Banksia Hill juvenile detention Supreme Court challenge looks to ancient law to help teenagers

Banksia Hill juvenile detention Supreme Court challenge looks to ancient law to help teenagers

Pondering centuries-old legal principles is hardly a new concept for Supreme Court judges, but tomorrow is shaping to be a little different. 

Lawyers from Western Australia’s Aboriginal Legal Service are preparing to ask Justice Paul Tottle to consider a legal principle that traces its roots all the way back to before even the Magna Carta’s creation in England in 1215.

But unlike many of the law’s ancient principles, this one has fallen into near disuse, being the subject of just eight Supreme Court decisions over the last two decades.

The fact that the legal team for a group of teenagers detained in WA’s juvenile justice system are looking so far back into history shows how desperate they are for change.

They want some kind of resolution by Christmas, as they prepare to argue the state government has continued to break its own laws by keeping detainees in unlawful conditions – including spending just 10 or 15 minutes outside their cells some days.

What is habeas corpus?

Habeas corpus has been described as one of the “greatest and oldest” remedies a court can grant.

Banksia Hill juvenile detention Supreme Court challenge looks to ancient law to help teenagers
When English law was brought to Australia, so too was the concept of habeas corpus.(ABC South West: Sam Bold)

It formed as a part of English law centuries ago, over time stretching into a broad concept covering everything from bail applications to matters concerning the mentally ill.

In Latin, it translates to something along the lines of “you shall have the body” – in reference to the fact that the prisoner is brought into the courtroom for the judge to hear from directly.

Now, centuries later, it acts as one of the most “essential safeguards” in any legal system that traces its roots back to England, according to former Supreme Court Chief Justice Wayne Martin in one judgement, because it allows a court to check whether a prisoner’s detention is legal or not.

Usually if it’s granted, it results in someone being released from prison entirely.

Someone can be seen playing with a ball in a fenced yard.
Lawyers for the young detainees hope there will be some change in their circumstances before Christmas.(Supplied)

The last time that happened in WA was in 2014 when Michael Dennis John Tulloh, who had been sentenced to 15 years in prison for a drug-related offence, was released after the court found his sentence had been incorrectly calculated.

Hope for Christmas change

But this time, if they use the principle, lawyers for the teens won’t be asking for them to be released from prison.

Instead, they’re asking for them to be released from what they say is unlawful detention within the prison system.

That comes back to an August case in the same court, where Justice Tottle ruled the state government was breaking its own laws by keeping detainees in what amounted to ‘solitary confinement’.

The ALS says those conditions have continued in spite of the court’s ruling.

The walls of a youth detention centre through a barbed wire fence. A sign partially obscured by grass says 'no entry'.
WA’s Banksia Hill Detention Centre, where most of the state’s juvenile detainees are housed.(Four Corners)

Documents filed in the case show the ALS will argue one of the detainees spent as little as 10 minutes outside his cell at Banksia Hill on one day in early November.

They say he was not let out at all on December 4, after being transferred to Unit 18, at an isolated part of the adult Casuarina Prison.

That’s despite the government insisting conditions at Banksia Hill had improved in recent months, even if Unit 18 was still struggling with staffing issues.

More details will be laid out at Friday’s special hearing, with the court convening so close to Christmas in recognition of the urgency of the matter.

“We’re really worried about the kids’ mental health, and we’re really worried about their physical health too, being locked in their cells,” one of the ALS’s lawyers, Alice Barter, said earlier this month.

“Things often get worse over Christmas and January, especially as the weather heats up and we would really like the kids to be lawfully confined for Christmas.”

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