By Cat Woods -
Is the NSW youth justice system failing young people and those who care for them? As questions abound over the frequency and length of solitary confinement in the system, LSJ Online takes a look at the present state of the system and what reforms are possible.
In November last year, a NSW Legislative Council Select Committee on Youth Justice was announced. Shadow Minister for Youth Justice, the Hon. Aileen MacDonald MLC OAM, introduced the motion, and will serve as Chair of the committee. The intention is a comprehensive examination of the causes for offending, effectiveness of diversion and early intervention, high rates of incarceration of Aboriginal children, and evidence-based solutions to reduce offending. Submissions close on 13 March.
Macdonald points out that youth detention in NSW has risen by 34 per cent in just two years and notes that more than 70 per cent of children in custody are unsentenced. Almost 60 per cent are Aboriginal.
MacDonald explains her motivation to LSJ Online. “One of the reasons I felt it was so important to establish this Committee was to create a space for evidence, lived experience and frontline expertise to be properly heard. Before progressing the inquiry, I deliberately spoke with colleagues across the Parliament to ensure there was genuine bipartisan support — because youth justice should never be reduced to politics. It is about getting better outcomes for young people, for staff working in the system, and for the community.”
This inquiry was informed by MacDonald’s study tour, examining youth justice models internationally.
“I believe there are practices from overseas that could be considered in New South Wales, particularly where jurisdictions have demonstrated progress through evidence-based approaches,” she says.
“A key theme I took from Scotland was the emphasis on rehabilitation and reintegration, and a needs-based approach …”
The Diagrama Foundation formed an alternative approach to youth justice in Spain (and since, elsewhere) that has been praised internationally for its education and support-centred approach to youth justice. While the minimum age of responsibility is 10 in most Australian jurisdictions, Spain increased the age to 14.
“In Spain, their current youth justice model has been operating for just over 30 years and, from what I observed, it appears to be achieving better outcomes through a whole-of-community and whole-of-government approach. It involves the family of the young person, the magistrate, police, psychological services and, critically, pathways into employment, education and training. A strong focus is placed on reintegration and rebuilding a young person’s future — not simply on punishment.”
MacDonald adds, “In Scotland, I also observed a system that continues to evolve, including changes over the past year with youth justice centres closing and a greater reliance on secure care settings. A key theme I took from Scotland was the emphasis on rehabilitation and reintegration, and a needs-based approach that looks at what a child requires to stabilise and succeed, rather than only focusing on “deeds” or offences in isolation.”
Alternatives to isolation
MacDonald wants the Committee to examine the practice of isolation and other restrictive interventions.
“From what I saw inside youth justice centres in Spain, isolation is not used as a standard punitive measure. Instead, there is a strong behavioural framework built around incentives and rewards, with clear expectations and therapeutic support,” she says.
“Ultimately, my hope is that this inquiry leads to practical, balanced reform: reforms that support early intervention, rehabilitation and accountability, and that help break cycles of offending while keeping our community safe.”
Prior to announcing the Committee, the NSW Government made a commitment of $23 million for bail supervision, intensive case management and early intervention in regional communities.
Drivers of offending
Robert Tickner AO is the Chair, Justice Reform Initiative and former Minister for Aboriginal and Torres Strait Islander Affairs.
He says, “Youth crime is a complex issue that cannot be addressed through outdated custodial responses. Effective reform must focus on the underlying drivers of offending — including trauma, disability, mental ill-health, family breakdown, housing instability and school disengagement — rather than relying on detention as a default response.”
Tickner adds, “It is important to recognise that formal solitary confinement is not the only harmful practice in youth detention. Many children are routinely locked in their rooms for most of the day — a practice that can be equally damaging but is often not captured by legal definitions of solitary confinement.”
“… the data which is available indicates that a significant majority of children and young people in youth detention have a disability.”
He explains that these practices “compound trauma, worsen mental health, and increase the likelihood of long-term justice system involvement. They are harmful for any person (child or adult) and particularly for children with cognitive or psychosocial disabilities. There is no comprehensive national source of data regarding the number of children and young people with disability in youth detention, but the data which is available indicates that a significant majority of children and young people in youth detention have a disability.”
In NSW, the Inspector of Custodial Services reported 4,401 instances of isolation used as punishment across six youth detention centres between 2019 and 2020. The Inspector also identified practices that effectively sidestep legal limits on confinement, allowing children to spend extended periods locked in their rooms without technically breaching statutory maximums.
Tickner says, “The Disability Royal Commission further found there is no evidence that solitary confinement is an appropriate response to disability-related behaviours and called for its prohibition in youth detention.”
The National Children’s Commissioner has recently recommended that Australian Governments legislate to prohibit solitary confinement practices in child detention facilities and prohibit the use of isolation as punishment in any circumstance (National Children’s Commissioner, 2024, ’Help way earlier!’ How Australia can transform child justice to improve safety and wellbeing, Australian Human Rights Commission, Sydney.).
One of the key recommendations in the Disability Royal Commission was Recommendation 8.3 – Prohibiting solitary confinement in youth detention as detailed in the Commission’s Progress Report 2025.
While Tasmania and Victoria accepted this recommendation, NSW accepted only in part.
Existing framework
In its response, Youth Justice NSW (YJNSW) said that it “has an existing framework of policy and procedures which provide 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.”
Further, YJNSW said it had 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. “
A spokesperson for the Department of Communities and Justice told LSJ Online that: “Youth Justice provides information and access to its centres to a broad range of external parties including parliamentary committees, the Advocate for Children and Young People, Aboriginal Legal Services and Legal Aid and other oversight groups, to provide transparency of centre operations and ensure young people have access to rights-based advocacy and support. Youth Justice will engage with parliamentary committees as required.”
The spokeperson also said, “Youth Justice will restrict a young person, usually to their rooms, as a disciplinary measure for inappropriate behaviour under conditions prescribed by the Children (Detention Centre) Act 1987.”
They added, “A young person can only be confined for a maximum of 12 hours for young people under 16, and 24 hours for young people 16 and over. This includes time that would usually be spent in their rooms in the evening and sleeping. During their restriction period the young person is provided with some means of usefully occupying themselves, including schoolwork, art, and TV or radio.”
In 2018, the Justice Department’s Inspector of Custodial Services issued a report on the “Use of force, separation, segregation and confinement in NSW juvenile justice centres”.
It defined confinement, according to the Children (Detention Centres) Act 1987 (NSW), s. 21(d). as “a form of punishment for misbehaviour which results in a young person being held in their room for up to 12 hours for young people up to the age of 16 years and up to 24 hours for young people 16 years or over.”
Changes to the law
Prior to 2006, young people could be placed in confinement for a maximum of three hours in the case of detainees under 16 years old or 12 hours in the case of detainees 16 years or over. The Children (Detention Centres) Amendment Act 2006 increased these limits to 12 hours and 24 hours respectively.
Actions deemed misbehaviour are broad, including refusal to work or participate in activities; lying; disobedience; stealing; bad language; possession of unauthorised articles; smoking; subversive behaviour; harassment; positive returns to tests for drugs or alcohol; refusal to submit to searching; fighting; and damage to property. Serious misbehaviour includes: insubordination; inciting misbehaviour; possession of a mobile phone, camera or recording equipment (or part thereof); attempted escapes, indecency; manufacture, possession or concealment of weapons; detaining a person against their will; lighting fires; and assault.
Amongst the measures provided for in Section 21 of the Act, are the “Use of force, separation, segregation and confinement in NSW juvenile justice centres exclusion from, or confinement to, a place for a period not exceeding 12 hours or, in the case of a detainee of or over the age of 16 years, not exceeding 24 hours”.
Punishment of a kind referred to in subsection 1(d) may only be imposed on a detainee subject to the following conditions: the detainee shall be provided with some means of usefully occupying himself or herself; if the punishment consists of confinement to a place, the physical environment of the place where the detainee is confined shall, unless otherwise appropriate, be no less favourable than the physical environment of other places occupied by detainees in the detention centre; the detainee shall at all times be visible to, and able to communicate readily with, a Juvenile Justice officer.
In November, the Justice and Equity Centre (JEC) was in the NSW Supreme Court representing a client who was held alone in a cell for 25 days, aged just 17.
Numerous UN instruments and bodies refer to solitary confinement. These include the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as reports by the UN Special Rapporteur on torture and the UN Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Additionally, the Mandela Rules state that solitary confinement should occur “only in exceptional cases as a last resort, for as short a time as possible and subject to independent review.”
In 2023 the UN Subcommittee on Prevention of Torture suspended, then terminated, an Australian inspection visit owing to “a discourteous, and in some cases hostile, reception,” incorrect information, and the inability to access certain places of detention in Queensland and New South Wales.
‘A last resort’
Tickner says, “A 2024 joint statement by Australian and New Zealand Children’s Commissioners and Guardians stated that isolation should be prohibited except where strictly necessary to prevent imminent and serious harm, used only as a last resort, for the shortest possible time, and subject to independent oversight and public reporting.”
Further, he says, “We encourage NSW lawyers and legal institutions to actively engage with the work of the Select Committee and contribute their expertise to advancing evidence-based youth justice reform via the submissions process.”
