequate facilities and of information, training, instruction or supervision: s 19(3).

This Act also requires persons on whom duties are imposed to eliminate risks to health and safety, so far as is reasonably practicable and if elimination is not reasonably practicable, to minimise those risks so far as is reasonably practicable: s 17.

What steps are reasonably practical to be taken by the State and those who work at a detention centre to meet these obligations, given the risks to safety which a particular detainee like DE may pose, will necessarily depend on what the Detention Centre**s Act and the Regulations permit.

This flows from s 18 of the Work Health and Safety Act, which specifies some of the matters which must be taken into account and weighed, in determining “that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety”. They include “the availability and suitability of ways to eliminate or minimise the risk”: s 18(1)(d).

There is no question that in a detention centre, those ways include the exercise of the powers to separate or segregate a detainee given by ss 16 and 19 of the Detention Centres Act. Section 19 requires, in the case of segregation, that it be as short as practicable and imposed only when there is no practicable alternative to protect the personal safety of the person or persons for whose protection the detainee is to be segregated: ss 19(1)(b) and 19(4).

It follows that if a decision-maker forms the view that segregation must be imposed on a detainee, or cannot be brought to an end, because otherwise the commission of an offence under the Work Health and Safety Act will result, there is no practical alternative to its imposition or continuation.

This conclusion reflects how the various complementary duties imposed by the Work Health and Safety Act on officers, workers and other persons at a workplace can be met: ss 27-28. The Act requiring that they take reasonable care for their own health and safety, and that they also ensure that their acts or omissions do not adversely affect the health and safety of other persons.

It is these obligations which fell on those who worked at Cobham and were involved in day-to-day supervision of detainees. In the case of Mr Vita and others who made decisions about DE during his ongoing segregation, they could not be overlooked when deciding how the risks to safety which he posed could safely be managed day-to-day. In Mr Vita’s case, this necessarily required ongoing consideration of the likely consequences of relaxing DE’s conditions of segregation, and release from segregation and what practical alternatives there were, to protect others’ safety as well as that of DE.

In resolving what is in issue it must also be remembered that offences are committed when a person with a relevant duty exposes an individual to whom a duty is owed to risk of death, serious injury or illness without reasonable excuse. That attracting very substantial penalties if an error is made in a risk assessment: ss 30-33 of the Work Health and Safety Act.

It is relevant that while limited exceptions apply to a member of the NSW Police Force in specified circumstances, when they deal with detainees before they are bail refused, there are no exceptions provided for those who work at detention centres. Even though they have to deal with such alleged offenders while they are held on remand: s 34A of the Work Health and Safety Act. Further, unlike the State and those it employs, when Courts undertake their risk assessments in respect of such detainees, they are not at risk of the commission of offences, if they err.

It follows that it will involve a serious offence if those working at a detention centre fail to pay proper regard to the nature of risks posed by a detainee while in detention. This is reflected by their classification, as well as by their conduct in detention, especially if the risks they pose actually materialise there.

If a risk does materialise, as it did in DE’s case, steps thus have to be taken to prevent the further materialisation of that risk. It follows that focusing on a detainee’s later behaviour, including while segregated, rather than on the ongoing risks which have materialised and continue to be posed, would risk the commission of an offence.

The result is that the Work Health and Safety Act necessarily influences how centres are organised, managed and staffed by the State; how those who work there undertake their functions; and how the risks which particular detainees pose are managed and dealt with daily, especially after their behaviour in detention risks the safety of others, as DE’s violence on 25 June did. DE’s behaviour establishing the nature and seriousness of the risks he continued to pose, which necessarily had to influence how those risks were then managed throughout his detention, in order to prevent them from materialising again.

This explains why, after 25 June 2016, a cautious approach had to be adopted at Cobham to managing the risks DE posed, given the others involved in the brawl and those who might retaliate against them. That approach, which the witnesses explained, cannot sensibly be criticised. It involved:

the early lockdown of Mandela;

DE being moved to the Jamison Unit and kept apart from the other detainees until his risks could be properly assessed at the DRMP meeting called for Monday 27 June;

Mr Vita’s 27 June decision, following discussion with his team, that DE’s segregation continue under specified arrangements which included handcuffing and transfer to Taralga;

DE’s segregation being gradually relaxed from 5 July following his transfer to Carter, while his ongoing risks continued to be assessed and managed; and

DE’s segregation being brought to an end on 18 July, when Mr Vita concluded that he could safely be released, but had to continue being housed in Carter.

Still DE disputed the exercise of the powers granted by the Detention Centres Act, contending that the challenged decisions were neither necessary nor lawfully available.

It seems to me that in resolving what is in issue regard must be had to the approach which the Legislature required those working at Cobham to take when ensuring the safety mandated by the Detention Centres Act, at risk of the commission of a range of serious criminal offences if they failed to do so. That risk must be understood in light of the substantial penalties which may result from a breach of the duties imposed by the Work Health and Safety Act.

In the most serious cases, where death of a person to whom a duty is owed results from an individual’s failure to comply with such a duty because of gross negligence, the offence attracting a maximum penalty of 25 years imprisonment. In the case of a body corporate, such an offence attracts a $20,000,000 fine: s 34C of the Work Health and Safety Act.

On the evidence, it cannot be doubted that this legislative regime has impacted how the State and individuals who work at detention centres approach the management of the risks posed by detainees. That is what they are intended to achieve.

The State’s record of offending has also no doubt driven the approach adopted to meet these obligations, given the deterrence penalties imposed are intended to achieve. Its record includes offences under predecessor legislation, the Occupational Health and Safety Act 1983 (NSW), which is relevant to any penalty imposed for any further offending: s 18(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

That history involves offending of the most serious kind in detention centres.

In one case, an offence involving a staff member who was killed by a detainee at a school operated within the detention centre: Workcover Authority Of New South Wales (Inspector Stewart) v The Crown in Right o**f The State o**f New South Wales (Department o**f Education a**nd Training, Department o**f Juvenile Justice a**nd Tafe) [2002] NSWIRComm 259; (2002) 118 IR 207.

The inadequacy of the Department’s established systems at the time of that offending, the breakdown in communication about the risks posed by the detainee and the steps later taken to address the deficiencies in the Department’s systems, were all there considered: at [31].

Staunton J concluding that the State’s actions, through the Department of Juvenile Justice and the Department of Education and Training, which operated the school, had exposed its employees to great and foreseeable risk of harm. Risk which was both foreseen and had materialised: at [39]. At that time, the Juvenile Justice Department had no record of prior offending: at [64].

On sentencing, the interaction between the Detention Centre**s Act and the Occupational Health and Safety Act arose to be considered for the first time, because of the cases which the parties then advanced.

In resolving what was in issue about that interaction, Staunton J referred to views I had earlier reached in WorkCover Authority (NSW) (Inspector Pompili) v Central Sydney Area Health Service [2002] NSWIRComm 44; (2002) 112 IR 245. There, I had to consider how obligations imposed by the Occupational Health and Safety Act in respect of the risk of patients violently assaulting staff and the obligations owed to patients under the Mental Health Act 2007 (NSW), needed to be balanced. I also considered where the Health Service’s obligations lay when that balance demanded competing considerations be taken into account.

Staunton J concluded that in balancing all the applicable legislative requirements at a detention centre, what was required was that a detainee be “properly risk assessed, and, with that knowledge and relevant input from the school staff, she be placed within a learning environment which both diverts and educates her, while at the same time does not expose school staff to unnecessary and foreseen risk of harm”: at [46].

The result was that the State’s offence was found to have been extremely serious, requiring the imposition of a fine involving an element of specific deterrence. The maximum penalty was then $825,000, with the sentence imposed before discount for the State’s plea being $420,000. This was despite evidence of the extensive steps taken after the offence to ensure that it could not reoccur and the profound legacy the death caused by the offence, had undoubtedly had for the State and its agencies: at [57]-[61].

Staunton J’s conclusions were not challenged on appeal. I followed her Honour’s approach in Cahill v State of New South Wales (Department of Education and Training and Department of Juvenile Justice) (No 3) [2009] NSWIRComm 97. There, I rejected the defence case that balancing the necessary statutory obligations required duties under the Occupational Health and Safety Act to give way to those imposed by the Detention Centre**s Act: at [144]-[150].

An appeal against that decision failed: State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No. 2) [2011] NSWIRComm 33; (2011) 210 IR 112.

The result was that the State was bound by that line of authority. The impact this had on its later approach to safety at detention centres, including Cobham, is apparent from the evidence, albeit by 2016 the Work Health and Safety Act was in operation.

This explained the careful attention which was then being paid at Cobham to ensure the safety of detainees and staff, and that a cautious approach was pursued to managing risks to safety which detainees, including DE, posed. That approach, it must be accepted, was driven by the Work Health and Safety Act, part of a now national approach to ensuring safety at workplaces.

The nature of the onerous duties that Act imposes were explained in Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 and Morris McMahon & Co Pty Limited v SafeWork NSW [2019] NSWCCA 36. In Silver City, Basten JA explained that:

DE did not claim to have suffered any injury from his segregation, so it must be inferred that the risk of such injury was appropriately managed in his case. Injury not being established by the cross-examination of Ms Byrne about how his health was managed, or by the suggestion that other steps could or even should have been taken at the time, to manage his risks, given what came to be known about his situation during his segregation.

It is not difficult to envisage circumstances arising in a detention centre where weighing the considerations specified in the two legislative schemes, which must operate harmoniously, as DE accepted in final submissions, will be difficult: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382; [1998] HCA 28. I will return to the issues concerning the proper construction of the Detention Centres Act. But I cannot see that its proper construction could ever require the risk of an offence under the Work Health and Safety Act being committed, having to be taken by the decision-maker*.*

The submissions finally advanced for DE appeared to accept this. The dispute about the challenged decisions and the claimed breaches of the Detention Centres Act have to be considered in this context.

Mr Vita also made proper concessions about the limits of his memory and other matters put to him. His evidence was still challenged as not being reliable and he being mistaken in his recollection, which was descried to have been “murky and unclear”.

I do not accept that description.

Mr Vita having some recollection of these events accords with him being confronted with the need to manage the 25 June brawl on that Saturday night, having been Cobham’s Centre Manager for only about a month. He was already an experienced Centre Manager, then making changes to practices at the Centre, which others explained.

On all the evidence, the daily log was the most reliable record of DE’s daily segregation. No analysis was undertaken of it to establish how many hours per day he was actually kept in his room. Nothing turns on this, DE challenging as he does the lawfulness of the decisions to segregate him at all times when he would ordinarily not be kept in his room.

Other records did refer to verbal approval being given for decisions made about DE. The evidence explained how CIMS records made their way to required signatories, which occurred electronically under the automated system. That accorded with the witnesses’ evidence about practices then in operation.

This evidence included the DRMP procedures which provided, for example, for the development of a DRMP within the first 12 hours of segregation, if it was to exceed a 24-hour period. That did not occur in DE’s case, but such a plan was not required by s 19 of the Detention Centres Act.

The DRMP procedures did make limited reference to parts of s 19, but not to s 19(1)(b) and the requirement that approval be obtained for segregation for more than three hours.

DE relied on departures from applicable policies, the Act and Regulations to advance his case that the challenged segregation decisions were invalid. But s 19 did not require the DRMP process to be pursued, nor other procedures to be adhered to during segregation. The conditions of segregation were left to the discretion of the decision-maker.

Mr Vita’s approach to the management of risks DE posed was explained by his view that DE’s violence on 25 June was serious enough to require his segregation. The result was that it commenced on 26 June, when Ms Howell had no reason to interfere with Mr Vita’s decision. It continued under the conditions which were imposed on 27 June as the result of the DRMP process, they later being gradually relaxed, while ongoing risk assessments were undertaken by staff supervising DE and the DRMP process was pursued. This relaxation continued until Mr Vita brought the segregation to an end on 18 July.

Mr Vita made his various challenged decisions with the input of what was discussed at the DRMP meetings, which were attended by supervising staff, the psychologist, Ms Byrne, who met with DE while he was segregated, and other team members, including the School Principal. I do not accept that the approach so adopted did not result in a proper assessment of whether reasonable grounds for his segregation existed. Nor that they resulted in the team impermissibly making the challenged decisions, rather than Mr Vita.

Mr Vita’s evidence was that his cautious approach, taking account of the views of his team members, had been driven by his past experiences of removing a detainee from segregation too soon, with the result that detainees had then further assaulted others. He thus pursued a course of ongoing consideration of DE’s behaviour, as the conditions of his segregation were relaxed.

Given Mr Vita’s past experience, which was not challenged, that approach was understandable. He had to determine whether the personal safety with which s 19 was concerned could continue to be protected as the Act required. This resulted in the length and times of DE’s daily segregation being relaxed, he increasingly being permitted to mix with other detainees and his handcuffing being reduced, until Mr Vita was satisfied that he could return to mixing freely with other detainees, albeit not in the Mandela Unit.

Despite DE’s considerable violence on 25 June, which evidenced the risks which he posed, he contended that s 19 of the Detention Centres Act did not permit the course so pursued. On his approach, after 26 June, Mr Vita had to risk him pursuing further violence and himself being subjected to further assaults. DE said that Mr Vita’s past experience of other detainees’ premature release from segregation was not relevant, with what he had done on 25 June having been “spent”.

That cannot be accepted. In my view, s 19 does not preclude account being taken of past experience of either the detainee or other detainees, when decisions have to be made about segregation and what is practicable, as s 19 requires. A detainee’s violence in detention helps establish the nature and seriousness of the risks to safety which they pose, which have to be managed by those in control of the centre. That prior experience has shown that such risks are heightened, or more likely to materialise again, at particular times of the day and in specific circumstances, must also be taken into account.

Such considerations are also relevant to the determination of the nature and duration of any segregation imposed; what is “as short as practicable” in the circumstances; and whether there are practicable alternative means to protect the detainee’s personal safety, or that of others for whose protection he or she is segregated, when s 19 requires be considered.

The fact that a detainee has not engaged in further violence in segregation will be relevant and must be taken into account when decisions are made about whether it should continue or be brought to an end. But alone, behaviour during segregation is incapable of establishing that a detainee no longer poses a risk to personal safety, or that there are means other than segregation available to protect personal safety.

Section 19 requires a consideration of a wider mix of factors, about which Mr Vita gave evidence when he explained the complexity of the risk assessments he undertook when making decisions about segregation, particularly after a detainee had already engaged in violence in detention.

I am also unable to accept the submission that the evidence established that a gradual reduction of segregation was always wrongly imposed at Cobham, no matter the ongoing risk a detainee posed, or how well the detainee had behaved.

That did not fairly reflect all of the evidence, which included that a DRMP did not always provide for segregation although it often did when a detainee had engaged in violence. And when segregation was imposed, it formed part of a careful approach, which included the gradual relaxation of segregation while risk assessments continued to be undertaken.

While in her first statement Ms Scott revealed she had no actual memory of the events in issue in 2016, Mr Vita’s decision that DE should be segregated until the 27 June DRMP meeting accorded with her evidence about the then usual practice when a serious incident occurred at the Centre. This practice involved:

The Shift Supervisor separating detainees to ensure safety and then notifying the Duty Manager, as the written incident advice Mr Rawlings prepared recorded.

At that point, separation which had been imposed could be approved or brought to an end by the Duty Manager. In DE’s case, the separation which resulted in the early lockdown was not brought to an end by Ms Scott, who approved it.

She acted to ensure that she could implement an orderly handover of the Centre, remaining there on duty while necessary steps to ensure that order was maintained were taken and relevant information about these steps could be conveyed to other staff.

Detainees involved being moved to other Units to reduce the risk of further incidents and disturbances in rooms on the Unit where the violence had occurred.

With segregation required on some occasions lasting for more than three hours. The Duty Manager having asked the Assistant Manager to inform the Centre Manager, then Mr Vita, to impose such segregation and on weekends, this being done by phone.

When incidents requiring police attendance occurred towards the end of a shift, police being called the following day when staff were on duty again, so their reports could first be completed and provided to police.

This practice also accorded with the evidence Mr Rawlings gave in his statement, that the general practice in 2016 was for segregations to be verbally proposed by the Duty Manager, who advised the Assistant Manager, who then let the Centre Manager know. A record of segregation was then initiated on the CIMS system and sent to those whose approvals were required to be recorded.

On 25 June, the result of this process was that DE was moved to the Jamison Unit that night and police attended at 2 pm on 26 June, after which he was charged. He later entered pleas to other charges, of which he was eventually convicted and sentenced.

Ms Scott had made several statements and leave to clarify her evidence in chief was given. She then said that in 2016 she would not have called the Centre Manager directly, but when Mr Vita took up the position, his practice was always to ring the Centre to obtain additional information. This was when she may have spoken to him by phone on 25 June, although she would have spoken first to Mr Ferguson. While Mr Ferguson was not called, Ms Scott’s evidence accorded with Mr Vita’s evidence that he spoke to someone at the Centre on 25 June about the brawl.

Whether it was Ms Scott herself, Mr Ferguson or both to whom Mr Vita spoke, is immaterial, given what the emails which she sent that night establish.

Ms Scott was taken in cross examination to an earlier version of her statement, which she had signed but had not been relied on. She was taken to the differences between it and her later statement and asked about how the changes came to be made. She explained that she understood that they had resulted from an objection to something she had said in her first statement. While in different terms, it was not suggested that her second statement was incorrect or contradicted her first.

The outcome was that nothing came of this and it provided no basis to doubt Ms Scott’s evidence. Nor did her cross examination, or the contemporaneous records.

What cannot be doubted is that on the night of 25 June, Ms Scott sent her two emails, which explained what had occurred on the Mandela Unit and the results. The first to Mr Ferguson at 8.35 pm and the second at 9.50 pm to other managers, including the 27 June Duty Manager, Ms Howell, to which she attached the message she had sent to Mr Ferguson. They advised:

Ms Scott also explained that the central log recorded important daily events and approvals of decisions made. She was taken to an extract from that log which contained entries about three assaults in Mandela on 25 June and the perpetrators being segregated in the morning, which had been made by other managers. They accorded with Ms Scott’s dissemination of Mr Vita’s decision by email.

Ms Scott was challenged in cross examination, when she explained the role of a Duty Manager as ensuring the smooth operation of the centre, so that it could be easily handed over to the next Duty Manager. Her evidence included that the Duty Manager was the person in charge of the Centre for issues which arose while on duty, except to the extent that the Assistant Manager or Centre Manager might have to make decisions which had not been delegated to the Duty Manager.

Ms Scott explained that separation was an immediate response to an incident and segregation could follow, as it did in DE’s case. She explained the CIMS system utilised forms often generated by a Shift Supervisor, which then flowed automatically to those with authority to approve decisions made, as they recorded their approvals.

In her second statement, Ms Scott explained why she recommended segregation in her email to Mr Ferguson. This was likely the result of the information Mr Rawlings had provided about the serious incidents DE was involved in with multiple detainees. They included his unprovoked attack on a detainee.

I am satisfied that in the regulatory environment I have explained, there can be no criticism of the approach to the decisions made about DE on 25 June. This is despite it being put to Ms Scott that her evidence involved a reconstruction of what had occurred, given that she had no actual memory of the events.

Ms Scott agreed that what she was doing when she emailed Mr Ferguson was to give him as much information as she could, and that by that time, she likely had not seen the CCTV footage. It cannot be accepted that she would have come to any other decision had she seen this footage, given what it showed DE had done.

DE’s case is that his violence ought not to have been considered as having been very serious. That cannot be accepted. Understandably, that was not how it was viewed by those responsible for the safe operation of Cobham. It being notorious that an unprovoked attack can seriously injure or even kill a victim. It was fortunate for DE that he did not actually inflict such injuries, but what was explained in Silver City precluded the approach he urged to his violence having been adopted in 2016.

Ms Scott also agreed that the movement of detainees to other rooms on 25 June was necessarily temporary and the result of consultation with the Shift Supervisor, because the safety of the resulting mix of boys in the Units to which they were transferred had not been assessed. The aim on 25 June was to restore calm in Mandela by breaking up the group of boys involved in the violence which had broken out and to pursue a DRMP process for DE, given his behaviour and the segregation which it necessitated.

Ms Scott agreed that she had no email response from Mr Ferguson on 25 June. Her normal shift finished at 7 pm, after which she was on call. But that night she remained to deal with the incidents, to ensure the ongoing safe operation of the Centre.

Irrespective of how Mr Vita was informed of the incidents, or how the decision I am satisfied he made on 25 June about DE’s segregation until the DRMP meeting on 27 June was conveyed or documented, I am satisfied on all the evidence that it was he who made that decision. The decision made on Sunday, after the overnight lockdown came to an end, Ms Howell having no reason to depart from Mr Vita’s decision, which was to document it in the CIMS system. It thus continued to have effect on the Monday until Mr Vita had made his further decision about DE at the DRMP meeting.

The 26 June CIMS record reflected DE’s segregation that day from 9 am, when overnight lockdown ended to 7.20 pm when lockdown began again. It referred to the reason being his unprovoked attacks the previous day. This record also reveals some of the deficiencies of the CIMS system, given that it does not identify Mr Vita to have been the decision-maker or when verbal approvals were given. Or that the decision was to segregate DE on 26 June until Mr Vita made further decisions at the DRMP meeting on 27 June.

Mr Vita saw this record and approved it on 27 June when he returned to work. He did not remember Ms Howell calling him on 26 June about DE. This accorded with his 25 June decision, having been to continue DE’s segregation until the DRMP meeting on 27 June.

The record which Mr Vita signed thus did not actually reflect his earlier decision. There are similar problems with other CIMS records. On all the evidence, I am satisfied that this record does not establish that it was Ms Howell, rather than Mr Vita, who made the first challenged segregation decision.

The result of the process pursued was that all of the information which s 19(3) of the Detention Centres Act and r 10 of the Detention Centres Regulation required be kept of the 25 June decision was not captured by the CIMS record. While more was captured by the handwritten daily log, the regulatory requirements were still not all strictly adhered to.

The 26 June record noted that the time of DE’s segregation did not exceed a period of 12 hours. Ms Howell’s approval was recorded at 5.48 pm, as the most senior delegate on site, with Mr Vita’s approval as Centre Manager noted at 8.35 am on 27 June. On his evidence, that was the first time he attended the Centre after making his 25 June decision, and so the first opportunity he had to record his decision electronically.

Ms Scott explained that while it was important for required approvals of segregation decisions to be obtained, it was common for them to have to be obtained verbally and recorded later. The result was that a proper record of when such oral decisions were made and approvals were given was not necessarily kept. When a CIMS record was created later, it did not require the time of earlier oral decisions to be recorded, despite such particulars being required to be kept: Detention Ce**ntres Act, s 19(1)(b) and Detention Centres Regulation, rr 10(1)(f) and (g).

Ms Scott was also cross-examined about her understanding of the consequences of the decision to segregate DE until he could be risk assessed on Monday at the DRMP meeting. She agreed that was a significant period while DE had not been risk assessed, longer than confinement permitted for misbehaviour. And that it was thus a decision not lightly reached.

She also agreed that there had not been a prolonged riot on 25 June and that she would not have segregated DE as a result, just to avoid any risk materialising. She also agreed, in retrospect, that it would have been better to assess DE’s risk again on the Sunday morning and that segregation should only be used to deal with a detainee who posed an immediate and unacceptable danger or risk of harm.

But the view which Ms Scott formed on the Saturday evening accorded with that which Mr Vita reached. Namely, that given the risks DE posed, his segregation until the Monday DRMP meeting was necessary, in order to manage the risks which had materialised. Otherwise, she said, she would not have recommended segregation as she did.

Ms Scott’s evidence was also that Mr Vita would not always agree with her assessments. She agreed that was because reasonable people could reach different decisions, taking the view that different considerations were relevant to a particular decision and that slightly different information could lead to a different result, as could different experiences and backgrounds. Ms Scott also agreed that segregation which kept a detainee in isolation could have serious and detrimental effects on the detainee.

But Ms Scott still considered that on 25 June she did not have other options, then having to ensure that DE and other detainees were all protected as required. But she also agreed that she could have asked another Duty Manager to take steps to begin his risk assessment before the Monday.

But that was not what Mr Vita decided, understandably, given the DRMP process he concluded had to be pursued in DE’s case on the Monday.

I am satisfied that Ms Scott’s evidence was honestly given and should be accepted. Her evidence accorded with that of other witnesses, including Mr Rawlings and Mr Vita, as well as with contemporaneous documents, despite the deficiencies which I have explained. I do not accept that her evidence helps establish that there were not reasonable grounds for Mr Vita’s initial 25 June decision to segregate DE, with which she agreed.

To the contrary, her evidence, supported as it was by contemporaneous records and the CCTV footage, helps establish the serious risks to safety which staff on duty and Mr Vita had to deal with on 25 June, after they materialised. This included in DE’s case, as the result of his unprovoked attack and the brawl in which he involved himself. The approach pursued as a result that day accorded with the requirement to take practical steps available to those responsible for ensuring safety at Cobham, to protect detainee’s personal safety, as well as the safety of others.

In his statement, Mr Vita explained that he had a memory of what he had learned and done on 25 June. He did not remember when he was first notified of the incidents that night, but he explained the practice he had then implemented in such serious incidents, which that night had involved seven detainees who he concluded all posed significant risks. This approach usually included segregation, until a DRMP meeting could be held.

Given the regulatory environment I have explained, there can be no just criticism of that approach.

In Mr Vita’s cross examination, he agreed that in part his evidence reflected a reconstruction of the available documents and what the CCTV footage showed. He also agreed the changes he had made by 25 June 2016 at Cobham included changes to written policies, as well as to unwritten work practices.

He also explained the difference between a detainee’s separation — for factors such as gender, age or vulnerability or to restore order — and segregation imposed for the safety of a detainee or of others. He also explained what was involved in the development of a DRMP risk management plan, which could involve the ongoing imposition of segregation.

Mr Vita also explained that while segregation was intended to deal with immediate and unacceptable risk, such risks could be ongoing. As a result, segregation could be imposed and continued for a time, given the need to be certain that the risk had abated when segregation was brought to an end. He explained because “you don’t want that assault to happen again”.

Mr Vita also explained that he would not remove someone from segregation unless sure, to the best of his ability, that the risk which had to be dealt with had absolutely abated. He agreed that the critical issue was that segregation be linked to safety. Given the regulatory environment I have explained and the complexity of the risk assessments which necessarily had to be undertaken, that approach also cannot sensibly be criticised.

Mr Vita was taken to the segregation policy, which required that approvals of a segregation be obtained as soon as the immediate risk was contained, and it was safe to do so. Further, that approvals be obtained promptly, which helped explain the practice of oral approvals being obtained and later recorded. He also explained he could make a decision about segregation when it was recommended to him. Or that he could be asked to approve such a decision already made by another manager.

On 25 June, DE’s segregation had been recommended to Mr Vita. He said he remembered the phone call that night, but not who called or the time of the call. There was then no general practice of recording such a call. He thus accepted the call, which was then the only way to reach him, might not have been made by the Duty Manager, but by the Assistant Manager, to whom the Duty Manager had reported. That accorded with the evidence that Mr Vita was then in the process of changing practices at the Centre.

Mr Vita had not seen the emails Ms Scott had sent Mr Ferguson, but they accorded with him having been advised of what had occurred and making the decision Ms Scott advised of in her second email. The information on which Ms Scott and Mr Vita both acted included the view which Mr Rawlings shared, that the detainees had collaborated in their attacks. Mr Vita said that his concerns included that there had been a premeditated attack and sophistication by DE, who had provided a distraction, while the other assaults were pursued.

Ms Scott’s emails also accorded with Mr Vita’s recollection that he had been thoroughly filled in on 25 June, when he needed information to pass on to his superiors. He denied not having been informed of the incidents that night. He said that even on the weekend, he remained the person with overall responsibility for the Centre who needed to be informed of an incident of such magnitude, so that he could convey the information to those more senior to him.

Mr Vita also agreed what he decided on 25 June intended that DE be held in segregation until both police attended on Sunday and the DRMP meeting on Monday could take place. He considered this to be a necessary risk mitigation strategy, pursued in order to prevent those events recurring. That was why he was certain that DE had to remain in segregation until the DRMP meeting could be held.

Mr Vita also said he considered the risks DE then posed to be too high to permit his release from segregation on 26 June. I can see no basis on which that evidence could be rejected, despite DE’s case that by then he no longer posed a risk which required segregation. Mr Vita’s evidence accords with what the CCTV footage established he did, as well as DE’s then existing classification and resulting reclassification.

I have thus concluded it must be found that it was Mr Vita who decided to keep DE segregated in his room when he was not in normal lockdown on 26 and 27 June, until his risks could be assessed at the Monday DRMP meeting when a plan was to be developed to manage the ongoing risks which he posed.

That is not entirely reflected in the CIMS records later created and signed by Mr Vita and others, as I have explained. On all of the evidence, I am satisfied that this is the result of deficiencies in the system which then operated. Those deficiencies cannot result in a finding that it was not Mr Vita who made the decision which kept DE segregated as he was until Mr Vita made his further decision on 27 June, which he challenges.

Nothing that Ms Howell did on 26 June had any impact on that decision.

But I am satisfied that this does not reflect what actually occurred.

Mr Vita could not recollect the lockdown system in operation in 2016 for those not attending school. But I can see no reason for rejecting Mr McCann’s evidence about how the Jamison Unit then operated, when detainees did not attend school, giving available staffing.

In any event, on all of the evidence, it must be found that DE was kept in segregation on 27 June, as the result of Mr Vita’s 25 June decision, until the further decision he made, as I have explained, at the 27 June DRMP meeting, which was then implemented. It resulted in his transfer to the Taralga Unit, where he was also segregated.

Despite what Mr McCann understood at the time, when he considered that he had to separate DE until the DRMP meeting commenced, but not needing to do so for the period from 9 to 11 am because of the ordinary operation of the Unit for those not attending school, Mr Vita’s 25 June decision remained in effect. The result was that the CIMS record Mr McCann later created to reflect his earlier decision did not accurately reflect the decisions in operation on 27 June.

Mr McCann’s separation decision was incapable of displacing or altering Mr Vita’s 25 June segregation decision. It was that decision which had the result of keeping DE in segregation on 27 June until Mr Vita made his further segregation decision that day.

How the plan devised at the 27 June meeting for DE was implemented, with DE being transferred to the Taralga Unit where he was not permitted to mix with other detainees, given high risk detainees such as him there having to take their recreation under the supervision of staff in one of three available recreation areas; and

The system of daily logs kept at Cobham.

Mr Dowse was extensively cross examined about his role and responsibilities; those of other managers; staffing; rosters; how shifts operated; what separation and segregation involved; and the DRMP process, including how disagreements about appropriate conditions were discussed at meetings and resolved, sometimes with a vote and a majority view being adopted. As well as how the written record of a DRMP would later be created by one of the attendees and then approved after the meeting.

Mr Dowse said that there were some 80 detainees at Cobham in 2016, and up to 6 on a DRMP which were reviewed weekly. Those posing higher risks being subject to segregation. He explained how detainee classification was taken into account in their placements. And he agreed that the approach then pursued was to manage their risks by reducing restrictions over time.

Mr Dowse also said that the records indicated that DE had been involved in serious misbehaviour during a significant incident at the Centre, which had been referred to police. He explained how DE’s conditions limited the times he could be out of his room during segregation on Taralga, given staffing arrangements in place there. In DE’s case, handcuffing impacted his ability to enjoy such recreation and other conditions leaving him unable to use cutlery, thus limiting his food selection.

Mr Dowse also explained DE’s access to the TV in his room was subject to him not misbehaving, that providing an incentive for good behaviour. He agreed that for segregated detainees, the risk of misbehaviour was sought to be minimised by encouraging behaviour modification through both incentives and disincentives.

Ms Byrne, the psychologist, who attend the 27 June and other DRMP meetings explained: her role and how she came to prepare the records she kept of her meetings with DE, the details of which she no longer remembered; what she shared at DRMP meetings; and what she had recorded in the DRMPs, which she had input into, because of her meetings with DE during his segregation.

Ms Byrne was also extensively cross examined about the practices in operation in 2016. This included why managers had no access to the entire records she kept about detainees and what DE’s records showed about his health. It had been noted on his induction that DE was awaiting the results of brain scans, although these were not obtained by the time decisions were made to segregate him. These records were not in evidence but were relied on to advance DE’s case.

Ms Byrne explained the type of cognitive assessments undertaken at the time for those held on remand, as well as her interactions with DE and her involvement in the DRMP process. She did not have specific recollections of DE but explained that her role was to help others make decisions about how to address his involvement in serious violence at the Centre, including by providing guidelines for staff about how to safely interact with him to minimise risk.

Ms Byrne explained that decisions such as isolating and handcuffing DE were not for her to make. That accorded with Mr Vita’s evidence, although he said that he took account of her input, as well as that of other team members. But she did not agree that if handcuffed and supervised by two staff, DE could not pose a risk to safety, believing he was still then able to hurt someone. She also explained that when segregation was imposed, she would not recommend it be removed entirely after a week. Further, she said that if mental health issues arose during segregation, she would give advice about what should be done differently.

Ms Byrne agreed that segregation made conditions of custody more difficult for a detainee, and that it was common for detainees to feel like they were singled out and not treated the same as other detainees. She agreed that it was important for detainees to be asked about their version of events before being held in isolation, which she considered could help give them confidence in the DRMP process.

She also agreed that DE had told her that he only punched the other detainee a few times as payback for an earlier assault, which was relevant to the assessment of the risk which he posed.

Ms Byrne also explained how, in custody, dynamic risk assessments had to constantly be undertaken. This included assessments conducted informally in her own role, as well as through separate, formalised risk assessments of detainees. She also explained her approach, that DE’s good behaviour over time supported his gradual reintegration into the general detention population, which she recommended.

She explained how appropriate conditions were assessed at the regular DRMP meetings, with planned ongoing counselling and other strategies being pursued to manage the risks DE continued to pose. She also explained why she saw merit in him having cognitive behaviour therapy, which a psychologist or counsellor could provide, and how this was utilised in her own interactions with him.

All of this evidence established the administrative arrangements in place at Cobham in relation to assessing and managing detainees’ safety risks, including by utilising the DRMP process. This helped to ensure that relevant matters were considered when segregation decisions were made.

That these arrangements did not result in the DRMP meeting being held on Sunday 26 June, in my view, is not capable of establishing any breach of s 19 of the Act. Despite it being put to various witnesses that this would have been preferable.

There is no proper reason for rejecting the explanation Mr Vita gave of how he came to make his decisions, or how he conducted the DRMP process. With the result his decision that the question of whether DE’s segregation should continue, being made on the Monday, when relevant information could be provided by the team, when they all returned to duty, for him to consider.

The evidence also does not permit, I am satisfied, a finding that it was the team, not Mr Vita, who made the challenged 27 June decision to continue DE’s segregation. Notwithstanding the input of those who attended the DRMP meeting, which the witnesses explained, of which Mr Vita took account in arriving at his decision.

Nor does the way in which the DRMP document was produced establish that Mr Vita was not the decision-maker. The DRMP record described the 25 June incidents and detailed the reasons for DE’s detention, classification and alerts. It also contained a short description of the reasons for the concern I am satisfied Mr Vita held about DE’s antisocial and aggressive behaviour, and the risks he posed to the safety and security of the Centre. On Mr Vita’s evidence, while prepared by another team member, he usually wrote parts of such documents himself. The psychologist also wrote aspects of it and he only adopted the document when satisfied that the final product reflected his decision.

This contemporaneous record thus sheds considerable light on the reasons for the decision to segregate DE, although s 19 did not require reasons for such a decision to be given. It was signed by Mr Vita, not all members of the team.

On 27 June, before the meeting, Mr Vita viewed the CCTV footage and reviewed the relevant records in accordance with the practice he explained. In DE’s case, they included: his high risk classification; a list of alerts, including in relation to his gang affiliations; violence risk information maintained at the Centre; case notes about DE and his behaviour before 25 June, including those made by psychologists; and a case plan prepared by his community case worker. Mr Vita explained the concerns which that information raised about how safety could be ensured.

At the time, DE was 17, powerfully built and similarly sized to adults working in the Centre. One explanation for his attack on his first victim was the victim had earlier challenged him to a fight, which he could not accept because of an injury to his hand. That provided no explanation for DE’s unprovoked assault on 25 June. Nor did a later explanation given to Ms Byrne that he acted in retaliation for an earlier attack on him. Whether that was the attack which had occurred soon after DE went into detention, or another, is not apparent.

I am satisfied that Mr Vita’s denial that the team made the challenged decision must be accepted, even though the CIMS record also does not identify him to have been the decision-maker.

The DRMP document reflected that what was known and considered on 27 June included input from the team and that DE’s immediate threat of further violence had been dealt with on 25 June, after order was restored at Mandela, as well as by his ongoing segregation from 26 June.

What Mr Vita decided on 27 June was that DE had to continue being segregated on conditions specified in the DRMP, in order to protect others against the risks he continued to pose, there then being no practicable alternate means to ensure the required safety.

The document described the arrangements for the segregation Mr Vita explained he was satisfied were then necessary, given his consultation with those who attended the meeting. It also contained the explanation provided by Ms Byrne of DE’s history; information he had disclosed about his problems with stress and emotional regulation; why he could not mix with others; and how the management of his behaviour should be approached by staff, given how he acted impulsively.

Strategies for dealing with his violence, threats, body language which might suggest violence; how to diffuse such threats and provide him with positive feedback; and facilitating access to the psychologist, were all there explained. Advice was also given about how staff should communicate their directions; listen to DE’s concerns; and assist him. Risk reduction strategies were also outlined and psychological follow-up to be pursued explained, as were the program’s strategies.

The DRMP also noted because segregation was to continue, s 19 required that the form be completed and approved before implementation. While it was signed by Mr Vita, this did not occur.

Still, on all of the evidence it cannot be accepted that this document established that it was the team, rather than Mr Vita, who was the decision-maker.

The records also do not capture the time when Mr Vita’s decision to continue segregating DE was made. Nor do they establish how long after the decision was made, that approval of continuing segregation was given. Mr Vita could not remember the time of his decision, there having been two detainees who were considered at the 27 June meeting. The records kept did indicate that DE’s segregation had commenced at 11 am.

Mr Vita electronically indicated his support and approval of this plan later on 27 June. But Mr Wilson, the Director of Statewide Operations, only indicated his approval on 28 June.

The decision Mr Vita made and implemented was to segregate DE until 12 July, subject to the planned review at the 5 July DRMP meeting, on the specified conditions.

That also had an impact on when DE could safely be permitted to access the recreation areas of the Carter Unit. The use of these areas by other Units also made it preferable for DE then to remain within that Unit. The school also did not accept detainees while on segregation and Mr Vita did not consider it was safe to have DE mix with unsegregated detainees in the Unit, while others attended school.

In cross-examination, Mr Vita said the nature of the violence which had taken place on 25 June, even over the course of no more than a few minutes, meant that DE still presented an immediate and unacceptable danger on 5 July. The segregation policy reflected that if this remained the position, a detainee could continue to be segregated.

Mr Vita explained that to bring DE’s segregation to an end, he had to be satisfied that DE would not engage in violence of the kind he had pursued on 25 June, when he had engaged in an unprovoked and serious assault.

By 5 July, there were still signs that the risks which the DRMP was designed to address remained. Since that was the position, Mr Vita decided DE’s segregation had to continue.

Mr Vita accepted that it could take only a couple of days for someone to no longer exhibit such concerns. But he explained that reaching the required confidence about safety required took as long as it needed. The progressive relaxation of DE’s conditions enabling him to consider whether his concerns about his risks had been removed, and if the segregation imposed to protect against these risks, had succeeded.

Mr Vita explained that while incentives for better behaviour and disincentives for worse being provided by conditions imposed during segregation might sound like punishment, they were rather intended to help deal with risks. He agreed that there were other ways to encourage or discourage behaviour. But he did not consider them suitable during the time that DE continued to be segregated, given the conclusions he had arrived at after consulting his multi-disciplinary team about the risks DE continued to pose and how they could be safely managed.

Mr Vita also agreed that at times detainees had been segregated for days or even weeks in order to reduce the risk they posed. While behaviour modification could be one outcome of such segregation, he said that its purpose was to maintain the safety of detainees and staff.

Mr Dowse did attend the 5 July review and explained in cross examination how DE’s increased classification was then taken into account, the Classifications Officer having attended that meeting. Given DE’s improving behaviour, in accordance with the DRMP practice, he was given increased recreation time as part of a cautious control of his risk level.

The CIMS record later created was adopted and those who later indicated their approval on the relevant field did so by pressing a button. Mr Vita finally entering his approval, after the record was automatically sent to him.

Ms Byrne also explained her involvement in the 5 July DRMP process, when DE’s behaviour since 27 June was again considered at the meeting. She understood that DE’s reclassification was the result of the exercise of a discretion, given his conduct on 25 June. In cross examination, she agreed that DE found his isolation difficult, which she had reported to the meeting.

On all the evidence, I am satisfied that while Mr Vita again took the input of his team into account, it was he who made the 5 July decision to continue DE’s segregation.

But Mr Vita explained that ongoing assessment was pursued in order to achieve a balance, with restrictions being released gradually, as had been his intention from 27 June, and conditions imposed providing incentives, rewards and disincentives, given his ongoing concerns about aggression building up, since DE had already pursued a very serious assault in detention.

The stated reason in the record kept for the relaxed segregation continuing was the safety of self and others because DE had already assaulted in detention and the concern about an attack on him in the evening, when cutlery was to hand, still remained.

Separate records of separation were created for each day after 12 July, which reflected the daily implementation of Mr Vita’s decision. They, too, had the deficiency that they recorded when approvals were recorded in the computer system, not when and by whom the relevant decisions were made.

Mr Vita agreed that if events had occurred during that week, which required an alteration in the relaxed conditions imposed, that would have been considered outside of the weekly DRMP meeting.

Mr Vita also said that in deciding to segregate a detainee, he always considered questions such as whether there was any practicable alternative to segregation. But his major consideration was how he could meet the risk of further violence, which required continued attention. He agreed that he was also concerned with disturbance to the good order of the Centre.

Mr Vita also agreed that most detainees found continuing segregation made their detention more difficult, and that he had no reason to think this was not how DE was affected. Segregation decisions thus potentially having very serious consequences for the detainee.

Mr Vita agreed that it was preferable for segregation to be revisited every day, given the risks to safety on which it depended. But he did not agree that the weekly DRMP process was inappropriate, given that assessments of and discussions about detainees in segregation were ongoing, occurring every day. He had himself visited DE on several occasions, but those assessments had not resulted in alterations to his segregation, between the DRMP meetings.

Mr Vita also agreed that there came a point when DE ceased posing a risk which necessitated segregation. That was recognised on 18 July.

Ms Byrne agreed that by 12 July, DE had been held in isolation for a long time for him, given what the DRMP record noted. She agreed that while it was distressing for him, segregation was not so psychologically damaging as to be inappropriate. She considered that DE agreeing to work on whatever she deemed necessary was positive, but he still had his own goals apart from leaving segregation. She also considered DE needed to pursue violence and anger management, thus referring him for more assistance.

She agreed that DE’s noted behaviour of being disrespectful and demanding, when food had been delayed, was not unusual behaviour for detainees, but explained that aggression in detention was not necessarily common. She accepted that there were then positive signs of DE’s better engagement with staff, but she noted he still allowed aggression to build up and held onto it for long periods of time. That observation accorded with his claim that his 25 June assault had been motivated by payback.

After 12 July, DE was allowed to have breakfast and lunch with other detainees and to be part of the general population until 4.45 pm, but not at dinner. But Ms Byrne did not agree he then no longer presented a risk to safety. She considered that his risk may have been lowered and that the approach pursued was part of his planned reintegration. She agreed his behaviour would improve when he no longer presented a risk to safety.

Ms Byrne also identified that DE might have had neurological or memory problems, which she had considered should be pursued with his parents and the Department of Health. Any functional impairment required neuropsychological assessment and brain scans forming part of the overall information relevant to DE’s ongoing risk assessment. Her observations caused her to pursue DE’s parents, with DE also reporting a difference in his impulse control since a head injury before he went into detention. By 12 July, she was using elements of cognitive behavioural therapy in her interactions with him, appropriate for adolescents in custody.

Ms Byrne also agreed she was considering whether segregation was unreasonable, from the perspective of DE’s age, mental condition or development. However, it was not her decision to determine whether segregation was necessary to protect anyone’s personal safety. She was instead providing information in the DRMP process about what she had observed, including in relation to any changed behaviours such as self-harm.

In re-examination, Ms Byrne explained what type of matters she pursued with DE as part of her cognitive behaviour therapy approach, as well as the type of psychoeducation he was provided with in counselling sessions.

I am satisfied that all of this evidence must result in the conclusion that it was Mr Vita, not the DRMP team, who also made the 12 July decision.

Departmental policies provide decision-makers with guidance, to which Mr Vita also said he had regard, although they were not entirely adhered to. Given the views which he formed about the significant risks which DE’s conduct on 25 June established he posed and how they needed to be safely managed, given how they had then materialised, s 19 permitted the approach he adopted. This involved the exercise of his discretion, having considered and weighed the relevant available information in light of all the applicable regulatory requirements, including the duties imposed by the Work Health and Safety Act.

The exercise of Mr Vita’s discretion could accordingly not turn only on a consideration of either DE’s best interests and behaviour in segregation, as was also his case. Mr Vita explained that while DE’s interests were taken into account, including the risk of retaliation which he then faced in making his decisions, he also had to factor in other considerations discussed at the DRMP meeting. I have no reason to doubt his evidence and thus am unable to accept that the challenged decisions were impermissibly made in order to punish DE. Nor, impermissibly, to maintain order, given the proper construction of s19, which I will turn to and what Mr Vita intended.

Departure from any procedural steps, subject to any contrary intention, results in the implication that an act is not invalid if the non-compliance is immaterial: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [174];

A statute which contains an express or implied condition of a conferral of decision-making authority does not always deny legal force and effect to every decision made in breach of that condition. The limits of the statutory conferral of decision‑making authority permit the determination of “first, whether an error has occurred (that is, whether there has been a breach of an express or implied condition of the statutory conferral of decision‑making authority) and, second, whether any such error is jurisdictional (that is, whether the error has resulted in the decision made lacking legal force)”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [4]; and

“Determining whether an error exists as well as whether it is jurisdictional starts with an analysis of the nature of the error alleged, in the statutory context within which the decision has been made”: LPDT at [5].

Whether a failure to adhere to the requirements of ss 16 or 19 when imposing separation or segregation on a detainee resulted in no lawful justification for their imposition, was disputed. As was that a failure to adhere to all of the requirements they imposed resulted in invalidity, as well as the claimed right to damages for wrongful imprisonment.

The case DE pressed was that the Detention Centres Act required decision-makers to adhere to all of the requirements of ss 16 and 19, failing which their decisions would be invalid. And that decisions made under either provision had to be driven by the paramount consideration, the welfare and interests of detainees on remand: s 4(2)(a).

Further, that s 19 did not permit segregation to be used as a behaviour management tool, as the evidence established it had been in his case. While accepting that behaviour management could be “linked” to safety, it was argued that such management was “a more gradual task, which takes it outside the purpose of segregation under s 19”.

Given that it had been envisaged from 27 June that DE would be subjected to further segregation, even if he behaved impeccably, on his case the challenged decisions could not have been based on reasonable grounds, as s 19(1) required.

As I will explain, the case so advanced cannot be accepted.

It is settled that when discretionary powers such as those given by ss 16 and 19 and the Regulations in respect of handcuffing are given, they must be exercised reasonably: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; [1990] HCA 21; Kruger v The Commonwealth (1997) 190 CLR 1 at 36; [1997] HCA 27; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650; [1999] HCA 21; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [15]; (2009) 259 ALR 429.

Whether the challenged decisions were made reasonably was also disputed. But there was no issue that what was reasonable had to be considered in the context of all that the Detention Centres Act provided as well as what the Work Health and S**afety Act required. Attention always having to be paid to the duties it imposed, when decisions were made about segregation.

Case plans are dealt with in Part 3 of the Regulations. They are required to be prepared as soon as practicable after the detainee is admitted into the detention centre and are to be periodically reviewed, to ensure they remain relevant to the detainee’s circumstances: r 20. What they may contain is specified in r 21. The regulations do not preclude arrangements of the kind imposed by DE’s DRMPs.

Maintenance of order is dealt with in Part 7 of the Regulations, and misbehaviour in Part 8, with Schedule 1 dealing with misbehaviour which detainees should not engage in, including fighting.

Such arrangements are where the requirement to give paramount consideration to the welfare and interests of persons on remand or subject to control, has an obvious role to play.

But under the Detention Centres Act, it is for the Secretary of the Department to determine in which centre a person is to be detained: s 11. While on remand in a centre, detainees always being in the custody of the “centre manager”: s 9. That term is defined in s 3 to mean “the person for the time being in charge of” the detention centre. This reflecting the concept of custody explained in Day v The Queen (1984) 153 CLR 475 at 484; [1984] HCA 3.

Control and management of all detention centres also being given to the Secretary, subject to s 26: s 6. Section 26 providing for the handling of riots and disturbances at detention centres under a Memorandum of Understanding entered with the Commissioner of Corrective Services.

These sections cast light on the nature of what can arise to be managed at a centre. That driving decisions necessary to address safety risks posed by particular detainees, when they materialise in a centre, as they did on 25 June 2016 at Cobham. On such occasions, as was DE’s case, this may result in a detainee committing a criminal offence in detention, which will be dealt with criminally by police, rather than internally as misconduct.

There was thus no issue that:

when he was on duty at Cobham, it was Mr Vita who was in charge of the Centre;

at times the person in charge of the practical operation of Cobham was a Duty Manager to whom other managerial staff on duty reported;

such a Duty Manager was at such times “in charge” of Cobham, and thus at that time the “centre manager”; and

under Cobham’s routines, such a manager, at need, could also contact the Centre Manager or Assistant Centre Manager, by phone, which could result in their involvement in decision-making.

The treatment of detainees is regulated by Division 2 of Part 3, which applies to persons on remand and persons subject to control. Section 14(1) provides that it is also for the Secretary to ensure that adequate arrangements exist:

The power to segregate can only be exercised by a “centre manager” as defined, of whom there can be more than one;

The segregation power cannot be exercised to punish a detainee;

When making the segregation decision the centre manager must:

It must also be accepted that in considering whether reasonable grounds for the required belief exist, a Centre Manager may have regard to relevant past experience. Including the results of premature release of other detainees who had then further pursued violent offending of the kind which DE had already engaged in, having been released too soon from segregation. As well as the times of day that it is more likely for further violence to materialise.

Nor does s 19 preclude a decision-maker from concluding that segregation can only be relaxed gradually, in order to enable ongoing assessment of when it can safely be ended, as DE also urged.

Lawful segregation always depends on the decision-maker having the required belief, on reasonable grounds. Gradually shortening the time of segregation or the conditions imposed, in order to test whether a belief previously held remains reasonable, is an obvious way for a Centre Manager to determine whether reasonable grounds for ongoing segregation continue to exist. And to ensure that an offence is not committed, as the result of the segregation being brought prematurely to an end.

The evidence established that the risk assessment and decision-making involved in a segregation decision, including in relation to its length and conditions, were complex and difficult. This reflected the serious nature of the risks which detainees can pose on entry to detention, later being revealed to be even more serious than initially identified, when they materialise in detention. That is also why prior experience of the risks of relaxing segregation too soon had to be taken into account when Mr Vita made decisions about DE.

In undertaking those challenging tasks, s 19 required Mr Vita to take into account identified risks, as well as DE’s actual behaviour, both good and bad, and how it changed over time. As well as relevant experience gained during his operation of Centres over time, including in relation to how and when risks of the kind which DE and others posed were likely to materialise again.

DE’s case included that consideration being given to such matters involved an inversion of the statutory requirements which had to be observed. With the result that detainees were impermissibly required to demonstrate, by their ongoing behaviour, that they could safely be released from segregation.

That also cannot be accepted.

Section 19 does not seek to preclude segregation encouraging good behaviour or discouraging bad. The way in which centres are routinely organised no doubt always seek to achieve such important aims. Which are undoubtedly permitted by the Act, consistent with how the functions given to the Secretary are dealt with in s 14.

Logically, detainee behaviour necessarily always has be considered and assessed during risk assessments continually undertaken at detention centres. It must also be managed, given the risks posed by detainees and how they may materialise from time to time. Even when segregation is not in place or being contemplated.

Arrangements for segregation will inevitably encourage good behaviour and discourage bad. That helping to maintain discipline and good order among detainees, as well as the proper control and management of detention centres, as well as helping to ensure safety. The Act does not contemplate that these aims conflict or need to be abandoned, when segregation is imposed on a detainee, when the requirements which s 19 imposes have to be met.

To the contrary, encouragement of good behaviour and discouragement of bad appears to be an inevitable by-product of any decision to segregate a detainee whose misconduct has put the safety of others at risk. In my view, s 19 thus permits the use of segregation as part of an approach to the management of safety risks at a centre, driven both by the Detention Centres Act and the duties imposed by the Work Health and Safety Act*,* which aims to encourage good detainee behaviour and discourage bad.

That reflecting an approach to administration which has regard to the paramount consideration, the welfare and interests of all those held on remand or subject to control at the Centre.

Such prior approval will satisfy the requirement that segregation not exceed three hours without approval.

But approval of a decision to segregate which has not yet been made, being given “in principle”, which was also postulated, does not satisfy the requirements of s 19(1). That being because the approval required is of a decision that the Centre Manager has made, having formed a belief on reasonable grounds that segregation is required in order to ensure safety. It follows that approval of such a decision cannot be given, before the required belief is formed and the decision made.

It must thus be accepted that s 19(1)(b):

Does not contemplate approval of segregation which exceeds three hours being obtained before the segregation decision is made;

Or approval only being obtained after three hours segregation has already elapsed, which cannot not cure the breach of s 19 which by then has already occurred, the segregation having already exceeded three hours;

permits a segregation decision to be approved before the segregation actually commences; and

If approval of segregation for more than three hours is not obtained within that time, the segregation must not continue beyond three hours, unless a further decision for segregation for more than three hours is made and it is approved before that time expires.

In the case of DE, it follows that Mr Vita was able to make a decision on the evening of 25 June, after the brawl had been brought under control, for DE’s segregation from 26 June, after the overnight lockdown came to its normal end, until he made a further decision on 27 June, if reasonable grounds for such a decision existed on 25 June. Section 19(1)(b) permitted such segregation to continue after three hours on 26 June, if it was approved before that time expired.

But s 19(1)(b) did not permit Mr Vita’s decision to segregate DE for more than three hours being both made and approved by him. In so far as s 39A appears to permit such a delegation, it must be read down.

If the challenged decisions were not approved within three hours of the segregation commencing on 26 June, s 19(1)(b) requiring that the segregation be brought to an end. Failing which s19 was breached.

There were then no practicable alternative means to protect the personal safety of those for whose protection DE was to be segregated, given: the risks he posed; how Cobham was operated and staffed; the need to move him out of the Mandela Unit, where he could no longer safely be housed, given the risk of retaliation he was then the subject of; a risk assessment of him being housed in other Units never having been undertaken, as it had to be; the risks to his safety which also had to be considered; and the duties imposed by the Work Health and Safety Act in relation to ensuring safety which also had to be observed;

The approval required by s 19(1)(b) for the decision to segregate DE until a further decision could be made on 27 June, having been for more than three hours, came from:

the senior officers who had delegated authority to approve to whom Mr Vita spoke on the evening of 25 June, after he was informed of what had occurred that evening, who later recorded their electronic authorisations; and

Ms Howell, the 26 June Duty Manager, who created that day’s CIMS record, which Mr Vita and those who had approved his decision later signed, even though the record did not accurately reflect the decision Mr Vita had made.

On all of the evidence, it thus cannot sensibly be concluded that the approval required of the 25 June segregation decision was not given in the required time, the segregation having only commenced at 9 am on 26 June.

Mr Vita explained his practice of seeking approval of segregation from those more senior to him before it was implemented. On 25 June, he reported to his superiors, the regional director and director of statewide operations by phone, informing them of his proposed segregation of DE, which they approved, he then considered in principle. But on the evidence, by then he had made and communicated his decision, which Ms Scott then conveyed by email. That does not accord with approval only being sought or given, in-principle. That it was only later captured electronically, did not change the approval given to merely in principle approval.

Mr Vita also had a practice, after DRMP meetings, of speaking to his superiors when the outcome included segregation, with their approval also later being recorded. But that did not capture when it was actually given.

On her evidence, Ms Scott agreed with, but did not make or approve, the 25 June decision to segregate DE which she advised other managers of in her second email. It was also reflected in the handwritten records earlier explained. This accorded with the practices which the witnesses described then operated, including when urgent decisions had to be made and approvals were given verbally and only later recorded in the CIMS system. There was no such record of Ms Scott’s approval.

That the records kept did not accurately record Mr Vita’s 25 June decision or the approvals given reflected shortcomings in the design of the system. But that cannot justly lead to the conclusion that Mr Vita’s decision was not made or approved as s 19(1) required, given all the evidence I have explained.

The gravity of a decision to segregate a detainee was certainly one which those who gave evidence appreciated, given how they acted. Despite the case pressed for DE, on all their evidence, I am persuaded that the better view is that the requirements of s 19 were not breached when the 25 June decision was made.

Mr Vita’s review of DE’s case notes confirmed there was then no evidence of such concerns. DE gave no evidence of their existence and so it cannot sensibly be concluded that such concerns were overlooked.

DE was transferred to the Taralga Unit, one of the older Units at Cobham, dedicated to housing more dangerous detainees while subject to a DRMP. The result was that he was not permitted there to mix with other detainees, even during meals. But housing in such a Unit was expressly contemplated by s 16 and cannot, of itself, establish a breach of s 19.

Nor did the conditions which precluded DE having access to sharps. That meaning he was only given access to items on the Centre’s menu which were finger food. That condition cannot establish that his segregation was wrongly used to punish him, or to impermissibly train him in compliance, as he also contended.

Mr Vita was extensively cross-examined about the conditions imposed, his views about the risks DE posed and how the records which reflected the 27 June’s decision had been produced.

Mr Vita said he had then concluded that DE’s segregation needed to be for a period sufficient to allow him to form the view that the risks he posed had reduced to a level where he felt it was safe for DE to mix again with the general detention population. There was no suggestion from the specialists that such segregation would be detrimental to DE’s mental health, with no known physical disability or developmental conditions preventing him from handling such ongoing segregation.

That accords with the contemporaneous documents, which refer to DE having suffered a blow to the head before he went into custody; these records were to be pursued, about which Ms Byrne was cross-examined.

Mr Vita also said he then intended that DE would be allowed more time out of his room after 5 July, and that it was planned that he would see the psychologist regularly before then, so that adjustments could be made beforehand to the plan, if necessary. They were not.

In determining a two-week period would likely be needed before Mr Vita could be confident that DE could safely return to the general population, he said he had considered prior experiences, when he had allowed detainees to mix with the general population too soon, that having resulted in further violence. He thus considered the approach he adopted on 27 June to the period of DE’s segregation as necessary from a risk perspective. He also believed that a gradual approach of relaxing conditions was required to enable him to look at the complete picture, with the continuing risk DE presented being assessed in light of his ongoing behaviour.

The Taralga Unit was then dedicated to accommodating high risk detainees on DRMPs. It had no common areas and required meals to be taken in the detainees’ room, from a menu of finger food which was also available to other detainees. Mr Vita agreed the rooms in that and the Carter Unit were cell-like, and DE was then also assessed as being too high risk to attend school.

Mr Vita also considered DE then had to be supervised by two youth officers when out of his room to ensure safety. And that there were no practical alternatives then available to mitigate the risks DE posed. What he said in cross-examination also included that:

On 27 June, DE still posed ongoing risks;

The purpose of the DRMP adopted was to address these risks and enact an alternative to his normal routines, in order to safely manage DE for a specific period;

A DRMP did not necessarily include segregation, although that usually formed part of such a plan, in some form, as part of a response to a violent incident, which he considered was required in DE’s case;

A fairly standard condition after a violent incident being segregation, in a room with one hour a day of recreation, subject to handcuffs when premeditated violence had caused injuries to staff or kids;

Observations being made of the detainee over a week, before a review at the next DRMP meeting;

Incidents of severe violence typically involving the imposition of a further DRMP, ongoing monitoring of behaviour, interaction with a psychologist, analysis of risk on a daily basis and relaxing conditions, if that was found to be safe;

In DE’s case, the CCTV footage had a big impact on his decision-making, leaving him with the impression that there had been a carefully orchestrated attack with a diversionary component to it, even though there was no sound recording;

Mr Vita did not consider it necessary to have raised this view with DE before the DRMP was imposed;

Mr Vita also considered DE posed increased risks when housed on the Taralga Unit with others who had acted violently in detention and were on a DRMP as a result. This was part of the reason detainees were not permitted to take communal meals on that Unit;

There were also increased risks if such detainees were kept outside that Unit, even during recreation periods, which was why a handcuffing condition was imposed and handcuffs were used in DE’s case, until the risks he posed abated;

Mr Vita knew on 27 June that, no matter how well DE behaved before 5 July, there would be another DRMP, even if less restrictive, given the nature of his violence during the 25 June incident; and

The conditions imposed encouraged DE’s good behaviour and provided disincentives for bad. For example, by increasing or reducing access to the TV. The purpose of the plan was not only to reduce risk, but to encourage improved behaviour, so that segregation could safely be bought to an end.

Mr Vita could not recall whether, on 27 June, the psychologist had drawn attention to DE having suffered a head injury before he went into detention. Nothing turns on this, DE not claiming to have suffered any injury or exacerbation of an earlier injury as the result of his segregation, nor suggesting this injury precluded the satisfaction which s 19 required Mr Vita to have.

It is on all this evidence that I am satisfied it must be found that on 27 June Mr Vita did have the beliefs required by s 19, again on reasonable grounds.

In arriving at this conclusion and that other requirements imposed on him by s 19 were satisfied, I have also taken account of what the evidence revealed about the complexity of the risk assessment involved in DE’s case, given how the risk he posed had materialised in detention. As well as the challenge presented by the management of those risks, which contributed to the then concern about the risks which others posed to him, given the ongoing risk of retribution.

It cannot sensibly be accepted that in DE’s case, on 27 June, only two days after the violence he pursued on 25 June:

it was not open to Mr Vita to form the view that the risks which DE posed, having materialised as they had, had not dissipated to such an extent that he could safely mix with other detainees;

it was not open to him to hold the belief, as I am satisfied he did on reasonable grounds, that DE had to continue being segregated if the required safety was to be protected; and

there were then no reasonable grounds for the continuing segregation Mr Vita decided to impose.

Monitoring such a detainee’s ongoing behaviour over a period, while they interacted with a psychologist and responded to conditions designed to help improve their behaviour and minimize the ongoing risks which they posed, in my view cannot be accepted as involving any breach of s 19.

DE’s behaviour on 25 June had revealed the real nature and extent of the significant risks which he posed, which had resulted in the infliction of harm, luckily not lasting harm, as well as risking the safety of officers who had to restrain him. The CCTV footage and other information Mr Vita had to consider and take into account provided a proper basis for the beliefs that he formed.

The evidence also well established that on 27 June, DE could not safely be returned to mix with the general detainee population as he was before 25 June. Implementing a process of managing his risks during a period of segregation, intending that conditions imposed be relaxed while safety continued to be ensured, improving behaviour was encouraged and his ongoing conduct was assessed and provided a basis for confidence that the risks DE posed were actually reducing, thus cannot establish a breach of s 19.

What the evidence did not establish was compliance with s 19(1)(b).

The electronic record noted approvals which had been given. It did not identify Mr Vita to have been the decision-maker, but one of those who gave their approval of the segregation decision.

I am satisfied that this is not what actually occurred, despite Mr Vita having utilised the system as he did, to record the decision he had made, by identifying it as one he had approved.

It also records the approval of others. Mr Ferguson’s on 27 June and that of the Regional Director Mr Wilson and finally the Director of Statewide Operations, Mr Harris on 28 June. They were not called.

The result is that, given the delegations in place and the length of the segregation Mr Vita imposed, the evidence does not establish that the required approval was given on 27 June, within the three hours of Mr Vita’s decision to segregate DE for more than three hours having been made. As a result, it must be accepted that there was then a breach of s 19(1)(b).

As I have explained, it was the deficiencies of the CIMS system and record-keeping which contributed to this outcome. As did the view of s 19(1)(b), that the required approval for segregation of more than three hours could be obtained after that period had expired.

The requirements of s 19(1)(b) were also not satisfied by any in-principle support foreshadowed on 25 June about what Mr Vita indicated he might decide the following Monday.

The CIMS system did not permit approval to be recorded by more senior officers until after those junior to them had recorded their approval. Nor did it require the time of any prior verbal approval given to be recorded.

The evidence does not establish when Mr Vita spoke to those who later recorded their approval, after he made his decision at the 27 June meeting, although Mr Vita said that was his practice. Still, it cannot be inferred from that evidence that the approval of his decision was given within the required three hours of his decision having been made.

I am thus satisfied that the evidence established that on 27 June, Mr Vita also had the beliefs required by s 19(1) on reasonable grounds, that given the risks which DE continued to pose, he had to continue to be segregated until the 5 July review, in order to protect his personal safety and that of others. Mr Vita having had the required regard to:

The nature and duration of the segregation, given DE’s age, mental condition and development and the views which Ms Byrne had formed of him, as well as the arrangements in place at Cobham for detainees who posed risks of the kind DE posed, being housed in the Taralga Unit;

His risks and the operation of his DRMP there being constantly assessed, by those who supervised him during his segregation and by the psychologist with whom he was to meet during the week before the planned review on 5 July;

Prior experience having shown that serious risks of the kind DE posed did not abate quickly in detention after violence had been pursued, with there being a real risk of further violence occurring, if segregation was ended too quickly;

DE’s segregation being as short as practicable in all the circumstances, given the ongoing serious safety risk he posed having materialised only two days before, the need to protect personal safety and the duty to ensure safety;

There being no practicable alternative means to protect the personal safety of those for whose protection DE was to be segregated, including his own, while the ongoing risks he posed were monitored and further assessed;

DE being required to be housed in the Taralga Unit where those on DRMPs, who could not safely attend school or mix with other detainees even for meals, were detained. It being staffed to allow them each to be supervised by two staff members, whenever out of their rooms, given the risks which they, including DE, continued to pose; and

There then being no practicable alternative means to protect the required personal safety, given the need to also comply with duties imposed by the Work Health and Safety Act.

Mr Vita agreed that before this move, an assessment had been made of the appropriateness of DE’s placement on the Carter Unit, given the makeup of the detainees housed there. This continued to be part of the risk management strategy pursued to separate those involved in the 25 June incidents.

Mr Vita also agreed that when a supervisor concluded handcuffs were not required, that would reflect an assessment that DE did not then pose a particularly high risk of violence. That would then be discussed at the next DRMP meeting.

DE was also then permitted to mix with other detainees if recreation was in the Unit, but not outside it. Mr Vita agreed that by this stage he was satisfied DE was not a risk to the safety of other detainees in the Carter Unit. He was thus allowed cutlery for meals and did not have to eat all meals in his room, with Mr Vita satisfied his risk had reduced and that he was making progress. As a result, his access to TV was also increased, although the requirement that there be no misbehaviour was continued.

The restriction to non-contact visits still continued, precluding DE having physical contact with visitors.

Mr Vita also said that:

By this time, the immediate need to respond to the safety risk DE caused on 25 June had receded.

The reason for not returning him to Mandela remained his violence there on 25 June, which had also been taken into account in his reclassification.

It was then forecast that DE’s DRMP might come to an end on 12 July.

No matter how well DE had behaved up to 5 July, his view was that he had to continue to be subject to some form of segregation, until Mr Vita was satisfied the risk he posed had gone, to the degree that this was possible to assess.

This approach was required because of the need to protect staff and kids, with risk assessments not being an exact science. History having never shown the required improvement, after violence had been pursued in detention, within just one week.

The process of gradually removing restrictions was pursued to assist a detainee modify their behaviour, helping him and the DRMP panel make ongoing assessments. This ensured Mr Vita could be satisfied that a detainee like DE was not just ticking boxes off on a risk management plan.

He having to ensure positive behaviour was consistent before a young person was released from a DRMP.

This was more important in DRMPs which imposed segregation, which was not imposed unnecessarily, if it was not thought to be needed.

In the past when segregation had been removed prematurely, young people had then assaulted other kids and staff, which was why he generally then pursued a cautious approach to relaxing segregation.

Not reducing restrictions too soon or maintaining them too long required a balancing act. But in DE’s case, Mr Vita believed he did not err on the side of having maintained segregation for too long, although he agreed it was harder to see clear evidence of improvement, from detainee behaviour.

Still, he did not agree that in DE’s case he gave too much weight in his decision-making to past decisions, where restrictions had been removed too quickly.

By 5 July, Mr Vita still had a concern about possible retaliation, given DE’s known gang affiliations, non-associations and what he had done on 25 June. But he was satisfied that these could be managed in the Carter Unit with some adjustments and precautions.

He agreed that once DE was permitted to eat with others while using cutlery, there was a risk that it would be used as a weapon.

There was then also a risk of DE climbing on equipment, which he had a record of doing, and then remaining there for a considerable period. This presenting a risk to himself and the good order of the Unit.

This always being a part of his consideration, given the duty of care always owed to all detainees. But Mr Vita agreed that a risk of climbing equipment would not of itself have justified the continuation of segregation.

I am satisfied on all of this evidence that it must also be found that, on 5 July, Mr Vita still had the beliefs required by s 19, again on reasonable grounds. Namely, DE had to be kept in shorter periods of segregation each day, in order to continue protecting his personal safety, as well as that of others.

Further, that Mr Vita then properly continued to have regard to the requirements of s 19. The result being that the nature and duration of DE’s segregation until 12 July was reasonable and as short as practicable in the circumstances which Mr Vita then still had to be deal with. There then still being no practical alternative means to protect the required personal safety; given the concerns which Mr Vita explained he still had.

Section 19 and the Work Health and Safety Act required DE’s integration into the Carter Unit being safely managed. Mr Vita was not either entitled or obliged to take any risks in relation to protecting personal safety, while the assessment he considered still to be necessary in DE’s case, was pursued.

No further risk to safety having materialised as the result of DE’s behaviour in segregation, to that point, does not establish that DE no longer posed any risk, or that reasonable grounds for Mr Vita having the required beliefs no longer existed, as was his case. Not only had the risks he posed been reclassified to the highest level as the result of his serious violence in detention. Mr Vita had to take into account that most risks to safety materialised on Units in the evening, and that it had been after dinner on 25 June that the risks DE posed had actually materialised, in the way that the CCTV footage had revealed.

It was Mr Vita who had to be satisfied that DE’s segregation could safely be brought to an end. He then being satisfied of this at some times of the day, does not establish that he had no reasonable grounds for the concerns he said he still had on 5 July, which drove his belief that reasonable grounds for more limited segregation at other times, continued to exist. They were the times which experience had showed such risks were most likely to materialise, as they had on 25 June.

Had this experience been ignored by Mr Vita, he would have risked the commission of a serious offence, for reasons explained in Silver City.

Given the concerns which Mr Vita still had by 5 July and the duties which remained, that there then were no practical alternatives to the limited segregation imposed on DE to protect the required personal safety must be accepted. Mr Vita then being satisfied that the required safety could not be protected, if DE’s segregation was completely brought to an end.

DE’s behaviour and his interactions with the psychologist, explained in Ms Byrne’s evidence, was considered at the 5 July DRMP meeting and outlined in the DRMP. This helped establish that there was then a proper basis for Mr Vita’s cautious approach to the balancing act he explained he had to continue undertaking in relation to the risks DE posed and their assessment.

That accorded with the statutory context in which he had to make his decisions about whether to end segregation, at risk of commission of potentially serious offences if he erred.

The evidence thus established that on 5 July, Mr Vita continued to hold the belief s 19 required, for the decision then made, on reasonable grounds. Having taken into account the required conditions in relation to the nature and duration of the reduced segregation he implemented, considering DE’s age, mental condition and development. The segregation was also as short as practicable, since there was still no practicable alternative means to protect the required personal safety.

Both s 19 and the Work Health and Safety Act required a proactive, rather than reactive approach to risk management, given what DE’s behaviour on 25 June had established about the heightened risk he actually posed.

It follows that even if other steps might conceivably have been taken on 5 July, to prevent the materialisation of DE’s risks, if then entirely released from segregation, that cannot establish a breach of s 19.

What was implemented was again supported by the Assistant Manager Mr Dowse, and approved on 6 July, again by the Regional Director and Director Statewide Operations, after Mr Vita entered his approval. No separate segregation record was then created, that reflecting what had earlier been documented and approved in relation to segregation until 12 July.

There was no suggestion that Mr Vita had discussed the outcome of the 5 July review again with those who had the delegated authority to approve segregation for more than three hours, following his further decision.

The result is that on the evidence, the approval of the 5 July decision did not cure the earlier breach of s 19(1)(b) when the 27 June decision was made and that it was incapable of satisfying the requirement that DE’s ongoing segregation for more than three hours, be approved within that time.

He also agreed that, given his decision to permit DE to mix with other detainees on the Unit at certain times, there was no reason he could not safely use the recreation areas with them at other times of the day.

Still, he considered that some segregation of DE for a further week was then required in the evenings, even though no misbehaviour had occurred during segregation, which he considered was a good sign in terms of DE’s progress and risk assessment.

But he had a continuing concern about DE being aggressive and demanding to staff, which was referred to in the DRMP record. Examples included a problem at the time of a delayed lunch and the psychologist having referred to DE still allowing aggression to build up. Although, Mr Vita agreed this was not unusual for some detainees and that this would not, itself, warrant segregation.

But DE’s involvement in the dinner routine still then remained of concern, despite his attendance at other meals, permitted interactions with detainees on the Unit, and planned recreation activities outside the Unit.

This reflected Mr Vita’s experience that, when there was drama and disagreement on a Unit, it tended to emerge over dinner, which was a riskier period across the Centre for all detainees. He still then was concerned to minimise the risk of DE becoming involved in further such events.

The conditions imposed thus encouraged both good order and security, including by precluding DE from participating in evening recreation while risk assessments continued. His behaviour then still being tested, while restrictions continued to reduce, with incentives also provided for his ongoing good behaviour.

Those restrictions reflected the seriousness of DE’s conduct on 25 June, the earlier assault on him and the risk which access to cutlery at dinner posed, at a time when more fights and disturbances generally tended to occur.

This plan recognising DE’s positive improvement, as well as Mr Vita’s continuing concern about his very serious assault and involvement in the 25 June incidents.

This DRMP required separate segregation records be kept. These recorded daily approval of segregation by the Unit Manager, in one case recorded only a month later for reasons which were explained in evidence, of which Mr Vita was not aware. Nothing turns on this.

Daily segregations of less than three hours did not require approval. But Mr Vita’s decision to continue segregation each day until 18 July from 4.45 pm until the normal lockdown at 7.20 pm, meant that his decision was for ongoing segregation of more than three hours. Accordingly, it also required the approval which s 19(1)(b) provided for, within three hours of the segregation imposed commencing. The CIMS records did not establish that such approval was given by those with the relevant delegated authority.

While more difficult to resolve, I am persuaded that the better view is that even on 12 July, Mr Vita still held the belief s 19(1) required on reasonable grounds. He was certainly then confident that the risks DE posed had reduced significantly and were being successfully managed under less restrictive arrangements, allowing DE to safely mix with other detainees at certain times of the day for even longer periods than before, while risk assessment continued.

But Mr Vita still believed the shorter periods of daily segregation, imposed on 12 July during the evenings, remained necessary to protect safety. That there were then still not practical alternatives, given his ongoing concerns and the obligations and duties imposed on him, must also be accepted.

Mr Vita’s consideration could not be confined to all that was known about DE’s age, development and mental condition, or his ongoing improved behaviour. Mr Vita took the available view that close attention still had to be paid to the serious nature of the safety risks posed by DE, established by his conduct on 25 June, when they materialised in his offending in detention. He considered that the resulting need for DE’s ongoing good behaviour to be impressed upon him, in order that the risks he continued to pose were managed, had to result in the continuation of some daily segregation at the most dangerous time of the day.

That DE’s risks still had to be managed, was undoubted, given his past violent behaviour in detention only several weeks before, at such a time.

What was explained in Silver City sheds light on the difficulty Mr Vita then faced. He having to assess the ongoing risks which DE continued to pose, what protecting personal safety then required, to determine whether there were then practicable alternative means to segregation and the risk of a breach of the duty imposed by the Work Health and Safety Act, if his decision to end segregation proved to be wrong, with the result that DE pursued further violence.

On DE’s case, no ongoing segregation was then required, given the time which had elapsed since 25 June and his compliant behaviour in segregation. DE asserted that Mr Vita was wrong in the view which he took and the course he pursued, with the result that he was isolated for far longer than he reasonably should have been.

Yet, Mr Vita was certainly not obliged to risk the commission of an offence by ending DE’s segregation when he believed that would be premature, that risking the safety which had to continue to be ensured. I am persuaded that DE’s conduct on 25 June provided a reasonable basis for Mr Vita’s ongoing beliefs, on which his 12 July decision rested.

Nor was the nature of the risks which DE then posed not established by the fact that he had not inflicted lasting injury on his victim on 25 June. Nor was that established by his complaint behaviour in segregation up to 12 July. Mr Vita had to take such matters into account in his decision-making, also paying proper regard to the nature and seriousness of the risks which DE continued to pose, they having already materialised in detention, as they had.

Mr Vita said that his decision-making was then driven by DE having attacked his victim as shown through CCTV footage, while held in detention on remand, unaffected by drugs or alcohol, and then also involving himself in the other detainees’ attack on the second victim.

A failure on 12 July to respond adequately to the risks which had already so materialised, thereby risking serious potential injuries as the result of further such violence, as was Mr Vita’s concern, I am satisfied explained his approach and provided a proper basis for the beliefs he held and the course he pursued. It being notorious that unprovoked punches can not only result in very serious injury, but in the case of a strike to the head, that even one punch has been known to lead to death.

That it was reasonably open to Mr Vita then to conclude that the risks DE posed could be managed by a continuation of his segregation only during the evening, the time at which he had pursued his violence on 25 June, must be accepted, given his behaviour in the meantime.

This drives the conclusion that the further relaxed segregation Mr Vita then imposed, less than three weeks after 25 June, was both reasonable and as short as possible in the circumstances. There still then being no practicable alternative means to protect personal safety, of DE and others, given Mr Vita’s ongoing concerns and his belief that further risk assessment was required, before segregation could be safely brought to a complete end.

In final submissions, DE urged the view that this decision involved segregation being used to protect against a risk which was not specific to him, immediate or unacceptable. The risks he posed rather being ones applicable to all detainees. That may also not be accepted.

To the contrary, the risks which Mr Vita believed on 12 July still had to be managed by segregation, given DE’s violence on 25 June, remained immediate and unacceptable, given the duties imposed by the Work Health and Safety Act and the concerns he still had. Mr Vita still not being satisfied that they had abated to the extent that he could safely bring DE’s segregation to a complete end, without risking the personal safety which had to be protected. That providing reasonable grounds for the course he pursued. He reasonably taking the view that there were then no practicable alternative means available to protect safety, given all the risks that still had to be managed.

Stil, while I am satisfied that s 19 was otherwise complied with, as I have explained, Mr Vita’s 12 July decision was also not approved as s 19(1)(b) required.

The result, on DE’s approach, that any breach of s 19, even of a requirement to provide a segregated detainee with sufficient television access, which s 19(1)(c) may require, so that a detainee has a means of usefully occupying themselves, signalling invalidity; was submitted by the State to be impermissible.

It was thus urged that it would be accepted that a breach of s 19 not only does not result in invalidity but also cannot result in a detainee’s wrongful imprisonment.

Resolving what is in issue turns on what legislative purpose can be discerned in the Detention Centres Act. And whether segregation being imposed despite all requirements under s 19 not having been complied with, is intended to result in invalidity. This must be ascertained “by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition”: Project Blue Sky at [91].

That requiring a consideration of whether the decision to segregate was made in breach of “an essential preliminary” to the exercise of the statutory power or authority which s 19 gives a Centre Manager, as was DE’s case. Or whether the challenged decision to segregate was rather made in breach of a “procedural condition” for the exercise of the power or authority: at [92].

In the case of s 19, since the Detention Centres Act and the Work Health and Safety Act must operate harmoniously, the consequences of invalidity requiring scrutiny including that a s 19 decision to segregate a detainee can only be made in order to protect personal safety. That making it likely that such a decision is also made in order to meet duties imposed by the Work Health and Safety Act.

Applying the applicable principles to s 19, I do not accept that they must lead to the conclusion that a breach of s 19(1)(b) of the kind here established, which involved segregation exceeding three hours continuing without approval having been given before that time expired, results in the invalidity of the segregation decision, despite it having in fact been approved.

It seems to me that the preferable view is that, if a decision to segregate a detainee is made, not “in order to protect the personal safety of that or any other detainee, or of any other person” as s 19(1) requires, but for some other purpose, the decision would involve a breach of an essential preliminary for the exercise of the s 19 power. This includes if the segregation was imposed in order to punish a detainee, which is expressly prohibited by s 19(2).

As I have explained, that was not established in DE’s case, despite it being put to some witnesses that the real purpose of his segregation was to punish him for his violence on 25 June. DE’s case being that this was also established by the consequences of his segregation, isolation which was in fact, punitive. I am also unable to accept this.

What was established was that the decisions of 27 June, 5 and 12 July to segregate DE for more than 3 hours were all approved, but not before the three hours expired, as s 19(1)(b) required. But approval of Mr Vita’s decisions was given by those who had the delegated authority, during DE’s ongoing segregation. This reflecting the breach of a procedural condition for the exercise of the power to segregate, rather than the breach of an essential preliminary to the exercise of the power to segregate.

In my view, the errors involved in the failure to obtain the required approval before the three hours expired, resulted in the breach of s 19(1)(b). But not in the breach of an essential preliminary to the making of the decision to segregate.

The failure to approve within the specified time involving a breach of a procedural condition imposed on the exercise of the power to segregate, despite the mandatory terms in which s 19(1)(b) was expressed. Namely, that such segregation “must not exceed three hours except with the approval of the Secretary”. That being a condition which can be satisfied, as I have explained, before or after the segregation begins.

This means that despite DE’s segregation having continued for more than three hours before it was approved, rather than his segregation having then been brought to an end and another segregation decision having been made and approved within a further three hours, the invalidity which DE urged did not result.

It may be accepted that the conditions imposed by s 19(1) cannot be construed as providing mere guidelines for the exercise of the power to segregate which the section gives. Its exercise being subject to those conditions. But nevertheless, a failure to strictly comply with all that they require, will not necessarily render a decision to segregate invalid.

I am satisfied that conclusion must be arrived at despite DE’s reliance on Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317 and LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [14].

There, the Court explained in a judicial review application, the need for an applicant to satisfy the Court that the threshold of materiality is met in order to establish that an error is jurisdictional, albeit meeting that threshold is not demanding or onerous. In such a case, the question was whether the result “could”, not would, “realistically” have been different had there been no error: at [22]. “Realistically” being used to distinguish the assessment of the possibility of a different outcome, from one where the possibility is fanciful or improbable.

The conclusion that a failure to adhere to the condition imposed by s 19(1)(b) did not result in the invalidity of the challenged decision, has no impact on the obligation imposed on Centre Managers to adhere to the conditions imposed by s 19(1). Nor would it preclude, in an appropriate case, the pursuit of either habeas corpus or judicial review, in the event of a breach of s 19(1). Although whether the Court would make orders in favour of a detainee segregated without strict compliance with its conditions, would no doubt depend on the nature and seriousness of the risks the detainee posed and whether issue was joined over what the Work Health and Safety Act required in the circumstances.

All of Mr Vita’s challenged decisions for DE’s ongoing segregation were approved, albeit not always within three hours of segregation commencing. He having also had regard to the need to observe the duties which Work Health and Safety Ac**t imposed*.*

That the decisions of 27 June, 5 and 12 July remain valid, despite the evidence not having established that the approval was given within the required time, impacts DE’s claim that he is entitled to damages for wrongful imprisonment, as he accepted. But that is not a reason for concluding that they are invalid.

That on the evidence, there is no real basis to conclude that the challenged segregation decisions would have been different, had approval been given within three hours, rather than after that time had passed, is relevant.

This conclusion is inevitable, given what DE’s violence on 25 June revealed about the nature and seriousness of the ongoing risks he posed while detained, which always had to be managed while he was on remand at Cobham. DE’s conduct, when unprovoked, he attacked his victim and then joined in the brawl in which another victim was being assaulted, established that the approach to risk management adopted to that point at Cobham had not prevented his risks from materialising in detention. Despite what the duties imposed by the Work and Health and Safety Act always required.

In 2016, the position was that the only way DE could have been completely released from lawful detention was to make a further, successful, bail application to this Court under the Bail Act. He made no such application, understandably, given what he would then have had to establish. Namely, that he no longer posed bail concerns and unacceptable risks of the kind with which the risk assessment it provides for is concerned, despite his violence in detention on 25 June.

Given the nature of what DE did on 25 June 2016, the offending that involved, his resulting reclassification in detention to the highest classification, Mr Vita’s available views about the nature of risks DE posed and what was required to safely manage them, it is difficult to see that such an application could have succeeded, had DE then made one. Even though compliance with s 19 of the Detention Centres Act may then have arisen to be considered, as would the duties imposed by the Work Health and Safety Act.

The only way DE could then have obtained release from segregation was by a judicial review application, where he would have had to establish that the risks he then posed, did not warrant his segregation.

The evidentiary difficulties encountered at the hearing in 2025, when evidence was being given many years after Mr Vita made his decisions and the records in evidence were created, would not have arisen in 2016.

Further, as DE also accepted, any failure which then came to light, in relation to compliance with the requirements of s 19, could have been entirely cured by the making of a further decision to segregate him.

This makes it unlikely that any challenge DE could have pursued in 2016 to his ongoing segregation would have succeeded, given the nature of the risks which he then posed.

The case DE pressed was nevertheless that his detention became unlawful before his release from segregation on 18 July 2016, the challenged decisions being invalid. Despite how the risks which had materialised on 25 June initially warranting his separation that day and the ongoing duties which the Work Health and Safety Act then imposed. That being because even by 27 June, DE contended, those risks had not provided a lawful basis for his segregation.

Whether a decision-maker could hold the necessary belief under s 19 regarding DE, throughout the period from 25 June to 18 July 2016, is no doubt an issue about which minds may reasonably differ. As I have explained, despite this, I am satisfied that Mr Vita did have the required belief.

Mr Vita undoubtedly had difficult decisions to make at Cobham in 2016 about the important issue of safety, within a complex regulatory environment, earlier decisions having failed to ensure safety there on 25 June. That environment, I am satisfied, makes it difficult to accept that the Legislature contemplated that when a decision-maker such as Mr Vita holds the required belief on reasonable grounds, that any failure to comply with the conditions imposed by s 19(1), or even the requirements of ss 19(3) and (4), would render a decision to segregate invalid.

Proper account also having to be taken of the consequences of such a conclusion.

On DE’s case, one of them, he claimed being that he was entitled to considerable damages for wrongful imprisonment. Despite the decision-maker’s belief that compliance with the duties imposed by the Work Health and Safety Act also necessitated the segregation imposed.

If DE’s case on invalidity is correct, it is of course conceivable that in a prosecution for an offence under that Act, reliance may have to be placed on an invalid s 19 decision to segregate, despite it having been one which was actually approved, albeit not within the time s 19(1)(b) required.

This helps explain why I consider that the better view is that the Parliament did not intend that a segregation decision, made when the decision-maker held the required belief under s 19(1), which did receive approval, albeit not within three hours, would as the result that breach of s 19(1)(b), be invalid.

The outcome DE urged is in my view not justly available given the context, general purpose and policy of s 19 of the Detention Centres Act, which must work harmoniously with the Work Health and Safety Act. Both Acts being concerned as they are with safety and with the latter imposing onerous duties on the State and those who have to make difficult segregation decisions at times in detention centres, at risk of the commission of serious offences if they err.

The legislative goals shared by these Acts and the need to give harmonious effect to them both, in my view requires the conclusion that the breaches of s 19(1)(b) established in DE’s case, did not invalidate the decisions Mr Vita made to segregate him.

This reflecting how those required to make such decisions have to work in an environment where risks posed by detainees can be serious, jeopardising the safety of other detainees, staff and others present at Centres, if they manifest. Which may require that such risks be managed urgently and under pressure, in order also to ensure compliance with the duties imposed by the Work Health and Safety Act, including when segregation decisions are made.

In my view, this does not sensibly permit the construction for which DE contended and has helped persuade me that none of the challenged decisions were invalid. Despite the mandatory terms in which s 19(1)(b) is couched, on which DE relied to press the claimed invalidity, describing it to impose a “clear black and white term”. I am simply unable to accept that the approach urged is available.

The result is, as DE accepted, that his wrongful imprisonment claim must fail.

As I have explained, in 2016, the Centre Manager Mr Vita having concluded that safety required DE’s segregation, any deficiency in his then decision-making, if identified, could have immediately been rectified by the making of a further s 19 decision.

That does not comfortably accommodate the conclusion that the Parliament also intended, if s 19 was breached as the result of a failure to obtain approval for a segregation decision within three hours, that the detainee would not merely be entitled to an order for release, but also damages for wrongful imprisonment.

The preferable construction of the Detention Centres Act, it seems to me, is that it does not evince the necessary intention that, in the event of a breach of s 19 of the kind DE established, that the detainee would be entitled to damages for wrongful imprisonment.

I will nevertheless deal with what is in issue about damages, in case I am wrong in this conclusion.

The required assumption being that “everyone who had lawful capacity to contribute to deprivation of the plaintiff's liberty acted in strict performance of their legal duties and acted or refrained from acting in strict compliance with the conditions expressly or impliedly imposed on the exercise of their legal powers”: at [37].

But it could not simply “be assumed that a power to detain that could have been exercised lawfully would have been exercised lawfully if that power had not in fact been exercised unlawfully; and it cannot simply be assumed that all conditions precedent to the enlivening of a statutory duty to detain would have been met”: at [39].

In DE’s case, I consider what must be assumed is that the approval which s 19(1)(b) required be given for his segregation for more than three hours, was given within the required time for all of Mr Vita’s decisions. That flowing from the fact that all the challenged decisions were approved, albeit in the case of the 27 June, 5 and 12 July decisions, only after the required time.

Having made that assumption, I would have assessed DE’s nominal damages at no more than what the State conceded, and even less had the concession not been made.

This reflects the considerable safety risks posed by DE while on remand, which materialised on 25 June and then had to be dealt with, given the duties imposed by the Work Health and Safety Act.

Thereafter the risk he posed had to be even more carefully assessed and managed at Cobham than it was prior to DE’s violence that day. A failure to do so risking ongoing failure to comply with the onerous duties imposed by the Work Health and Safety Act and likely resulting in the commission of serious criminal offences punishable by substantial penalties. These offences would be committed by the State, the Centre Manager, Duty Managers and perhaps other managerial staff on whom such duties were imposed.

The records kept of the decisions in issue and their required approvals were deficient, as I have explained, as the result of the deficiencies in the design of the system and the understanding of the requirements of s 19. The State thus did not comply with the regulatory record keeping requirements. Had they been complied with, the same decisions are not only likely to have been made by Mr Vita about DE, but the approval requirements of s 19(1)(b) are likely not to have been misunderstood or overlooked, as they were.

In assessing nominal damages, it cannot be justly overlooked that all of the segregation decisions were approved by those with the relevant delegated authority. This would finally drive the conclusion that any nominal damages DE would be awarded, if the challenged decisions were invalid, would have to be very small. With the result my conclusion that damages no more than those the State conceded would be awarded.

Certainly, the State would have then more easily been able to prove when Mr Vita made his decisions, and when and by whom they were variously approved.

But what was not established was the pursuit of any conscious wrongdoing in respect of DE, let alone contumelious disregard of detainees’ rights. Even if it had been established that reasonable grounds did not exist for the various decisions which Mr Vita made, that could only be because reasonable minds could arrive at different conclusions to those which he reached, given all that he had to consider when he undertook the difficult assessments involved.

The malicious, wanton and conscious wrongdoing necessary for an award of exemplary was entirely absent in this case.

In Lewis, it was also observed that “exemplary damages may also have particular significance in restraining executive power”: at [111]. This can lead to no different conclusion in DE’s case. It not having been abuse of executive power which was here established.

As a result of his behaviour in segregation, Mr Vita came to the view that the handcuffing condition could be relaxed, being then satisfied that the risks which might require further handcuffing could safely be left to be assessed by those who had direct daily supervision of him. The result was that he was then not always handcuffed when taken out of his room and that the occasions when handcuffing was found to be necessary was recorded in the register.

DE elected not to give evidence and so no occasion when his evidence might have established that handcuffing was not warranted, was identified. His case being that it was never warranted and that the force involved did not have the required statutory authorisation. Given the risks which he posed, how they had materialised and then had to be managed, that cannot be accepted.

It follows that DE did not establish the claimed assaults.