“Youth justice management has decided that they, like adult corrections, are a law unto themselves. Oversight simply doesn’t apply. They are getting away with this because the ACT government condones that conduct,” writes legal columnist HUGH SELBY.

No later than Wednesday, our youth justice management decided that it, like adult corrections, were a law unto themselves.

Oversight is simply not a process that applies to them. They are getting away with this because the ACT government condones that conduct.

ABC News on March 27 reported some extraordinary facts in a story of police confirming they were investigating a complaint of assault against a detainee at the Bimberi Youth Justice Centre, in Kenny, by an employee.

Let’s start with pertinent extracts from that news article and weave in some law.

Vanessa Turnbull-Roberts, the Aboriginal and Torres Strait Islander Children and Young People Commissioner, was refused access to Bimberi on Wednesday.

Ms Turnbull-Roberts was appointed in February 2024 under an act passed in 2022. Her functions as commissioner include to, “ensure the commissioner is accessible to Aboriginal and Torres Strait Islander children and young people” (section 11.2.c)

The commissioner is now allowed to visit youth detainees between 4pm and 5pm every day, and make additional appointments, subject to the convenience of Bimberi management.

She is reported as saying that “her office needed access to Bimberi whenever necessary”.

Wanting to make sure that such access is not available is the Director General of Community Services, Catherine Rule.

She is reported in the same ABC article as having said that, “she acknowledged the role of all oversight agencies, but that for operational and safety reasons Bimberi management had asked Ms Turnbull-Roberts to make an appointment prior to arriving on Wednesday.”

Ms Rule said that, because Ms Turnbull-Roberts arrived on Wednesday morning without an appointment, staff were “unable to accommodate” the commissioner’s visit.

Some unnamed government spokesperson is reported to have said to the ABC that: “A detailed email was sent to all oversight visitors requesting all oversight visits be scheduled outside school hours to minimise disruption to young people’s education, appointments, programs and supports.

“After discussions with oversight visitors, the ACT government sought to formally confirm our legal advice in support of the position taken [and] a further detailed email was sent to all oversight visitors confirming that actions undertaken by Bimberi in relation to weekly routine visits is within… legislative parameters.

“This approach aligns with our commitment to maintaining effective oversight and co-ordination while adhering to legislative requirements.”

That explanation is blather. It is spin. It is wrong.

The law depends on who or what you are

It so happens that the AFP is investigating an allegation that a Bimberi staff member assaulted a youth detainee some months ago. The AFP received the complaint last week.

These questions immediately arise:

• What is the explanation for the delay of some months in the AFP learning of the complaint?
• Is the complainant still detained or now released?
• Are the AFP investigators also required to come only between 4pm and 5pm or by appointment?
• If so, what is the legal basis for controlling the AFP doing their job?

The starting point for the law applying to visits by the commissioner is the Children and Young People Act 2008. Sections 138 and 139 set out principles applying to the treatment of young detainees and those awaiting a hearing and/or sentence. High up the list is respect and protection of their human rights and ensuring decent, humane and just treatment.

The minimum conditions for detention include (section 141.1.g) reasonable opportunities to receive visits from family members, significant people and accredited people. Ms Turnbull-Roberts is one of those “accredited people” (section 137.g).

Ms Turnbull-Roberts’ access to Bimberi is specifically covered as, “[she] may, at any reasonable time, enter a detention place for the purpose of exercising [her] functions under this Act.” (section 153A)

Rather nicely, in the immediately preceding section of the act, there is an example of an unreasonable time, as “when an emergency declaration is in force”.

You don’t need to be a lawyer to then grasp that an assertion that what is reasonable is only between 4pm and 5 pm and by appointment is bullshit, nothing less.

This conclusion is then strengthened by this legislated requirement: 

“In particular, the director-general (that’s Ms Rule, for now) must ensure that the overall treatment of a young detainee does not unreasonably deprive the young detainee generally of all communication with any of the following:(b) accredited people” (section 173.4.b)

Which brings us to this key provision: (being section 178)

(1) The director-general must ensure that a young detainee has adequate opportunities for contact with an accredited person, [including] a visit by an accredited person….

(3) However, the director-general may give directions denying or limiting a young detainee’s contact with an accredited person if the director-general suspects on reasonable grounds that the contact may—

(a) undermine security or good order at a detention place; or

(b) circumvent any process for investigating complaints or reviewing decisions under this Act.

It is not possible to stretch this section’s clear language to allow for the absurd limitations that Ms Rule and her Bimberi management are now imposing upon Commissioner Turnbull-Roberts. 

What’s next?

Ideally Ms Rule will issue a media release that she and her officers were poorly advised about their obligations under the Children and Young People Act. Henceforth Commissioner Turnbull-Roberts will be welcomed. 

Failing that correction, Ms Turnbull-Roberts will need to initiate court action to compel those standing in her way to abide by the law so that she can do her job. (I can point her to a helpful 1980s appellate decision.)

Hugh Selby, a former barrister, is the CityNews legal columnist.