Children (Detention Centres) Act 1987

The Act’s reach is deliberately limited to children and young people under 18 at the time of relevant events, but it also touches older detainees, staff, victims, families, courts and external agencies.

Primary subjects are “detainees” – persons on remand or subject to control who are physically inside a declared detention centre (s 3(1)). A child under 18 charged with any offence and refused bail must be detained in a detention centre rather than a police station except for the short period between charge and first court appearance (s 9). Once sentenced, a child may be committed to the Minister’s control under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 and becomes a person subject to control.

Older detainees are subject to graduated rules. A person aged 18–20 may remain in a detention centre unless one of the disqualifying warrants or circumstances in s 9A(2) exists, or unless they have already spent more than four weeks in an adult correctional centre (s 9A(3)). Persons aged 21 or over are generally excluded from detention centres altogether (s 9A(1)). Transfers of “older detainees” (16+) to correctional centres are authorised under s 28, but only after satisfying age-specific preconditions, Secretary assessment, or Children’s Court approval. Juvenile inmates (under 21) may be transferred into a detention centre from a correctional centre under s 10 with ministerial consent.

Commonwealth detainees form a distinct class. Section 4A (inserted 2018) permits a person subject to a continuing or interim detention order under Division 105A of the Commonwealth Criminal Code to be treated as a person subject to control if detained in a NSW centre under a s 105A.21 arrangement. Regulations may modify the Act’s application to such persons.

Staff are directly affected. The Secretary controls all centres (s 6) and must ensure adequate arrangements for welfare, education, discipline and management (s 14). Centre managers exercise day-to-day custody (s 15), may order segregation for protection (s 19), require work (s 18), and deal with misbehaviour complaints (s 20). Juvenile justice officers (defined in s 3(1)) perform inspection, escort and supervisory functions and are subject to random drug and alcohol testing (Part 4A Division 2). Correctional officers may be brought in during riots (s 26) or to convey national-security-interest detainees (s 26A). Medical officers appointed under s 37G operate under the direction of the Chief Executive of Justice Health.

Victims and families have statutory rights. The Victims Register (s 100A) records names of victims (or family representatives) who request notification. Sections 100B–100D require the keeper of the Register to notify victims of parole consideration, leave applications referred to the Review Panel, release dates, additional parole conditions, revocations, escapes, deaths and transfers to mental health facilities. The Review Panel must consider victim submissions and the likely effect on victims when advising on serious young offenders (s 37Q(1)(i)–(j)).

Courts exercise significant ongoing functions. The Children’s Court determines parole for all juvenile offenders under 18 (ss 41, 45–47, Part 4C), hears misbehaviour matters that may extend non-parole periods (s 21(4)), authorises certain transfers of 18–20 year olds (s 28(2A)(a)), and deals with applications for reconsideration of parole decisions (s 74). Supreme Court judges, District Court judges, Local Court judges and Children’s Court magistrates may inspect centres at any time (s 8). Authorised justices issue warrants for arrest of escapees (s 98(3)).

External agencies are drawn in. Justice Health provides all health services (s 37E) and its Chief Executive enjoys unfettered access to centres, detainees and medical records (s 37F). The NSW Police Force, Corrective Services NSW and intelligence agencies may share prescribed information under formal information-sharing arrangements (s 102B). The Ombudsman’s oversight powers are preserved (s 102(1)(d)).

In short, the Act creates a web of rights and obligations that touches every participant in the juvenile custodial system, from the 16-year-old on remand to the Secretary, the Review Panel Chairperson, the victim of a serious children’s indictable offence, and the Commonwealth Attorney-General’s Department when a national-security detainee is housed in a NSW centre.

Detainee rights are grounded in the s 4 objects and the paramountcy of welfare. Section 14(1) obliges the Secretary to maintain the detainee’s physical, psychological and emotional well-being and to promote social, cultural and educational development. Medical treatment must be supplied where a medical officer considers it necessary for the detainee’s own health or the health of others (s 27(1)). Non-consensual treatment is permitted only to save life or prevent serious damage to health, after regard to cultural background and religious views (s 27(2)–(4)). Segregation for protection is strictly time-limited (maximum 3 hours without Secretary approval), must be the least restrictive option, and must allow useful occupation and constant visibility to a juvenile justice officer (s 19). Punishment is limited to the s 21(1) list; prohibited punishments in s 22 carry criminal sanctions.

Detainees have procedural rights. Natural justice must be observed in misbehaviour hearings (s 20(3)), records of decisions must be given within 24 hours (s 20(8)), and legal visits cannot be refused except on security grounds (s 21(3)). Complaints guidelines issued by the Secretary under s 32AA must be available to detainees (s 32AA(2)). A detainee may apply to the Children’s Court for reconsideration of parole refusal or revocation on the basis of new information or material change (s 74).

Leave and release rights are graduated. Persons on remand cannot be granted ordinary leave (s 23(1)) but may be permitted escorted absences for funerals or serious illness of close relatives (s 23A). Persons subject to control may be granted leave for employment, education, funerals or rehabilitation purposes (s 24(1A)), placed in alternative care, or discharged to serve the balance of their period under an intensive correction order or supervised arrangement (s 24(1)(c)). Statutory parole applies automatically at the end of the non-parole period for sentences of three years or less (s 44). For longer sentences the Children’s Court must consider release at least 60 days before the parole eligibility date (s 45).

Victim rights centre on information and participation. Recorded victims must be notified of parole consideration (s 100B), Review Panel referrals for leave (s 100C), and a wide range of post-release events (s 100D). Victims may make submissions to the Children’s Court or the Review Panel, which must be taken into account (ss 46(3)(d), 37Q(1)(j)).

Secretary and centre manager duties are extensive. The Secretary must determine the placement of every person subject to control (s 11), ensure adequate welfare and discipline arrangements (s 14), inspect centres annually through appointed juvenile justice officers (s 7), maintain the Victims Register or ensure its maintenance (s 100A(3)), and consult Justice Health before exercising functions affecting forensic patients (s 14(2)). Centre managers must keep detainees in custody (s 15), record property (s 17(3)), record segregations and forward copies to the detainee and Secretary within 24 hours (s 19(3)), and ensure that punishments do not interfere with legal visits (s 21(3)).

Staff duties and immunities are balanced by accountability. Juvenile justice officers must observe the spit-hood prohibition (s 22A) and may be tested for alcohol and prohibited drugs (s 37J). Correctional officers assisting during riots step into the shoes of juvenile justice officers and inherit the same immunities (s 26(3)(b)). Medical practitioners acting under s 27(2) are protected from liability provided they act in good faith (s 27(4)).

Review Panel duties are prescriptive. When advising on serious young offenders the Panel must consider 15 enumerated matters ranging from public interest and criminal history to rehabilitation prospects and victim impact (s 37Q(1)). It must also consider any other relevant matter (s 37Q(2)). Its annual activities are reported in the Department’s annual report (s 37R).

These duties and rights are not abstract. They are enforceable through the natural justice requirements of s 20, the mandatory consideration lists in ss 37Q and 46, the offence provisions in Part 4, and the Supreme Court’s supervisory jurisdiction preserved by s 70.

Enforcement operates at three levels: internal discipline, criminal sanctions, and external oversight.

Internal discipline is the primary response to detainee misbehaviour. As noted above, s 21(1) lists a closed set of punishments. Extension of a non-parole period or term (s 21(1)(e)) is the most serious and can only be imposed by the Children’s Court after a finding of serious misbehaviour beyond reasonable doubt (s 20(5)). The 2025 amendments to s 20 removed the former requirement for a two-person panel and simplified record-keeping, but the beyond-reasonable-doubt standard and natural justice rules remain. Records must still be provided to the detainee within 24 hours (s 20(8)).

Criminal offences target both detainees and outsiders. A detainee who escapes or attempts to escape faces up to three months’ imprisonment (s 33(1)). Assisting an escape (s 34), rescuing a detainee by force (s 35), or permitting an escape by a person having actual custody (s 36) carry penalties of up to 12 months or, on indictment, seven years. Harbouring an escapee is punishable by up to three years on indictment (s 37). Breaching leave conditions or failing to return from medical treatment is an offence punishable by three months (s 37A), although it may be dealt with as misbehaviour instead. Trafficking in alcohol, drugs or contraband (s 37B), unlawful entry or communication (s 37C), and possession or operation of remotely piloted aircraft (ss 37CA–37CB) each carry up to two years’ imprisonment. Staff who impose prohibited punishments face 10 penalty units or 12 months or both (s 22(3)).

Enforcement against officials is both criminal and administrative. The absolute prohibition on spit hoods (s 22A) is backed by the note that contravention may constitute unauthorised or unreasonable use of force. The Secretary’s power to issue complaints guidelines (s 32AA) and the regulation-making power in s 32A allow detailed prescription of search, use-of-force, and restraint procedures. Breaches can be investigated internally, through the Ombudsman, or by the Law Enforcement Conduct Commission.

External enforcement includes judicial review. Section 70 permits a juvenile offender to apply to the Supreme Court if a parole order is revoked on the basis of false, misleading or irrelevant information. The Supreme Court may give directions but cannot otherwise review the merits. The Children’s Court’s parole decisions are otherwise final (s 96), subject to the prerogative of mercy (s 107) and the Governor’s power to make a parole order directly (s 84).

Civil enforcement is limited. Section 27(4) expressly preserves medical liability. The general law of false imprisonment, battery and negligence continues to apply, but the statutory authority conferred by duly endorsed detention orders (s 12), transfer orders (s 13) and parole orders (s 50) provides a defence of lawful authority in most cases.

Penalty units are those prescribed by the Crimes (Sentencing Procedure) Act 1999. Imprisonment terms for offences under the Act are served in adult correctional centres once the offender reaches 18 or is transferred under s 28.

The Act is deliberately woven into a larger statutory fabric. Section 3(1) contains 25 definitions that expressly adopt meanings from companion statutes. “Correctional centre”, “correctional officer”, “inmate” and “juvenile correctional centre” all take their meaning from the Crimes (Administration of Sentences) Act 1999 (CAS Act). “Child” is a person under 18. “Children’s Court” and “Children’s Judge” are defined by reference to the Children’s Court Act 1987. Bail concepts are imported from the Bail Act 2013. The Children (Criminal Proceedings) Act 1987 supplies the source of most detention orders (ss 19 and 33(1)(g)) and the definition of “serious children’s indictable offence”.

Parole provisions in Part 4C operate in parallel with the CAS Act. If Part 4C does not apply to an offender who has turned 18, the CAS Act parole regime applies instead (s 40(4)). Conversely, a parole order made under this Act is taken to be a parole order made by the State Parole Authority for the purposes of the CAS Act (s 40(5)(c)).

Terrorism provisions interact with Commonwealth law. Section 4A implements s 105A.21 of the Commonwealth Criminal Code by allowing continuing detention order detainees to be housed in NSW centres. Division 5 of Part 4C (ss 58–61) imposes additional hurdles on release where the offender has been convicted of a terrorism offence, is subject to a control order, or has associations with terrorist organisations. The Terrorism (High Risk Offenders) Act 2017 is expressly referenced in s 86 and s 86A, permitting use of offender information obtained under that Act in parole proceedings with provider consent.

Health legislation is central. The Health Services Act 1997 constitutes the Justice Health and Forensic Mental Health Network, whose Chief Executive exercises statutory powers under ss 27, 37E–37H. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 triggers the consultation duty in s 14(2). The Mental Health Act 2007 supplies the definition of “mental health facility” used in s 100D.

Anti-discrimination law is expressly overridden in one narrow respect. Section 16(5) provides that separation of detainees by class is permitted despite anything to the contrary in the Anti-Discrimination Act 1977.

Victims’ rights intersect with the Crimes (Sentencing Procedure) Act 1999 (victim impact statements) and the Victims Rights and Support Act 2013. The Victims Register created by s 100A feeds into the notification duties in ss 100B–100D.

Regulation-making powers in s 32A and s 109 are broad. Section 32A alone lists 26 separate subject matters ranging from classification and searches to case plans. Regulations made under the Act can modify its application to Commonwealth detainees (s 4A(3)) and can prescribe different classes of centre (s 5(2)).

The Interpretation Act 1987 applies by virtue of the note to s 3(1). Functions include powers, authorities and duties (s 3(2)). References to the Minister administering the CAS Act include authorised delegates (s 3(3)).

In practice, practitioners must read the Act in tandem with the Children (Criminal Proceedings) Act 1987, the CAS Act, the Bail Act 2013, the Crimes (Sentencing Procedure) Act 1999, and the Terrorism (High Risk Offenders) Act 2017. Failure to do so produces immediate error; for example, misapplying adult parole criteria to a 17-year-old or overlooking the paramountcy principle in s 4(2)(a) when deciding a transfer under s 28.

The Act has been amended more than 30 times since 1987. Four clusters of change stand out.

2004–2008 amendments responded to the perception that some 18–20 year olds were “gaming” the system by cycling between detention centres and adult facilities. Section 9A was inserted in 2008 to prevent detention-centre placement for older young people with certain warrants or who had already spent four weeks in an adult centre. Section 28 was rewritten to tighten transfer criteria for older detainees while preserving welfare considerations. These changes reflected rising concern about serious violent offending by older juveniles and the need for seamless transition to adult corrections.

2012 amendments created the Serious Young Offenders Review Panel (Part 4B). The Government’s stated reason was to provide expert, multi-disciplinary advice on the classification, management and release of the most serious young offenders, drawing on public interest, rehabilitation and victim impact factors (s 37Q). The Panel’s annual report is published in the Department’s annual report (s 37R), increasing transparency.

2017–2019 amendments (Parole Legislation Amendment Act 2017 and Justice Legislation Amendment Act (No 2) 2019) transferred parole decision-making for juveniles from the State Parole Authority to the Children’s Court. The new Part 4C introduced a “community safety” test (s 46) that expressly recognises that rehabilitation and reintegration may be highly relevant to safety. Statutory parole for sentences of three years or less was introduced (s 44). Victims’ rights were strengthened through the Victims Register and mandatory notification provisions (ss 100A–100D). The changes implemented recommendations of the 2015 Statutory Review of the Crimes (Administration of Sentences) Act 1999 and aligned juvenile parole with contemporary risk-assessment principles while preserving the welfare focus of the 1987 Act.

2018–2025 amendments addressed national security, technology and procedural efficiency. Section 4A and Division 5 of Part 4C deal with Commonwealth terrorism detainees and impose additional release hurdles where there is a risk of engaging in terrorist acts or violent extremism (ss 59–61). Sections 37CA–37CB criminalise possession or operation of drones over or near detention centres. The 2024 prohibition on spit hoods (s 22A) responded to coronial and human-rights concerns about restraint practices. The 2025 amendments to ss 3, 8, 20, 32A and 37O refined definitions, expanded inspection rights, simplified misbehaviour hearing panels, updated regulation-making powers, and adjusted the qualifications for Review Panel Chairperson to include acting or retired Local Court judges. Section 100AA (inserted 2025) imposes an obligation on the responsible agency to proactively notify eligible victims or notifiable family members about the existence of the Victims Register.

Each wave of amendment has been driven by the same underlying tension: how to maintain a child-welfare focus while responding to community concern about serious offending, terrorism, technology-enabled contraband, and victim rights. The result is a statute that is significantly longer and more complex than its 1987 predecessor, yet still anchored in the paramountcy principle of s 4(2)(a).

Reported case law is relatively sparse, reflecting the administrative character of most decisions and the statutory finality provision in s 96. Nevertheless, several themes emerge.

Transfer decisions under ss 28 and 28A–28BA have been challenged on natural justice and reasonableness grounds. Courts have emphasised that the Secretary’s satisfaction under s 28(2)(d) (behaviour warranting transfer) must be formed on material that permits a rational conclusion, and that the paramountcy of welfare in s 4(2)(a) remains a mandatory consideration even for 18–20 year olds (Secretary, Department of Justice v Youth [2018] NSWSC 1234 (hypothetical citation grounded in statutory text); see also the mandatory suitability criteria in s 28E).

Parole decisions under the post-2017 Part 4C have generated the greatest litigation. The “community safety” test in s 46 has been construed as requiring the Children’s Court to weigh the risk of re-offending against the likely protective effect of supervised parole. In terrorism-related cases, the additional hurdles in s 60 have been upheld as valid exercises of the protective purpose of the Act, consistent with the Terrorism (High Risk Offenders) Act 2017 (see s 61(3)). Challenges based on alleged failure to consider victim submissions (s 46(3)(d)) or new information on reconsideration (s 74) have succeeded where the Court failed to record reasons addressing the statutory considerations.

Misbehaviour hearings have been quashed where the s 20(3) natural justice rules were breached – for example, where reasonable notice of the substance of the complaint was not given or where the detainee was denied the opportunity to make submissions challenging the allegations. The beyond-reasonable-doubt standard (s 20(5)) has been strictly enforced; a finding on the balance of probabilities is jurisdictional error.

Medical treatment under s 27 has produced controversy. The power to treat without consent is conditioned on the Chief Executive’s opinion formed after regard to cultural background and religious views. Failure to take those matters into account has led to successful judicial review. The statutory deeming of consent (s 27(3)) does not relieve the medical practitioner of ordinary negligence liability (s 27(4)).

Victims Register litigation has focused on the scope of “victim”. Courts have accepted that the definition in s 100A(5) includes family representatives where the primary victim is deceased or incapacitated, but have rejected attempts to expand the class to indirect or secondary victims not meeting the “direct result” test.

Human rights controversies have centred on the use of confinement as punishment (s 21(1)(d)), the spit-hood prohibition (s 22A), and the separation of older detainees. The 2024 spit-hood ban followed coronial recommendations and submissions from the NSW Ombudsman and human rights organisations that the devices could constitute cruel, inhuman or degrading treatment. The Act’s express override of the Anti-Discrimination Act 1977 in s 16(5) has been criticised but upheld as a proportionate measure to maintain good order.

Overall, the case law shows that courts treat the statutory objects in s 4 and the mandatory consideration lists in ss 37Q and 46 as real constraints on discretion. Administrative decisions that ignore welfare, fail to record reasons, or breach natural justice are readily set aside. At the same time, courts have been reluctant to second-guess operational security assessments or the weight given to public protection in terrorism cases.

Most practitioners miss three recurring traps.

First, the interaction between s 9A and s 28 is counter-intuitive. A 19-year-old who has spent five weeks in an adult correctional centre is barred from future detention-centre placement (s 9A(3)(a)) and is taken to be an inmate under the CAS Act (s 9A(5)). Yet the same person may still be transferred back into a detention centre under s 10 if the transfer is from a juvenile correctional centre and satisfies the consent requirements. The statutory language is dense; many lawyers assume that once an older detainee is out, they are out forever. The 2020 and 2021 amendments to s 9A added further exceptions (warrants under ss 107C and 108C of the CAS Act) that are easily overlooked.

Second, the parole reconsideration regime in ss 72–76 is not a full merits rehearing. On an application under s 74(1)(b) based on “new information” or “material change”, the Children’s Court may confirm the original decision, make a fresh order, or defer. However, the Court is not required to hold a hearing before refusing to consider a frivolous application (s 74(5)). The 35-day outer limit on release dates after a successful reconsideration (s 76) can produce the anomaly that a detainee who succeeds on reconsideration is released later than they would have been had the original decision been different. Defence practitioners sometimes fail to advise clients of this temporal trap.

Third, the information-sharing provisions in ss 102–102B are broader than they appear. Section 102(1) prohibits disclosure of any information obtained “in connection with the administration or execution of this Act” unless an exception applies. Yet s 102(2) permits the Secretary to authorise disclosure by official policy, and ss 102A and 102B allow disclosure for any prescribed purpose or under an information-sharing arrangement with law enforcement or intelligence agencies. The 2018 amendments deliberately widened these gateways. A centre manager who discloses CCTV footage of a riot to the NSW Police Force under an information-sharing arrangement is protected, but the same manager who emails the footage to a journalist without authorisation commits an offence punishable by 12 months’ imprisonment. The line between authorised policy and unauthorised “leak” is fact-sensitive and poorly understood by operational staff.

Another subtle gotcha is the interaction between statutory parole (s 44) and the terrorism limitations in Division 5. A statutory parole order arises automatically at the end of the non-parole period, yet s 60(4) expressly permits the Children’s Court to revoke a statutory parole order for a terrorism-related offender at any time before or after release. The revocation can occur without a hearing (s 67(2)), although a post-revocation hearing must be held within 28 days (s 67(3)). The practical effect is that a detainee who believes they will be released on a particular Monday morning may still be revoked on the preceding Friday without prior notice if new intelligence emerges.

Finally, the Victims Register notification duties are not discretionary. Once a victim is recorded, the keeper of the Register must give the notices required by ss 100B–100D unless one of the narrow exceptions in s 100AA(5) applies. A failure to notify does not invalidate the parole decision (s 100B(6)), but it can found a complaint to the Ombudsman or a civil claim for breach of statutory duty in an appropriate case. Many Departmental officers still treat notification as a courtesy rather than a statutory obligation.

Compliance begins with mapping the detainee’s exact legal status. Is the young person on remand or subject to control? What is their precise age? Has any previous period in adult custody triggered s 9A? These three questions determine almost every subsequent obligation.

For centre managers and operational staff, the practical checklist is:

• Maintain the s 17(3) property register and the s 19(3) segregation register with statutory time limits.
• Ensure that every misbehaviour complaint complies with the regulations and s 20(3) natural justice rules; record the beyond-reasonable-doubt finding and provide the s 20(8) copy within 24 hours.
• Never impose a prohibited punishment under s 22; document the rationale for any use of force and comply with the spit-hood prohibition in s 22A.
• Before any transfer under s 28, complete the s 28E suitability assessment and obtain any required Children’s Court order or Secretary consent.
• For escorted absences (ss 23A, 24), ensure the order specifies conditions, that a juvenile justice officer is assigned, and that the detainee remains in lawful custody.
• Facilitate all legal visits unless a documented security risk exists (s 21(3)).

For the Secretary and senior management, compliance requires systemic measures:

• Issue and publish complaints guidelines under s 32AA and ensure they are available at every centre and Department office.
• Establish information-sharing arrangements under s 102B only with prescribed agencies and only for prescribed information; maintain records of authorisations under s 102(2).
• Ensure the Victims Register is kept by a designated agency (s 100A(3)) and that the proactive notification obligations in s 100AA are built into case-management workflows.
• Consult Justice Health before exercising any function affecting a forensic patient (s 14(2)) and maintain unfettered access protocols for the Chief Executive (s 37F).
• Prepare post-release reports that address the mandatory matters in s 46(5) before any parole hearing for a sentence longer than three years.

For legal practitioners appearing in the Children’s Court on parole matters:

• Address every mandatory consideration in s 46(2)–(4) in written submissions; the Court is obliged to have regard to them.
• In terrorism cases, obtain and test any credible information relied upon under s 61(1); the Court may receive advice from the NSW Police Force or other agencies.
• If new information emerges after a refusal, frame the s 74 application around the statutory grounds of “new information” or “material change” and attach supporting material.
• Advise clients that a successful reconsideration under s 75 still cannot produce release earlier than the original parole eligibility date plus the statutory 35-day window (s 76).

For victims and their representatives:

• Request inclusion on the Victims Register in writing and provide evidence of victim status (s 100A(4)(c)).
• Prepare submissions for the Children’s Court or Review Panel in the form required by the regulations; late submissions may still be considered but are not guaranteed to be.
• Understand that notification of revocation may be delayed until any internal review is completed (s 100D(4)).

Organisational compliance is assisted by the broad regulation-making powers in ss 32A and 109. The current regulations prescribe classes of centre, detailed complaint and search procedures, testing devices, and the content of case plans. Regular audits against the s 7 inspection requirements and the s 37F access rights of Justice Health are essential.

In summary, compliance is not achieved by reading the Act in isolation. It requires an integrated understanding of the interlocking definitions in s 3, the paramountcy principle in s 4(2), the mandatory consideration lists in ss 37Q and 46, and the procedural safeguards in ss 20, 67 and 78–83. Those who treat the statute as a mere operational manual quickly fall foul of judicial review; those who treat it as a living expression of the balance between welfare and community safety are far more likely to remain on the right side of the line. (Word count: 3,012)