Supreme Court of WA|2013-05-03|Before: Martin CJ

WILSON -v- JOSEPH MICHAEL FRANCIS, MINISTER FOR CORRECTIVE SERVICES FOR THE STATE OF WESTERN AUSTRALIA [2013] WASC 157 (3 May 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WILSON -v- JOSEPH MICHAEL FRANCIS, MINISTER FOR CORRECTIVE SERVICES FOR THE STATE OF WESTERN AUSTRALIA [2013] WASC 157

JOSEPH MICHAEL FRANCIS, MINISTER FOR CORRECTIVE SERVICES FOR THE STATE OF WESTERN AUSTRALIA

CRAIG CASTLE, ACTING COMMISSIONER, CUSTODIAL OPERATIONS, DEPARTMENT OF CORRECTIVE SERVICES

Administrative law - Young Offenders Act 1994 (WA), s 13 - Decision to declare a place a 'detention centre' - Meaning of 'suitable' - Decision to transfer juvenile offenders to a prison - Authority to transfer juvenile offenders in emergency circumstances

Applicant : Mr M D Howard SC, Ms N Breach & Mr N Ekanayake

Second Respondent : Mr G W Tannin SC & Ms A Johnson

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

1 In January 2013, the facility known as Banksia Hill Detention Centre (Banksia Hill) which is located in Canning Vale, a suburb of Perth, was the only place which had been declared to be suitable for the detention of young offenders pursuant to the provisions of the Young Offenders Act 1994 (WA) (the Act). On the evening of 20 January 2013, there was a riot at Banksia Hill. Some, but by no means all of the detainees participated in the riot. Extensive damage was caused to the buildings, furniture and fittings which comprised the facility. Control over the facility was regained and a semblance of order restored late in the evening of 20 January 2013, with the assistance of police and emergency support officers.

2 In the early hours of the morning of 21 January 2013, 73 detainees were transferred from Banksia Hill to Unit 5 in Hakea Prison, which is, broadly speaking, adjacent to Banksia Hill. No directions or orders were made pursuant to the Act authorising the transfer of those detainees prior to their transfer. Later on 21 January 2013, the Minister for Corrective Services (the Minister) made an order under s 5 of the Prisons Act 1981 (WA) (Prisons Act) which had the effect of deleting Units 5 and 12 at Hakea Prison from the place declared to be a prison for the purposes of that Act, and also made an order pursuant to s 13 of the Act declaring Units 5 and 12 at Hakea to be a detention centre. Both orders came into effect when they were published in the Government Gazette the following day (22 January 2013) (Western Australia, Government Gazette, No 9 (22 January 2013) 235, 236).

3 On 1 February 2013, the Minister made orders under the Prisons Act and the Act which had the effect of also excluding Unit 11 at Hakea Prison from the place declared to be a prison, and including that unit within the place declared to be a detention centre for the purposes of the Act, being Units 5, 11 and 12 at Hakea. Following the removal of all adult prisoners from Units 11 and 12 at Hakea, the detainees who had been housed in Unit 5 were transferred to those units. On 5 February 2013, the Minister made orders which had the effect of restoring Unit 5 at Hakea to the place declared to be a prison for the purposes of the Prisons Act, and removing that unit from the place declared to be a detention centre for the purposes of the Act. On 7 February 2013, a further 39 detainees were transferred from Banksia Hill to Units 11 and 12 at Hakea. On 8 February 2013, another 45 detainees were transferred from Banksia Hill to Units 11 and 12 at Hakea.

4 As at 16 April 2013, 140 detainees were being kept in Units 11 and 12 at Hakea. All were male and aged 14 years or over. 86 were under sentence and 54 were on remand.

5 In these proceedings, the legal guardian of one of the detainees who was transferred to Hakea in the early hours of 21 January 2013, and who has been detained there since that time, has challenged the lawfulness of the various decisions to which I have referred, and sought prerogative relief and declarations of invalidity with respect to those decisions. Each of the decisions to declare the relevant units at Hakea to be a detention centre is challenged on three grounds: that the facility was unsuitable for the detention of young persons and therefore the decision did not accord with the requirements of s 7(i) of the Act; that the decision did not accord with certain objectives and principles specified in s 6 and s 7 of the Act respectively; and that the decisionmaker failed to take into account a number of matters which it is asserted he was required to consider under the Act. The decision to transfer the detainees from Banksia Hill to Unit 5 of Hakea Prison in the early hours of the morning of 21 January 2013 is challenged on the same grounds, and on the additional ground that no order authorising the transfer of detainees from a detention centre to a place which was then declared to be a prison had been made pursuant to the provisions of the Act.

6 For the reasons which follow, I have concluded that the orders made by the Minister, which had the effect of declaring the relevant units at Hakea to be a detention centre for the purposes of the Act, were lawful and valid. In particular, I have concluded that in the circumstances which existed following the riot at Banksia Hill, it was open to the Minister to form the view that the units at Hakea in which the detainees were kept were suitable for young persons within the meaning properly attributed to that term in s 7(i) of the Act, and that in the circumstances which then prevailed, having particular regard to the limited options available, the decision to declare units at Hakea to be a detention centre did not contravene the objectives and principles specified in s 6 and s 7 of the Act respectively. The assessment of whether a particular place is 'suitable' for detention of young persons within the meaning of s 7(i) of the Act, having regard to the objectives specified in s 6 and the other principles specified in s 7 of the Act, cannot be undertaken on an abstract or theoretical basis. In the circumstances which prevailed following the riot, an assessment of whether the facility is 'suitable' must necessarily be undertaken by a process of considering all reasonable alternatives. That is precisely what occurred. Put another way, in the circumstances which prevailed following the riot, 'suitability' within the meaning of s 7(i) of the Act was a relative rather than absolute concept. I have also concluded that all relevant matters which the Minister was required to take into account before making the impugned declarations were given appropriate consideration by those who advised the Minister, and that there is no evidence that the Minister failed to take those matters into account.

7 Further, for the reasons which follow, I have also concluded that the decision taken by Acting Assistant Commissioner Castle in the early hours of 21 January 2013 to transfer, among others, the detainee whose guardian has commenced these proceedings from Banksia Hill to Hakea Prison did not contravene any provision of the Act. That is because the relevant provisions of the Act should be construed as accommodating the temporary transfer of detainees to a place of safety and security when, as the result of an emergency, their continued accommodation within a detention centre is impractical for at least so long as it takes to regularise the lawfulness of their detention. Because of my conclusion that the Minister's decisions to declare the relevant units at Hakea to be detention centres were valid, the lawfulness of the detention of the 73 detainees who were transferred from Banksia Hill to Hakea Unit 5 was regularised a little over 24 hours after their transfer which was, in all the circumstances, within a reasonable time. Further, having regard to my conclusion that the lawfulness of the detention of the 73 detainees was regularised by 22 January 2013, even if I had concluded that their transfer to Hakea Unit 5 in the early hours of the morning of the preceding day was in contravention of the Act, I would not have granted either prerogative or declaratory relief in respect of that transfer because such relief would have been of no utility or practical purpose, and would not have had any continuing legal significance.

8 At a more general level, it is neither necessary nor appropriate for me to make findings with respect to the factors which contributed to the occurrence of the riot. It is, however, clear that the Inspector of Custodial Services and the Department of Corrective Services (the Department) had recognised that there were problems at Banksia Hill which needed to be addressed. The Inspector of Custodial Services had publicly reported that as a result of staff shortages, detainees were being locked down in their cells or units far more frequently than was the case at adult prisons, as a result of both scheduled and unscheduled lockdowns (Office of the Inspector of Custodial Services, Report of an Announced Inspection of Banksia Hill Juvenile Detention Centre, Report (January 2012) v). Staff shortages which I would describe as chronic, and which persist, had and continue to have a direct impact on the amount of time detainees spend locked down, and therefore upon their access to education, recreation and remedial programmes. Prior to the riot, building works at Banksia Hill, associated with the decision to convert Rangeview Remand Centre into an adult prison (with the result that Banksia Hill became the State's only detention centre) may also have contributed to the amount of time detainees spent in lockdown, due to the need to carefully supervise building contractors' access to the facility.

9 The department had recognised the difficulties at Banksia Hill and responded by charging a reform team lead by Assistant Commissioner of Youth Justice Services Brian Lawrence with the responsibility of implementing the changes necessary to improve the facility. That team commenced its work in November 2012 identifying a number of matters requiring attention. Many of the changes which it had proposed remained to be implemented at the time of the riot.

10 On the evidence available to me, the decisions that have been made with respect to the management of detainees since the riot have been made with the best interests of the detainees strongly in mind, having regard to the risk that detainees might harm themselves or each other, but also taking appropriate account of the need to ensure the safety of staff and the protection of the community. Those decisions have resulted in arrangements for the detention of young offenders which are clearly less than optimal. Units 11 and 12 at Hakea have the physical characteristics of a maximum security prison intended for occupation by adults, and inevitably have a different ambience to the more open and less intimidating environment at Banksia Hill. The current arrangements at Hakea with respect to education, recreation, remedial programmes and visits are acknowledged by all to be less than optimal. Persistent staff shortages result in a daily schedule in which detainees are locked down for longer periods than would be desirable if there were adequate levels of staffing, and in unanticipated lockdowns which disrupt the daily schedule and the capacity to provide education, recreation and remedial programmes, and sometimes have led to the cancellation of visits. However, the limited options for alternative accommodation available following the riot, and the inability to address the shortage of trained staff in the shortterm have constrained the department's capacity to provide optimal facilities and services.

11 The regime which immediately followed the riot, which included locking down detainees for 23 hours each day, extensive use of physical restraints (flexible handcuffs) and strip searching was maintained for several weeks following the riot. Any assessment of the appropriateness of that regime and its duration must take account of the security risks created by the riot and its aftermath, including in particular the unexpected relocation of detainees to a facility which was not designed for their use, and the seriousness of the offences with which the detainees had been charged, or in the case of sentenced detainees, of which they had been convicted. Assessments of that character are best made by the department and the Inspector of Custodial Services, not the court.

12 These proceedings were commenced by an originating motion filed on 3 April 2013. Affidavits were filed in support of, and in opposition to, the motion which suggested that 73 detainees had been transferred to an adult prison without prior authorisation in possible contravention of the Act, and that, as at 9 April 2013, 149 detainees were being kept in units designed for adult prisoners and which are located within a maximum security prison under arrangements with respect to the provision of education, remedial programmes and recreational opportunities which were less than optimal.

13 When the matter came before me for directions on 10 April 2013, I suggested to the parties that the fact that the issues raised by the proceedings arguably fell within the scope of the parens patriae jurisdiction of the court might inform the approach properly taken to the resolution of the proceedings. It is sufficient for present purposes to observe that the parens patriae jurisdiction of the court derives from s 16 and s 23 of the Supreme Court Act 1935 (WA) and involves the delegation to the court of the prerogative obligation of the monarch to take care of those who are not able to take care of themselves - see Wellesley v Duke of Beaufort (1827) 2 Russ 1, [20]; [1804] EngR 233; 38 ER 236, 243; Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; (1992) 175 CLR 218, 258 259 (Marion's Case). I suggested to the parties that the nature of this jurisdiction required the court to resolve the issues as expeditiously as was consistent with the interests of justice, and with the benefit of evidence which covered all relevant aspects of the decisions made and their consequences, and which came from persons with firsthand knowledge of those events, who were at a sufficiently high level within the decisionmaking process to explain to the court what had occurred and why.

14 I am pleased to record that the parties accepted this suggestion, although in the respondents' case without acknowledging its doctrinal justification. In particular, the parties did not dissent from my suggestion that, in the circumstances, it was not appropriate to separately consider the question of whether an order nisi should be issued requiring the respondents to show cause why prerogative relief should not be granted, and that instead the matter should proceed directly to a substantive hearing as soon as possible. Nor did the parties dissent from my proposition that the interests of justice would, in this case, best be served by departing from the usual course in which evidence is adduced by affidavit, and instead proceeding on the basis that key personnel involved in the decisionmaking process would give their evidence orally, so as to enable the decisions and their consequences to be fully explained to the court and tested through crossexamination.

15 That course was followed, and evidence was taken over two days, a little over a week after the first directions hearing. Despite expressing misgivings as to the doctrinal justification for the course which I had proposed, the respondents cooperated fully in the process, for which I am grateful. The parties agreed that the evidence of the respondents should be led first, and evidence was led from the then Commissioner of Corrective Services, Mr Ian Johnson (Commissioner Johnson), the Assistant Commissioner of Youth Justice Services, Mr Brian Lawrence, the superintendent of Banksia Hill and Hakea Detention Centres, Mr Mark Buscombe, and the manager of the Case Planning and Programmes Unit at Banksia Hill, Mr Mark Fredericks.

16 At the directions hearing I also granted, without objection, leave to the Australian Human Rights Commission to intervene for the purpose of providing submissions to the court on the possible relevance of international instruments to which Australia is a party to the issues before the court.

17 During the directions hearing I had suggested that it might be of assistance if evidence was led from the Inspector of Custodial Services, Professor Neil Morgan. After making that suggestion, and prior to the hearing, I was advised that the Inspector had been directed by the Minister, pursuant to the powers conferred upon the Minister by s 17(2) of the Inspector of Custodial Services Act 2003 (WA), to undertake an inquiry and report upon a number of matters connected with the riot at Banksia Hill and its aftermath. I was advised that the Inspector was of the view that giving evidence before me might potentially compromise his capacity to undertake that inquiry, having regard to the legislative regime in which such an inquiry is undertaken and which contains obligations with respect to the confidentiality of information and with respect to the provision of procedural fairness. At the commencement of the hearing, counsel for the respondents indicated that, in light of the concerns which had been expressed by the Inspector, the respondents did not propose to call the Inspector to give evidence. In my view the concerns expressed by the Inspector were legitimate, and the course taken by the respondents was appropriate.

18 In the result, following the completion of the respondents' evidence, the applicant adduced no evidence other than the two affidavits which had been filed prior to the first directions hearing. I will now proceed to set out the findings of fact which I make drawn from those affidavits, the affidavit filed on behalf of the respondents, and the oral evidence which was led.

19 I preface those findings with the observation that I have no reason whatever to doubt the credibility of the witnesses from whom I heard. As might be expected, there were occasional errors in the detail of their testimony, but none of those errors caused me to doubt their general credibility. To the contrary, I have no doubt that each witness was doing his best to assist the court by providing as much relevant information as was at his disposal. Further, I am satisfied that in the difficult circumstances which followed the riot at Banksia Hill, each witness has at all times acted in accordance with what he believed to be the best interests of the young persons in detention, having regard to the practical and logistical difficulties with which each was confronted, and taking appropriate account of the need to ensure the safety of staff and the protection of the community.

20 As I have noted, the Inspector of Custodial Services has been directed to undertake a broad inquiry into many aspects of the riot at Banksia Hill and its aftermath. Aspects of that inquiry may touch upon or coincide with issues which I will now address. The findings which I make are based only upon the evidence which was adduced in court in the circumstances of expedition to which I have referred. The Inspector's inquiry has a broader range, will take longer, and will provide the Inspector with a broader range of evidence and information than has been available to me notwithstanding the cooperation to which I have referred. In those circumstances, it is to be expected that the Inspector's findings may well differ, in some respects at least, from the findings which I will now set out.

21 Prior to the riot and since the Rangeview Remand Centre was closed in order that it might be refurbished to serve as a prison for young adults, prior to the riot Banksia Hill was the only facility available for the detention of young offenders in Western Australia. It is situated in Canning Vale, about 500 m (as the crow flies) from the perimeter of Hakea Prison, and there are no substantial structures or developments between the two facilities. However, the distance by road from the entrance to Banksia Hill to the entrance of Hakea Prison is a little longer - being approximately one kilometre.

22 The decision to convert Rangeview Remand Centre into Wandoo Prison for Young Adults increased the demand for accommodation at Banksia Hill. The demand for places for juvenile detention in Western Australia is high by Australian standards, and the average number of young persons in detention over the three months ending on 30 June 2012 was the second largest in Australia, after only New South Wales (Australian Institute of Health and Welfare, Juvenile Detention Population in Australia 2012, Juvenile Justice Series No 10 (2012) table s 10 (AIHW Report)). The average number of young people in detention in this State over that quarter was almost three times greater than the average number in detention over the same period in Victoria, which, of course, has a significantly higher population. The rate at which children and young persons are detained in Western Australia, per head of population, is the second highest in Australia (after the Northern Territory) (AIHW Report table s 10). The magnitude of that rate is explained largely by the rate at which Aboriginal children and young persons are detained in this State, which is the highest rate in the country and more than double the rate applicable in the Northern Territory (AIHW Report table s 10). The rate at which nonAboriginal children and young people are detained in Western Australia is, very generally speaking, largely in line with the rates in other States (AIHW Report table s 10).

23 The rate of juvenile detention in Western Australia has increased significantly. Over the five years between 2006 and 2010, the rate of male juvenile detention per head of population increased by 31% (Commissioner for Children and Young People, The State of Western Australia's Children and Young People Edition One (2012) 173 (CCYP Report)). The increase in the rate of juvenile detention for Aboriginal males over that period was greater than the increase in the rate of nonAboriginal juvenile detention - 35% as compared to 23% (CCYP Report 173). Over that period, juvenile Aboriginal males have been detained at a rate which varied between being 40 and 53 times higher than the rate for nonAboriginal children and young persons (CCYP Report 173).

24 The percentage of Aboriginal children and young persons amongst those in detention varies from time to time between about 65% and 75%. The percentage of females amongst those in detention also varies, between about 7% and 10%. The percentage of those in detention under sentence as compared to those in detention on remand has varied significantly over time. In recent times, very roughly speaking, about half those in detention are under sentence, with the other half on remand.

25 The decision to put Rangeview Remand Centre to another use, and the growth in the number of detainees generally, combined to significantly increase the demand for accommodation at Banksia Hill. During 2009, the average muster was around 90. In 2012, following the closure of Rangeview, the muster at Banksia Hill was, at times, more than double that number. The increased demand for places at Banksia Hill necessitated building works which necessarily had an impact on the regime within the facility. The provision of site access to building contractors gave rise to security considerations which tended to increase the period of lockdowns and restrict detainees' access to portions of the site where construction was taking place.

26 Very generally speaking, Banksia Hill can be described as an open campus type facility within a secure perimeter. Detainees are accommodated within separate units which are clustered adjacent to an oval. All detainees have access to various recreation facilities including the oval, basketball courts and a gymnasium. Because it is a facility which was purpose-built for children and young persons, educational and recreational facilities form a significant component of the facilities on site, together with areas designed for the provision of remedial education, and the delivery of remedial behavioural programmes and psychological counselling.

27 The facilities at Banksia Hill were not designed and built with the same focus upon security considerations as is generally applied to adult custodial facilities. For example, the rooves are very low and easy to climb. Just about every roof, apart from the roof on the new doublestorey units, can be easily accessed by detainees.

28 There had been a number of problems in the management and operation of Banksia Hill. As a result of those problems, it was decided that a team, which was described as a 'reform team', should be deployed to review the operation of the facility and make recommendations for change. That team commenced its activities on 14 November 2012 and was headed by Mr Brian Lawrence. The team included Mr Buscombe and three other senior officers. The team prepared a list of matters which needed to be addressed which, on its initial iteration, contained approximately 250 items. After elimination of duplication, the list was reduced to about 150 items. Obviously enough, only some of those items had been addressed by the time the riot took place on 20 January 2013.

29 Prominent amongst the issues identified by Mr Lawrence was low staff morale and significant staff shortages. Sixty officers of a total youth custodial service of 199 are currently on worker's compensation. Of those 60, 35 are absent from work on a longterm basis. That means that onequarter of the custodial work force are unavailable for work on a longterm basis. That number does not take account of those who are ill on a daily basis and unable to report to work. The proportion of youth custodial staff absent from work and receiving worker's compensation is the highest in the Department of Corrective Services, and ten times higher than the national average.

30 The shortage of trained staff had resulted in detainees being locked down for greater periods, both in accordance with the daily schedule, and on an unscheduled basis, when staff numbers were insufficient to permit supervised activities. The lengthy periods in which detainees were locked down had previously attracted the attention of the Inspector of Custodial Services, and were the subject of a report which he published in March 2012 (see [8] above). Staff shortages at Banksia Hill had also been raised by the relevant union during 2012 (see [77] [78] below).

31 In Western Australia, staffing requirements at Banksia Hill are calculated on the basis of one youth custodial officer to eight detainees. According to Mr Lawrence, this ratio is about half the ratio applied in every other jurisdiction of Australia, which operate on the basis of one staff member to four detainees. Commissioner Johnson suggested that caution should be exercised in undertaking interjurisdictional comparisons in this area, because of the differing arrangements made with respect to juvenile detention in other States and Territories. However, irrespective of whether the planned staff ratio is appropriate or not, the significant fact is that the high numbers of staff unavailable for work due to illness means that the numbers actually attending for work each day fall significantly below the planned ratio of 1:8. The shortage of staff available to supervise detainees has resulted in what has been described as 'running lockdowns', during which detainees in a particular unit or units are locked down because there are insufficient staff to supervise the activities which those detainees would otherwise be undertaking - such as education, recreation or participation in remedial programmes. Units are locked down in rotation during the day. The period each unit is in lockdown depends upon the number of staff available each day. These running lockdowns were a feature of the regime at Banksia Hill before the riot, and have continued since the riot at both Hakea and Banksia Hill.

32 Mr Lawrence considers that staff recruitment methods have contributed to staff shortages. He noted that over the years he has been working in the juvenile justice area, the nature of some of the detainees has changed, as a result of the prevalence of the use of prohibited drugs, particularly methylamphetamine, by detainees prior to their arrest, which makes them violent, aggressive and difficult to manage after arrest. In his view, prospective recruits may not have been given sufficient information as to the conditions in which they would be required to work, and in particular with respect to the risks which they would face. He was also critical of the failure to advise prospective recruits of the effect which the terms and conditions of employment may have on their private lives, such as the general requirement that employees work a 12hour shift without the capacity to leave the facility during that time.

33 In addition to the staffing problems at Banksia Hill, there were a number of serious incidents which prompted the deployment of the reform team. They included assaults on staff and two serious escapes. One of these escapes involved a contractor. Detainees overpowered the contractor by hitting him on the head with a brick, commandeering the vehicle that he was using and then driving it through the sallyport in order to escape. In addition, there had been a number of occasions upon which detainees had taken to the rooves of the buildings. There was a long documented history of 'rooftop incidents'. There had also been a major disturbance in one of the new units that had been built.

34 Prior to the riot, there were limited options for dealing with violent incidents at Banksia Hill. There was a primary response team which would be deployed wearing body equipment (shields and helmets), but lacking any other equipment with which to intervene in the event of a serious incident, such as a number of detainees mounting a roof or rooves.

35 It is neither necessary nor appropriate for me to make findings with respect to the factors which may have contributed to the occurrence of the riot on the evening of 20 January 2013. It seems inherently likely that there would have been a number of factors involved. Mr Lawrence and Commissioner Johnson each agreed that the extent to which detainees had been locked down in relatively confined cells without airconditioning over the course of a hot summer may have contributed to the disturbance that evening, although Commissioner Johnson disputed that it was likely to have been the dominant factor.

36 The incident commenced at approximately 6 pm on the evening of Sunday, 20 January 2013, when three detainees obtained access to a roof. When Mr Lawrence arrived at approximately 6.30 pm, he established a command post. From that post he could view events occurring throughout the facility using closecircuit television. By that means, he was able to observe three or four detainees who had escaped from their cells going to other units and assisting other detainees to escape. In the result, approximately 60 detainees escaped from their cells and actively participated in the riot. Damage was caused to cell windows, cell doors, security systems, the roof, electrics, plumbing and the furnishings within cells. Electrical cabling was ripped from wall cavities, windows, walls and door panels were smashed, and taps were turned on causing flooding. Mr Lawrence described the facility as having been completely trashed and as resembling a 'war zone'.

37 Damage was caused to 108 cells. However, cells that were not damaged were located in units where damage was done to other parts of the unit, being either other cells or the common areas within the unit, rendering the unit generally uninhabitable.

38 There was also extensive damage to ceilings, which had been pulled down in a number of instances. The ceilings throughout the facility are being replaced as a result of that damage.

39 According to Mr Buscombe, every unit within the facility suffered some form of damage, and every accommodation unit had broken windows of some description. Staff control rooms had also been compromised and there were a number of items including handcuffs, cutlery, keys and personal possessions of staff that were unaccounted for.

40 The police were called to assist, and a team from the emergency support group was also deployed. Eventually, late in the evening, the site was brought under control and a semblance of order was restored. Detainees who had left their cells, including those who had actively participated in the riot were gathered in a grassed common area. They were restrained with handcuffs made of a flexible plasticised material (flexicuffs) in order to discourage them from running away from the area in which they had been gathered and taking refuge in other parts of the relatively large site. This gathering was the group of 73 detainees who were transferred to Unit 5 in Hakea Prison in the early hours of the following morning.

41 Commissioner Johnson inspected the damage at Banksia Hill on Tuesday, 22 January 2013. In the course of his inspection he met with many youth custodial officers and staff. He formed the view that many were frightened as a consequence of the extent of the damage which had been caused by detainees and were unwilling to return to work if the status quo, in terms of the facilities, was maintained. He formed the view that it would be necessary to improve the security arrangements at Banksia Hill, and thereby improve the safety of the working conditions for staff before staff could be expected to return to a fully occupied Banksia Hill facility. In his view, there was 'absolutely no possibility of staying for a continued period of time' at Banksia Hill, and detainees would have to be removed so as to enable the necessary works to be carried out. Later that week the union confirmed to Commissioner Johnson that staff were not prepared to return to Banksia Hill with a full muster unless security arrangements at the facility were improved. Commissioner Johnson considered the position adopted by staff to be reasonable.

42 It will be apparent from my description of the damage done during the riots that significant repair work has been necessitated. In addition to the replacement of damaged components, work is being undertaken to increase the levels of security at the facility. As an example, all cells are to be fitted with metal grilles, so as to reduce the prospect that detainees who have escaped from their cell may be able to liberate other detainees. In addition, a number of steps are being taken to improve the security of the working areas occupied by staff. The work is being undertaken progressively in the sense that damaged units are being repaired sequentially so as to return some of the detainees back as soon as possible (see [43] below). The rate at which the work can progress is affected by the number of detainees on site. For example, every time a vehicle attends site, security arrangements must be made with a view to ensuring that detainees are not able to gain access to the vehicle. Progress of the work would be delayed if there were a larger muster at Banksia Hill while the work is carried out.

43 In Mr Buscombe's view it would not be possible to move any of the detainees currently located at Hakea Units 11 and 12 back to Banksia Hill at the moment. However, he and Mr Lawrence are working on a programme for the return of detainees to Banksia Hill. The programme is being prepared on the basis that some units at Banksia Hill may be available for occupation by late May, and in the hope that all units will be available for occupation by the end of June. However, in the view of Commissioner Johnson, the return of detainees to Banksia Hill is contingent upon the security systems that will be installed to improve staff security being tested and shown to work. Although the present scope of works does not include the installation of airconditioning, Commissioner Johnson was confident that evaporative airconditioning will be installed in Banksia Hill before next summer.

44 As I have noted, in the early hours of the morning of 21 January 2013, a decision was made to transfer the 73 detainees who had been gathered in the common area at Banksia Hill to Unit 5 at Hakea Prison. That decision was made by Acting Assistant Commissioner Craig Castle, who was the officer in charge of the incident control room which had been established in the city for the purposes of supervising the response to the riot. Mr Castle was in regular contact with Deputy Commissioner Ian Giles and Mr Lawrence. Both were informed of the decision. Commissioner Johnson was also informed of the decision, although the evidence is not entirely clear as to precisely when he was informed. At all events, he endorses the decision and considers that it was entirely appropriate.

45 Unit 5 is an area of Hakea Prison which is described as a 'selfcare unit', in which inmates have the capacity to cook their own meals and take a greater measure of control over their daily lives. Although the building housing Unit 5 is attached to other buildings within the prison, it is isolated from other units, and movement of inmates between Unit 5 and other areas of the prison and vice versa can be strictly controlled and indeed eliminated as a result of gates and fences which are in place. As it happens, Unit 5 was unoccupied on the night of the riot, because prisoners had been moved from that unit to other parts of the prison to enable capital works to be undertaken within Unit 5.

46 In the view of Mr Lawrence, there was no alternative to transferring the detainees to Unit 5. In his view, they could not be left at Banksia Hill given the state it was in, and the fact that there was nowhere to accommodate those detainees. Mr Lawrence gave evidence that Unit 5 is one of the better units within Hakea Prison, being a selfcare unit, and movements to and from Unit 5 and other parts of the prison could be prevented, and the risk of contact with adult prisoners eliminated. I accept that evidence.

47 It seems clear that no consideration was given to the legal requirements relating to the transfer of detainees from a detention centre to a prison during the early hours of the morning of Monday, 21 January 2013. This is entirely understandable, given the focus which one would expect those responsible for managing the riot and its aftermath to have upon the restoration of order and the practical need to make appropriate arrangements for the safe and secure accommodation of those displaced as a consequence of the extensive damage which had been inflicted during the course of the riot.

48 Attention was, however, given to these matters later in the day, when orders were made by the Minister which had the effect of removing Units 5 and 12 at Hakea Prison from within the area declared to be a prison under the Prisons Act, and declaring them to be a detention centre for the purposes of the Act. These orders took effect upon publication in the Government Gazette on the following day, namely 22 January 2013.

49 Unit 12 was included within the orders made by the Minister because, like Unit 5, it was unoccupied at the time of the riot. However, Unit 12 is adjacent to Unit 11 which did then contain some adult prisoners, including some of those who had been removed from Unit 5. Accordingly, it was necessary to make arrangements to remove those prisoners from Unit 11 before orders could be made removing that unit from the area declared to be a prison and including it within the area declared to be a detention centre, and before detainees could be moved to either unit.

50 In the days following the riot, active and urgent consideration was given to the question of where the detainees should be housed while repair works were undertaken at Banksia Hill. Those deliberations took place on the assumption that the majority of detainees would have to be removed from Banksia Hill because there was insufficient undamaged accommodation to contain them all, and because the presence of a significant number of detainees at the facility would impede and delay the progress of the restoration work required. Further, as outlined, it was clear to Commissioner Johnson that the staff would not be prepared to work with a full muster at Banksia Hill unless and until significant steps had been taken to improve security and staff safety. The conclusion that the majority of detainees would have to be removed from Banksia Hill while repairs were carried out appears to me to have been entirely justified by the extent of the damage, and the need for repair work to be carried out as quickly and efficiently as possible.

51 In addition to Units 11 and 12 at Hakea, consideration was given to placing detainees at Wandoo (formerly Rangeview), Casuarina Prison, Bunbury Regional Prison, and a facility which had previously been Riverbank Detention Centre, but which was decommissioned several years ago. I will deal with the considerations which applied to each alternative in turn.

52 Wandoo is the facility formerly known as Rangeview Remand Centre. It is situated in the suburb of Murdoch, about 10 km or so from Banksia Hill. It has capacity for a maximum of 80 inmates. It was therefore incapable of housing all the detainees who needed to be relocated from Banksia Hill if the repair work was to be carried out efficiently and expeditiously. So, even if Wandoo had been used, it would have been necessary to use another facility as well. Spreading staff resources across three facilities would have further strained those resources.

53 At the time of the riot, work was under way at Wandoo in connection with its reclassification as a prison for young adults. A contract had been let for that prison to be privately managed and operated. Although a small number of prisoners (18) had been placed in the prison, the works associated with the facility's reclassification were not complete.

54 The day following the riot, Commissioner Johnson requested two of his officers, Mr Terry Matthews and Mr Luke Thatcher, to attend Wandoo and assess the feasibility of placing detainees from Banksia Hill in that facility. That same day they reported to Commissioner Johnson that it was not feasible to place any detainees at Wandoo because there was too much construction work going on, no kitchen, no health services, a limited number of beds available and no reception. They also advised that Wandoo, as a minimum security establishment, was inappropriate for the placement of detainees from Banksia Hill, many of whom had a higher security rating as a result of the seriousness of the offences with which they had been charged or convicted. In addition, because Wandoo was further from Banksia Hill than Hakea, the provision of services to detainees at Wandoo by staff based at Banksia Hill would be less efficient, particularly if detainees were to be split between three locations, given the inability to relocate all detainees from Banksia Hill to Wandoo.

55 Nevertheless, Deputy Commissioner Giles and Mr Lawrence also attended Wandoo a week or so later. They formed the same view as the officers who had earlier inspected the facility - namely, that it simply was not a practical option for the placement of detainees as a result of the major capital works which were occurring on site at the time.

56 Consideration was also given to relocating detainees to Casuarina Prison. However, this option would have carried with it the same issues as those associated with relocating detainees to Units 11 and 12 at Hakea, exacerbated by the fact that the unit available in Casuarina Prison was situated in the middle of the facility which is much more of an open campus style of facility than Hakea, and which would have been difficult to segregate from the other units within Casuarina Prison. Units 11 and 12 at Hakea had been deliberately built so as to be clearly isolated from other units within the prison against a contingency such as that which occurred at Banksia Hill. Further, as Casuarina Prison is much further from Banksia Hill than Hakea, the problems associated with staff shortages and delivery of programmes based in Banksia Hill to detainees at Casuarina Prison would have been exacerbated by the distance between the two sites.

57 The problems of locating detainees a substantial distance from Banksia Hill were even greater if detainees were placed in Bunbury Regional Prison, which was another option considered. Because the staff responsible for delivery of services to juvenile detainees are all based in Perth, it would have been necessary to provide daily transport for such staff between Perth and Bunbury. When detailed consideration was given to the logistical difficulties posed by such an arrangement, it was concluded that they were insurmountable. While at Bunbury Regional Prison the detainees might have been able to be situated in a facility devoted entirely to young offenders, that would have necessitated the relocation of all the prisoners currently in the prison to other prisons within the system, which also would have been problematic.

58 Riverbank had been a detention centre for some time, but has not been used for that purpose for a number of years. One of the reasons it was no longer used was because the cells were regarded as inappropriate for contemporary conditions, as they are too small. Prior to the riot, some consideration had been given to recommissioning Riverbank as a detention centre. Mr Lawrence had inspected the facility in November 2012 and discovered that concrete had been poured into the toilets, with the result that a substantial amount of work would have been required to render the facility suitable for occupation. For these reasons it was excluded from further consideration.

59 There are a number of features of the proposal to relocate detainees to Units 11 and 12 at Hakea which made that proposal preferable to the other options which were considered. The units were essentially brand new, although part of Unit 11 had been occupied for a short time. The facilities available in each cell were consistent with contemporary standards of prison accommodation, and included a shower, toilet, basin, shelves and desk. The cells were slightly larger than those at Banksia Hill and are all equipped with flat screen televisions. The units are segregated from the other units in the prison by a substantial fence and are adjacent to an oval. There is a basketball court at the southern end of the two units, and a substantial grassed area between the two units. There are two programme delivery rooms in each unit, providing a total of four rooms suitable for programme delivery in the two units. Although it was recognised that those areas would be inadequate to provide for all the educational and programme requirements of detainees, it was proposed that the space would be augmented by demountable rooms delivered to site (which has in fact occurred).

60 Although there were in fact difficulties encountered rendering the oval adjacent to the units suitable for use, those difficulties were not known or anticipated at the time consideration was being given to the relocation of detainees to Units 11 and 12.

61 The geographical proximity of the units at Hakea to Banksia Hill was also considered to be a distinct advantage. Educational and allied services based at Banksia Hill could be delivered to Hakea more efficiently than to other more distant locations. Although the staff shortages which had bedevilled the operation of Banksia Hill would be exacerbated by staff being required to operate across two sites, those problems would be further exacerbated if the second site was more distant from Banksia Hill than Hakea, or if staff were required to operate across three sites.

62 Consideration of the various alternatives took place over a number of days following the riot. During this time, Commissioner Johnson was briefing the Minister on a daily basis in relation to the various deliberations that were occurring, and the considerations associated with those deliberations. There were a number of meetings of senior staff of the department, including a significant meeting at which all relevant senior staff were present and during which the various options were actively debated. Commissioner Johnson also discussed the issues with the Inspector of Custodial Services, the Commissioner for Children and Young People, union representatives, the President of the Children's Court and the Chairman of the Supervised Relief Board, the Hon Michael Murray QC.

63 Following those deliberations, it was decided on 25 January 2013 that the preferable option was to remove adult prisoners from Unit 11 at Hakea, to declare Units 11 and 12 to be a detention centre and not a prison, and to relocate detainees from Unit 5, and from Banksia Hill to Units 11 and 12. That option was presented to the Minister and accepted by him. The declarations which he made gave effect to that proposal.

64 The applicant has submitted that the decision was compelled by the position adopted by the relevant union which was communicated to Commissioner Johnson during a meeting on 24 January 2013. I do not accept that submission. The proposition was put to Commissioner Johnson. He denied it for reasons which I find credible. The attitude of staff was a relevant consideration properly taken into account with other relevant considerations. It was not determinative.

65 I find that the decision made by the Minister and implemented by the declarations which he made on 1 and 5 February 2013 was made on the recommendation and advice of Commissioner Johnson, following a thorough evaluation of all possible alternatives by Commissioner Johnson and senior officers of the Department.

66 As I have mentioned, Units 11 and 12 have been specifically constructed to be segregated from the other units within Hakea Prison, by a very high fence. Commissioner Johnson gave evidence that this aspect of the design was intended to specifically cater for a contingency of the kind which arose when the riot took place. However, because of the need to ensure strict segregation between detainees and adult prisoners, the proposal to locate detainees within Units 11 and 12 was subject to the installation of razor wire along the top of the fence to which I have referred and around the area of the oval to which detainees would have access, and also to the placement of opaque sheeting along the segregating fence, so that inmates within the adult prison could not see into or access the area used as a detention centre, and vice versa.

67 The transfer of additional detainees (84 in total) from Banksia Hill to Units 11 and 12 at Hakea did not take place until 7 and 8 February 2013 for a number of reasons. As I have noted, it was necessary to remove the adult prisoners from Unit 11, and to undertake a body of work in relation to the segregation of Units 11 and 12 from the rest of Hakea Prison before Units 11 and 12 were suitable for occupation by detainees. Further, there were a substantial number of logistical arrangements that had to be made before Units 11 and 12 could be converted into a properly functioning detention centre with appropriate services for detainees.

68 In the interim, detainees at both Hakea Unit 5 and Banksia Hill were locked down for about 23 hours each day. In the case of detainees at Banksia Hill, there was a prospect of lockdowns of that order on a continuing basis, if a substantial number of the detainees were not shifted, because of the security considerations flowing from the substantial building repairs and restoration works which were about to commence. Lockdowns of that magnitude could be avoided by transferring a significant number of the detainees to Units 11 and 12 at Hakea. This was another reason for the decision to transfer those detainees. Following the transfers which took place on 7 and 8 February 2013, a smaller number of detainees remained at Banksia Hill. All female detainees, and all male detainees younger than 14 remained at Banksia Hill, as did other detainees who required other health or specialist services more readily obtained in that facility.

The nature of the charges brought against the detainees

69 I have set out above at [22] [24] a number of statistics which provide a demographic picture of the children and young persons in detention in Western Australia. That picture is usefully augmented by reference to the evidence which I received with respect to the nature of the charges brought against those currently in detention.

70 A letter dated 15 February 2013 from the President of the Children's Court, Judge Denis Reynolds, to the Commissioner for Children and Young People WA, Ms Michelle Scott, was tendered as an exhibit. The letter contains a report by Judge Reynolds following his review of the court files relating to children in detention following arrest or on remand on the morning of 29 January 2013 and who were still in Banksia Hill or Hakea on the morning of 7 February 2013. It is clear from the letter that the purpose of the review was to ascertain whether the situation which followed the riot could be eased by releasing more detainees on bail. The letter annexes a number of schedules which set out, among other things, the charges faced by each detainee whose case was reviewed by Judge Reynolds.

71 In the letter, Judge Reynolds observes that the charges which had been brought against the detainees whose cases he had reviewed could at least in nearly every case be properly described as 'serious'. That characterisation is amply justified by the schedules attached to his letter. In light of that characterisation, the letter records that Judge Reynolds was not proposing to arrange for early review of the question of whether bail should be granted to those in detention on remand.

72 Schedules were also tendered showing the charges which had been brought against the 140 detainees who were located in Units 11 and 12 at Hakea on 16 April 2013. 86 of those detainees had been sentenced, and 54 were on remand. The schedule shows the most serious charge brought against each detainee. The schedule sustains the same conclusion as was reached by Judge Reynolds in relation to the cohort of remand detainees he reviewed in February - namely, that the charges which have been brought against the detainees are, generally speaking, charges for very serious offences. Robbery, both armed and aggravated, and aggravated burglary are the most prolific offence type in the schedules. Almost all of the offences charged could be described as serious, and most as very serious.

73 It is also to be remembered that the group detained in Units 11 and 12 at Hakea are all male, and are aged between 14 and 19 years (the older members of the group are, generally speaking, in detention completing sentences imposed upon them when they were under the age of 18). Like any group of young men within that age range, the group can be expected to include detainees of differing shapes and sizes, including a number who are fully grown, fit, strong and energetic.

74 Section 11 of the Act empowers the Chief Executive Officer to appoint custodial officers, who are generally known as Youth Custodial Officers (or YCOs). Section 11E of the Act provides that a prison officer may assist in the exercise or performance of any power or duty conferred or imposed by the Act upon the request of the CEO or a superintendent of a detention centre.

75 Such a request was made during the night of 20 January 2013. In the immediate aftermath of the riot, prison officers were called upon to assist YCOs at Banksia Hill and in the units in which detainees were housed at Hakea. Immediately after the transfer of 73 detainees to Unit 5 at Hakea, that area was predominantly run by prison officers, although YCOs were also present. While the detainees remained in that unit, and during the transition of detainees to Units 11 and 12, prison officers assisted YCOs with the management of detainees and had direct contact with those detainees. After the transition to Units 11 and 12 was completed on 8 February 2013, prison officers did not assist in that way - their role being limited to working in the control room, in observation work, and providing assistance in the escort of detainees. Prison officers also comprised a 'recovery response' team in Units 11 and 12, but that team has not been used.

76 Prison officers have been progressively withdrawn from Units 11 and 12 over time, and their role is now limited to the provision of escorts for detainees when travelling to and from visits. Prison officers are also assisting with the escort of official visitors to Units 11 and 12, driving the bus which takes them to the gates of the detention centre, at which point they are relieved by YCOs. There is also a prison officer engaged as a liaison officer between the superintendent of the detention centre and the superintendent of the prison, but that officer has no direct contact with detainees. Prison officers were also requested to provide assistance to staff supervising the detainees remaining at Banksia Hill. That assistance ceased with effect from 21 March 2013.

77 I have already noted the observations made by the Inspector of Custodial Services in his report published in March 2012 with respect to what he described as excessive lockdowns at Banksia Hill, both scheduled and unscheduled. One of the unions representing staff at Banksia Hill, the Community and Public Sector Union/Civil Service Association of WA, also drew attention to the impact which staff shortages were having on lockdowns in the centre during 2012. On 24 October 2012, the union issued a press release which contained the following assertions:

Children at the Banksia Hill Detention Centre are being locked in their cells for long periods of time because there aren't enough staff to deal with increased detainee numbers.

As a result, the detainees are missing out on valuable education and rehabilitation program and have very little recreation time.

Detainee numbers increased earlier this month when children and staff from the former Rangeview Remand Centre were transferred to the expanded Banksia Hill facility. Community and Public Sector Union/Civil Service Association Branch Secretary Toni Walkington said Banksia Hill didn't have enough staff to handle the extra detainees. 'They were short staffed before the merger and the extra detainee numbers have added to a pressure cooker situation,' Ms Walkington said.

'There are juvenile custodial officers who are on extended leave because of the stressful working conditions and others on secondment which is really putting the pressure on service delivery.'

'The vacant positions are not being backfilled because of a freeze on fulltime staffing levels.'

78 In the same press release the following statements were attributed to a YCO:

We can't get all the detainees unlocked at the same time; it is simply not safe so we are releasing them on a rolling basis.

We want to be positive role models to the detainees and lead them away from a life of crime but our ability to do that at the moment is restricted and staff morale is incredibly low.

Staff are worried there will be more assaults as the weather gets warmer and the detainees become more aggravated.

Staff are being asked to come in and work extra shifts which a lot of them are doing and some of them are now feeling guilty when they say no and have a day off.

We run to a skeleton crew but if someone calls in sick there is no-one on a roster that can backfill that position.

79 It is clear that the staffing issues at Banksia Hill had not been resolved prior to the riot, and 'rolling lockdowns' were being used as a means of managing those shortages.

80 In the immediate aftermath of the riot, detainees at both Hakea and Banksia Hill were locked down for 23 hours each day for several weeks. During this period, planning was undertaken with a view to restoring a structured daily schedule at each of the two facilities. It was approximately three weeks before such schedules were restored, and detainees were locked down almost continuously throughout this period. However, even after the restoration of structured daily schedules in both facilities, continuing staff shortages have meant that the pattern of rolling or unscheduled lockdowns which existed prior to the riot continues. These unscheduled lockdowns interfere with the provision of education, recreation and remedial programmes, and have on occasions interfered with visits.

81 The daily schedule of activities which has been in operation at Units 11 and 12 at Hakea since 12 February 2013 involves detainees being locked down in their cells for substantial periods. According to the schedule, they are locked down overnight from 7 pm to 7.15 am. In addition, on Monday, Tuesday, Thursday and Friday, detainees are locked down for two hours between 11 am and 1 pm for lunch and staff breaks, and again from 4 pm to 5 pm to cater for staff breaks. On Wednesday, detainees are locked down between 12.45 pm and 4 pm to cater for lunch, staff training and staff breaks. On Saturday and Sunday, detainees are locked down between 11.30 am and 1 pm to cater for lunch and staff breaks, and from 4 pm to 5.30 pm to cater for staff breaks and dinner, and for an additional hour over the weekend for each wing which is allocated between recreation and cells/wing cleaning.

82 In very general terms, it can be seen that detainees are scheduled to be locked down for a little over 12 hours each night and approximately three hours during the day, leaving a maximum of between eight and nine hours each day when detainees are not locked down.

83 However, it is clear from the evidence that there continue to be occasions upon which that maximum period of 89 hours is not achieved, because of the persistence of rolling or unscheduled lockdowns. Essentially, the programme for each day, and the extent to which education, recreation, remedial programmes and visits can be provided has to be assessed and reviewed each day, in the light of the number of staff who have attended for work.

84 It is also clear that the staff shortages have been exacerbated by the need to split limited staff resources between two facilities. However, that effect aside, the essential determinant of the extent to which detainees are locked down, and therefore of the extent to which they can receive education, recreation, remedial programmes and visits, is not the facility in which they are housed, but the number of staff who attend work each day.

The steps being taken to address staff shortages

85 A number of steps are being taken in an attempt to address the staff shortages which have had such an impact upon the management of juvenile detention in this State. However, it is clear that those steps have had only limited impact to date, and are unlikely to resolve the problem in the near future.

86 A worker's compensation committee has been set up which includes staff from the human resources area of the department, charged with the responsibility of reviewing staff on worker's compensation with a view to encouraging a return to work. Consultants have been engaged to provide assistance in this area. Moreover, Commissioner Johnson gave evidence that the department consulted with Risk Cover to examine policies for injury management, prevention and support for staff on worker's compensation.

87 Because YCOs require six months training before becoming operational, additional recruitment is unlikely to have an impact on the staff shortages in the short term. Consideration has been given to attempts to recruit retired YCOs back into service, and to redeploy YCOs who have been seconded to other areas of the department back into detention centres. Consideration has also been given to engaging nontrained staff to perform services which do not involve direct contact with detainees, freeing up YCOs to provide services where direct contact is involved. However, any arrangements of this kind must be negotiated with the relevant unions. Commissioner Johnson told the court that a number of steps would be taken with a view to alleviating this problem in the short term, the medium term and the long term. However, he also confirmed that no additional YCOs had been recruited since the riot in January 2013.

88 Strip searching of detainees occurs on every occasion a detainee leaves or reenters a detention centre, including when being transferred from one detention centre to another. Accordingly, under current arrangements, if a detainee is transferred from Hakea to Banksia Hill to receive, for example, a health or other service better provided at Banksia Hill, the detainee will be strip searched before leaving Hakea, again before entering Banksia Hill, again before leaving Banksia Hill, and again before reentering Hakea - that is, four times in the space of what may be a short visit to Banksia Hill. In addition, detainees are strip searched before leaving a detention centre to go to court, and again when returning after court. Further, following the riot, at Hakea it was the practice to strip search detainees both before and after each social visit. However, as from 5 March 2013, the practice has changed to omit strip searching detainees prior to social visits.

The chief executive officer, or a superintendent, may authorise and direct the restraint of a young offender where in his or her opinion such restraint is necessary -

(a) to prevent the young offender injuring himself or herself, or any other person; or

(b) upon considering advice from a medical practitioner, on medical grounds; or

(c) to prevent the escape of a young offender during his or her movement to or from a facility or detention centre, or during his or her temporary absence from a facility or detention centre.

90 The applicant asserts in her affidavit that she was told by her grandson that he was required to wear handcuffs when leaving his cell to make telephone calls. It seems clear that if this occurred, it was during the initial period of extensive lockdown following the riot. Further, between 21 January and 12 February 2013, detainees travelling from the accommodation units in Hakea to the place where social visits took place were also restrained with flexicuffs. That practice has been discontinued since 12 February 2013.

91 Visits to detainees were curtailed for some time following the riot. Although visits recommenced on 26 January 2013, it seems clear that there were practical difficulties in arranging visits at Hakea for some time thereafter, as a result of the logistical arrangements which had to be made to enable such visits to take place in a visitor's centre which is part of the adult prison. Nevertheless, the applicant was able to visit her grandson on 1 February 2013.

92 Because the visiting centre at Hakea must be utilised for both adult prisoners and detainees (but obviously not at the same time), visiting times for detainees at Hakea are more constrained than they were at Banksia Hill. Visits can only take place at Hakea between 11.30 am and 12.30 pm, and between 4.10 pm and 5.10 pm. However, there have been occasions upon which visits were cancelled because of unscheduled lockdowns.

93 Detainees receiving visits at Hakea are taken from Units 11 and 12 to the visitor centre by bus. The bus has blackened windows to prevent the detainees seeing out, or the adult prisoners seeing in during the movement. Although the visitor centre at Hakea is larger than the equivalent area at Banksia Hill, it is more formal, and detainees have less opportunity for informal social interaction with visitors.

94 During the weeks of almost continuous lockdowns which followed the riot, detainees had little opportunity for telephone contact with friends or family members. However, following the transition to Units 11 and 12, and the relaxation of the regime concerning the use of physical restraints and lockdowns, detainees in those units have had access to a number of telephones which are located throughout the units. The persons to whom they make calls must first be approved by the authorities, but once that process has occurred, detainees may use their weekly gratuities and earned credits to make telephone calls over and above the seven free calls a week which they are able to make. The detainees are also able to make free calls to Legal Aid and a number of other legal and administrative service providers, such as the Aboriginal Legal Service. Detainees wishing to make telephone calls to inmates in other custodial facilities are assisted to do so by the Aboriginal welfare officers (whose services are available to all).

95 The applicant deposes in her affidavit to complaints made by her grandson with respect to the quality and quantity of the food which he was given at Hakea. It seems clear that there were difficulties with both the quality and the quantity of the food provided to detainees in the period following their transfer to Hakea. The food was provided in individual serves from a central catering department. By the time it was delivered to the detainees in Units 11 and 12, it was unappetising. Detainees also complained that the quantity of food provided was insufficient - it must be remembered that young men commonly have very substantial appetites.

96 As a result of these complaints, expert catering assistance was sought by the department. As a result of recommendations made, the regime has changed, so that meals are no longer provided in individual portions, but are provided in a 'hot box' and served out by the detainees. In addition, arrangements were made to provide extra fruit during the day as snacks, and to provide detainees with morning tea which includes either yoghurt and fresh fruit or a muffin or some other equivalent food. Since these changes have been implemented, the number of complaints has reduced significantly.

97 All witnesses acknowledged the importance of providing detainees with adequate recreational opportunities. It is, however, clear that since the transfer of detainees to Hakea, those opportunities have been significantly more constrained than at Banksia Hill before the riot.

98 During the period of almost continuous lockdown following the riot until the commencement of structured daily activities on 12 February 2013, the opportunities for recreation were virtually nonexistent. However, following the introduction of the structured daily programme, if the daily schedules are followed, detainees are provided with two hours of indoor recreation, and one hour of outdoor recreation each day other than Wednesday.

99 Indoor recreation describes activities which the detainees can carry out in the units at Hakea, such as playing table tennis, board games, watching television, listening to music, etc. Outdoor recreation involves the provision of opportunities for detainees to use the grassed area between the units, the basketball court or the gymnasium area. The grassed area has been used to play football and cricket. At the time the decision was made to move detainees to Units 11 and 12 it was thought that the football oval would be accessible to detainees. However, it was later discovered that there was a substantial problem with the surface of the oval as a consequence of rubble and other materials having polluted the oval's surface during the course of building works. As a result, the oval was not available for use by detainees until 1 April 2013.

100 Further, because of the continuation of rolling lockdowns, it is clear that there will be days upon which the activities identified in the 'structured day' cannot be provided as a result of staff shortages. It follows that the opportunities for outdoor recreation identified in the daily schedules should be regarded as the maximum opportunities available to detainees, and it should be acknowledged that there will be occasions upon which those opportunities will not in fact be provided.

101 During the period of almost continuous lockdown following the riot until the structured daily programme was introduced to Hakea on 12 February 2013, there was no opportunity for the provision of education to detainees at Hakea. Units 11 and 12 each contain two rooms which are suitable for the delivery of programmes or educational classes. Since 12 February 2013, three of those four rooms have been allocated to the provision of educational programmes. In addition, on 20 February 2013, three demountable units were delivered to the site. They became operational on 25 March 2013. One of the demountable units is set aside for education, another for programme delivery, and another for official visits and interviews with respect to psychological services.

102 Detainees at Hakea are provided with educational programmes for two hours each day, four days a week, and for one hour on Wednesdays. This is less than half the time made available for education at Banksia Hill which, prior to the riot, generally involved four to five hours each day. As with the other activities to which I have referred, the scheduled periods for education provided in the programme for the 'structured day' should be regarded as maximum periods, given the prospect of disruption due to rolling lockdowns.

Remedial programmes, psychological and health services

103 There are medical nurses located within the units at Hakea and they have access to a consultation room. Detainees are transported either to Banksia Hill or to external hospitals or other service providers for the treatment of more significant issues.

104 Following the transfer of detainees to Units 11 and 12 at Hakea, there were essentially no facilities available for the delivery of remedial programmes until the demountable unit to which I have referred became operational on 25 March 2013. Prior to that time, rooms within the units were utilised to deliver individual substance use counselling from 19 February 2013, and another programme relating to emotional management was delivered about a week or so after that.

105 Protocols within the department require detainees to undergo a psychological risk assessment whenever they are transferred from one detention centre to another. Accordingly, under those protocols, the psychological staff attached to Banksia Hill were required to undertake risk assessments in relation to the more than 140 detainees who were transferred from Banksia Hill to Hakea. This was obviously a significant undertaking. In addition, new arrivals at each of Banksia Hill and Hakea must be similarly assessed. Priority must also be given to psychological assessments ordered by the court as part of the sentencing process.

106 The combined effect of these demands upon the limited psychological resources available has meant that the psychological counselling services, such as forensic counselling, previously provided to detainees have not been available on a continuing basis since the riot. Detainees with significant issues can, however, be seen on a 'oneoff basis', and a mental heath consultant and other mental health professionals can be made available if required.

107 The limited facilities available at Hakea have necessarily reduced the delivery of remedial programmes on a continuing basis. The difficulties are compounded by the continuation of unscheduled lockdowns, as I have indicated. In that context, priority is given to the delivery of programmes to sentenced detainees, given the impact which the nonavailability of such programmes might have on the decision of the Supervised Release Review Board with respect to their release prior to completion of their sentence.

108 In general terms, the capacity to deliver psychological counselling and remedial programmes has been significantly compromised since the riot. However, as Mr Fredericks pointed out, if the counsellors and service providers based at Banksia Hill were required to deliver services at another site more remote than Hakea, it is likely that the services delivered would be further compromised. Put another way, once it is accepted that Banksia Hill could not be occupied by substantial numbers of detainees during the period of rebuilding following the riot, there is no reason to suppose that the delivery of services of this kind would have been any less compromised if the detainees had been accommodated somewhere other than Hakea, and there is reason to believe that, if anything, service delivery would have been more compromised, as a result of the inefficiencies of travel.

109 The gravamen of this application is the allegation that the respondents exceeded the powers conferred upon them by the Act in a number of respects. It is appropriate to place those assertions in the context of a consideration of the Act as a whole.

110 Sections 6 and 7 of the Act specify the Act's main objectives, and the general principles that are to be observed in performing functions under the Act. They provide:

The main objectives of this Act are -

(a) to provide for the administration of juvenile justice; and

(b) to set out provisions, embodying the general principles of juvenile justice, for dealing with young persons who have, or are alleged to have, committed offences; and

(c) to ensure that the legal rights of young persons involved with the criminal justice system are observed; and

(d) to enhance and reinforce the roles of responsible adults, families, and communities in -

(i) minimising the incidence of juvenile crime; and

(ii) punishing and managing young persons who have committed offences; and

(iii) rehabilitating young persons who have committed offences towards the goal of their becoming responsible citizens;

(e) to integrate young persons who have committed offences into the community; and

(f) to ensure that young persons are dealt with in a manner that is culturally appropriate and which recognises and enhances their cultural identity.

The general principles that are to be observed in performing functions under this Act are that -

(a) there should be special provision to ensure the fair treatment of young persons who have, or are alleged to have, committed offences; and

(b) a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct; and

(c) a young person who commits an offence is not to be treated more severely because of the offence than the person would have been treated if an adult; and

(d) the community must be protected from illegal behaviour; and

(e) victims of offences committed by young persons should be given the opportunity to participate in the process of dealing with the offenders to the extent that the law provides for them to do so; and

(f) responsible adults should be encouraged to fulfil their responsibility for the care and supervision of young persons, and supported in their efforts to do so; and

(g) consideration should be given, when dealing with a young person for an offence, to the possibility of taking measures other than judicial proceedings for the offence if the circumstances of the case and the background of the alleged offender make it appropriate to dispose of the matter in that way and it would not jeopardise the protection of the community to do so; and

(h) detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary; and

(i) detention of a young person in custody, if required, is to be in a facility that is suitable for a young person and at which the young person is not exposed to contact with any adult detained in the facility, although a young person who has reached the age of 16 years may be held in a prison for adults but is not to share living quarters with an adult prisoner; and

(j) punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways; and

(k) a young person who is dealt with for an offence should be dealt with in a time frame that is appropriate to the young person's sense of time; and

(l) in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered; and

(m) a young person who commits an offence is to be dealt with in a way that -

(i) strengthens the family and family group of the young person; and

(ii) fosters the ability of families and family groups to develop their own means of dealing with offending by their young persons; and

(iii) recognises the right of the young person to belong to a family.

111 These objectives and principles are consistent with the approach traditionally taken by courts to juvenile offenders - see AM (A Child) v The Queen (Unreported, WACCA, Library No 960263, 5 February 1996), 12; R v DP (A Child) [2003] WASCA 92 [8]. That approach was succinctly enunciated by Wallace and Smith JJ in Yorkshire v The Queen (Unreported, WACCA, Library No 7169, 20 June 1988) [39]:

[T]here has been universal acceptance by the courts ... that the reformation of the [juvenile] offender is always an important, if not the dominant consideration, and that any sentence should be tailored with greater emphasis on the future welfare of the offender.

112 The importance of the rehabilitation of young offenders is evident in the terminology used in s 6 and s 7 of the Act. It was emphasised by the Attorney General in the second reading speech at the time the bill for the Act was introduced, when she observed:

Above all, a goal for all those working with juvenile offenders is the reestablishment of responsible citizenship, attitudes and behaviour in young people. Western Australia, Parliamentary Debates, Legislative Assembly, 12 May 1994, 362 (Mrs C Edwardes, Attorney General)

113 The Act draws a clear distinction between prisons and detention centres, and between prison officers and YCOs. Section 118A provides:

118A**. Where sentence of imprisonment to be served**

(1) If -

(a) as a result of a sentence imposed by a court a young person is to be imprisoned; and

(b) the young person is under 18 years old at the time when under that sentence he or she is to be imprisoned,

then, unless a direction has been made under section 118(4), the young person is to serve that sentence in a detention centre and not in a prison until a direction is made under section 178.

(2) If -

(a) as a result of a sentence imposed by a court a young person is to be imprisoned; and

(b) the young person has reached the age of 18 years at the time when under that sentence he or she is to be imprisoned,

then the young person is to serve that sentence in a prison.

(3) If it is not practicable to immediately transport a young person to a detention centre in accordance with subsection (1), the offender may be held in a prison or a lockup until transport to a detention centre is practicable.

118**. Offences punishable by imprisonment, options**

(1) If the statutory penalty for an offence is or includes imprisonment and the court dealing with the offender decides to impose a custodial sentence, the court may -

(a) impose a term of imprisonment under Part 13 of the Sentencing Act 1995 but may not impose suspended imprisonment under Part 11 of that Act or conditional suspended imprisonment under Part 12 of that Act; or

(b) sentence the offender to a term of detention that is not longer than the term of imprisonment to which the offender would have been liable if the offender were not a young person.

(2) Despite section 86 of the Sentencing Act 1995 the court sentencing a young person to a term of imprisonment or a term of detention may impose a term of 6 months or less.

(3) If the court sentences an offender to imprisonment it may, subject to Part 14 of the Sentencing Act 1995, also sentence the offender to indefinite imprisonment.

(4) If the court sentences an offender to imprisonment it may, if the offender is at least 16 and under 18 years old and having regard to the matters in section 178(4)(a), direct that the offender serve the sentence in a prison under the Prisons Act 1981.

(5) If the court sentences the offender to a term of imprisonment, the Sentencing Act 1995 and the Sentence Administration Act 2003, with any necessary changes, apply to and in respect of the sentence imposed.

115 Section 118(4) empowers a court to make a direction that the offender serve the sentence in a prison if the offender is at least 16 years old. However, the section states that the court must have regard to the matters specified in s 178(4)(a) before making such an order. Section 178 creates a mechanism for the transfer of a young offender from a detention centre to a prison. It provides:

Transfer of offender from detention centre to prison

(1) If an offender is in a detention centre serving a sentence of detention or a sentence of imprisonment, the chief executive officer may apply to the Children's Court, constituted so as to consist of or include a judge, for a direction under subsection (3).

(2) An application under subsection (1) cannot be made in respect of an offender who is under 16 years old.

(3) On an application under subsection (1), the Court may direct that the offender be transferred to a prison under the Prisons Act 1981 to serve the unserved portion of the sentence in a prison.

(4) A direction under subsection (3) can only be made -

(a) in the case of an offender who is under 18 years old, if the Court is satisfied that the offender should be transferred to a prison because -

(i) the offender's behaviour in the detention centre (including when serving a previous sentence) is or has been a significant risk to the safety or welfare of other people in custody in, or of the staff of, the centre; or

(iii) of any other reason the Court thinks is relevant;

(b) in the case of an offender who has reached the age of 18 years and is serving a sentence of detention -

(i) if the offender has a substantial period of the sentence of detention to serve; or

(ii) if the court is satisfied that the offender should be transferred to a prison because of any of the factors referred to in paragraph (a);

or

(c) in the case of an offender who has reached the age of 18 years and is serving a sentence of imprisonment, if the court thinks fit.

(5) If a direction is made under subsection (3) in respect of an offender serving a sentence of detention -

(a) the Prisons Act 1981 applies to and in respect of the offender while in prison; and

(b) Part 8 and Division 8 of Part 7 continue to apply to the sentence of detention.

(6) If the Court decides to make or refuse to make a direction under subsection (3), the offender or the chief executive officer may appeal against the decision under and subject to Part 3 of the Criminal Appeals Act 2004 which, with any necessary changes, applies as if the direction were an order that might be made as a result of a conviction.

116 It is clear from these provisions that the Act draws a clear distinction between a prison created under the Prisons Act, and a detention centre created under the Act. However, the Act is less clear in identifying the characteristics which distinguish a detention centre from a prison. Section 13 confers power upon the Minister to establish detention centres in the following terms:

(1) The Minister may, by order, declare a place to be a detention centre.

(2) The Minister may, by order, vary or revoke an order under subsection (1).

(3) An order under this section does not have effect until after it is published in the Gazette and the date of effect shall not be earlier than the date of publication and such order shall be a regulation for the purposes of section 42 of the Interpretation Act 1984.

117 The definition of the expression 'detention centre' sheds no further light on the characteristics of such a centre. Section 3 defines 'detention centre' to mean a place declared to be a detention centre under s 13. Perhaps the best guide to the matters which are to be taken into account by the Minister in the exercise of the power conferred by s 13 of the Act is s 7(i), which I have set out above, and which requires that the detention of a young person in custody to be in a facility that is suitable for a young person and in which that young person is not exposed to contact with any adult detained in the facility.

118 Consistently with the distinction drawn between a prison and a detention centre, the Act draws a distinction between prison officers and YCOs. As I have noted, s 11 of the Act provides for the appointment of YCOs. Section 11E specifically authorises the use of prison officers in limited circumstances. It provides:

11E**. Assistance by prison officers**

(1) A prison officer may, upon the request of the chief executive officer or a superintendent, assist in the exercise or performance of any power or duty conferred or imposed by this Act.

(2) A prison officer who is assisting -

which in like circumstances would be conferred or imposed on a custodial officer appointed under section 11(1) or (1a), in addition to the powers and duties conferred and imposed on that prison officer by or under any other law.

(3) A prison officer who is assisting may use such force as can be used by a custodial officer appointed under section 11(1) or (1a) and, with the approval of the chief executive officer, may use such control weapons as are necessary in the circumstances.

119 It is implicit in these provisions that the legislature intended that YCOs would have different characteristics, and perhaps different qualifications and experience, to prison officers. This inference coincides with the fact which I have already noted - namely, that YCOs are required to undertake a training programme of six months duration before taking up their duties.

120 The distinction which the Act draws between prisons and detention centres is also evident in the provisions dealing with young persons who are arrested and remanded in custody. Sections 19 and 21 provide:

19**. Detention of young offenders apprehended by police**

(1) The Commissioner of Police is to make rules, orders, or regulations under section 9 of the Police Act 1892 in respect of the apprehension of young persons for offences and their detention in custody and a member of the Police Force is to have regard to any such rules, orders, or regulations.

(2) A young person in custody who is not released on bail, whether or not bail has been refused under the Bail Act 1982, is, subject to subsection (3) and section 49, to be taken to and placed in a detention centre as soon as practicable after the person's apprehension.

(3) A young person may be held in the custody of the police until arrangements can be made for the person to be taken to and placed in a detention centre in accordance with subsection (2).

...

21**. Young person in custody awaiting trial**

(1) Subject to the Bail Act 1982, a young person may be detained in a detention centre during the period for which the person has been remanded by a court, or during the period of the person's detention on committal for trial in the Supreme Court or the District Court.

(2) If a young person reaches the age of 18 years while detained in a detention centre as described in subsection (1), the court, upon the application of the chief executive officer, may direct that the person be transferred to a prison under the Prisons Act 1981 and treated as an adult prisoner on remand.

121 As I have noted, the Australian Human Rights Commission (the Commission) was granted leave to intervene. Section 11(1)(o) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act), confers upon the Commission the function of intervening in proceedings that involve human rights issues where the Commission considers it appropriate to do so. The expression 'human rights' is defined by s 3 of the AHRC Act to mean the rights and freedoms recognised in the International Covenant on Civil and Political Rights (opened for signature 19/12/1966, 999 UNIS 17 (entered into force 23/03/1976)) and the rights and freedoms declared by any relevant international instrument. On 22 October 1992, the AttorneyGeneral of the Commonwealth declared, pursuant to s 47 of the AHRC Act, that the Convention on the Rights of the Child (opened for signature 20/11/1989, 1577 UNIS 3 (entered into force 2/9/1990)) (the Convention) was a relevant international instrument for the purposes of the Act.

122 The Convention has been adopted almost universally (at the last count, 193 countries were party to the Convention). Australia signed the Convention on 22 August 1990 and the Convention was ratified by the Commonwealth executive on 17 December 1990 (albeit with a reservation), with effect from 16 January 1991. As a result of ratification, Australia has undertaken a commitment, binding under international law, to implement the obligations imposed by the Convention through domestic legislation and policies. However, as Mason CJ and Deane J said:

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, (286 287)

123 Nevertheless, it can now be taken to be established that, as a matter of statutory interpretation, ambiguous legislative provisions are to be interpreted by reference to an assumption that it was not the intention of the legislature to violate Australia's international obligations - see, for example, Teoh (287) (Mason CJ and Deane J); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 33 (McHugh and Gummow JJ); Coleman v Power [2004] HCA 39; (2004) 220 CLR 1, 27 28 (Gleeson CJ). There is authority for the proposition that a broad approach should be taken to the question of whether there is ambiguity which justifies application of the presumption. In Teoh, Mason CJ and Deane J observed (287 288):

[T]here are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.

124 The Commission submits that these principles of statutory interpretation apply not only to Commonwealth legislation but also to State legislation. There is High Court authority which supports this submission - see Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 384; Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, 320 322. Consistently with this approach, Malcolm CJ considered that the Convention was an aid to the construction of the Act in H v The Queen [2002] WASC 39; (2002) 26 WAR 19 [17].

125 In the light of the approach taken by the Commission in its submissions, it must be emphasised that these principles are principles of statutory construction. Ratification of an international treaty does not inhibit the legislative capacity of any of the polities within the Australian federation. Accordingly, if a legislature chooses to legislate in terms which are inconsistent with Australia's international obligations, as a matter of domestic law it is free to do so - see, for example, Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 68 69, 77, 80 81; Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513 [125] per Spigelman CJ.

126 The questions which must be determined in these proceedings are whether:

(a) the decision to transfer 73 detainees from Banksia Hill to Unit 5 at Hakea prior to its being declared a detention centre under the Act; and

(b) the decision to declare Units 5, 11 and 12 of Hakea, at various times and in different permutations, to be a detention centre in accordance with s 13 of the Act,

exceeded the powers conferred upon the relevant decisionmakers and the delegate by the Act. If and to the extent that the relevant provisions of the Act are ambiguous, the presumption that the legislature intended that the Act be consistent with Australia's obligations under international law may assist in resolving the ambiguity.

127 The question before the court is not the question of the extent to which the regime for the management and treatment of juvenile detainees in Western Australia complies with the Convention or other more specific international standards. Those issues would only be relevant if and to the extent that they shed light on the resolution of ambiguity in the construction of a particular provision of the Act.

128 With respect, the submissions provided by the Commission fail to grasp this fundamental point. Although reference is made to s 6 and s 7 of the Act, at no point in the submissions provided by the Commission is any relevant ambiguity in the Act identified, nor is there any suggestion as to the manner in which any such ambiguity might be resolved by reference to either the Convention or the other international instruments identified in the Commission's submissions. Nor do the Commission's submissions address the specific provisions of the Act which bear upon the decisions which have been impugned in these proceedings.

129 The thrust of the submissions provided by the Commission is an assessment of the extent to which the regime for the management of juveniles in detention in Western Australia complies with the principles enunciated in the Convention and other international instruments which contain more specific standards with respect to juvenile justice, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the Beijing rules), the United Nation Rules for the Protection of Juveniles Deprived of Their Liberty 1990 (the Havana rules), and the United Nations Guidelines for the Prevention of Juvenile Delinquency 1990 (the Riyadh guidelines). Cast in this way, with respect, the submissions miss the point.

130 The deficiency in the approach taken by the Commission is conveniently illustrated by the submissions made on the topic of physical restraints (hand cuffs). The submissions appropriately acknowledge the express provisions of the Act (s 11D) which I have set out above. Reference is then made to provisions in the various international instruments which might be seen as having a bearing upon the use of physical restraints. Significantly omitted from the Commission's submissions is any attempt to identify ambiguity in the section of the Act relating to the use of physical restraints, or to identify any provision in the Convention or any other relevant international instrument which could assist in the resolution of that ambiguity.

131 Put another way, the lawfulness of the actions taken with respect to the imposition of physical restraints upon detainees during and after the riot is to be assessed by reference to s 11D of the Act, and not by reference to the question of whether those actions complied with relevant international instruments. The international instruments do not form part of the law of Western Australia and can only be of assistance if and to the extent that they assist in the resolution of an ambiguity in the law of Western Australia. The submissions provided by the Commission do not specifically address any issue of interpretation of the Act and are, in consequence, of little or no utility. It is therefore unnecessary to consider whether the more specific international instruments to which the Commission referred - namely, the Beijing rules, the Havana rules, and the Riyadh guidelines can be used as an aid to the interpretation of the Act pursuant to the principles to which I have referred.

132 Given the breadth of the evidence which was led at the hearing, and the ambit of the findings of fact that I have made, it is important to note that the originating motion brought by the applicant, as amended during the hearing, challenges the legal validity of four specified decisions. Those decisions are, in chronological order, the decision of Acting Assistant Commissioner Craig Castle to direct the transfer of 73 detainees from Banksia Hill to Unit 5 at Hakea Prison in the early hours of the morning of 21 January 2013, and the three subsequent decisions of the Minister to declare Units 5 and 12, then Units 5, 11 and 12, then Units 11 and 12 at Hakea Prison to be a detention centre. Specifically, the originating motion, as amended, does not invite or require the court to review the adequacy, appropriateness or efficacy of the operational decisions which have been taken in order to implement those decisions, or to review the custodial regime now in place at Hakea. Rather, the only questions which the court is required to resolve concern the legal validity of the four specific decisions which have been impugned. Those issues are to be resolved by construing the Act for the purpose of determining whether, in the circumstances which prevailed at the time those decisions were taken, the decision makers exceeded the jurisdiction (power) conferred upon them by the Act.

133 It is convenient to segregate the impugned decisions into two groups - the first comprising the decisions by the Minister to declare the relevant units at Hakea to be a detention centre for the purposes of the Act, and the second being the decision by Acting Assistant Commissioner Castle to transfer 73 detainees from Banksia Hill to Unit 5 at Hakea in the early hours of 21 January 2013. Although the grounds upon which all decisions have been impugned are substantially similar, the considerations applicable to the two categories of decision differ significantly because the decisions are governed by different provisions of the Act.

The decisions to declare units at Hakea to be a detention centre.

134 Each of the decisions to declare units at Hakea to be a detention centre is said to have been invalid on three identical grounds, namely:

(a) the units were unsuitable for the detention of young persons, and it was therefore beyond the power of the Minister to declare them to be a detention centre pursuant to s 13 of the Act, construed in the light of s 7(i) of the Act;

(b) the Minister's decision to declare the units to be a detention centre was not in accordance with the objectives set out in s 6(d)(iii), s 6(e) and s 6(f), and the principles set out in s 7(f), s 7(j), s 7(l) and/or s 7(m) of the Act; and

(c) the Minister failed to take into account relevant considerations which he was required to take into account, being eight specified matters (see [149] below).

135 The legal basis for the third ground is clear enough. It involves the invocation of the principles enunciated by Mason J (as his Honour then was) in Minister for Aboriginal Affairs v PekoWallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. Those principles apply, where, as a matter of statutory construction, a decisionmaker is bound to consider certain matters as a condition of the valid exercise of the jurisdiction conferred.

136 The legal basis for the first two grounds of review was not pellucidly clear from the written submissions provided to the court. However, counsel for the applicant confirmed during oral argument that the essence of each of those grounds was the assertion that a determination that the facility would, as a matter of objective fact, be suitable for the detention of young persons, and would, as a matter of objective fact, further the specified objectives and conform to the specified principles is, on the proper construction of the Act, a condition of the exercise of the jurisdiction to declare a place to be a detention centre pursuant to s 13 of the Act. Put another way, the essential proposition is that each of those matters is a jurisdictional fact of the kind considered by the High Court in Plaintiff M70/2011 The Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 (Malaysian Declaration Case). Counsel for the applicant expressly disavowed any reliance upon unreasonableness in the sense in which that term is used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. That is, no reliance is placed on the proposition that the Minister's decision to declare the units at Hakea to be a detention centre was so unreasonable that no minister properly considering the matters relevantly taken into account under the Act could reasonably conclude that the units were a suitable place for the detention of young persons, or that the decision would further the particular objectives specified in s 6 of the Act, or accord with the particular principles specified in s 7 of the Act. Rather, the first two grounds challenging the Minister's declarations are put exclusively on the basis that the Minister's power to make those declarations was conditional upon the objective existence of specified jurisdictional facts, being the fact that the units were suitable for the detention of young persons and that the declaration of the units as a detention centre would further the particular objectives and principles specified in the Act and identified by the applicant.

137 In order to establish those grounds, it is necessary for the applicant to first establish that, as a matter of proper construction of the Act, the particular matters upon which reliance is placed are jurisdictional facts, or, as the plurality put it in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 [28] '... that criterion, satisfaction of which enlivens the power of the decisionmaker to exercise a discretion' (cited with approval by the plurality in the Malaysian Declaration Case [107]).

WILSON -v- JOSEPH MICHAEL FRANCIS, MINISTER FOR CORRECTIVE SERVICES FOR THE STATE OF WESTERN AUSTRALIA [2013] WASC 157 (3 May 2013)

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Judgment (265 paragraphs)

WILSON -v- JOSEPH MICHAEL FRANCIS, MINISTER FOR CORRECTIVE SERVICES FOR THE STATE OF WESTERN AUSTRALIA [2013] WASC 157 (3 May 2013)

Legislation Cited (7)

Cases Cited (17)