Children (Detention Centres) Regulation 2015

This Regulation is the Children (Detention Centres) Regulation 2015.

This Regulation commences on 1 September 2015 and is required to be published on the NSW legislation website.

Note.

This Regulation replaces the Children (Detention Centres) Regulation 2010, which is repealed on 1 September 2015 by section 10 (2) of the Subordinate Legislation Act 1989.

In this Regulation—

Aboriginal person means a person who—

is a member of the Aboriginal race of Australia, and

identifies as an Aboriginal person, and

is accepted by the Aboriginal community as an Aboriginal person.

approved laboratory means a laboratory accredited by the New South Wales Ministry of Health and approved for the purposes of this Regulation by the Secretary.

approved property, in relation to a detainee, means—

any of the detainee’s property that has not been surrendered or sent away under section 17 of the Act, or

any of the detainee’s property that has been lawfully acquired by the detainee since the detainee was admitted into a detention centre.

banning order means an order made under clause 37.

centre manager of a detention centre means the person for the time being in charge of the centre.

classified person means—

a person who is a person on remand by virtue of an order referred to in paragraph (c) of the definition of detention order in section 3 (1) of the Act, or

a person who is a person subject to control by virtue of an order referred to in paragraph (a) or (c) of that definition.

Commonwealth Ombudsman means the Commonwealth Ombudsman appointed under the Ombudsman Act 1976 of the Commonwealth.

control order means an order referred to in section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987.

dental officer, in relation to a detention centre, means a registered dentist who is approved by the Secretary as a dental officer for the detention centre.

drug means—

a prohibited drug or prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985, or

a substance listed in Schedule 2, 3 or 4 to the Poisons List under the Poisons and Therapeutic Goods Act 1966, or

any derivative of a substance referred to in paragraph (a) or (b), or

any mixture containing such a substance or derivative.

exempt body means any of the following—

the New South Wales Ombudsman,

the Commonwealth Ombudsman,

the Judicial Commission,

the Australian Crime Commission,

the New South Wales Crime Commission,

the Independent Commission Against Corruption,

the Anti-Discrimination Board,

the Civil and Administrative Tribunal,

the Australian Human Rights Commission,

the Privacy Commissioner,

the Legal Aid Commission of New South Wales,

the Legal Services Commissioner,

an Official Visitor,

the Inspector of Custodial Services.

exempt person means a member of Parliament, a legal practitioner or a police officer.

field officer means—

a field officer appointed by the Aboriginal Legal Service, or

a field officer of any other organisation that provides legal or other assistance to Aboriginal persons or Torres Strait Islanders and that is approved by the Secretary.

government analyst means—

an analyst within the meaning of Schedule 3 to the Road Transport Act 2013, or

a person employed by the owner or operator of an approved laboratory as an analyst.

Justice Health officer means—

the Chief Executive, Justice Health and Forensic Mental Health Network, or

a medical officer or other member of staff of Justice Health and Forensic Mental Health Network authorised by the Chief Executive, Justice Health and Forensic Mental Health Network, to exercise the functions of a Justice Health officer for the purposes of this Regulation.

legal practitioner means an Australian legal practitioner within the meaning of the Legal Profession Uniform Law (NSW).

letter means any letter, card, telegram, electronic mail message, document or other similar form of written communication, whether or not contained in a parcel, and includes an envelope containing any of those things.

medical officer, in relation to a detention centre, means a registered medical practitioner who is approved by the Secretary as a medical officer for the detention centre.

minister of religion means—

a minister of religion (within the meaning of the Marriage Act 1961 of the Commonwealth) who is appointed or authorised by the diocesan or other authority of a religious denomination to minister to members of that denomination, or

a person who is appointed or authorised by a minister of religion referred to in paragraph (a) to minister to members of that denomination.

national security interest detainee means a detainee who is designated as a national security interest detainee under clause 7A.

New South Wales Ombudsman means the Ombudsman appointed under the Ombudsman Act 1974.

Official Visitor means an Official Visitor appointed under section 8A of the Act.

parcel means any parcel, package or other similar article, and includes any parcel or package containing any book, newspaper, magazine or other similar printed material.

prohibited goods means—

money, or

anything that, in the opinion of a centre manager or a juvenile justice officer authorised by a centre manager to open, inspect and read a letter or parcel sent to or by a detainee, is likely to prejudice the good order and security of a detention centre, or

any threatening, offensive, indecent, obscene or abusive written or pictorial matter, or

any offensive, indecent or obscene article, or

anything that, in the opinion of a centre manager or a juvenile justice officer authorised by a centre manager to open, inspect and read a letter or parcel sent to or by a detainee, is intended to facilitate, incite or be used in connection with any unlawful activity.

Secretary means the Secretary of the Department of Justice.

the Act means the Children (Detention Centres) Act 1987.

Torres Strait Islander means a person who—

identifies as a Torres Strait Islander, and

is accepted by the Torres Strait Islander community as a Torres Strait Islander.

visitor includes any person who visits a detention centre, or who visits a detainee who is detained in a detention centre, but does not include a juvenile justice officer while exercising his or her functions as a juvenile justice officer.

Note.

The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.

In this Regulation, a reference to a Form is a reference to a Form set out in Schedule 2.

Notes included in this Regulation do not form part of this Regulation.

The general routine for each detention centre is to be as determined by the Secretary.

The Secretary may determine different general routines for different parts of a detention centre.

The centre manager of a detention centre is to ensure that a notice setting out the general routine for the centre—

is written in English, and in such other languages as are determined by the Secretary in relation to the centre, and

is written in a style that, for persons speaking the language in which it is written, is easy to read and understand, and

is exhibited in a conspicuous position where it may be read by persons who are in the detention centre or part of the detention centre to which it relates.

The languages (other than English) in which such a notice is to be written are to be determined with regard to the languages spoken in the communities from which the centre receives, or is likely to receive, detainees.

The Secretary may require the general routine for a detention centre to be published in such other manner as the Secretary thinks fit.

A detainee must not be admitted into a detention centre otherwise than in accordance with the Act.

As soon as practicable after a detainee has been admitted into a detention centre, the centre manager must ensure that the detainee is informed of the following matters—

the general routine for the detention centre,

the detainee’s obligations as to behaviour and conduct,

the detainee’s rights as to legal representation and as to appeal,

the procedures for seeking information and for making complaints in accordance with the complaints guidelines,

the normal days and hours for visiting,

any other matter about which it is necessary for the detainee to be informed so as to enable the detainee to understand the detainee’s rights and obligations and to adapt to living in the centre.

If practicable, a detainee must be informed of the matters by being given a document in which information relating to each of those matters is written.

A detainee who is being admitted to a detention centre must, on being required to do so by the centre manager, produce for inspection all property in the detainee’s possession.

The centre manager may exercise the centre manager’s functions under section 17 of the Act in respect of any property produced for inspection by the detainee.

The centre manager, in relation to any property that is surrendered under section 17 of the Act—

may make the property available for inspection by the police, if of the opinion that it may constitute evidence of an offence, or

may direct that the property be destroyed, if of the opinion that it may constitute a threat to public health.

When a detainee is received into a detention centre to serve a detention period, the centre manager of the detention centre must give to the detainee information in writing concerning the nature and effect of the sentence.

The information must, in every case, include such information as the Minister determines to be the minimum necessary information.

For the purposes of section 16 (1) of the Act, the following classes of detainees are prescribed—

Class A1(o)—detainees who have been charged with or convicted of a relevant offence and who should therefore be detained within a secure physical barrier at all times unless, in the opinion of the Secretary, the detainee should be classed under paragraph (b), (c), (d), (e) or (f),

Class A1(b)—detainees who, in the opinion of the Secretary, are a high risk to security, safety and good order, and who should therefore be detained within a secure physical barrier at all times,

Class A2—detainees who, in the opinion of the Secretary, are a medium to high risk to security, safety and good order, and who should therefore be detained within a secure physical barrier at all times,

Class B1—detainees who, in the opinion of the Secretary, are a medium risk to security, safety and good order,

Class B2—detainees who, in the opinion of the Secretary, are a low to medium risk to security, safety and good order,

Class B3—detainees who, in the opinion of the Secretary, are a low risk to security, safety and good order,

Unclassified—all other detainees.

In this clause—

relevant offence means any of the following—

murder,

manslaughter,

aggravated sexual assault in company under section 61JA of the Crimes Act 1900,

contaminating or threatening to contaminate goods with intent to cause public alarm or economic loss in aggravated circumstances under section 93O of the Crimes Act 1900,

aggravated sexual assault under section 61J of the Crimes Act 1900 (except in circumstances referred to in subsection (2) (d) of that section),

a terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth or an offence under section 310J of the Crimes Act 1900,

attempting to commit the offences referred to in paragraph (c) or (e) under section 344A of the Crimes Act 1900.

The Secretary may designate a detainee as a national security interest detainee if the Secretary is satisfied that—

the detainee—

has, at any time, been charged with or convicted of a terrorism offence, or

is the subject of a control order made under Part 5.3 of the Commonwealth Criminal Code, or

has any associations with a terrorist organisation, or

is making or has previously made any statement (or is carrying out or has previously carried out any activity) advocating support for any terrorist act or violent extremism, or

has or previously had any personal or business association or other affiliation with any person, group of persons or organisation that is or was advocating support for any terrorist act or violent extremism, and

there is a risk that the detainee may engage in, or incite other persons to engage in, activities that constitute a serious threat to the peace, order or good government of the State or any other place.

Without limiting subclause (1) (a) (iv) and (v)—

advocating support for a terrorist act or violent extremism includes (but is not limited to) any of the following—

making a pledge of loyalty to a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,

using or displaying images or symbols associated with a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism,

making a threat of violence of a kind that is promoted by a person, group of persons or organisation, or an ideology, that supports terrorist acts or violent extremism, and

an association or other affiliation with a person, group of persons or organisation includes (but is not limited to) any of the following—

networking or communicating with the person, group of persons or organisation,

using social media sites or any other websites to communicate with the person, group of persons or organisation.

The Secretary may at any time revoke the designation of a detainee as a national security interest detainee.

The Secretary may refer a matter relating to the designation of a detainee as a national security interest detainee to the Review Panel.

In this clause—

Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth.

terrorism offence means a terrorism offence within the meaning of the Crimes Act 1914 of the Commonwealth or an offence under section 310J of the Crimes Act 1900.

terrorist act has the same meaning as it has in Part 5.3 of the Commonwealth Criminal Code.

terrorist organisation has the same meaning as it has in Division 102 of Part 5.3 of the Commonwealth Criminal Code.

The Secretary may direct that a national security interest detainee be detained separately from any other national security interest detainees.

This clause does not authorise a national security interest detainee to be segregated under section 19 of the Act merely because the detainee is designated as a national security interest detainee.

Each detainee must be supplied with such medical and dental treatment as, in the opinion of a medical officer, dental officer or registered nurse, is necessary to promote and maintain the detainee’s health and well-being.

Each detainee must, as soon as practicable after being admitted to a detention centre, be subjected to an examination by a medical officer or registered nurse for the purpose of determining the detainee’s state of health and the results of the examination must be recorded.

If a medical officer or registered nurse recommends to the centre manager that the employment, diet, exercise or other treatment of a detainee should be varied or modified for reasons of health, the centre manager must carry the recommendation into effect in so far as is reasonably practicable.

If it is not reasonably practicable to carry the recommendation or any part of it into effect, the centre manager must report that fact to the Secretary.

The centre manager may isolate a detainee from other detainees if—

the detainee is suffering from an infectious medical condition, and

there is a risk of other detainees becoming infected with that condition, and

the condition is, in the opinion of a medical officer or a registered nurse, sufficiently serious as to require the detainee’s isolation.

A detainee must be supplied with adequate and wholesome food.

A detainee must be afforded reasonable opportunities to participate in healthy exercise and sporting, recreational and leisure activities.

For the purposes of section 19 (3) of the Act, the following particulars are prescribed in relation to a detainee who is segregated—

the detainee’s name and age,

the date and time that the segregation began and ended,

a description of the place where the detainee was kept segregated,

the means provided to enable the detainee to occupy himself or herself,

the reason for which the detainee was segregated,

the details of any approval given by the Secretary under section 19 (1) (b) of the Act,

the name and official capacity of the person who ordered the segregation.

If, pursuant to an approval referred to in section 19 (1) (b) of the Act, a detainee is segregated for more than 24 hours, the centre manager must ensure that—

notice of that fact is given promptly to the New South Wales Ombudsman, and

the segregation is carried out in accordance with a plan that is subject to monitoring by a psychologist and the person employed in the Department of Justice as Assistant Manager, Client Services, and

the detainee is visited daily by a Justice Health officer, and

if the psychologist or Justice Health officer advises the centre manager that the detainee appears to be at risk of self-harm, the detainee is checked on by a juvenile justice officer—

if the psychologist or Justice Health officer’s advice includes a recommendation that the detainee should be checked on by a juvenile justice officer more frequently than at least once in any 10 minute period, in accordance with that recommendation, or

if there is no such recommendation, at least once in any 10 minute period.