Controlled Substances (Youth Treatment Orders) Regulations 2021

Youth treatment orders are orders made by the Youth Court under Part 7A of the Controlled Substances Act 1984. They can be made in relation to a child who is already subject to a detention order in a training centre. The regulations do not create the orders; they regulate what happens after an order is made. A treatment order must be accompanied by a treatment and care plan prepared under section 54D(2)(b)(iv) of the Act; regulation 7(2)(d) requires that treatment provided under a treatment order be given in accordance with that plan. The concept of a treatment and care plan is central because it sets the clinical parameters that both the service provider and the detaining staff must follow. However, the regulations do not prescribe the form or content of the plan; that is left to the Act and to professional judgment.

The Visitor scheme is the oversight mechanism. The Minister must establish a visitor scheme under section 54L(2) of the Act, and these regulations define its functions. Regulation 4 confers three core functions on the Visitor: to visit and inspect facilities where children are detained under detention orders; to monitor the health, safety and wellbeing of those children; and to inquire into and investigate any matter referred by the Minister. The Visitor must act independently, impartially and in the public interest, and the Minister cannot control how the Visitor exercises functions or direct the content of any report. The Visitor is currently the Training Centre Visitor under the Youth Justice Administration Act 2016, not a separate appointee. That conflation means the same person who already oversees training centres under the youth justice framework also gains additional drug treatment oversight powers. The Visitor has information gathering powers: can require any person to provide information, produce documents, or attend and answer questions. Failure to comply carries a $5,000 penalty. The Court is explicitly exempt from these requests, which protects judicial independence but creates a gap in oversight if a court order itself is relevant to a child's treatment.

Principles for assessment and treatment are listed in regulation 7(1). They include evidence informed methods, child focused care, priority to mental physical and social development, consideration of less restrictive means, cultural safety, trauma informed care, age and developmental appropriateness, and attention to gender identity and sexuality. These are aspirational standards, not enforceable rights. They create exposure to criticism if a provider departs from them, but the regulations provide no private right of action for a child or guardian. The Visitor may investigate complaints about non compliance, but the principles operate more as a professional standard than a legal duty.

Use of force is the most coercive concept. Regulation 8 authorises employees of the Adelaide Youth Training Centre to lock doors or physically restrain a child to prevent them from leaving during an assessment or treatment session. This power is confined to the session period, must be used only as a last resort in the least restrictive way for the shortest period possible, and must comply with a code of practice prepared or specified by the Minister. Physical restraint must be reported as soon as practicable to the Chief Executive of the department assisting the Minister in administering the Criminal Law Consolidation Act 1935 and to the Visitor. The regulation also preserves any existing powers the employee has under the Youth Justice Administration Act 2016 or other law. So this is an additional power, not a replacement. The effect is that a child can be physically compelled to attend and remain at a drug assessment or treatment session, even if they object. That is a significant intrusion on personal autonomy, justified only by the fact the child is already lawfully detained and the order is made by a court.

The regulations primarily affect three groups: children subject to youth treatment orders, employees of the Adelaide Youth Training Centre (Kurlana Tapa), and the providers of drug assessment and treatment services. Children who are detained in a training centre and who become subject to an assessment or treatment order under Part 7A are the subjects of the entire scheme. They can be compelled to undergo assessment and treatment, and they can be physically prevented from leaving the centre during those sessions. They have a right to request contact with the Visitor, but the regulations do not give them a right to refuse assessment or treatment outright; the court order overrides consent. The regulations also affect children who are under the guardianship or custody of the Chief Executive under the Children and Young People (Safety) Act 2017, Aboriginal and Torres Strait Islander children, and children with disability, because the Visitor must pay particular attention to their needs. Employees of the Adelaide Youth Training Centre gain new powers to lock doors and restrain children, but also acquire new reporting obligations. They must comply with any code of practice and must report physical restraint to two separate bodies. This creates additional administrative burden and potential legal exposure if they act outside the allowed limits. Accredited drug assessment services and accredited drug treatment services are the entities that conduct assessments and provide treatment. They must operate within the centre and follow the principles in regulation 7(1). Their clinical staff must be medical practitioners or registered health practitioners of the relevant kind. The accreditation process itself is governed by section 56A of the Act, not these regulations, so a service cannot operate under the scheme without first being accredited. The Visitor, currently the Training Centre Visitor, is affected by having new functions and additional reporting duties. The Chief Executive of the Department under the Youth Justice Administration Act 2016 must forward any request to contact the Visitor within two days. The Minister must table annual and special reports in Parliament. Government and non government organisations involved in providing services under Part 7A must provide information to the Visitor on request. The Court is explicitly excluded from that obligation. The regulations do not directly affect the general public, legal practitioners not involved in youth justice, or private drug treatment providers that are not accredited. The scheme is narrow, confined to one detention centre and a very specific court ordered pathway. That narrowness means the compliance burden falls on a small number of actors, but those actors face high stakes: loss of liberty for the child, potential criminal penalty for non compliance with Visitor notices, and potential civil or disciplinary action for misuse of force.

The Visitor has several duties. Regulation 4(2) requires the Visitor to act independently, impartially and in the public interest. Regulation 4(4) requires the Visitor to pay particular attention to children under guardianship or custody of the Chief Executive under the Children and Young People (Safety) Act 2017, Aboriginal and Torres Strait Islander children, and children with physical, psychological or intellectual disability. Regulation 4(11) gives the Visitor the same power to visit and inspect a training centre as the Training Centre Visitor has under section 16 of the Youth Justice Administration Act 2016, but only to the extent relevant to Part 7A. The Visitor also has a duty to report annually by 30 September on the work of the previous financial year, and may prepare special reports at any time. The Minister must table those reports in Parliament within specified timeframes (six sitting days for annual, two weeks for special). The Visitor has the right to require any person (other than the Court) to provide information, produce documents, or attend and answer questions. That right is backed by a $5,000 penalty for non compliance without reasonable excuse. The Visitor may also take possession of, copy, or extract from any document produced. The child subject to a detention order has the right to request contact with the Visitor under regulation 5(1). That right extends also to the child's guardian, relative, carer, or any person providing support to the child. If the request is made to the Chief Executive of the Department under the Youth Justice Administration Act 2016, that Chief Executive must advise the Visitor of the request within two days. This creates a statutory right of access to the oversight body, but it does not guarantee that the Visitor will act on the request, only that the request will be forwarded. Employees of the Adelaide Youth Training Centre have the duty to use force only in accordance with regulation 8. That means they may only lock doors or physically restrain a child during an assessment or treatment session, as a last resort, in the least restrictive way, for the shortest period possible, and in compliance with any code of practice. If they use physical restraint, they must report it as soon as practicable to the Chief Executive of the department assisting the Minister in administering the Criminal Law Consolidation Act 1935 and to the Visitor. Failure to report may not be a direct offence under these regulations but could breach other laws or employment policies. The child has no express statutory right to refuse assessment or treatment, because the order is made by a court and the regulations assume compliance. The principles in regulation 7(1) are framed as duties on the providers, but they are not enforceable by the child through these regulations. A child could potentially challenge a departure from the principles through judicial review of the treatment order or through a complaint to the Visitor, but those pathways are indirect and uncertain.

The only penalty created by these regulations is in regulation 4(9): a maximum of $5,000 for a person who, without reasonable excuse, refuses or fails to comply with a Visitor's notice to provide information, produce a document, or attend and answer questions. This penalty applies to any person, not just those directly involved in the treatment scheme. It could catch a government official, a private contractor, or even a family member who is asked to provide information and refuses. The penalty is relatively modest for a body corporate but could be significant for an individual. The enforcement mechanism is not specified; presumably it would be through prosecution in the Magistrates Court for an offence against the regulations. The regulations do not create any penalty for a child who refuses to attend assessment or treatment, because the child is already subject to a detention order and can be physically compelled under regulation 8. The use of force itself is not penalised, but any excessive or improper use could lead to charges under the criminal law (assault, false imprisonment) or disciplinary action under the Youth Justice Administration Act 2016 or the code of practice. Regulation 8(6) applies section 33(2), (3) and (4) of the Youth Justice Administration Act 2016 to any action taken under these regulations. That section likely deals with the use of force generally in training centres and imposes additional reporting or oversight requirements. The enforcement of the principles in regulation 7(1) is left to professional bodies, the Visitor's oversight, and potentially civil proceedings for negligence if a child is harmed by assessment or treatment that fell below the stated standards. The regulations do not create a statutory cause of action for breach of the principles. Non compliance with the treatment order itself is a matter for the Youth Court: the court that made the order could revoke or vary it, or take other action under the Act, but the regulations do not address that. Overall, the enforcement architecture is thin. The main lever is the Visitor's power to demand information and documents, backed by the $5,000 penalty. Beyond that, the scheme relies on existing criminal, professional and disciplinary frameworks, which may not be well calibrated to the specific context of compulsory drug treatment for detained children.

The regulations sit under the Controlled Substances Act 1984 (SA) and explicitly operate subject to the limits of section 54B(3) of that Act, which confines youth treatment orders to children already detained in a training centre until a proclamation expands the scheme. That interaction means the regulations are currently a supplement to the detention regime, not a separate community based pathway. The regulations interact heavily with the Youth Justice Administration Act 2016. The Visitor is defined as the Training Centre Visitor under that Act, and regulation 4(12) expressly confers the visitor scheme functions on that office holder. Regulation 4(11) gives the Visitor the same power to visit and inspect a training centre as the Training Centre Visitor has under section 16 of that Act. Regulation 8(6) applies section 33(2), (3) and (4) of the Youth Justice Administration Act 2016 to any action taken under these regulations, which imports that Act's provisions on reporting and possibly on the permissible use of force. Regulation 8(4) explicitly preserves any powers or obligations the employee has under the Youth Justice Administration Act 2016 or any other Act or law, so the regulations add to rather than replace existing authority. The regulations also interact with the Children and Young People (Safety) Act 2017, because regulation 4(4)(a) requires the Visitor to pay particular attention to children under the guardianship or custody of the Chief Executive under that Act. That means the Visitor must consider whether the child is also subject to child protection orders and coordinate oversight accordingly. The Criminal Law Consolidation Act 1935 is implicated because regulation 8(5)(a) requires that any physical restraint be reported to the Chief Executive of the department responsible for assisting the Minister in the administration of that Act. That likely means the Attorney General's Department or a similar body. That reporting obligation creates a link between the youth treatment order scheme and the criminal justice oversight apparatus. The regulations also reference the accreditation regime under section 56A of the Controlled Substances Act 1984 for drug assessment services and drug treatment services. Those services must be currently accredited; the regulations do not create their own accreditation process. Finally, the regulations do not reference the Health Practitioner Regulation National Law, but because assessments must be conducted by a medical practitioner and treatment by a registered health practitioner, the National Law governs who can practise and what standards apply. The regulations do not purport to override professional obligations; they add to them. There is no interaction with mental health legislation such as the Mental Health Act 2009 (SA), which is notable because compulsory treatment for drug dependence in a detained child could raise issues about whether the Mental Health Act provides parallel or conflicting criteria for involuntary treatment. The regulations are silent on that interaction, which may create legal uncertainty if a child is subject to both regimes.

The Controlled Substances (Youth Treatment Orders) Regulations 2021 were made on 18 November 2021, gazetted the same day at page 4047, and commenced on 21 November 2021 under regulation 2. The commencement date is the same day that Part 7A of the Controlled Substances Act 1984 came into operation, as enacted by the Controlled Substances (Youth Treatment Orders) Amendment Act 2019. The legislative history note indicates there have been no amendments to these regulations since commencement. The regulations remain in their original form. However, the entire scheme is contingent on a future proclamation by the Governor under section 54B(3) of the Act to expand youth treatment orders beyond children already detained in a training centre. If that proclamation is made, these regulations will need amendment, particularly regulation 7(2)(a) which currently requires assessment and treatment to take place within the Adelaide Youth Training Centre. That limitation would become obsolete if the orders extend to community settings or other facilities. Similarly, regulation 8 on the use of force is drafted specifically for the training centre setting; it would need substantial revision if the scheme were to apply to children outside detention. The regulations appear to be designed as an interim framework pending that proclamation. Given the political and legal sensitivity of compulsory drug treatment for children, a proclamation may be slow to materialise, meaning the regulations may operate in their current limited form for years. The absence of amendment history also means there is no accumulated administrative experience or regulatory clarification to guide interpretation. Practitioners and providers must work from the bare text, with no extrinsic material such as explanatory statement or second reading speech incorporated into the regulations themselves. The user should monitor for any future regulations that amend or replace these, particularly if the proclamation occurs or if the Visitor scheme proves unworkable and requires refinement.

The source text for these regulations contains no reference to any litigation, and no cases are cited. As of the regulations' commencement in November 2021, the scheme is relatively new and narrow in application. Only children already detained in a single training centre (Kurlana Tapa) can be subject to youth treatment orders, and only a small number of orders are likely to have been made. The likelihood of reported litigation is therefore low but not zero. Potential grounds for challenge include: that the use of force under regulation 8 breaches a child's common law rights or exceeds the authority granted by the Act; that the Visitor's information gathering powers impinge on legal professional privilege or the privilege against self incrimination; that the principles in regulation 7(1) create enforceable expectations that were not met, giving rise to judicial review of the treatment order or a negligence claim; or that the regulations are ultra vires the Act because they go beyond what section 54L and 54N authorise. The Visitor scheme's conferral on the Training Centre Visitor could also be challenged as creating a conflict of interest, since that person already oversees the training centre and might be reluctant to criticise conditions that affect drug treatment. The courts have not yet had occasion to interpret key terms such as "reasonable excuse" in regulation 4(9), "last resort" or "least restrictive way" in regulation 8(2)(b), or what constitutes a "code of practice" for the purposes of regulation 8(3). Until a case arises, these terms remain ambiguous. Practitioners should advise clients that the regulations have not been tested and that any litigation would be on largely novel grounds. The limitation of the scheme to detained children may itself be a constitutional safeguard, because a court might be less willing to uphold compulsory treatment for children not already deprived of liberty. If the Governor later proclaims an expansion, the litigation risk will increase significantly, as community based compulsory treatment of children for drug use raises more acute liberty and parental rights issues. For now, the litigation history is a blank slate, which is both an opportunity for early judicial clarification and a risk of unpredictable outcomes.

The most significant gotcha is the limitation of the entire scheme to children already detained in a training centre. A practitioner who reads the Act without careful attention to section 54B(3) and the notes in the regulations might think youth treatment orders are available for any child. They are not. The regulations are explicit: assessments and treatment must take place within Kurlana Tapa (regulation 7(2)(a)), and the use of force powers are tied to that location. That means the scheme is essentially an adjunct to detention, not a standalone diversionary measure. Any legal advice that assumes broader application is wrong until a proclamation is made. The second gotcha is the visitor scheme functions being conferred on the Training Centre Visitor. That person already has duties and relationships within the youth detention system. The independence required by regulation 4(2) may be difficult to maintain in practice if the Visitor is reliant on the same department for resources and cooperation. The regulations try to insulate the Visitor from Ministerial control, but the practical independence of a person who is already an insider is questionable. Third, the use of force power in regulation 8 is confined to "any period in which an assessment of the child is being undertaken, or treatment is being provided." That raises questions about when a session begins and ends. If an assessment runs over time or is interrupted, the power to restrain may lapse, leaving the employee in a difficult position. The regulation does not define "period" and does not address intervals between sessions. Fourth, the requirement to report physical restraint "as soon as practicable" to two separate bodies is ambiguous. The Chief Executive under the Criminal Law Consolidation Act 1935 might be a person within the Attorney General's Department, not a person at the training centre. The logistics of reporting may be cumbersome, and failure to report may not be penalised under these regulations but could be treated as a breach of duty under the Youth Justice Administration Act 2016 or as misconduct. Fifth, the principles in regulation 7(1) are broad and potentially conflicting. For example, taking into account "any less restrictive means" (paragraph (e)) sits uneasily with the fact that the child is already in detention and the order is compulsory. A provider could be criticised for failing to consider community based treatment that is not available to a detained child. The principles create a target for litigation but no clear safe harbour. Sixth, the Visitor's information gathering power in regulation 4(7) does not expressly protect legal professional privilege, client legal privilege, or the privilege against self incrimination. The only explicit exception is for the Court. A person receiving a notice could argue that a "reasonable excuse" includes a claim of privilege, but that is not settled. Until a court rules, recipients must decide whether to comply and risk waiving privilege, or refuse and risk a $5,000 penalty. Seventh, the regulations do not address what happens if the accredited drug assessment service or treatment service is unavailable, or if a medical practitioner or registered health practitioner is not willing to provide services on site. The scheme could stall due to lack of accredited providers. Finally, the code of practice for use of force under regulation 8(3) must be prepared or specified by the Minister. If no code exists, employees have only the general standards in regulation 8(2) to guide them, which increases legal risk.

For employees of the Adelaide Youth Training Centre, compliance begins with understanding the limits of the use of force power. Before resorting to locking a door or physically restraining a child, the employee must be satisfied that an assessment or treatment session is actually being conducted at that time. The force must be a last resort, meaning all other reasonable means of keeping the child at the centre have been tried or considered. It must be the least restrictive way, so a locked door should be preferred over physical restraint if both achieve the same result. The duration must be the shortest possible, so the employee should release the door or cease restraint as soon as the session ends. The employee must also comply with any code of practice issued by the Minister; if no code exists, they should act conservatively and document their reasoning. Any physical restraint must be reported as soon as practicable to the Chief Executive of the department assisting the Minister in administering the Criminal Law Consolidation Act 1935 and to the Visitor. The employee should keep a contemporaneous written record of the incident, including the time, duration, reason, and the names of any witnesses. For accredited drug assessment services and accredited drug treatment services, compliance means ensuring that every assessment or treatment session occurs within Kurlana Tapa (until the proclamation changes that requirement), that assessments are conducted by a medical practitioner acting on behalf of the accredited service, and that treatment is provided by a registered health practitioner of the relevant kind acting on behalf of an accredited service. The treatment must follow the treatment and care plan prepared for the child. The providers must also observe all the principles in regulation 7(1). That means using evidence informed methods and clinical tools, taking a child focused approach, giving priority to the child's mental physical and social development, considering whether less restrictive means exist, ensuring cultural safety, accounting for trauma, and being age and developmentally appropriate. Providers should document how they have addressed each principle in the clinical record. For the Visitor, compliance means acting independently and impartially, paying particular attention to the vulnerable groups listed in regulation 4(4), exercising the visitor and inspection powers as needed, and preparing the annual report by 30 September each year. The Visitor should also handle requests to be contacted under regulation 5 promptly and respond to Ministerial referrals. The Visitor should issue written notices under regulation 4(7) only when there is reason to believe the person can provide relevant information, and should specify a reasonable period for compliance. The Visitor should respect that the Court is exempt and should consider legal privilege issues before enforcing a notice. For the Minister, compliance means establishing the visitor scheme (which appears to be done by conferring functions on the Training Centre Visitor), tabling the annual report within six sitting days, and tabling any special report within two weeks. The Minister must also prepare or specify a code of practice for the use of force under regulation 8(3) if one does not already exist. For the Chief Executive under the Youth Justice Administration Act 2016, compliance means forwarding any request to contact the Visitor to the Visitor within two days of receipt. For any person who receives a notice from the Visitor, compliance means providing the information or document within the specified period, or attending as required. If the person believes they have a reasonable excuse, such as legal privilege, they should seek legal advice before refusing, as the penalty is $5,000. The safest course is to comply and, if necessary, claim privilege over specific documents or answers, rather than refusing entirely.