Opinion Piece by Law Society President Ante Golem: Government’s Disregard for Rule of Law a Dangerous Precedent
Published in The West Australian on Thursday, 13 April 2023
Our democracy and structures of government are underpinned by the rule of law.
Fundamental to the rule of law is the concept that all persons and agencies within executive government are bound by and should comply with the laws enacted by the legislature to protect the rights of individuals in our society.
That is particularly so if the individuals are children and young people — even more so if they are in the care and control of the State.
When the Chief Justice of Western Australia, the Honourable Justice Peter Quinlan, spoke about the rule of law in his presentation at the Sir Francis Burt Oration last year, he said: “It does not take much imagination to see that if executive governments take the view that decisions of courts are simply one point of view among many, or that the executive may take the view that a decision is wrong in law and need not be followed, the rule of law will not long survive.”
It is therefore a very serious matter that the Department of Justice has continued to unlawfully manage children at Banksia Hill and Unit 18 Casuarina since the Order of the Supreme Court of our State last August that the solitary confinement of children for more than 20 hours a day is unlawful.
While severe staff shortages continue to be a problem, the court found and made it clear that they were no justification for a practice that was not authorised by the law.
Despite that finding, the superintendent is making confinement orders against all or large groups of detainees in whole cell blocks because of staff shortages, and not because of anything to do with the individual detainee.
The current Commissioner’s operating policies and procedures on behavioural management allow for custodial officers to impose solitary confinement on children indefinitely, with no requirement for minimum times out of cell.
Those procedures continue to apply despite the court making it clear that the Young Offenders Act 1994 did not give custodial officers that power.
It is unsurprising that this unlawful management has serious direct and indirect consequences. In no order of priority, they are:
- Banksia Hill and Unit 18 Casuarina are not fit for purpose;
- The work of the Children’s Court is compromised;
- The safety of detainees and staff is significantly compromised;
- It is exacerbating the behaviours of already vulnerable detainees;
- Increased risks of, and realisation of, self-harm and suicide;
- Chronic staff dissatisfaction, attrition rates, and shortages;
- Compromise of the work of the legal profession by denial of proper access to, time with, and information on clients;
- Family of detainees being denied access to and information on their children;
- Compromise of educational, recreational, vocational and cultural programs; and
- Collateral trauma to people who work in the youth justice system.
The State being exposed to actions for compensation by children, to whom it owed a duty of care, for potentially large sums.
The extended periods of cell incarceration are completely inappropriate for these children and this form of punishment is contrary to the object and purpose of the Young Offenders Act. The WA Government needs to urgently look at how it can redirect funding to the programmes that work to reduce the root causes of crime before behaviour escalates, and how to house children appropriately when either bail is inappropriate, or a custodial sentence is to be imposed.
The system is broken if juvenile detainees are being housed in conditions described as cruel and punishing, and as having no rehabilitative effect. This should not be the intent or the impact of our justice system. Immediate action is required. The rule of law in our society is being ignored. We cannot allow this to continue.
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The Law Society of Western Australia is the peak professional association for lawyers in the State. The Society is a not-for-profit association dedicated to the representation of its more than 4,600 members. The Society enhances the legal profession through its position as a respected leader and contributor on law reform, access to justice and the rule of law. The Society is widely acknowledged by the legal profession, government and the community as the voice of the legal profession in Western Australia.