Recommendation 8.3 – Prohibiting solitary confinement in youth detention

Australian Capital Territory

Response: Accept in principle
Status: Further work required

What has been achieved to date

The ACT Government is considering how to best give effect, in legislation and/or policy, to the intent of the full recommendation.

ACT government response July 2024

The ACT Government agrees with the principle of prohibiting isolation as a form of punishment for young people, including young people with disability. Legislation has been enacted in the ACT to prohibit the use of isolation (however described) in youth detention centres as punishment in any circumstance (Children and Young People Act 2008). ACT legislation authorising safe room segregation in youth detention centres provides that it must only be used as a temporary response to behaviour that poses a serious and immediate risk of harm to an individual. It is also only to be used as a last resort, after all other measures to address risk have been exhausted.

ACT legislation authorising segregation ensures that minimum protections are provided for all children and young people, including:

• a requirement to consider the child’s maturity and physical and mental health when making a safe room segregation direction
• meaningful human contact during the period of isolation for all types of segregation direction
• access to the community equivalent standard of health care, including mental health services during the period of isolation for all types of segregation direction
• regular review of the direction and circumstances authorising isolation for all types of segregation direction
• the creation and keeping of detailed records relevant to the period of isolation and access to such records for several relevant bodies with independent oversight of places of detention. This includes the Inspector of Correctional Services, the Public Advocate and Children and Young People Commissioner, and the Aboriginal and Torres Strait Islander Children and Young People Commissioner.

The ACT Government will consider how to best give effect, in legislation and/or policy, to the intent of the full recommendation.

New South Wales

Response: Accept in part
Status: In progress

What has been achieved to date

Youth Justice NSW (YJNSW) has an existing framework of policy and procedures which provides direction and governance for the use of restrictive practices in custodial settings, including such as confinement and segregation (isolation). This framework includes independent and executive level oversight and approvals as provided for in existing legislation. 

YJNSW has begun an internal review for a new project, Practices to Reduce Risk. This project will include restrictive practices, such as segregation and separation, and the use of confinement. A literature review has been completed with the project aiming to be finalised end of 2025. This will include new guidance for staff on using restrictive practices within Youth Justice centres. 

YJNSW completed a custodial operations review at the end of 2024, that marked 5 years on from the implementations of the Lee Shearer Review in 2019. The review involved interviews and meetings with custodial stakeholders, representatives from the Public Service Association, young people, data analysis, and physical inspections. Findings confirmed that the reforms implemented over the past five years have strengthened operations, policies, and practices. This included a review of the use of restrictive practices. 

The Inspector of Custodial Services has confirmed they will inspect all 6 centres in 2025. 

NSW government response July 2024

Many young people in the NSW youth justice system have a suspected or diagnosed disability. The NSW Government acknowledges the importance of keeping young people with a disability safe in youth justice custodial settings. 

The NSW Government accepts this recommendation in part, noting that youth detention in NSW has several existing legislative safeguards in place to guide the safe management of young people in custody, including those restrictive practices, such as confinement and segregation (isolation) is a measure of last resort. Legislation also provides for the independent oversight of all detention centres in NSW and a robust complaints mechanism for young people, which is supported by accessible language documents and other supports to make a complaint.

The NSW Youth Justice system has been engaged in a process of custodial reform over the last 5 years including targeted work to reduce the use of restrictive practices in youth detention centres. 

Also, improving safety of young people in detention under the Youth Justice NSW Child Safe Framework, with improvements to detention centre infrastructure, staff training and development and strengthening internal oversight of the use of force. This work will continue. 

The NSW Government welcomes continued engagement across all youth justice jurisdictions to inform further improvements and harmonisation of practice for young people with a disability in custody.

Northern Territory

Response: Accept in principle
Status: In progress

What has been achieved to date

In the Northern Territory, separation is prohibited from being used for disciplinary purposes and only used to protect a detainee from harm or from damaging property; the reasonable belief a detainee is suffering from an infectious disease; or where a detainee’s request for separation is deemed as appropriate and necessary. 

Separation is subject to strict approval, and the Office of the Children’s Commissioner is notified of each instance of separation. A review of the current practice of separation in youth detention in the Northern Territory is currently underway by the Department of Corrections.

NT government response July 2024

The practice of separation is no longer used in the Northern Territory to discipline detainees and detainees cannot be subject to solitary confinement in their cells. Separation can only be used to protect a detainee from harm or from damaging property and only in accordance with strict approvals and review. The recommendations of the Disability Royal Commission will inform further review of the Youth Justice Act 2005 and Youth Justice Regulations 2006.

Queensland

Response: Accept in principle
Status: Completed

What has been achieved to date

Queensland does not use solitary confinement practices – nil updates.

QLD government response

The Queensland Government remains committed to implementing the recommendations of the Disability Royal Commission. The Queensland Government has updated its responses to a range of Disability Royal Commission recommendations to reflect contemporary Queensland Government policy and commitments.

2025 response

Queensland already protects against practices of solitary confinement in accordance with the Youth Justice Regulation 2016 (Qld). If a detainee is separated for a legitimate purpose, staff ensure access to services and supports and regular observation and welfare checks, with minimum out of room time requirements (unless it is unsafe to do so), to ensure safety and wellbeing. Decisions to use separation must consider the appropriateness of alternative and less restrictive measures and be for the minimum amount of time necessary. 

Youth Justice have existing and established approval processes, record keeping requirements and reporting obligations in relation to use of separation which are routinely reviewed by a range of oversight functions. During periods of separation, youth offenders continue to have access to health and therapeutic services, caseworkers, education, cultural supports and have phone contact with family, legal representatives, and oversight bodies.

South Australia

Response: Accept in principle
Status: Completed

What has been achieved to date

Current policies and practices in South Australia are consistent with this recommendation and has such it has been marked as complete. 

The current South Australian Youth Justice Administration Act 2016 and relevant Regulations include provisions that safeguard against solitary confinement (being the enforced isolation or segregation for any purpose of a child or young person for 22 or more hours in any day) and prohibit the use of isolation as a form of punishment.

SA government response July 2024

Current policies and practices in South Australia are consistent with this recommendation. In South Australia, legislative provisions relating to the use of segregation in youth justice settings include safeguards to prevent solitary confinement. This applies to all children and young people, including those with disability. 

The use of isolation in youth justice settings as a form of punishment is prohibited through the Youth Justice Administration Regulations 2016 (the Regulations). 

The Regulations prescribe the use of isolation, including that it can only be used in limited circumstances, as a last resort and only for as long as is reasonably necessary. There are also a range of approval, reporting and recording requirements in place to monitor its use. The Training Centre Visitor has access to these records through quarterly review of records processes. Under the Regulations, isolation cannot contravene rights outlined in the Charter of Rights for Youths Detained in Training Centres. Children and young people in isolation must not be prevented from contacting staff. They also have access to cultural and clinical support people. In accordance with operational procedure, staff are required to assess and respond appropriately to a range of individual risk factors when managing a young person in isolation, including disability-related needs. This must occur at regular intervals of no more than 30 minutes. 

Further consideration to strengthen existing safeguards around the use of isolation and segregation in legislation will be considered by the South Australian government.

Tasmania

Response: Accept
Status: In progress

What has been achieved to date

The Commission of Inquiry into the Tasmanian Government’s Responses to Child Sexual Abuse in Institutional Settings Report (August 2023) recommended legislative review of the provisions relating to isolation in the Youth Justice Act 1997 (Recommendations 12.32).

A review of Tasmania’s Youth Justice Act 1997 provisions in relation to isolation and solitary confinement is currently underway and due for completion by July 2026.

The terminology and requirements outlined in both the Royal Commission and the Commission of Inquiry recommendations will inform the review process. Internal and external consultation will be undertaken.

The Tasmanian Department for Education Children and Young People is updating the Custodial Youth Justice Isolation procedure to align with the Youth Justice Model of Care, so that procedures reflect a therapeutic approach to isolation practices in youth detention.

TAS government response July 2024

The Tasmanian Government accepts this recommendation. 

The Tasmanian Government is committed to prohibiting solitary confinement in youth detention. This recommendation aligns with the Commission of Inquiry and work has already commenced to deliver on this recommendation.

Victoria

Response: Accept
Status: Completed

What has been achieved to date

On 27 August 2024, the Victorian Government passed the Youth Justice Act 2024 expressly prohibiting the use of solitary confinement.

VIC government response July 2024

We accept this recommendation in full.

We have existing legislation policies and procedures in place that ensure solitary confinement is never used in Youth Justice custody.

Youth Justice only uses isolation in custody as a last resort, where all other reasonable steps have been taken. It is only used to ensure the safety and security of young people and the precinct.

Isolation is never used as a punishment. The Youth Justice Custodial Operating Manual sets out extensive accountability and reporting mechanisms for its use. All young people, including those with a disability, have access to health care while in isolation.

We will also introduce a standalone legislative framework for Youth Justice in Victoria, called the Youth Justice Bill.

It will include a robust and protective custodial framework to uphold young people’s rights.

It will also ensure young people receive ongoing access to health practitioners and supports in a way that responds to their needs, including disability needs.

Western Australia

Response: Accept in principle
Status: Further work required

What has been achieved to date

The Department continues to focus on planning and delivering new infrastructure, new services and a new model of care, thereby advancing immediate priorities in the youth justice portfolio to continue to ensure the safety of young people, staff, and the community. 

WA government response July 2024

The WA Government accepts in principle this recommendation.

What the Disability Royal Commission said in the final report

States and territories should:

a) introduce legislation to prohibit solitary confinement in youth justice settings (being the enforced isolation or segregation for any purpose of a child or young person for 22 or more hours in any day)

b) introduce legislation to prohibit the use of isolation (however described) in youth detention centres as punishment in any circumstance

c) review legislation, policy and procedures to ensure children with disability are not subjected to isolation practices amounting to solitary confinement

d) ensure legislation authorising isolation (including lockdowns) in youth detention centres provides for its use:

• as a temporary response to behaviour that poses a serious and immediate risk of harm to an individual
• as a last resort after all other measures to address risk have been exhausted
• for a period that must not exceed a specified number of hours in any day

e) ensure legislation authorising isolation (including lockdowns) in youth detention centres provides at a minimum the following protections for children with disability:

• a requirement to take into account the child’s disability needs before any isolation period is authorised
• meaningful human contact during the period of isolation
• access to the community equivalent standard of health care, including mental health services during the period of isolation
• regular review of the order and circumstances authorising isolation
• the creation and keeping of detailed records relevant to the period of isolation and the provision of a copy of such records to the relevant body with independent oversight of places of detention (such as the Inspector of Custodial Services).

More recommendations

View progress on other recommendations made by the Royal Commission.