BA & Ors v State of Queensland [2026] QCAT 298

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BA & Ors v State of Queensland [2026] QCAT 298 PARTIES: BA (applicant) DC (applicant) FE (applicant) v STATE OF QUEENSLAND (respondent) APPLICATION NO/S: ADL065-22 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 14 May 2026 HEARING DATE: 31.03.25, 01.04.25, 03.04.25, 30.05.25 HEARD AT: Brisbane DECISION OF: Judicial Member Murphy SC, Presiding Member Lumb Member Gaffney ORDERS: The Applicants must, within 14 days of the receipt of these reasons, file in the Tribunal two (2) copies of, and give to the Respondent one (1) copy of: (a) draft proposed final orders giving effect to the reasons in the joint reasons; (b) written submissions of not more than 10 pages in support of the proposed orders sought; and (c) a proposed timetable for the parties to file submissions in respect of the costs of the proceeding. The Respondent must, within 14 days of the receipt of the Applicants’ material filed pursuant to Order 1, file in the Tribunal two (2) copies of, and give to the Applicants one (1) copy of: (a) draft proposed final orders incorporating: (i) any agreed orders proposed by the Applicants; and -- 1 of 202 -- 2 (ii) any different orders sought; (b) written submissions of not more than 10 pages: (i) in response to the orders sought by the Applicants; and (ii) in support of any different orders sought by the Respondent; (c) a proposed timetable for the parties to file submissions in respect of the costs of the proceeding (if the Applicants’ timetable is not agreed). The Applicants must, within 14 days of the receipt of the material filed pursuant to Order 2, file in the Tribunal two (2) copies of, and give to the Respondent one (1) copy of, written submissions of not more than ten (10) pages in response to the Respondent’s submissions and proposed timetable. Unless otherwise ordered, the making of final orders, and orders for submissions on costs, will be determined on the papers following compliance with Orders 1, 2 and 3. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where the applicants were detained at the Cairns watchhouse (which is an adult facility) for varying periods during the claim period – where the applicants were children during the claim period – where the applicants allege the State indirectly discriminated against them by detaining them in an adult facility and imposing 17 conditions that the applicants were unable to comply with – where the applicants sought to amend their statement of contention to include an additional term – where the tribunal dismissed the applicants’ application – whether the applicants have established the State imposed a term upon each of them with which none could comply – whether the State has established that the imposed term was reasonable – whether discrimination is made out – whether the State has acted in a way which is incompatible with any (or all) of the identified human rights – whether the limitation on each of those rights was reasonable or demonstrably justified Acts Interpretation Act 1954 (Qld), s 32C Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 11, s 101, s 106, s 133, s 204, s 205, s 206, Schedule 1 Corrective Services Act 2006 (Qld), s 6 Human Rights Act 2019 (Qld), s 9, s 10, s 13, s 15, s 17, s 25, s 26, s 27, s 28, s 29, s 30, s 32, s 33, s 36, 37, Schedule 1 -- 2 of 202 -- 3 Law Reform Act 1995 (Qld), s 17 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 62 Youth Justice Act 1992 (Qld) Youth Justice Regulation 2016 (Qld) Al-Kateb v Godwin (2004) 219 CLR 56 Azimitabar v Commonwealth (2024) 303 FCR 282 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95 Australian Education Union v Fair Work Australia & Ors [2012] HCA 19 Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 Australian Medical Council v Wilson (1996) 68 FCR 46 Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 Behrooz v Secretary of The Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 Bobeldyk & Anor v Moreton Bay City Council; Eichin & Ors v Moreton Bay City Council [2026] QSC 27 Briginshaw v Briginshaw (1938) 60 CLR 336 BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266 Castles v Secretary of the Department of Justice (2010) 28 VR 141 Catholic Education Office v Clarke [2004] FCAFC 197 Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213 Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441 Chief Executive, Department of Environment, Science and Innovation v Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd [2026] QCA 7 Director of Public Prosecutions v SL (2016) 263 A Crim R 193 Hehir & Anor v Smith [2002] QSC 92 Hurst v State of Queensland (2006) 151 FCR 562 Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623 Jianxian v Minister for Immigration, Local Government and Ethnic Affairs (1991) 23 ALD 778 Johnston v Carroll (Commissioner of Queensland Police Service) [2024] QSC 2 Johnston & Ors v Commissioner of the Queensland Police Service [2024] QSC 2 -- 3 of 202 -- 4 Martin & Anor v Qld Electricity Transmission Corporation [2003] QSC 309 Mizner v State of Queensland (Corrective Services) & Anor [2024] QCAT 468 Mizner v State of Queensland (Corrective Services) [2025] QCA 169 Philipp v State of Queensland (Queensland Police Service) [2025] QCAT 505 Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 PJB v Melbourne Health; Patrick’s Case (2011) 39 VR 373 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 Qantas Airways v Gama (2008) 167 FCR 537 Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415 Re HL (No 2) [2017] VSC 1 State of New South Wales v Amery (2006) 230 CLR 174 State of Queensland v Forest (2008) 168 FCR 532 State of Queensland v Mahommed [2007] QSC 18 Thompson v Minogue (2021) 67 VR 301 Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 75 Waters v Public Transport Corporation (1991) 173 CLR 349 Wills v Whiteside; ex parte Wills [1987] 2 Qd R 284 Youth Empowered Towards Independence Inc v Commissioner of Queensland Police Service & Anor [2023] QSC 174 APPEARANCES & REPRESENTATION: Applicant: A Scott KC, M Jackson and H Edwards instructed by Caxton Community Legal Centre Respondent: C Murdoch KC and J Marr instructed by Crown Law -- 4 of 202 -- 5 Contents Judicial Member Murphy SC............................................................................................ 9 A. THE DISCRIMINATION CLAIM ............................................................................ 10 The Case in Overview and the Issues to be Determined .................................................... 10 Overview of the Issues Arising from the Parties’ Contentions ...................................... 11 Non-Contentious Issues ...................................................................................................... 12 The Background to the Issues and the Context in Which They Arise................................ 13 The Applicants ............................................................................................................... 13 The Cairns watchhouse .................................................................................................. 14 The Youth Justice Act .................................................................................................... 14 “Pleadings” and the Tribunal’s Process ............................................................................. 15 Is Each Applicant’s Case Limited to Periods of Detention of “Two or More Days” ........ 16 Is the Applicants’ Case Confined as the State Asserts? ................................................. 17 What Periods of Detention are “Two or More Days”?................................................... 18 Conclusion as to the Applicable Periods of Detention for Each Applicant ................... 21 What is the Term Imposed on Each Applicant? ................................................................. 21 Principles Relevant to the Framing of the Imposed Term .............................................. 22 How is the Imposed Term Framed? ............................................................................... 22 Can Conditions be Considered Together? ...................................................................... 25 Can Periods of Detention and the Conditions Experienced be Considered Cumulatively? ........................................................................................................................................ 26 Summary: The Imposed Term and the Proper Approach ............................................... 27 What Conditions Did Each Applicant Experience? ........................................................... 27 The Paragraph [8] Conditions ............................................................................................ 28 (a) Children were detained in cells with no natural light ......................................... 28 (c) Children were required to use the toilet in front of other children and on CCTV camera 29 (d) Children could hear adult prisoners screaming and kicking doors..................... 30 (e) Children were held in close enough proximity to adult prisoners that they could (and did) converse with adult prisoners.......................................................................... 31 (f) Children had limited access to visitors, including family and cultural ties ........ 32 (g) Children were subjected to insults from watchhouse officers ............................ 33 (h) Children had limited access to the exercise yard and TV room (all visits to the exercise yard being one hour or less) ............................................................................. 34 (i) Children were not provided with appropriate educational materials or resources 34 -- 5 of 202 -- 6 (l) Child’s sleep was inhibited by various conditions and practices, including hot conditions at night, without air conditioning, roll calls being conducted late at night and children being woken up for showers or breakfast early in the morning ....................... 35 What Conditions Applied to Each Applicant’s Detention?................................................ 43 Are the Applicants “Not Able to Comply” with the Imposed Term? ................................ 44 Serious Disadvantage ..................................................................................................... 44 The Applicants’ Ability to Comply ................................................................................ 48 Summary ........................................................................................................................ 49 Is the Imposed Term Unreasonable: ss 56 and 415 of the Youth Justice Act ..................... 49 The Effect of s 415 on Detention Conceded to be Unlawful ......................................... 51 Is the Imposed Term Otherwise Reasonable? .................................................................... 55 Is Discrimination Excused by s 106 of the ADA? ............................................................. 57 The Application to Further Amend the Statement of Contentions ..................................... 58 Conclusion as to the Discrimination Claim ........................................................................ 60 B. THE HUMAN RIGHTS CLAIM ............................................................................... 60 Section 13 – Acts or Decisions “Under Law” ................................................................ 64 The Relevant Human Rights .......................................................................................... 64 (a) Section 25 – the Right to Privacy ....................................................................... 64 (b) Section 26(2) – Right of the Child to Protection ................................................ 65 (c) Section 30(1) – Right to Humanity and Respect While Deprived of Liberty .... 67 (d) Section 33(1) – Segregation from Adults ........................................................... 68 (e) Section 36(1) – Right to Education .................................................................... 69 Conclusion as to the Human Rights Claim ........................................................................ 69 ORDERS ............................................................................................................................ 70 Member Lumb & Member Gaffney ............................................................................... 70 Introduction ........................................................................................................................ 70 THE INDIRECT DISCRIMINATION CLAIMS .............................................................. 70 Determination of liability ................................................................................................... 70 The burden of proof ............................................................................................................ 70 ‘Pleadings’ and the Tribunal’s process............................................................................... 71 The area of activity in which the alleged discrimination occurred .................................... 72 The pleaded ‘attribute’ ....................................................................................................... 73 Is each Applicant’s case limited to periods of detention of ‘two or more days’? .............. 75 Each Applicant’s evidence ................................................................................................. 75 Approach to the imposition of the alleged terms................................................................ 75 Principles relevant to the framing of the imposed terms ................................................ 75 Is there a ‘primary term’? ............................................................................................... 76 Can conditions be considered together? ......................................................................... 77 -- 6 of 202 -- 7 Periods of detention considered cumulatively? .............................................................. 77 Imposition of terms ............................................................................................................ 78 What terms were imposed on each Applicant during each stay? ....................................... 79 Introductory observations ............................................................................................... 79 Term 8a: Children were detained in cells with no natural light ..................................... 79 Term 8c: Children were required to use the toilet in front of other children and on CCTV camera ................................................................................................................. 80 Term 8d: Children could hear adult prisoners screaming and kicking doors ................. 81 Term 8e: Children were held in close enough proximity to adult prisoners that they could (and did) converse with adult prisoners ................................................................ 83 Term 8f: Children had limited access to visitors, including family and cultural ties ..... 83 Term 8g: Children were subjected to insults from watch-house officers ....................... 84 Term 8h: Children had limited access to the exercise yard and TV Room (all visits to the exercise yard being one hour or less) ....................................................................... 90 Term 8i – Children were not provided with appropriate educational materials or resources ......................................................................................................................... 90 Term 8l: Children’s sleep was inhibited by various conditions and practices, including hot conditions at night, without air conditioning, roll calls being conducted late at night and children being woken up for showers or breakfast early in the morning ................ 90 Term 8m: Children were not allowed to change clothes when detained, including for long periods of time ........................................................................................................ 92 Term 8n: Children were denied adequate pro-social activities to pass the time ............ 92 Term 8p: Children were detained in padded cells .......................................................... 93 Term 8q: Children were clothed only in suicide smocks ............................................... 93 Term 8s: Children had inadequate access to appropriate nutrition ................................ 93 Term 8t: Children were subjected to a poor standard of hygiene................................... 94 Term 8u: Children were unable to use showering facilities in private ........................... 95 Term 8v: Children had limited or no access to information about their situation, including about the time of day and when they could be expected to be transferred..... 96 Was each Applicant ‘not able to comply’ with the terms imposed on him? ...................... 96 The Applicants’ case was run on the basis of ‘serious disadvantage’ ............................ 96 The interrelationship with the imposed terms ................................................................ 97 A temporal consideration ............................................................................................... 97 The expert evidence........................................................................................................ 97 The relevant characteristics of young persons.............................................................. 100 The Applicants’ reliance on the attribute of age .......................................................... 100 The alleged grounds of serious disadvantage ............................................................... 103 Greater or increased risk of recidivism ..................................................................... 103 Greater or increased hardship compared to adults .................................................... 105 -- 7 of 202 -- 8 The Respondent’s case on serious disadvantage .......................................................... 105 Evidence of cumulative effect of separate stays? ......................................................... 107 Evidence regarding exercise yards ............................................................................... 107 BA .................................................................................................................................... 108 The stays ....................................................................................................................... 108 BA’s first stay ............................................................................................................... 108 BA’s second stay .......................................................................................................... 117 DC .................................................................................................................................... 126 DC’s first stay ............................................................................................................... 126 DC’s second stay .......................................................................................................... 137 DC’s third stay.............................................................................................................. 143 FE ..................................................................................................................................... 149 FE’s first stay................................................................................................................ 149 FE’s second stay ........................................................................................................... 149 FE’s third stay .............................................................................................................. 151 FE’s fourth stay ............................................................................................................ 154 FE’s fifth stay ............................................................................................................... 156 FE’s sixth stay .............................................................................................................. 159 FE’s seventh stay .......................................................................................................... 164 FE’s eighth stay ............................................................................................................ 170 FE’s ninth stay .............................................................................................................. 182 FE’s tenth stay .............................................................................................................. 186 Higher proportion of people without the attribute comply/able to comply? .................... 189 Is each of the imposed terms reasonable? ........................................................................ 189 Introduction .................................................................................................................. 189 Breach of s 56(4) of the YJA? ...................................................................................... 190 Breach of youth justice principles? .............................................................................. 193 Was each of the imposed terms reasonable? ................................................................ 194 Has the Respondent established that the exemption under s 106 of the ADA applies? ... 195 Summary .......................................................................................................................... 195 THE HUMAN RIGHTS CLAIMS ................................................................................... 195 The ‘piggyback’ aspect of these claims ........................................................................... 195 Applicable provisions ....................................................................................................... 195 Acting or making a decision? ........................................................................................... 196 Section 25(a) – right to privacy ........................................................................................ 197 Section 30(1) – treatment with humanity and respect ...................................................... 198 Section 33(1) – children must be segregated from adults ................................................ 200 -- 8 of 202 -- 9 Section 36(1) – right to education .................................................................................... 201 Section 26(2) – right of child to protection ...................................................................... 201 Subsection 58(2) of the HRA ........................................................................................... 201 Summary .......................................................................................................................... 201 Relief ................................................................................................................................ 201 ORDERS .......................................................................................................................... 202 Judicial Member Murphy SC [1] The applicants were each detained at the Cairns watchhouse for varying periods between 23 June 2021 and 23 June 2022 (‘claim period’). They were then aged between 13 and 17. [2] The applicants’ then status as children and their detention at the Cairns watchhouse - which is designed and used as an adult facility - underpin the instant claims by each against the State of Queensland under the Anti-Discrimination Act 1991 (Qld) (‘ADA’) and the Human Rights Act 2019 (Qld) (‘HRA’). [3] Each applicant’s case devolves from two central propositions. First, children should not be detained in an adult facility. Second, doing so is contrary to their emotional, psychological and developmental needs. [4] The Youth Justice Act 1992 (Qld) (‘YJA’) – which provides a code for the treatment of children in the criminal justice system separate from adults – highlights those propositions and provides context to a number of aspects of each applicant’s case. For example, Principle 19 provides “[a] child detained in custody should only be held in a facility suitable for children”.1 [5] The YJA has a broader context, deriving for the most part from international instruments. In that respect it has been held: It is generally recognised under these treaties, as it is implicitly recognised under the [Victorian] Charter, that children are especially vulnerable to physical and emotional harm and negative formative influence in criminal detention and to discriminatory exclusion in the operation of the processes of the criminal law, and that governments and courts must take and adopt all necessary actions and procedures to protect them from that harm and influence and ensure their effective participation in those processes.2 [6] The propositions just referred to underpin and provide context for the instant claim. However, the alleged indirect discrimination depends upon satisfying section 11 of the ADA and the principles relevantly applicable to it. Equally, the human rights claim depends upon satisfying the relevant provisions of the HRA. 1 Youth Justice Act 1992 (Qld) (‘YJA’), sch 1. See also, for example, Principles 3 and 6. For its part, the State does not suggest that “accommodating children in the Cairns watchhouse for a period of more than two days is something that is desirable or that that’s something that shouldn’t be avoided if possible”: Transcript of proceedings, 30 May 2025, 1-44 ll 1-5 (‘Transcript of proceedings on 30 May 2025’). 2 Director of Public Prosecutions v SL (2016) 263 A Crim R 193, 196 [7] (‘DPP v SL’) per Bell J. -- 9 of 202 -- 10 A. THE DISCRIMINATION CLAIM The Case in Overview and the Issues to be Determined [7] Section 11 of the ADA provides: (1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term— (a) with which a person with an attribute does not or is not able to comply; and (b) with which a higher proportion of people without the attribute comply or are able to comply; and (c) that is not reasonable. (2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example— (a) the consequences of failure to comply with the term; and (b) the cost of alternative terms; and (c) the financial circumstances of the person who imposes, or proposes to impose, the term. (3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination. (4) In this section— term includes condition, requirement or practice, whether or not written. Example 1— An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it. Example 2— An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress [8] Four broad issues arise: What term (or terms)3 was (or were) imposed; is each applicant unable to comply with the term because of an attribute possessed by each; is a higher proportion of people without the attribute able to comply; and is the term reasonable? 3 Acts Interpretation Act 1954 (Qld) s 32C(a) (‘AIA’). -- 10 of 202 -- 11 [9] It is for the applicants to each prove the first three of those requirements. If those matters are established, it is for the State to prove on the balance of probabilities that the term is reasonable (s 11(1)(c)).4 [10] As is clear from the terms of s 11, the identification and proper framing of the imposed term is fundamental to the application of the section; the additional s 11 requirements cascade from it. Overview of the Issues Arising from the Parties’ Contentions [11] The reasons below will seek to explain the conclusion that, respectfully, the State misapprehends or misstates the applicants’ case in respect of the imposed term which has significant consequences which flow to an analysis of the remaining s 11 requirements. [12] Those propositions will be explained further. A sketched overview here commences with understanding that the applicants assert fundamentally that the imposed term has two components: a requirement5 that the child applicants serve periods of detention during the claim period in an adult facility, and a concurrent requirement that, as a result of that detention, they were required to experience 17 separate conditions. [13] The applicants’ contention that they were unable to comply with that concurrent term relies primarily on the evidence of the State’s expert witness, child psychiatrist Dr Michael Beech. The applicants contend they could not comply because their attribute (‘age’)6 necessarily created for them “more complex needs” which were not met in an adult facility with its attendant conditions. The requirement to serve detention in that facility and resultingly being required to experience those conditions resulted in “aversive emotional states and dysregulation”. [14] Thus, the applicants assert discrimination by reason of the cumulative effect upon them as children of 17 conditions arising from varying periods of detention in an adult facility during the claim period: “… the applicants’ case does not rely on evidence of specific occurrences, but on the critical question of conditions being imposed during the claim period.”7 [15] It is for the applicants to identify and prove the imposed term central to each of their cases. The State’s approach has the applicants meeting a case they did not seek to make. [16] In broad terms, that proposition derives from the State’s insistence that if discrimination is to be proved it starts with each of the 17 separate conditions being seen as the imposed term and proceeds by insisting each applicant prove each term was imposed in each separate period of detention during the claim period. [17] That approach sees the State insisting in turn that each applicant prove they were each unable to comply with each separate condition and with the State proving that each separate condition was reasonable. That approach was adopted in the State’s final 4 Amendments affecting this requirement made by the Respect at Work and Other Matters Amendment Act 2024 (Qld) do not apply to the instant proceedings: see Anti-Discrimination Act 1991 (Qld), s 285AA (‘ADA’). 5 ADA s 11(4): “term” includes a requirement. 6 ADA s 7(f). 7 Applicants’ Outline of Closing Submissions dated 27 May 2025, 5 [18] (‘Applicants’ final written submissions’). -- 11 of 202 -- 12 written submissions. However, the State’s case altered in oral submissions. There it was conceded that conditions occurring together during a particular period of detention (called a “constellation of terms” in argument) could be considered together. That change of position has additional broader ramifications. [18] The identification and proper framing of the imposed term falls within that overview and is the first s 11 issue to be determined. Notwithstanding the parties’ different assertions in that respect, they agree it is necessary to determine which, if any, of the 17 conditions alleged by the applicants are established for each of them. [19] Beyond the considerations arising from the parties’ different approaches to the imposed term, the issues between the parties as to the applicants’ ability to comply (s 11(1)(b)) pertain to the application of what was said in Hurst v State of Queensland (‘Hurst’)8 as to the use of “serious disadvantage” as a “test” or measure of inability to comply. [20] The parties’ different approaches to the imposed term also fundamentally impact a consideration of its reasonableness (s 11(1)(c)). Section 11(2) requires a consideration of “all the relevant circumstances of the case”, including those exemplified in the subsection. [21] A separate and additional issue arises from the applicants’ contention that the term imposed upon them cannot be reasonable because of “conditions imposed on an otherwise lawful… detention”.9 That argument involves in turn a dispute as to the proper construction of s 415 of the YJA which retrospectively amends the then- applicable s 56 of that Act. Section 56 provides the lawful foundation for the detention of the applicants. [22] The State contends that any discriminatory conduct found to have occurred is excused by s 106(1)(b) of the ADA: any actions were “necessary to comply with or [were] specifically authorised by … an order of a court”. The applicants argue s 106 has no application to the instant circumstances. [23] The final contentious issue emerges from an application by the applicants to further amend the Statement of Contentions to add an additional paragraph [8] condition. At the hearing, the tribunal indicated that, having considered the parties’ respective written submissions10, the application would be dismissed for reasons to be given with these reasons. Non-Contentious Issues [24] Section 101 of the ADA prohibits discrimination in performing a function or exercising a power under a State law or for the purposes of a State Government program. The State admits that in detaining the applicants at the Cairns watchhouse it was so acting. 8 (2006) 151 FCR 562 (‘Hurst’). 9 Applicants’ final written submissions 22 [118]. Reliance is placed upon what was said by Gleeson CJ in Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486, 494-495 [10] (‘Behrooz’). 10 Neither party sought to orally supplement their written submissions. -- 12 of 202 -- 13 [25] The State also admits that at all relevant times it was responsible for the detention of the applicants.11 The State is vicariously liable for the actions of its “workers or agents”.12 Neither party raises any issue in that respect. [26] The parties agree the comparison groups required by s 11(1)(b) are:13 … an adult remanded in the custody of the Queensland Police Service at the Cairns watchhouse, or simply an adult remanded in custody (base group) [and] children remanded in the custody of the Queensland Police Service at the Cairns watchhouse (comparator group)”. (Bold emphasis in original). [27] The State admits in final oral submissions that if the required imposed term and an inability to comply with the same are both established for an applicant, a higher proportion of adult detainees in the Cairns watchhouse are able to comply.14 [28] The “attribute” required by s 11 is not alleged, in terms, in the Fourth Amended Statement of Contentions upon which the hearing proceeded (the “SOC”).15 Nor is the issue raised in the State’s Response. The parties’ originating documents; the terms of the agreed comparison groups; and the manner in which each party’s case was run clearly assume the attribute of “age”16 is relied upon, responded to, and satisfied by each applicant being a child during the claim period. Satisfaction of that attribute is not necessarily dependent upon satisfying a specific age; it can, as in the instant case, be satisfied by an applicant belonging to an identifiable group or description.17 The Background to the Issues and the Context in Which They Arise The Applicants [29] BA was born on [redacted] September 2004. He was aged between 16.9 and 17.9 during the claim period. He was born in Papua New Guinea but lived in Far North Queensland. He has an intellectual disability and had been assessed as having a reading comprehension of 88 per cent. He could be defiant and oppositional. He had a short attention span and concentration problems. He had received specialist support at school. He had been expelled from school in 2021. BA has a substantial criminal history which commenced in 2018 and includes multiple burglary and break and enter offences. [30] DC has a [redacted] heritage. He was born on [redacted] March 2006 and was therefore aged between 15.3 and 16.3 during the claim period. He developed behavioural problems during his childhood and had learning difficulties with concentration problems. School attendance was irregular from about age [redacted] and he was expelled in [redacted]. He was a regular abuser of alcohol and illegal substances including amphetamines. He is said to have started stealing when he was seven years old. His offending behaviour included breaches of curfew and bail. 11 ADA s 101. State’s Response to the Fourth Amended Statement of Contentions dated 9 April 2025, 3 [6], [7] respectively (‘State’s Response to the Fourth Amended SOC’). 12 ADA s 133. 13 Applicants’ final written submissions 17 [88]; State’s Response to the Fourth Amended SOC [12](a). 14 Transcript of proceedings on 30 May 2025 1-66 ll 23-29, in answer to a question from Member Lumb. 15 Filed 10 April 2025 (‘SOC’). 16 ADA s 7(f). 17 Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 75, [199]-[200] referring to analogous legislation; and see for example the discussion in Australian Anti-Discrimination and Equal Opportunity Law, Rees, Rice, Allen (Federation Press, 3 rd ed) 438, [8.5.1]. -- 13 of 202 -- 14 [31] FE was born on [redacted] October 2007. He was aged 13.8 at the commencement of the claim period. He is aboriginal. He lived with his mother and siblings but had a poor history of compliance with familial direction; it was assessed his mother was unable to supervise him. [redacted]. Thereafter he had an unsettled upbringing. He was cared for by his grandmother, but she evicted him in February 2021 due to his behaviour. Allegations of [redacted] by a family member have never been substantiated. [32] A pre-sentence report recorded that FE had been exposed to “negative formative childhood experiences including exposure to domestic violence and parental substance misuse”. He too had significant substance abuse issues and influence from anti-social peers. A period of remand had included incidents of aggression, threats and defiance, and sexualised behaviour. Over a two-year period, FE had been charged with over 70 offences, mostly property offences but also personal violence offences. His criminal history extends to some 15 pages. FE had been subject to a number of correction orders, for example, supervision, community service, and restorative justice orders. Compliance with those orders was inconsistent. He had offended during the last of those orders. The Cairns watchhouse [33] The undesirability of juveniles being detained in the Cairns watchhouse and the extent to which it should be avoided is underlined by evidence from the State’s witnesses. Mr McLaren, who is the Superintendent of State Custody, gave evidence that the Cairns watchhouse is a facility designed for the detention of adults for one to three days.18 It is not designed for the detention of juveniles. [34] The State’s expert, child psychiatrist Dr Michael Beech, said a number of factors impact the effect upon children of detention in the watchhouse including, the age of the child, the individual circumstances and history of the child and the duration of the detention.19 With those caveats, Dr Beech said: “the needs of young persons are different to those of adult offenders”; young persons “require a different approach to adult offenders”. Dr Beech gave specific examples which include children “are best placed in facilities that cater to their developmental needs” and “require access to education, training and recreational facilities”; and they need “custodians who understand their needs and can modify rules, programs, and procedures for them”.20 The Youth Justice Act [35] The provisions of the YJA are relevant to a number of the applicants’ arguments. The Act’s specific Objectives include “… ensur[ing] that courts that deal with children who have committed offences deal with them according to principles established under this Act”.21 [36] The Act introduces juvenile-specific processes and juvenile-specific places of detention (Youth Detention Centres or “YDCs”) and provides for their establishment. Its mandatory provisions, and 21 specific Principles contained in Schedule 1 which 18 Affidavit of Scott McLaren sworn 30 August 2024, eg [21] (‘Affidavit of Mr McLaren’). 19 Report of Dr Michael Beech dated 4 August 2024, 15 ll 752-773. See also 17 ll 834, 840, 852 (‘Report of Dr Beech’). 20 Ibid 14-15 ll 726, 734. 21 YJA s 2(d). -- 14 of 202 -- 15 “underlie the operation of [the] Act”,22 demarcate the treatment of children from that of adults within the criminal justice system. [37] The Act provides “a code for dealing with children who have, or are alleged to have, committed offences”.23 “Pleadings” and the Tribunal’s Process [38] The State’s submissions on a number of issues refer to what is “pleaded”24 by the applicants. The submissions refer in each case to what is contained in the SOC to which the State responded and upon which the hearing proceeded. The State asserts prejudice by reason of an asserted generality and lack of particularity in the applicants’ case. [39] It is necessary to be clear about the relevant mandatory statutory requirements applicable to the tribunal’s process and the role of “pleadings” within it. [40] Even were the tribunal a court applying formal rules of pleading, a rigid approach to what is alleged in the pleadings as the sole means by which the issues litigated in a case are to be determined gives way to the real issues in contest.25 [41] Even in a court, pleadings are not necessarily the sole means by which the issues joined are to be determined: Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted.26 [42] The tribunal is not a court. An even less rigid approach to that just identified is evident from, and required by, the mandatory statutory provisions that govern its process. Crucially, not only is the tribunal’s mandatory process not that of a court, but it is also not analogous to that of a court: the tribunal is “not bound by … any practices or procedures applying to courts of record” (italic emphasis added).27 [43] In addition, the tribunal’s mandatory obligation is to “act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit”.28 Subject to the fundamental requirement to observe the rules of natural justice, the tribunal is not bound by the rules of evidence and may “inform itself in any way it considers appropriate”.29 22 Ibid s 3(2). 23 Ibid s 2(b). 24 The term and its analogues were also used as a convenient descriptor during the hearing. 25 Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 (‘Banque Commerciale’). More recently: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 209 [83] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 26 Banque Commerciale 287 (Mason CJ and Gaudron J). 27 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28 (‘QCAT Act’). 28 Ibid. 29 Ibid. See also: Hehir & Anor v Smith [2002] QSC 92, 7 [14] (Wilson J); Martin & Anor v Qld Electricity Transmission Corporation [2003] QSC 309 (White J); State of Queensland v Mahommed [2007] QSC 18 (Lyons J) (‘Mahommed’), where at [37] her Honour refers specifically to the provision of particulars. -- 15 of 202 -- 16 [44] Undoubtedly, the overriding duty to provide procedural fairness and observe otherwise the rules of natural justice requires the joined issues to be clear and understood. Those issues emerge not only from the originating documents filed by the parties but are also formed by all of the material filed, including the evidence relied upon, and the manner in which the parties shape and conduct their case. [45] That is what occurred in this case - the issues were clearly delineated and fully developed by each party in an outline of submissions ahead of the hearing; the manner in which each conducted the hearing; and in extensive written and oral submissions by each party. Despite the State’s general assertion of prejudice, it did not particularise how the presentation of its case was prejudiced in any way and nor was any specific relief in that respect sought at the hearing. [46] The tribunal’s process, and the way in which it conducts hearings, cannot give lip service to the mandatory statutory obligations and directions referred to. The parties’ respective contentions fall to be determined within that context, including the mandatory direction to “act fairly and according to the substantial merits of the case”.30 In addition, as will be seen, the High Court has identified a duty cast upon the tribunal in cases of the instant type to, in at least some important respects, “ascertain the actual position” for itself.31 Is Each Applicant’s Case Limited to Periods of Detention of “Two or More Days” [47] Somewhat oddly, this issue was agitated specifically only toward the end of oral submissions. In fairness to both parties, leave was given to each to file further written submissions confined to that discrete issue. [48] The SOC asserts (at [1] to [3]) the dates of varying periods when each applicant was detained during the claim period. Each collection of dates for each applicant is prefaced by the phrase, “a period of two or more days”.32 The State contends each applicant’s period of detention founding their claim is confined by that phrase. [49] Two questions arise from the parties’ submissions: should the applicants’ case be so confined and, if so, what duration of detention is encompassed by it? [50] The parties’ respective contentions revolve around what is asserted in the SOC and Response, and by each approaching the issue as a question of the construction of the phrase. “Plain and ordinary” meanings are asserted and dictionary definitions referred to. [51] However, a meaning or definition of the phrase was not offered or sought by the parties throughout the lengthy course of the proceedings and what it meant for each of the parties’ respective cases was never clarified. Instead, the parties’ cases proceeded along parallel lines, each by reference to their own understanding and interpretation of what periods of detention are embraced by the phrase. 30 QCAT Act s 28(2). 31 See [88] post. 32 Apart from the issue under discussion, the asserted periods contain anomalies. Each period is prefaced by the phrase “at least” despite thereafter asserting a specific number of periods of detention. Second, in the case of each of DC and FE, the asserted number (“at least eight” and “at least eleven” respectively) do not correlate with the number of date ranges that follow thereafter (seven and nine respectively). -- 16 of 202 -- 17 [52] As a result, the phrase’s meaning, and the durations of detention to which it applies, should not be approached as a question of construction as if it were a term used in a statute or a contract but, rather, by reference to considerations of procedural fairness. It is unfair to the State to permit the applicants to resile from a case which the State apprehended reasonably it was to meet and upon which they prepared and ran their case. Equally, it is unfair to the applicants to confine their case beyond that which the State’s material and the conduct of its case reveals it apprehended it was meeting and had the opportunity to meet. Is the Applicants’ Case Confined as the State Asserts? [53] The State’s Response denies each applicant was detained for the number of occasions alleged and asserts positively that a number of specified periods of detention are “less than two days”. [54] It asserts that specific response signalled an intention to not obtain or adduce evidence in respect of that period. The strength of that argument is diminished by there being no specific examples given of the evidence that might have been led. [55] However, the State’s use of the phrase in its Response can be seen to ostensibly signal two things. First, the Response strongly suggests the State regards the applicants’ case to be limited to periods of detention with a particular duration. Second, in respect of each of the particular periods of detention to which it is appended in the Response, it signals a positive assertion that the duration does not meet the SOC’s general claim of “a period of two or more days”. [56] The State mounts a persuasive argument that the use of the phrase in its context in the SOC, and the uniformity and consistency of its use in other material filed by the applicants over a lengthy period during the progress of the proceedings, indicates strongly that the phrase is intended to refer to asserted periods of detention with a specific duration. [57] The applicants’ arguments rest in essence on a broad contention that “the only reference to ‘two or more days’ … is as a general descriptor of each Applicant’s stay …”.33 That contention is rejected. [58] The applicants refer to three aspects in refuting the State’s assertion that their cases are so confined: evidence in the State’s case from Senior Sergeant Gardiner and Ms Harding that refer to periods of detention other than two or more days; orders for production of documents relating to periods other than two or more days; and Mr Scott KC’s opening on their behalf where it was said the applicants’ case is confined only to the claim period and not to two or more days. [59] The evidence of Senior Sergeant Gardiner and Ms Harding is evidence of a general nature and in the main responsive to broader questions of procedure and practices at the watchhouse. Mr Scott said in his opening, “the case concerns the detention of the three applicants … for the periods and on the dates admitted by the State …”. That does not assist the applicants’ argument; it begs the question of what the phrase is intended to convey when used in conjunction with specific stays of varying duration. The orders for production of documents are referable to a multiplicity of issues. 33 Applicants’ written submissions on the discrete issue filed 4 September 2025, 2 [6] (‘Applicants’ submissions dated 4 September 2024’). -- 17 of 202 -- 18 [60] It should be concluded that each applicant’s case is confined to periods of detention of “two or more days”. What Periods of Detention are “Two or More Days”? [61] What the State reasonably understood as the duration meant by the phrase “two or more days” is not solely referenced to what is asserted in the Response, albeit what is said there of course remains relevant. The State’s understanding of the case it was required to meet also emerges from its case as it was prepared and run. [62] Mr Murdoch KC said in oral submissions on behalf of the State, “… we take ‘two or more days’ to be two nights … whereas the applicants seem to take the view that ‘two or more days’ means overnight”.34 [63] Member Lumb sought clarification: “[h]as the respondent proceeded on the basis that what was alleged is confined to a minimum of 48 hours?” Mr Murdoch replied: “No, no. The minimum of two – staying in for two – for two nights. Two overnight stays.”35 [64] The duration intended by the Response’s assertion that particular periods are “less than two days” needs to be seen in light of the State’s clear articulation that it understood the applicants’ assertions of “two or more days” to embrace periods of detention with a duration of “two nights, two overnight stays”. [65] The State cannot fairly claim that it did not prepare on the basis of, or is otherwise prejudiced by, the applicants’ phrase embracing a duration which it itself articulates. [66] Five periods of detention involve two overnight stays.36 If that duration is embraced by the phrase “two or more days”, detention of a duration greater than “two nights, two overnight stays” must also clearly be embraced by it. A further nine periods of detention involve a duration greater than two nights. A total of fourteen periods of detention, asserted by the applicants to be “two days or more”, are embraced by the State’s understanding of the term and the case it prepared for and was meeting. [67] It is necessary then to consider the remaining seven periods of detention alleged by the applicants, all of which are prefaced by the phrase “two or more days”. The State’s Response asserts each is “less than two days”. For ease of reference the relevant periods of detention are set out below as they appear in the Response. (In light of the applicants’ submissions shortly to be referred to, the number of hours incorporated by each stay has been appended in italicised parenthesis). BA (a) From 8.47pm on 23 March 2022 until 12.28pm on 24 March 2022 which is less than two days. [one night, approximately three hours on day one and approximately twelve hours on day two, a total of approximately fifteen hours of detention] 34 Transcript of proceedings on 30 May 2025 1-77 ll 13-14, 18-19. 35 Ibid ll 19-23. 36 State’s Response to the Fourth Amended SOC 2 [3](vii), (viii) regarding DC; and [4](iv), (vi), (vii) regarding FE. Three of those five periods are said in the Response to be “less than two days”. -- 18 of 202 -- 19 DC (b) From 5.44pm on 12 August 2021 until 10.52am on 13 August 2021 “which is less than two days”. [one night; six hours and 11 hours; total 17 hours] (c) From 12.00am37 on 10 January 2021 until 3.14pm on 10 January 2022 which is less than two days. [one night; total 15 hours on the one day] (d) From 9.19pm on 1 February 2022 until 11.23am on 2 February 2022 which is less than two days. [one night; three hours and 11 hours; total 14 hours] (e) From 6.35pm on 23 March 2022 until 1.02pm on 24 March 2022 which is less than two days. [one night; six hours and 13 hours; total 19 hours] FE (f) From 4.21pm on 11 July 2012 until 7.16pm on 12 July 2021 which is less than two days. [one night; eight hours and 19 hours, total 27 hours] (g) From 4.14pm on 25 August 2021 until 11.51am on 26 August which is less than two days. [one night; eight hours and 12 hours, total 20 hours] [68] The State’s written submissions refer to how the “minimum period of two days” should be “calculated”, namely “… on the basis of 48 hours or parts of two calendar days that together exceed a 24-hour period” (underlining in original).38 [69] As expressed, the submission contends either for two separate meanings or contains an inconsistency: “48 hours” is not “parts of two calendar days that together exceed a 24-hour period (unless, of course, each of the periods on the two calendar days is 24 hours). [70] The submission that the phrase should be taken to mean “48 hours” is directly contrary to the oral submissions of Mr Murdoch who, as has been seen, specifically eschewed such a meaning as the understanding upon which the State’s case was prepared and proceeded. The State’s written submissions specific to this issue - filed after the conclusion of the hearing - make no reference to the oral submissions by Mr Murdoch during the hearing. [71] Notwithstanding the assertion “less than two days” which is appended to each period in the Response, it cannot be fair to the applicants to hold that the phrase should be taken as meaning periods of detention of a minimum of 48 hours when the State’s oral submissions make clear that no such assumption attended the State’s approach to the case. [72] The alternative meaning postulated in the written submissions – “parts of two calendar days that together exceed a 24-hour period” – is inconsistent with a meaning of 48 hours. It is also inconsistent with the dictionary definition to which the submission is referenced. Both the Macquarie Dictionary Online and Oxford Concise Dictionaries 37 The applicants contend detention started shortly before midnight and assert the stay to be overnight. 38 Applicants’ submissions dated 4 September 2024 [4]. Later in the written submissions the underlined expression is said to be “consistent with the ordinary plain meaning of the expression ‘two days or more’” and should be understood as expressing its meaning. -- 19 of 202 -- 20 define “day” as constituted by 24 hours.39 It is not clear how “parts of two calendar days that together exceed a 24-hour period” either meet that definition or constitute a “calculation of the minimum period of two days” (unless, again, each period is 24 hours). [73] It should be observed nevertheless that the first of the periods pertaining to FE set out above, meets the State’s alternative suggested meaning (because there are parts of two calendar days that together exceed a 24-hour period). Once again, the State cannot fairly claim that it did not prepare on the basis of, or is otherwise prejudiced by, “two or more days” meaning, or incorporating a meaning, for which it itself contends. Its contention must embrace an understanding of the phrase upon which it proceeded. [74] The remaining six periods of detention each involve a period of one night’s detention. The respective durations of the periods of detention vary from 14 hours to 20 hours. Leaving aside the anomalous second period for DC (which involves 15 hours detention on the one day), each involves a significant imbalance between the hours detained on one day when compared to the next. None meet either of the meanings contended for by the State. [75] The applicants’ written submissions contend: In respect of the meaning of “two days”, this includes stays of two consecutive days, less than 48 hours. That is, the plain words “two or more days” denote periods of single-night stays (with time in detention during the day prior (day 1) and the day after (day 2)).40 [76] The “plain meaning” is asserted but not otherwise referenced. Respectfully, it is not immediately clear why two days should necessarily be assumed as “less than” 48 hours; or why the period is “denoted” by single night stays with an (unspecified) period of hours buttressing each (and which periods in any event vary between the periods of detention). [77] There is nothing inherent to the phrase “two or more days” which suggests that limited and varying periods of hours on two days separated by one night satisfies it. For example, a different dictionary meaning of “day” is “the interval of light between two successive nights; the time between sunrise and sunset” and “the period of daylight between sunrise and sunset”.41 Two days suggests two such periods and an (admittedly variable) substantial period of hours on each. [78] The applicants’ argument is not persuasive. There is nothing to suggest the State, in preparing and running its case, reasonably assumed a meaning of the phrase which would embrace the durations of the remaining periods of detention. [79] Fairness dictates that the applicants should not be able to resile from a case premised on the remaining periods of detention not being included in the periods of detention to which their claim relates. 39 The submissions cite: “a division of time equal to 24 hours”; “the period from midnight to midnight”; a “twenty-four hour period as a unit of time reckoned from one midnight to the next and corresponding to a rotation of the earth on its axis”. 40 Applicants’ submissions dated 4 September 2024 2 [8]. The submissions include a footnote 7, but neither that number nor any text appears as such in the tribunal’s copy of the submissions. 41 Respectively, Macquarie Concise Dictionary 3 rd edition and Oxford English Dictionary. -- 20 of 202 -- 21 Conclusion as to the Applicable Periods of Detention for Each Applicant [80] The findings just outlined result in the following periods of detention upon which each applicant’s case should be based: BA (a) From 1.20pm on 7 September 2021 until 7.56pm on 16 September 2021 (b) From 4.39pm on 24 April 2022 until 1.12pm on 4 May 2022 DC (c) From 1.00pm on 7 February 2022 until 2.43pm on 15 February 2022 (d) From 10.10am on 13 April 2022 until 1.57pm on 15 April 2022 (e) From 1.18pm on 12 June 2022 until 4.59pm on 14 June 2022 FE (f) From 4.21pm on 11 July 2021 until 7.16pm on 12 July 2021 (g) From 11.33am on 26 July 2021 until 7.10am on 28 July 2021 (h) From 6.21pm on 28 August 2021 until 2.57pm on 30 August 2021 (i) From10.19am on 21 September 2021 until 5.36am on 23 September 2021 (j) From 9.49am on 17 October 2021 until 2.17pm on 20 October 2021 (k) From 5.46pm on 27 November 2021 until 2.55pm on 30 October 2021 (l) From 10.23pm on 15 January 2022 until 3.26pm on 19 January 2022 (m) From 12.38pm on 18 February 2022 until 3.26pm on 1 March 2022 (n) From 12.30pm on 24 March 2022 until 5.33am on 29 March 2022 (o) From 6.11pm on 28 May 2022 until 6.30am on 31 May 2022 What is the Term Imposed on Each Applicant? [81] The first and fundamental s 11 requirement requires the determination of three separate issues joined between the parties. [82] The first issue is how the imposed term should be framed. The differing approaches of the parties leads to two further issues. First, can conditions set out at paragraph [8] of the SOC occurring during the same period of detention be considered together or must they be considered condition by condition? Second, can conditions be considered collectively or cumulatively over all periods of detention during the claim period, or must periods of detention be considered separately? [83] It is first important to consider the principles relevant to determining those issues. -- 21 of 202 -- 22 Principles Relevant to the Framing of the Imposed Term [84] It is well established that the imposed term to which s 11 refers must be formulated with some precision.42 High Court authority establishes three important precepts that attend that principle. [85] First, in State of New South Wales v Amery (‘Amery’),43 a High Court plurality made clear that an analysis of a discrimination claim’s constituent trees should not obscure an analysis of the forest: … it is not the mere existence of a requirement or condition to which [the Act] is directed. It is discrimination which may involve the imposition of a requirement or condition. The question that must be asked in applying [the Act] is whether the perpetrator engaged in a proscribed form of discrimination, not ‘what was the requirement or condition in this case’.44 [86] That principle is central to the formulation of the applicant’s case. [87] Second, in the same case Callinan J held that while the actual requirement or condition should be formulated with some precision, “… [t]he Tribunal and the courts are not bound by an applicant's formulation of a condition or a requirement.”45 [88] Third, not only is the tribunal not bound by the applicants’ formulation of the imposed term, but it also has a positive “duty” cast upon it: … it is [the tribunal’s] duty to ascertain the actual position, including whether an (alleged) perpetrator has truly sought to impose, or permits indirectly, the imposition of a requirement or a condition which is discriminatory, and not reasonable within the meaning of the Act.46 How is the Imposed Term Framed? [89] The uncontroversial fact of each juvenile applicant being detained in an adult facility for varying periods during the claim period is insufficient of itself to sustain the claim. [90] That is because, first, the relevant imposed term (or terms) founding the discrimination must be separate from something inherent to the relevant activity or service.47 Secondly, detention does not necessarily expose, of itself, any comparison between juvenile and adult detainees upon which their respective ability to comply can be assessed. [91] An appreciation of each of those matters is reflected in how the applicants frame their case and, in particular, the term they contend was imposed upon them: “Once the nature and extent of the [term] is clarified, then the impact of the condition can be properly analysed …”.48 42 Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165, 185; Waters v Public Transport Corporation (1991) 173 CLR 349, 393 (‘Waters’); Hurst 568 [30]. 43 (2006) 230 CLR 174 (‘Amery”). 44 Ibid 195 [65] (Gummow, Hayne and Crennan JJ). 45 Ibid 233 [208]. 46 Ibid. Examples of the application of the principle by the tribunal can be seen in JVM v Brisbane City Council & Ors [2024] QCAT 578, 17 [88]; Tafao v The State of Queensland [2020] QCATA 76, 38 [138]; Taniele v Australian Christian College Moreton Ltd [2020] QCAT 249, 21 [106]. 47 See for example, Waters 361; Catholic Education Office v Clarke [2004] FCAFC 197, 25 [100] (‘Clarke’). 48 Clarke 4 [13] (Tamberlin J). -- 22 of 202 -- 23 [92] Each applicant’s claim posits two “terms” – that is, “conditions or requirements”49 – imposed concurrently. [93] First, it is said each applicant child was required to serve periods of detention during the claim period in the Cairns watchhouse, an adult facility. Secondly, it is asserted that concurrent with the required detention was a requirement to comply with a number of conditions set out at paragraph [8] of the SOC. The applicants express the imposed term in this way in their outline of submissions filed ahead of the hearing: The Applicants contend concurrently: (a) The [State], being responsible for the custody of the applicants, imposed a term requiring that the Applicants spend the relevant period of their custody in Cairns watchhouse; and (b) The [State] imposed the terms alleged in [the SOC] on the Applicants’ custody when in the watchhouse. (Bold emphasis added in each case).50 [94] That contention is reflected in the manner in which the imposed term is asserted in the SOC: In detaining the Applicants in the Cairns Watch-House, the Respondent imposed terms, being that the Applicants experience their detention subject to the conditions listed in paragraph 8 [below] (particularly 8(e), (f), and (i)).51 Between 23 June 2021 – 23 June 2022, children detained at the Cairns Watch- House experienced the following conditions: (a) Children were detained in cells with no natural light; (b) … (c) Children were required to use the toilet in front of other children and on CCTV camera; (d) Children could hear adult prisoners screaming and kicking doors; (e) Children were held in close enough proximity to adult prisoners that they could (and did) converse with adult prisoners; (f) Children had limited access to visitors, including family and cultural ties; (g) Children were subjected to insults from watch-house officers; (h) Children had limited access to the exercise yard and TV room (all visits to the exercise yard being one hour or less); (i) Children were not provided with appropriate educational materials or resources; (j) … (k) … 49 ADA s 11(4). 50 Applicants’ Outline of Submissions filed 19 March 2025, 2-3 [10]. 51 The SOC [9]. -- 23 of 202 -- 24 (l) Children’s sleep was inhibited by various conditions and practises, including hot conditions at night, without air conditioning, roll calls being conducted late at night and children being woken up for showers or breakfast early in the morning; (m) Children were not allowed to change clothes when detained, including for long periods of time; (n) Children were denied access to adequate pro-social activities to pass the time; (o) … (p) Children were detained in padded cells; (q) Children were clothed only in suicide smocks; (r) … (s) Children had inadequate access to appropriate nutrition; (t) Children were subjected to a poor standard of hygiene; (u) Children were unable to use showering facilities in private; (v) Children had limited or no access to information about their situation, including about the time of day and when they could expect to be transferred.52 [95] Paragraph [10] of the SOC asserts: The applicants were not able to comply with the terms. (a) As children, the Applicants had particular educational, psychological, emotional and developmental needs; (b) Although they may have physically “coped” with the terms, they were placed at a serious disadvantage by reason of their educational, psychological, emotional and developmental needs not being met. [96] The dual-component term is also maintained in the manner in which the applicants conducted their case. In exchanges with the tribunal during final oral submissions it was said that that the paragraph [8] conditions, or terms, are “really just individual particulars … of [the] primary or wider term”53 and “… ultimately, the question is what … terms in or features of the watch-house … that flow from being detained in the watch-house with which the applicants are unable to comply”.54 [97] The first component is uncontroversial: there is no issue that each applicant was required to be detained in an adult facility during the relevant periods. [98] The precepts earlier identified arising from what was said by the High Court apply equally to both components of the imposed term: the tribunal is not bound by the expression of the paragraph [8] conditions and has a duty – subject to natural justice considerations – to formulate each so as to reflect the “actual position”. [99] In answer to a question from Member Gaffney, Mr Murdoch made it clear that the State had no objection to what were described by the Member as “the two overarching terms”: 52 Ibid [8]. 21 terms are outlined in the SOC; 17 are ultimately relied upon. 53 Transcript of proceedings on 30 May 2025 1-6 ll 9-13. 54 Ibid 1-24 ll 4-11. -- 24 of 202 -- 25 … if it was considered in the absence of a forensic determination of the terms/conditions that have been pleaded … we would have a strong objection procedurally if that became the case and those other matters weren’t considered because we came to meet a case which was based on A to V, or whatever it is [i.e. the conditions in [8] of the SOC], as opposed to this overarching term [i.e. the “primary term”].55 [100] There is no issue that it is necessary for each applicant to establish which of the paragraph [8] terms were experienced. Equally, there is no issue that if none are established for any applicant, his discrimination case must fail.56 Can Conditions be Considered Together? [101] To the extent the State’s answer to the applicants’ case asserts that it is founded on each of the paragraph [8] conditions being the alleged imposed term – and each, of itself, founding the alleged discrimination – respectfully it misapprehends or misstates the applicants’ case. [102] The applicants assert that the proved paragraph [8] conditions must be considered collectively or cumulatively over all of the periods of detention applicable to each applicant during the claim period. [103] Because the State asserts each of the paragraph [8] conditions is the relevant imposed term, its written submissions contend, “… the only way that this matter can be properly determined is to … consider each applicant, each stay, each term”. [104] That is said to require each applicant’s case to: … be considered individually (that is, for each applicant separately) in respect of each alleged stay.57 Similarly, the second element, that is, the ability of each applicant to comply with an alleged term having regard to their age, is an assessment which must be undertaken by examining the circumstances pertaining to each applicant in respect of each actual stay.58 [105] To that end, the State’s final written submissions undertake a separate consideration of each of the 17 paragraph [8] terms and in respect of each individual term then go on to consider the further s 11 “elements” of ability to comply and reasonableness. Thus, the written submissions assume necessarily that discrimination is established – or, as it contends, not established – by reference to each individual paragraph [8] condition.59 [106] Despite that approach in the written submissions, the State conceded in its final oral submissions that conditions proved as occurring together during a particular period of detention (called a “constellation” of terms during the discussion) could be considered together. 55 Ibid 1-84 ll 18-30. 56 Ibid 1-25 ll 1-4. 57 State’s Outline of Closing Submissions dated 27 May 2025, 12 [54] (‘State’s final written submissions’). 58 Ibid [55]. 59 Ibid 12-70 [59]-[362]. -- 25 of 202 -- 26 [107] Also contrary to the State’s written submissions it was conceded orally that the tribunal could “… consider them [i.e. the constellation] as a whole - certainly in respect of reasonableness, probably in respect of comply.”60 [108] It necessarily follows from that analysis that a proved “constellation” of paragraph [8] conditions applicable to a particular period of detention must together become the imposed term by reference to which each of the remaining s 11 requirements is to be addressed. [109] That is, the State’s resulting position must be that discrimination is proved by each applicant establishing an inability to comply with a constellation of proved conditions applicable to each of his periods of detention during the claim period, with the State to establish in turn that each constellation of terms for each detention period was reasonable. [110] With one significant difference, that approach is consistent with the applicants’ approach including the words of [10] of the SOC which refer to terms collectively. The difference is the State maintains that it is necessary for the applicants to prove all of the s 11 requirements for each separate period of detention for each applicant. Can Periods of Detention and the Conditions Experienced be Considered Cumulatively? [111] The State argues that each period of detention must be looked at individually because the number of periods of detention, and the differences in nature and duration of them with their attendant conditions, are central to the question of inability to comply. [112] However, to require proof of inability to comply in respect of each constellation of conditions for each period of imprisonment (or each paragraph [8] condition individually) is to have the applicants meet a case they did not seek to make. [113] The applicants do not seek to make a case that they could not comply with any specific term or constellation of terms during any specific period of detention. Their case is that discrimination results from a requirement to serve periods of detention in an adult facility during a 12-month period during which they were required to experience specific conditions or terms: “… [the] case does not rely on evidence of specific occurrences, but on the critical question of conditions being imposed during the claim period.”61 [114] That is made clear by paragraphs [8], [9] and [10] of the SOC and how the applicants shaped and conducted their case including their central contention that inability to comply results from the applicants’ “intrinsic vulnerabilities as children”. The vulnerabilities of children do not vary between various periods of detention within a 12-month period; they are a function of childhood and circumstances specific to the individual child and the proven experiences to which they were subject. [115] The applicants’ approach accords with the principle enunciated by Gummow, Hayne and Crennan JJ in Amery earlier quoted. Respectfully, the State’s approach subverts that principle: it isolates the trees from the forest. 60 Transcript of proceedings on 30 May 2025 1-51 ll 21-22, see also 1-52 ll 19-20. 61 Applicants’ final written submissions 5 [18]. -- 26 of 202 -- 27 Summary: The Imposed Term and the Proper Approach [116] Consistent with the findings just outlined, the imposed term asserted by the applicants should be framed as: the State imposed a requirement on each applicant that they serve specific periods of detention during a 12-month period in an adult facility, and in doing so imposed a requirement that each experience the conditions set out at paragraph [8] of the SOC. [117] The question of each applicant’s inability to comply and the question of reasonableness should be considered by reference to all such paragraph [8] conditions which are established for each applicant during any and all relevant periods of detention served by each during the claim period. What Conditions Did Each Applicant Experience? [118] The applicants compiled a document which sets out their assertions as to the evidence supporting each of paragraph [8] conditions. Subsequently, the State added its comments. The compendium, comprising some 150 closely typed pages, was effectively submitted jointly by the parties. It has been used as the reference point for the findings which follow.62 [119] Many of the State’s arguments with respect to individual conditions again refer to what is “pleaded” in the SOC. The principles earlier set out pertain. There is little doubt that many of the conditions are expressed in general terms. The State asserts prejudice, but the precise content of that assertion is unclear: each of the conditions is addressed both in evidence and cross-examination and, ultimately, comprehensively in the State’s submissions. There is no confusion or lack of clarity as to the gravamen of each asserted condition and the State has responded accordingly. [120] The paragraph [8] conditions form part of the imposed term. “Some precision” in their formulation is required but they “should be construed broadly to include any form of qualification or pre-requisite”,63 and it is the duty of the tribunal to formulate if necessary so as to “ascertain the true position” by reference to the evidence and the manner in which both parties’ cases addressed the conditions. [121] The difference in the asserted positions of the applicants and the State as to how the imposed term is to be applied earlier discussed has an important consequence. [122] The submissions of the State refer in many instances to a lack of specificity as to when a particular condition is alleged to have occurred by reference to a particular period of detention. Acceptance of the applicants’ position that all established conditions must be considered by reference to any or all periods of their respective periods of detention during the claim period does not require a particular condition to be “tied” to a particular period of detention. The question is, did a particular condition occur at all for each applicant during the claim period? (Of course, nature of the condition experienced and the frequency of occurrence may be relevant to other considerations such as ability to comply). [123] Evidence relating to the asserted conditions emerges both from voluminous documents before the tribunal and from the evidence of the applicants themselves. As will be seen, specific findings refer to one or both. 62 Quoted evidence is not separately footnoted. 63 Respectively, Clarke 26 [103]; Amery (Callinan J) earlier quoted. -- 27 of 202 -- 28 [124] As a general proposition, each of the applicants sought to give truthful and accurate evidence albeit that in some instances it was coloured by exaggeration emanating, it is suspected, from the longstanding dislike and distrust of the police (and perhaps authority more generally) which Dr Beech refers to in his evidence. [125] In addition, it is borne in mind that the evidence of evidence from each applicant emanates from young men aged 21, 20 and 17 at the hearing, each of whom has significantly compromised social and educational background and each of whom is, both in respect of their evidence in chief and in cross-examination, being asked to recall events from a number of years previously when each was a juvenile. [126] Honest concessions were given for example by DC and FE in answer to leading propositions put in cross-examination that specific dates or periods of detention could not be tied to specific occasions. An example is the asserted condition that they were subjected to insults by watchhouse officers.64 Little weight should be placed upon that lack of recall or lack of specificity. That evidence, and much of their evidence in respect of the conditions more generally, relates to a pervading condition or conditions in the watchhouse rather than relevant specific incidents of such striking effect or attendant features that it should be expected to be later recalled by reference to a specific date, occasion or period of detention. [127] In respect of some conditions, there is no direct evidence from one or other of the applicants. In some cases, that leads to a conclusion that the condition is not made out for a particular applicant. (An example is being placed in a padded cell or suicide smocking). In other instances, the condition can be inferred as applying to all applicants by reason of evidence that a particular condition is inherent to the watchhouse and applicable to all applicants during all periods of detention. (An example is their detention in cells with no natural light). The Paragraph [8] Conditions (a) Children were detained in cells with no natural light65 [128] It is uncontroversial that the cells in which each applicant was detained had no windows and no access to natural light (said by the State to be for safety and security reasons). The issue between the parties is (as it is with many of the asserted conditions) one of interpretation. [129] The State’s contention that the cells had natural light is founded on the uncontroversial fact that cells “face a hall with a rooftop atrium with large windows which allow natural light into the watchhouse”.66 The applicants emphasise the lack of direct sunlight which was only experienced during inconsistent periods of access to the exercise yard. Senior Sergeant Gardiner deposes that attempts are made to give access to the exercise yard “that has access to direct sunlight and fresh air”.67 64 Respectively: Transcript of proceedings on 31 March 2025, 1-48 ll 5-28 (‘Transcript of proceedings day one’); Transcript of proceedings on 1 April 2025, 3-6 ll 27-48 (‘Transcript of proceedings day two’). 65 Sub-paragraph numbering mirrors that used in the SOC and the wording is as it appears there. The Applicants’ final written submissions group together (d) and (e) with the consequence that the numbering which follows in the submissions is erroneous. 66 State’s final written submissions 13 [62]. 67 Affidavit of Paul Gardiner sworn 30 August 2024, 5 [28] (‘Affidavit of Senior Sergeant Gardiner’). -- 28 of 202 -- 29 [130] FE said: “In the cells, there is no natural light and no windows. I can’t see the sun. An artificial light was on all day and dimmed at night”.68 BA’s evidence was that being in his cell was “like being in a closed brick box”.69 The State contends this evidence is not relevant. It is a comment relevant to his experience of a condition which is at the centre of the applicants’ case. [131] The assertion that cells with no windows have natural light by reason of an atrium not specific to any cell is to adopt an overly narrow or pedantic interpretation of the condition alleged. The reference in the condition to natural light should be seen as incorporating what that access inherently implies: sunlight, access to other atmospheric conditions and the progressions from day to night. [132] The applicants establish they were detained in cells with no windows and no access to natural light. (c) Children were required to use the toilet in front of other children and on CCTV camera [133] The applicants’ case is based on a condition inherent to the cells in which each was detained during each period of detention. [134] It is uncontroversial that the toilet to be used by each applicant was located in their cell and was, for “safety and security reasons”, behind a “dignity (half) wall [where] the upper body of the person is always visible”. It also appears uncontroversial that “[o]nly the upper body of the person using the toilet is visible on the CCTV and monitors”. The CCTV camera is constantly operating, but “… is designed not to view the lower half of the person whilst on the toilet”.70 The same is true of what can be seen by those walking the corridor outside a cell. [135] Evidence of the applicants sharing cells with other boys is relevant to the State’s interpretation of “in front of”. Senior Sergeant Gardiner deposed that it was “not uncommon” for child detainees to share cells; it was, he says, a “common practice”. The evidence of each applicant is not specific to occasions when a cell was shared. For example, BA deposes to “sometimes having other kids in the cell with me … at most I think there were four of us in one cell”. Elsewhere he deposes that during his 10-night stay in April/May 2022, he was alone in a cell. FE said he was “normally held in a cell with other boys”. [136] The sharing of cells on specific occasions is not essential to establishing the term. The applicants’ argument is based on teenage detainees experiencing a lack of privacy and dignity. It is contended that it is “unreal” to suggest that “these children, of the kind that will be detained in a place like this, won’t look behind [the dignity wall] or at least make the person going to the toilet feel like that’s going to happen …”.71 [137] BA deposes: When there are other kids in the cell you use the toilet in front of everyone. There is no privacy for anyone. One of the officers came in when another kid in my cell was doing a shit and was telling him they could hear it, making fun 68 Affidavit of FE affirmed 5 April 2024, 2 [8]. 69 Affidavit of BA sworn 5 April 2024, 3 [15] (‘Affidavit of BA’). 70 Affidavit Senior Sergeant Gardiner 3 [13], 7 [39]. 71 Transcript of proceedings on 30 May 2025 1-89 ll 9-12. -- 29 of 202 -- 30 of him, and told him to hurry up. I said – you don’t want other people coming to your toilet when you’re doing your business and saying that.72 [138] DC deposes to his experience of having “to use a shared toilet in the cell in front of the other children. It is also visible on CCTV”.73 His perception was “they [presumably the police officers] sit there and watch us on the cameras”.74 [139] The State’s argument is centred on a meaning of “in front of” and the meaning of “required”. [140] As to the latter, it is said the State “imposed no requirement to use the toilet in front of other people … just because there may have been other children in the cell … doesn’t mean that they were required to use it in front of other children”.75 That interpretation should be rejected. The requirement arises implicitly from the requirement to be detained in a cell with only one means of toileting. [141] The State’s argument that using the toilet was not “in front of” others because the applicants were “protected from view by the dignity wall” and “protected from the view of anyone who may have walked down the corridor at that time” should also be rejected. The condition strikes at privacy and dignity and the perceptions and experiences of teenage boys. It should not be confined to the observation of the action of toileting or observation of the lower body or genital regions. The same conclusion should be drawn in respect of the CCTV which monitors cell activity constantly. The fact that the lower half of the body/genitals could not be seen does not alleviate the impact on the privacy and dignity of teenage boys. [142] The condition is established for all applicants. (d) Children could hear adult prisoners screaming and kicking doors [143] The Superintendent of State Custody, Mr McLaren, deposes: Whilst every attempt is made to separate people in custody based on age, gender, and any vulnerabilities … a watchhouse is a shared facility. As such, it is inevitable that those in custody in a watchhouse will hear noise from within the facility, including noises from other cells within a watchhouse.76 [144] Senior Sergeant Gardiner said “whilst every effort is made to separate children and adults, it is possible for persons to converse and hear people in the cells around them”. Consistent with his other evidence that juvenile cells are separated from adult cells, the “people in the cells around them” must be adults. [145] Body cam footage before the tribunal confirms yelling could be heard from different parts of the watchhouse. [146] In the case of FE, the State relies upon a narrow interpretation of the condition. It is said he could hear adult prisoners “yelling and swearing at police from his cell”; “he does not use the word screaming”. The distinction does not alter FE’s experience nor 72 Affidavit of BA 3 [18]. 73 Affidavit of DC affirmed 4 April 2024, [7]. 74 Affidavit of DC affirmed 16 December 2024, 3 [28] (‘Further Affidavit of DC’). 75 Transcript of proceedings on 30 May 2025 1-54 ll 12-21; State’s final written submissions 15 [76]. 76 Affidavit of Mr McLaren 7 [23]. -- 30 of 202 -- 31 the broader condition of hearing noise from adult cells and from within the facility more generally. [147] A contemporaneous note records BA stating, “8 days now of others screaming in the watchhouse…”. In his affidavit, BA deposes that “sometimes adult prisoners would be screaming and kicking the doors and things”. DC gives no direct evidence relating to this condition. In his case, it should be inferred from the evidence of Mr McLaren as to “inevitability” and what is inherent to a “shared facility” that DC “could hear noise from within the facility, including noises from other cells within a watchhouse”. [148] The State argues that the allegations by BA and FE are not connected to specific periods of detention. It argues, in addition that the evidence does not reveal whether the condition occurred during the claim period. Questions in cross-examination were referenced to “while [FE] was in the juvenile cells”. No questions in cross- examination (or re-examination) sought to isolate a time frame. It was not put that it could have occurred outside the 12-month period embodied by the claim period.77 [149] It is entirely unsurprising that a condition which is plainly alluded to occurring frequently should not be connected to specific occasions. There is nothing unique or striking about it that might prompt a connection to a specific time frame; it is a condition which is of its nature pervasive. There is direct evidence that it is pervasive and inherent to the watchhouse. In any event, it is reiterated that the applicants’ case is not dependent upon linking a particular condition to a particular period of detention; the question is whether the condition occurred. [150] To require proof of “screaming” as distinct from other troubling, unwelcome or disturbing “noises from other cells” which, it is uncontroversial, housed adults is again to take an overly narrow or pedantic view of the condition. [151] It is established that each applicant during each period of his detention could hear such noises emanating from adult prisoners in other cells and other such noise from within the facility. (e) Children were held in close enough proximity to adult prisoners that they could (and did) converse with adult prisoners [152] Senior Sergeant Gardiner concedes that, due to the watchhouse layout, “it is possible for those in custody to hear people in other cells and … it may be possible to communicate with people in other cells”.78 [153] BA deposes “we could call out and ask the adult prisoners what’s going on and have conversations with them.” He said in re-examination “… sometimes they hear us talking and tell us, ‘shut up you little – um you little cunts’, um and stuff like that”.79 FE said in his affidavit “I can hear adults in the watchhouse when I am in my cell. They yell and swear at police. They are close enough that we can yell at each other”. There is no direct evidence from DC in respect of this condition. [154] The video evidence contains this exchange on 28 November 2021: FE: sir, he said he's going to kill me bro? 77 Transcript of proceedings day one 1-22, 1-23. 78 Affidavit of Senior Sergeant Gardiner 73 [291]. 79 Transcript of proceedings day one 1-39 ll 6-7. -- 31 of 202 -- 32 Police officer: Who? FE: Some cunt before he said he's going to kill me bro? Police officer: Well, that’s what prisoners do, they talk. FE: I am shitting it bro. Can you move me to an isolation cell please? Police officer: Well, he can’t get out just like you can’t get out. Just like you can’t get out. [155] A case note from a youth justice worker records, “[FE] advised he was angry because another adult in mate (sic) had words with [FE] and [FE] didn’t like what he said”.80 [156] An appropriate interpretation of the condition should not confine “conversation” to conversation in everyday life; it derives its meaning from the watchhouse context, and the nature of exchanges referred to by FE. [157] The State’s submissions again emphasise a lack of specificity as to the dates of specific alleged incidents. The State submits in its final written submissions: …the highest the evidence goes is to establish that on one occasion during FE's November 2021 detention, he interacted with another adult male detainee from his cell, and that BA may have interacted with male adult detainees at some undisclosed time (which may or may not have occurred during one of his two relevant detentions in the Claim Period). [158] Again, there is nothing striking, unique or unusual about any specific instance that might give rise to a reasonable expectation that it could be fixed in time. As the evidence of Senior Sergeant Gardiner reveals, this condition too is of its nature pervasive. Neither the evidence of Senior Sergeant Gardiner nor that of BA or FE is at all surprising given the nature of the detention facility and its inmates. The evidence of the two applicants has the ring of truth. [159] Notwithstanding the absence of direct evidence from DC it should be inferred from the evidence as to the watchhouse layout; the evidence of Senior Sergeant Gardiner; and the inevitability of what arises from a facility shared between adults and children, that he too could converse with adult prisoners. An inference that DC did in fact converse with adult prisoners is open, but an inference that he did not is equally open. In the circumstances, proof that he did is not established. [160] It is established that BA and FE could and did converse with adult detainees. It is established that DC could converse with adult prisoners. It is not established that he did converse with adult prisoners. (f) Children had limited access to visitors, including family and cultural ties [161] The compendium of evidence and the State’s submissions refer to the nature and extent of visits from family and youth workers. The applicants’ submissions accept the applicants “received some kind of visit most days”. [162] If the condition is to be sustained, it needs to be read, as the applicants submit, qualitatively. That argument is referenced primarily to the opinions of Dr Beech and the applicants’ expert, Ms Hirvonen. In essence, it is said that the number of visits 80 The note is dated 28 September 2011. It is assumed this is a typo and should read 2021 (FE was aged 4 in 2011). -- 32 of 202 -- 33 received did not meet the applicants’ needs: the number of visits were not sufficient, in Dr Beech’s words, “to meet the vastitude (sic vicissitude) of being in detention”. [163] The opinions of Dr Beech and Ms Hirvonen are directed to a different condition, for example that visits were insufficient to meet the psychological or emotional needs of the applicants. The condition emerging from the SOC and the manner in which the case was run is specific to a qualitative (or perhaps quantitative) assessment of the extent to which visits were limited. [164] While the tribunal is not bound by the stated formulation, reframing should be directed to the “actual position”; that is, what is actually alleged and revealed by the evidence. A generous interpretation of the condition and the expert evidence reveals a condition different in nature to that alleged and the case mounted by the applicants. [165] This condition is not established for any applicant. (g) Children were subjected to insults from watchhouse officers [166] The evidence of each of the applicants has the ring of truth given the context emanating from the evidence from Senior Sergeant Gardiner earlier referred to relating to what is inherent to the mixing of adult and juvenile detainees in a busy adult facility. [167] BA deposes that “there is a lot of name-calling and bullying talk between the police and the kids … The officers would sometimes call me a rat or a pig. They know I don’t like being called a rat, so I think they say it to get at me”.81 “Sometimes they call me a black cunt.”82 Video evidence shows an officer saying to BA, “You’ll get more than bashed in [Lotus Glen prison]” and, referring to a person BA knows, “he got capped in there”. [168] DC deposes he had been “verbally threatened by the watchhouse officers”. When told [redacted] had died in a car accident a watchhouse officer said, “shut up you wimp, stop fucking crying, that’s what happens when you little cocksuckers steal cars. Your friend’s dead now, there’s nothing you can do so shut the fuck up”.83 Video evidence reveals DC being told “we’ll look after your property, keep you from the bad boys that like playing with little boys” and “you want to be a dick, you’ll be trained and dealt with by professional dick dealers”. Senior Sergeant Gardiner agreed that each was inconsistent with his expectations of how watchhouse staff should treat children. [169] An email from a caseworker reveals FE’s family had made a complaint over him being called a “murderer”. A counsellor wrote that FE was “experiencing symptoms of PTSD following the incident”. FE gives evidence that “these days I’m very quiet cause otherwise officers threaten me, they say things like ‘oh you wanna go in a dress [assumed to mean a suicide smock]? Is that a suicide threat?’”. [170] The State’s argument in respect of this condition is centred on the applicants’ evidence being “non-specific as to timeframes”. The findings earlier made are reiterated. The State also contends there is “no record of any of the applicants raising any formal complaint at the time it is alleged to have occurred”. To the extent that assertion has relevance, the applicants’ undoubted distrust of the police, and authority in general 81 Affidavit of BA 2 [11]. 82 Ibid. 83 Further Affidavit of DC [3]-[7]. -- 33 of 202 -- 34 and their educational and intellectual capacities results in little weight being given to it.84 [171] The evidence reveals each applicant was subjected to disrespectful, degrading and offensive language. Those concepts are embraced by the concept of “insults”, but any semantic distinction between language that is insulting and language that disrespects, degrades or offends does not alter the substance of the complaints or cause any prejudice to the State. [172] Otherwise, the State says the language used was “the exception and not the rule”. That is unpersuasive, it has little relevance in the instant context and circumstances and the nature of what is established as language directed by adult police officers to juveniles incarcerated in an adult environment with its attendant conditions as established. It would be odd if the applicants had to establish that such degrading language was the rule. It is sufficient that it featured as part of the treatment and conditions to which the applicants were subjected. Further, the evidence does not reveal that it was so exceptional that it prompted an apology or action to avoid its repetition. [173] It is established that each applicant was subjected to disrespectful, degrading and offensive language by watchhouse officers which was inappropriate when directed toward juveniles. (h) Children had limited access to the exercise yard and TV room (all visits to the exercise yard being one hour or less) [174] The documentary evidence before the tribunal establishes clearly that visits to the exercise yard were not limited to one hour or less. [175] BA alleges specifically that visits were for “less than one hour and not every day”. DC and FE also speak of access to the exercise yard and TV “for like an hour or so” or “about an hour”. It was conceded by Senior Sergeant Gardiner that the documentary evidence may not always be entirely accurate. Notwithstanding, the documentary evidence should in this instance be preferred over the evidence of the applicants. [176] It is uncontroversial that the applicants did not have daily access to the exercise yard. [177] The applicants’ written submissions focus centrally on the limitations on use of the exercise yard not meeting the applicants’ needs as children. [178] The evidence establishes that each applicant did not have access to the exercise yard each day and a condition to that effect is established. (i) Children were not provided with appropriate educational materials or resources [179] There is little doubt that this condition is established for all three applicants. [180] Ms Harding from the Department of Youth Justice and Victim Support gave evidence that: Limited education material is given to children in watchhouses. In my experience, a high proportion of the young people held in watchhouses have 84 Dr Beech opines: “these young persons, as a result of their background distrusted the justice system and police structures” and being in police custody in the watchhouse “might aggravate existing animosity, hostility and distrust”: Report of Dr Beech 19 ll 939-940. -- 34 of 202 -- 35 low or limited literacy skills and generally would not be able to complete educational activities on their own. There is no place within the Cairns watchhouse to facilitate a classroom like environment or engage in group educational activities…”.85 Ms Harding also deposed that the Department “is not resourced to deliver education to young people in custody”. [181] The evidence of each applicant is to the effect that he was not provided with appropriate educational materials or resources. [182] Some reference is made in cross-examination to receiving (unspecified) books on one occasion and reference is also made in both their evidence and in their cross examination that chalk was provided so that they could use it on a blackboard which, apparently, is contained on one of the walls in their cells. [183] Some at least of the State’s cross examination was directed towards the utility of providing any such materials or educational resources. For example, BA was asked to confirm that he was expelled from high school at the beginning of 2021. That evidence has no relevance to the question of whether materials were in fact supplied. [184] Further cross examination was directed towards the applicants having access to chalk so that they could use the blackboard. That should not reasonably be seen as contradicting the asserted condition. [185] This term is established for each applicant. (l) Child’s sleep was inhibited by various conditions and practices, including hot conditions at night, without air conditioning, roll calls being conducted late at night and children being woken up for showers or breakfast early in the morning [186] Senior Sergeant Gardiner said that, although cell lights are turned off between 9.00pm and 6.00am, there is a “night light” in the cell which “generates enough light to see inside the accommodation cells” and “the lights in the hallways and administrative areas of the watch-house always remain on”. He also confirmed that “sometimes it may be necessary to wake up a person in custody to offer them breakfast”. Senior Sergeant Gardiner confirmed that showers are usually offered shortly after 6.00am. [187] The evidence also reveals the watchhouse was air-conditioned to a constant 25 degrees day and night. Leaving aside the issue of whether a night temperature of 25 degrees would inhibit sleep in Cairns, there is evidence from BA that there were occasions when the air-conditioning was turned off and he and other inmates complained about the resulting heat. [188] DC deposes that he was “woken in the night [2.00am or 3.00am] to have my fingerprints taken”.86 Documentary evidence reveals DC entering custody at 5.38pm on 1 February 2022 and identifying particulars being taken at 4.53am (having entered custody at 9.19pm). On 30 May 2022, the documents reveal particulars taken from “male offender [DC] at 00.22 having entered custody at 16.20”. [189] FE refers to noises within the watchhouse when he was “getting to bed”: 85 Affidavit Tracey Harding affirmed 28 August 2024, 13-14 [54]. 86 Affidavit of DC 11(a)]. -- 35 of 202 -- 36 Like you can hear other people talking down the hallway. You can hear people shouting on the other side. You can hear, like, keys jingling and that, and like police officers walking around the watchhouse.87 [190] The State makes the point that only DC and FE were required to provide identifying particulars after hours. The State places significant reliance upon documentary evidence indicating the three applicants told various youth workers and visitors on various occasions that they were eating and sleeping well. [191] The fact that on separate individual occasions they reported they were eating and sleeping well does not detract from evidence that various conditions inhibited sleep on other occasions. Satisfaction of the condition does not embody any calculation of the prevalence or number of occasions upon which sleep was inhibited. [192] Nor is it in issue that a number of conditions inherent to a busy watchhouse that might inhibit sleep are necessary for the efficient management of it. But those considerations do not inform the instant question. That question is confined to was the applicants’ sleep inhibited by watchhouse conditions and practices, including those listed. The evidence is clearly that such practices did. [193] It is established each of the applicants had their sleep inhibited by various conditions and practices within the watchhouse. (m) Children were not allowed to change clothes when detained including for long periods of time [194] Two aspects of the evidence are not in doubt. First, both the Cairns watchhouse instruction documents and the evidence of Ms Harding suggest clearly that children are to be given clean clothes every day. Secondly, the evidence is clearly to the effect that the applicants were not given clean clothes every day. [195] Senior Sergeant Laidlaw said in an email to the office of the Public Guardian, “we don’t as a rule supply clean clothes to [young people] or adults, … on a daily basis. […] It is my understanding that if a person has been in the watch-house for a few days then they’re offered clean clothes…”. [196] BA deposed that he was “not allowed to change my clothes at all during the whole time [I] was in the watch-house” during a 10-night stay in April/May 2022. DC deposed to being “unable to change clothes”. FE said in cross-examination that during the course of an 11-night stay he had clean clothes changed “a couple of times”. [197] The evidence establishes that there were occasions when support organisations such as YETI or the applicants’ families provided clothes for them. However each of BA and DC deposed to not receiving them. BA said, “I talked to a youth worker I know and asked if he had brought me some clothes. He said yes he had but I think the officers did not let me have them”. In cross-examination he accepted that there were “spare clothes that YETI would bring in for you”, but “the police wouldn’t give it to us … I didn’t see those clothes until I got released”. The State points to evidence of notations in custody documents which reveal him telling a youth worker that he “had fresh clothes from YETI and didn’t need any more”. That evidence does not derogate from BA’s evidence. 87 Transcript of proceedings day two 3-16 l 38-40. -- 36 of 202 -- 37 [198] The documentary evidence pointed to by the State does not suggest that clean clothes were given to an applicant as distinct from, as they allege, being retained in their property. For example, under cross examination BA accepted that clothes would be cleaned, but: … we wouldn’t get them back until we get out the watchhouse or get out from lockup. And while your clothes are being cleaned, you could wear other clothes that YETI had dropped in? --- Not that I could recover, no.88 [199] DC said that he was “unable to change clothes”. He too referred to his mother bringing in clothes but “they wouldn’t give them to me because of suspicion of stuff being brought in”. In cross examination, he was asked whether he was suggesting he wore the same clothes the whole of the time that he was in detention during that lengthy stay. He replied that he was. He was then asked whether “you’re able to ask to have your clothes washed”. He responded that he didn’t know that and when asked whether his mother was able to bring fresh clothes in, he confirmed that she did bring in fresh clothes but “they never gave them to me”. When it was suggested to him that he was given fresh clothes whilst he was in there during the stay he said “uh, no, I know I wasn’t”. [200] The evidence of Ms Harding suggests a common practice but does not dispute the evidence given by the individual applicants. She says for example there was “a stash of clothing” kept at the Cairns watchhouse which could be used by the staff. She also said that following a visit with DC on 13 February, there was a file note which said that DC “requested fresh clothes and [his mother] agreed to deliver fresh clothes tomorrow to the watch-house”. Yet, there is no evidence contradicting the assertion that any such clothing was not supplied to the applicants, much less so as to facilitate a daily change of clothing. [201] FE accepted that he gave clothes to the police to wash and they were washed and given back to him. Documentary evidence suggests other occasions when clean clothes were withdrawn from FE as a result of his behaviour. However, a separate case note refers to a visit by youth workers which “confirmed delivery change of clothes” but goes on to say “however [FE] was unaware of this as the clothes had not been passed on”. To similar effect a file note from a youth worker on 28 February 2022 records FE said he “wasn’t given his fresh clothes last Friday before the weekend but has been having showers and was only recently [sic] given his clothes”. [202] The State asserts that there is no evidence which demonstrates “a prohibition” on any of the applicants being able to change clothing. A condition consistent with the evidence should not properly be read that narrowly. The gravamen of the condition that the applicants “were not allowed” should be understood as “were not permitted”. [203] It is established that each of the applicants were not permitted to change clothes every day and that clothes supplied for their use were not passed on to them. (n) Children were denied access to adequate pro-social activities to pass the time [204] A Memorandum of Understanding (“MOU”) between the Queensland Police Service and the Department of Communities regarding the detention of children in 88 Transcript of proceedings day one 1-33 ll 19-23. -- 37 of 202 -- 38 watchhouses signed in June 2008 provides that “in cases when a child is to be detained for more than four hours, materials or age-appropriate activities should be provided unless any of these items constitute a serious security risk”. [205] The MOU goes on to say “children held in watch-houses should be provided with age- appropriate materials for activities so as to alleviate boredom and reduce the risk of disruptive self-harming or other unacceptable behaviour”. [206] Senior Sergeant Gardiner’s evidence makes clear that the applicants having resources such as “books or playing cards and balls (such as a soft football) for use in the exercise yard” was dependent upon security and operational needs. There was no evidence that such material was provided as a matter of course. [207] Senior Sergeant Gardiner deposes that “as a general practice … children … are often provided chalk to use in their accommodation cells” and “generally the only reason a young person would be denied access to chalk is due to operational safety concerns”. Sergeant Laidlaw deposes that when he was acting officer in charge of the watchhouse he “restricted access to chalk on account of the dust causing me health issues, specifically sinusitis and hay fever”. [208] For present purposes it can be accepted that watchhouse disciplinary measures might involve withdrawal of privileges or not providing materials. But the instant question is whether materials and resources were provided in the first place. [209] The direct evidence of the applicants is that there were neither the age-appropriate activities or materials envisaged by the MOU (or what in any event might be a considered as adequate pro-social activities) as a means of passing the time or alleviating boredom. [210] For example, BA deposes that during his 10-night stay in April/May 2022 he “had no books, no schoolwork or chalk or anything to do in the cell. It was really boring”. “I found it hard … I got really bored and felt very quiet and was overthinking things”. A Youth Justice note records BA “has been doing push ups in his cell to keep busy”. [211] DC deposed “there is nothing to do in the cell”. In cross-examination, he was asked about incidents in February 2022, the effect of which was to suggest that the bad behaviour caused withdrawal of privileges including materials to pass the time. In other cross-examination he agreed there was a two-station radio in the watchhouse and he could listen to it in his cell, and “during the [nine-day] February 2022 stay” he “asked for and was given some playing cards and … that was an activity you were able to engage in to keep you occupied in the cell”. [212] FE deposed “there is nothing to do […] no cultural considerations for me or any other children … no programs of any kind at all”. A Youth Justice note records that he asked “to provide them with some sort of activity as he was bored and stressing out”. FE agreed in cross-examination that other boys shared his cell, conversation thereby passing the time. Also while “not suggesting you did this every day”, FE agreed that he could watch TV when he went into the exercise yard or an internal TV room and also agreed that he “got some playing cards” and he “could play cards with other kids when you were in the TV room”. [213] All three applicants refer to material such as chalk or playing cards only being provided at the discretion of watchhouse officers. For example, video evidence on 27 July 2021 records FE asking if he could have chalk and the officer replying “I’ll ask -- 38 of 202 -- 39 the boss, probably not”. A video of DC on 9 January 2021 when DC was inducted records him asking for chalk and the officer saying, “Not sure if we’ve got any I’ll have a look”. [214] The State’s submissions refer to other children sharing cells and the consequent opportunity “to interact with each other and keep each other company”. The written submissions also contend all applicants had access to the internal and external exercise yards”. All three applicants refer to the absence of materials in each, save for a TV. [215] The evidence is clearly to the effect that activities of some type were provided sporadically and unpredictably. However, it cannot reasonably be contended that watching TV for short irregular periods; occasionally playing cards; and talking to fellow prisoners are adequate pro-social activities for juvenile detainees. [216] It is established that each of the applicants were not provided with adequate pro-social activities to pass the time. (p) Children were detained in padded cells (q) Children were clothed only in suicide smocks [217] These conditions can conveniently be dealt with together. [218] The point is again made that the reasons for the imposition of these conditions may be relevant in respect of other s 11 requirements, but the instant question is directed only to the fact of their occurrence. [219] There is no evidence that can be seen as supporting the assertion that any of the applicants were clothed “only” in suicide smocks. [220] There is no direct evidence from FE as to being placed in either a padded cell or a suicide smock. Documentary evidence reveals him being placed in a padded cell on two occasions, in September and October 2021. There is no evidence of him being placed in a suicide smock. Notwithstanding the absence of direct evidence from FE, the fact of his detention in a padded cell is established. [221] DC alleges he was placed in a padded cell and suicide smocked in February 2022, on which occasion, he says, he was required to wear the smock for six days. Senior Sergeant Gardiner deposes that a search of records reveals neither such occurrence in February 2022. DC’s evidence in respect of the asserted February occasion does not accord with comprehensive documentary evidence from more than one source and is not accepted. [222] Documents dated 10 February 2022, reveal that DC was “low, agitated and crying throughout” his contact with a youth worker and that he had “threatened to kill himself” and “he would kill himself if he didn’t receive time outside”. The Custody Log records: “Transfer from cell: FX to cell F2”. The State asserts in the compendium that “FX” refers to “exercise cell”. That expression is not explained. However, “FX” is used to denote a type of cell different to a “padded cell” in other documents. It seems clear that some form of mental health concern in February 2022 led to DC being taken from his cell but to an “exercise cell” rather than a padded cell. There is no reference in the documents to DC being smocked in February 2022. [223] DC deposes that he was detained in a padded cell and suicide smocked in April 2022. He deposes that he was suicide smocked again in June 2022. Implicitly he deposes he was also detained in a padded cell on that occasion: “After about four hours an -- 39 of 202 -- 40 officer told me I was going back to my normal cell”. Both events are supported by relevant documentary evidence. [224] It is established that each of DC and FE were detained in a padded cell on two occasions. It is established that DC was placed in a suicide smock on two occasions. It is not contended that either condition applies to BA. (s) Children had inadequate access to appropriate nutrition [225] The applicants’ written submissions contend “the focus of this condition is, plainly, whether sufficient and appropriate food was provided for the applicants nutritional needs as children” rather than what they assert is the focus of the State’s submissions, namely “that the applicants were fed”.89 [226] That is not the focus of the State’s submissions. Reference is made to the evidence of Senior Sergeant Gardiner who deposes to food being provided by an outside contractor Anglicare, which supplied three meals per day to each applicant. The menu plan annexed to his affidavit suggests clearly that the meals incorporate food of an adequate or “appropriate” nutritional standard. Senior Sergeant Gardiner also deposes to standard meals being altered to accommodate perceived differences in what children may want: In my experience children may not be receptive to the standard meals provided by Anglicare … watchhouse staff will sometimes request Anglicare provide meals which may be more appealing to a child. For example, instead of providing a curry, Anglicare may supply a burger. [227] In answer to a question from Member Lumb as to the “benchmark [by which] we are to determine what is appropriate or inappropriate nutrition”,90 Mr Scott said, “well, it has to be safe to eat, so not stale for example … and it has to be sufficient to satisfy them, bearing in mind they’re growing boys”.91 [228] In respect of food safety, the written submissions refer to BA alleging that sometimes “there was stuff in the food. … I used to hear it from the boys, and sometimes I would not even eat”. DC refers to “need[ing] more food. We’re growing kids”. FE on the other hand says the portions were sufficient but he often didn’t eat it because “like its been sitting there for a couple of days and it was cold”. The various assertions lack a broad consistency. [229] Ms Harding deposes to there being “a supply of snacks … stored at the watchhouse” specifically because “young people often want additional food” and also deposes to youth justice workers providing snacks “directly themselves”. [230] It is likely the applicants desired more food from time to time but there is no evidence persuasive of a conclusion that the food supplied was insufficient to meet nutritional needs or was by its nature inadequate for that purpose. It may also be the case that one or more of the applicants perceived the food as not meeting their standards of taste or as being contaminated in some way. However, their evidence is not persuasive of a conclusion that they could not access food of appropriate nutritional value. 89 Applicants’ final written submissions 13 [62]. 90 Transcript of proceedings on 30 May 2025 1-19 ll 46-47. 91 Ibid 1-20 ll 1-2. -- 40 of 202 -- 41 [231] This condition, centred on the capacity of the applicants to access appropriately nutritious food, is not established. Nor does the evidence permit a reframed condition that the food supplied to the applicants was not “sufficient and appropriate … for the applicants’ nutritional needs as children”. (t) Children were subjected to a poor standard of hygiene [232] The condition is, with respect, oddly framed. Mr Scott contended in oral submissions that “the evidentiary foundation for this term relies upon inconsistency of cleaning of the cells”. He refers to the evidence of Mr McLaren that toilets are “routinely damaged by those in custody”. The damage includes, relevantly, “inserting blankets and excess toilet paper into the toilet to deliberately flood the cells, smearing faecal matter on the walls of the cell, damaging the light fixtures”.92 [233] Mr Scott also refers to Senior Sergeant Gardiner’s evidence that “the accommodation cells are usually cleaned daily by contracted cleaning staff” and asserts that the evidence “indicates how inconsistent [sic] the cells are cleaned”. Notably, Senior Sergeant Gardiner also deposes “accommodation cells are cleaned every day, seven days a week”. There is no evidence as to the nature or extent of the cleaning undertaken by those contractors. [234] DC deposes that there is “not a single place [in the watchhouse] that doesn’t have spit on the walls, even shit on the walls. It’s that disgusting. Someone should come through and pressure wash it. Maybe that might get it clean”. FE says “a cleaner might come in and sweep and mop … it wasn’t enough to actually make the cell feel hygienic”. [235] BA offers no direct evidence in respect of the state of hygiene in the cells. The “routine” damage inflicted and its consequences permits of an inference that BA too was subjected to conditions thus described. [236] DC refers to flooding occurring when the toilet doesn’t flush. When asked in cross examination whether the cells were “mopped out every day”, he said “every second day to every day”. He rejected the suggestion that “if prisoners have put things on the walls the walls are cleaned off aren’t they?” He says that the “toilet is not really clean”. [237] The evidence does not permit of any firm conclusion as to the frequency with which the applicants were subject to an unhygienic environment in their cells. “Routine” practices giving rise to seriously unhygienic conditions ameliorated by, at best, once- daily cleaning by contractors is a sufficient evidentiary foundation to conclude that there were times when the applicants’ cells had significantly unhygienic conditions to which they were accordingly subject. [238] A second aspect of the condition is said to derive from the alleged infrequency with which showers were able to be availed by each of the applicants. [239] BA acknowledged in cross-examination that a shower every day was offered but said it was often too early or they weren’t woken sufficiently to avail it. The evidence is not persuasive that any restrictions on showering – for whatever reason – were such as to impact on the applicants’ hygiene. FE deposes that they “were allowed to shower 92 Transcript of proceedings on 30 May 2025 1-20 ll 7-15. -- 41 of 202 -- 42 every day” but speaks about the lack of clean clothes to which reference was earlier made. [240] This aspect of the asserted condition is not established for any applicant. [241] It is established that all applicants were accommodated in cells which were not cleaned adequately so as to cure or ameliorate unhygienic conditions occurring from time to time. (u) Children were unable to use showering facilities in private [242] It is uncontroversial (and evident from photos and watchhouse plans in evidence) that the one shower which could be used by the applicants is in a hallway which is, in the usual course, locked off. The shower is recessed so as to not be visible from the cells. There is no curtain or door on the shower. [243] There is no CCTV and as a consequence, it is said that safety concerns require an officer nearby. Senior Sergeant Gardiner refers to the officer “usually waiting in an adjacent area to the shower or within hearing” and “there may be times where watchhouse staff consider it necessary to enter the shower facilities while a child is showering”. [244] DC said the observing officer “at times” stands in a position where they are not looking into the shower “but they walk through to grab people and they walk back through”. He deposes to “usually” choosing not to shower due to the watchhouse officer “standing nearby”. While accepting that he could not be seen from the cells while showering he said “they do walk people through there”. When it was put directly to him that “they don’t walk people through when you’re having a shower”, he responded “yeah they do”. [245] BA and FE do not give direct evidence about the privacy afforded while showering. However, it is clear that the showering facilities earlier described are the only showering facilities available to detainees in the juvenile cells. The evidence from the State’s witnesses is as to the condition which applies to any applicant showering. [246] Again, it should be pointed out that the instant question does not inquire as to whether there were good reasons why the shower facilities were as the State’s witnesses describe. The only issue is whether, for whatever reason, the applicants could not use such shower facilities as existed in private. [247] This condition is established for all applicants. (v) Children had limited or no access to information about their situation, including about the time of day and when they could expect to be transferred [248] The State concedes that none of the applicants were advised in advance as to the timing of their transfer to the Cairns Youth Detention Centre (‘CYDC’). Moreover, not doing so is in accordance with police service policy. The State’s submissions centre on there being “good reason for that”. The State’s witness, Mr Drane, gave evidence that “information about the prioritisation process [which determines when transfers occur] is never shared with young people”. Uncertainty about bed availability is given as a foundation for not sharing information with the applicants. [249] Senior Sergeant Gardiner’s affidavit, under the heading “rights of children”, contains reference, to the principle that juveniles have a right: “To be informed of your situation in relation to bail, court appearance and transfer to a youth detention -- 42 of 202 -- 43 centre”.93 He deposes that the provision of information to persons in custody is usually determined at the discretion of watchhouse staff having regard to any operational or safety concerns. He refers specifically to his experience that “children (and adults) become agitated and distressed if they are told they will be transported and then due to operational or other reasons, this is delayed or does not occur as expected”. [250] Again, the instant issue concerns not providing information, not the reasons for not doing so. [251] BA said that he would ask the watchhouse officers what he was charged with and other details and, “they’d just say, ‘you’ll be out soon’ but then 10 days pass. They wouldn’t even tell me the time”. FE said, “I feel stressed when I’m in the watch- house. Half the time I don’t know what is happening. We aren’t told how long we will be there or when we’re being moved. We only find out we are being transferred to [the CYDC] when the officers come and get us”. [252] Video evidence on 12 June 2022 reveals DC asking why he is being charged and the watchhouse officer responding (albeit not directly to DC) that “he didn’t run fast enough that’s why” and goes on to record the watchhouse officer saying “we don’t know how long you’re here for but however long it is just accept that you are here for that long”. [253] Video evidence from 27 July 2021 reveals FE asking, “will I go home today or tomorrow” and the response “I don’t know mate”. Case notes from youth workers visiting FE record on 25 February 2022 that he “kept asking when they would be out” and refer to his stress at not knowing “when they would be out”. [254] It is established that each applicant had limited or no access to information about their situation, including when they could expect to be transferred. What Conditions Applied to Each Applicant’s Detention? [255] As earlier found, the applicants were required to be detained in the Cairns watchhouse for periods of two or more days during the claim period as follows: BA on two occasions, DC on three occasions and FE on ten occasions. [256] All three applicants were required to comply with the following conditions or requirements which applied to their detention during the claim period: (a) Being detained in cells with no natural light. (b) Being required to use the toilet in front of other children and on CCTV camera. (c) Being able to hear noises emanating from adult prisoners in other cells and other noise from within the facility, including screaming. (d) Being able to converse with adult prisoners. (e) Being subjected to disrespectful, degrading and offensive language by watchhouse officers which was entirely inappropriate particularly towards juveniles. 93 Queensland Police, Operational Procedures Manual (Issue 82, Public Edition, effective 11 June 2021) Appendix 16.2. -- 43 of 202 -- 44 (f) Did not have access to the exercise yard each day. (g) Were not provided with appropriate educational materials or resources. (h) Had their sleep inhibited by various conditions and practices within the watchhouse. (i) Were not permitted to change clothes every day and clothes supplied for their use were not passed on to them. (j) Were denied access to adequate pro-social activities to pass the time. (k) Were accommodated in cells which were not cleaned adequately so as to cure or ameliorate unhygienic conditions occurring from time to time. (l) Were unable to use showering facilities in private. (m) Had limited or no access to information about their situation including about the time of day and when they could expect to be transferred. [257] In addition, it is established that: (a) each of BA and FE conversed with adult prisoners. (b) DC and FE were each detained in a padded cell on two occasions. (c) DC was placed in a suicide smock on two occasions. Are the Applicants “Not Able to Comply” with the Imposed Term? [258] The applicants’ central assertions as to inability to comply are set out in paragraph [10] of the SOC earlier quoted. Serious Disadvantage [259] The State’s written submissions refer to what is alleged at [10] of the SOC and contend, “[t]he applicants therefore adopt the ‘serious disadvantage’ test for ability to comply applied… in Hurst at [134]”. Much of the oral argument by both parties referred to the serious disadvantage “test” and its application. [260] Principle plainly suggests that “serious disadvantage” is a description which can serve to distinguish inability to comply from circumstances that are described as an inability to “cope” or as something distinct from “non-trivial disadvantage”. The term “substantial disadvantage” can apply equally.94 [261] In oral submissions, the State contended: … when one works through each of the terms, in a forensic way, none of the actual facts that were applied to the applicants gave rise to the imposition upon them of a condition which led to them suffering some form of serious disadvantage in the Hurst sense. At its highest, it may have caused them discomfort for a short period. In some cases for a very short period. Or, depending upon the length of stay, it may have, as is stated by Dr Beech, put them in a situation of tolerable stress. Emphasis on tolerable. 94 “[T]here appears to be no real difference between his Honour’s use of the term ‘substantial disadvantage’ in relation to the comparable base group, and his use of the term ‘serious disadvantage’ in relation to the issue of ability to comply”: Hurst 583 [120]. -- 44 of 202 -- 45 But what we don’t see here on the evidence is something that gives rise to long- term harm to them or something that rises to that level of substance that was considered in Hurst and when one looks at the points that our learned friend relied upon today – that being that they don’t comply because they’re subjected to increased hardship compared to adults, well, that’s really repeating what was rejected in Hurst; that being non-trivial disadvantage. So that can’t be correct. And then this issue of increased risk to recidivism, which – as we’ve already addressed you on. On the facts of this case, that’s not supported by what Dr Beech has said.95 [262] The submission’s reference to “increased hardship” and “risk of recidivism” reflects Dr Beech’s evidence and an exchange between Mr Scott and Member Lumb. When asked whether “temporary hardship” was sufficient to amount to serious disadvantage, Mr Scott replied “Yes … greater hardship”. Mr Scott went on to contend risk of recidivism (resulting from exposure to adult conditions and adult detainees) is akin to the loss of opportunity that was at the centre of the substantial or serious disadvantage in Hurst: … it’s deprivation of an opportunity. In [Hurst], it was deprivation of an opportunity that would otherwise be available through the provision of that service, which is education, whereas here, it is a hardship … suffered by children that is greater than what is suffered by reason of contravention of principle 19 of the Youth Justice principles.96 [263] Respectfully, the State’s submissions replace the relevant statutory inquiry – whether an applicant “does not or is not able to comply” – with an inquiry directed to the metes and bounds of “serious disadvantage” (or “substantial disadvantage”). [264] The proper role of “serious disadvantage” is, with respect, encapsulated by the Court of Appeal in Mizner v State of Queensland (Corrective Services): … Although the Tribunal was urged to apply what had been said in Hurst, it must be borne in mind that what the Full Court said there was not intended to displace the relevant statutory text. The court in Hurst determined that it was sufficient to satisfy the requirement in s 6(c) of the Disability Discrimination Act, that a person was “not able to comply”, if a person would suffer serious disadvantage in complying with the relevant requirement or condition. The court did not purport to undertake an authoritative exercise in statutory construction and was not proposing that the phrase “not able to comply” was synonymous with “serious disadvantage”. Rather, the court was simply stating a conclusion that, on the facts of that case, proof of a serious disadvantage was sufficient to satisfy the statutory element of “not able to comply”. The court made plain that the case before it was, as with all cases of this type, highly fact specific and the outcome depended upon the circumstances unique to the case and upon the primary facts found by the primary judge. It was for these reasons the court determined that it was not necessary to rule upon the various construction arguments that had been put on behalf of the HREOC.97 (Italic emphasis added). 95 Transcript of proceedings on 30 May 2025 1-66, l 44 – 1-67 l 12. 96 Transcript of proceedings on 30 May 2025 1-30 l 40 – 1-31 l 16. 97 [2025] QCA 169, 40-41 [140] (Crowley J, Bond JA and Gotterson AJA agreeing) (‘Mizner’). -- 45 of 202 -- 46 [265] The emphasis on a fact-specific inquiry is of particular relevance in the instant case.98 Both parties recognise that, although the same statutory requirement applies to cases of entirely different factual circumstances, an ability to comply with a “condition, requirement or practice” imposed upon children whose liberty is curtailed requires considerations quite different from those pertaining to, say, whether a child was not able to comply with a condition of education because of a disability (as was the case in Hurst).99 [266] Here, a consideration of the fact-specific assessment of ability to comply commences with the premise that the safety and security measures inherent to watchhouse detention necessarily force compliance upon detainees. They must comply irrespective of their ability to do so. Within that factual context, the question is, what renders child applicants unable to comply but allows (as is admitted by the State) a greater proportion of adult detainees able to comply? [267] The answer lies in factors or circumstances inherent to childhood – or in the language of the ADA, the applicants’ attribute. [268] The State admits implicitly that such factors exist (albeit without specifying what those factors are). Its admission that, if the imposed term is proved, a greater proportion of adult detainees were able to comply with a proved imposed term during the claim period necessarily imports the existence of factors or circumstances pertaining to child detainees that make them less able to comply than the greater proportion of adult detainees.100 It is not possible for the State’s admission to arise otherwise. [269] Those factors apply to the applicants by dint of being children and are rendered applicable to them by dint of specific factors particular to them. The question as to what those facts or circumstances are is answered primarily by the State’s expert, Dr Beech. [270] Dr Beech points out. “… there are factors in adult custodial facilities that militate against the wellbeing of young persons, particularly when they are held for long periods”.101 He says: The needs of young persons are different from those of adult offenders. They are more likely to display acting out and volatile behavioural patterns. They are more likely to suffer aversive emotional states and dysregulation, with self- harming behaviour. They process information differently and, especially in these cases, have short concentration spans. They have a different perception of time. They can be easily bored, which can become distressing. They require a different approach to adult offenders. 98 The Full Court said in Hurst: “… a description of the situation of a particular child, based upon evidence peculiar to that child, does not of itself give rise to a test that is generally applicable to all cases” (at 584 [126]) and “[a]s with all proceedings of this type, Tiahna’s case is highly fact specific” (at 585 [132]). 99 The State submits, for example: “The application of the test becomes more difficult in circumstances where a person is subjected to a term which does not amount to a physical barrier or that is not otherwise binary in terms of the consequence of compliance”: State’s final written submissions 10 [44]. As to the applicants see, for example, Transcript of proceedings on 30 May 2025 1-26 ll 25-30. 100 The comparison is between a group with the attribute and a group without the attribute: Clarke 28-29 [111], [113]. 101 Report of Dr Beech 15 ll 774-776. -- 46 of 202 -- 47 Young persons are best placed in facilities that cater to their developmental needs. That requires access to education, training and recreational facilities. It relies upon custodians who understand their needs and can modify rules, programs, and procedures for them. There is a need for peer involvement and socialisation. Generally, they also need space to move around. The trajectory of juvenile delinquents may be further criminalised if they are influenced by adult offenders. Young persons often have more complex needs. They are more susceptible physically, emotionally, and socially than adults. This is aggravated by their immaturity, impulsivity, and problems with emotional regulation.102 [271] Dr Beech was asked about the risk of recidivism: “…if [children] are influenced by adult offenders, their risk of recidivism increases”. He responded: Yes … these are general terms and concepts, but if can (sic) imagine that there might be trajectory that an adolescent is on, um, that if they’re placed with a whole lot of pro-social people who, um, are trying to modify their behaviour in a good way, then that trajectory might be influenced in one direction. If they’re placed with a whole lot of adult criminals who are pushing, um, an antisocial agenda, then their trajectory can be influenced the other way.103 [272] The doctor agreed that “a consequence is that a need of children is that they are detained separately from adults … and not just physically separate … but also that they are not able to speak to adult offenders or hear adult offenders”.104 [273] Having been asked about each of the “needs of young persons different from those of adult offenders” listed in his report, Dr Beech agreed with the suggestion that “if a child is detained in a facility that does not include these measures, they are likely to be more stressed than most adults detained in the same facility” and “with the passage of time”, experience “helplessness”.105 [274] Dr Beech gave important evidence which gives further shape to the applicants’ submissions. [275] The doctor concluded that each of the applicants suffered from a conduct disorder – a psychiatric condition which, by definition, is confined to children. He assessed each applicant’s disorder as “severe”.106 He confirmed that this condition exacerbated the needs of children in detention identified in his report. More specifically, he agreed that a “severe prejudicial childhood” makes the applicants “more vulnerable”. [276] Dr Beech considered the applicants suffer the effects of being detained in an adult facility - that is, a facility that does not cater to the needs of children which arise by reason of them being children - but, importantly: … especially by reason of the fact that they had suffered adverse childhood events.107 … [the applicants are] not a typical group of adolescents. They have a lot of vulnerabilities and when I look at the material – and it’s just on the papers your 102 Ibid 14 l 727 – 15 l 743. 103 Transcript of proceedings day two 3-5 ll 15-21. 104 Ibid ll 26-29. 105 Ibid ll 42-48. 106 Ibid 3-7 ll 14-18. 107 Ibid 3-14 ll 30-31. -- 47 of 202 -- 48 Honour – um, it seems to me that of them all, DC was perhaps the most vulnerable, even [though] he’s not the youngest”.108 [277] Of course, Dr Beech agreed that individual differences play a role in the degree to which the applicants might be affected by the factors he describes. However, he was at pains to emphasise the particular vulnerabilities of the applicants arising from their significantly compromised upbringings, their vulnerabilities and their severe conduct disorders. [278] For example, when he was asked whether, even if the applicants are not overwhelmed by detention, “these children – in the watchhouse for between two and four days are still likely to suffer the effects that we’ve discussed” of being in a facility that “doesn’t cater to childrens’ needs”, the doctor replied “Yes, and these applicants in particular I think”.109 The Applicants’ Ability to Comply [279] Each applicant’s inability to comply arises because each is a child (that is, possesses the agreed attribute of age) and consequently each is “more susceptible physically, emotionally, and socially than adults” with consequent “more complex needs” which were not met. Their experience of a condition requiring detention in an adult facility during the claim period, which in turn required them to experience the proved conditions is marked by “immaturity, impulsivity, and problems with emotional regulation”. [280] The applicants’ inability to comply is highlighted by contrasting conditions which foster their ability to comply with those conditions they were required to experience during their detention in the Cairns watchhouse during the claim period. Those conditions include being separated “and not just physically separated” from adults; being in a facility that cater[s] to their developmental needs”; which provides “access to education, training and recreational facilities” and which has “custodians who understand their needs”. [281] The conditions required to be experienced might be summarised as “greater hardship” or as “substantial disadvantage” but neither is a substitute for the fact-specific inquiry as to whether each applicant is able to comply. [282] The State’s arguments distort the statutory requirement by maintaining the distinction between periods of detention as earlier discussed. The true question is whether the applicants’ needs as children rendered them unable to comply with conditions imposed across differing periods of detention in an adult facility during a 12-month period. The duration of the individual periods of detention does not improve any applicant’s ability to comply; that arises from factors inherent to childhood and the individual characteristics of each applicant. [283] Each period of detention was not fleeting. For example, this is not a case in which the complaint relates to a period of 20 minutes or some other short period during which the detention and conditions might have been complied with by a juvenile knowing that he was only being held for a short period before being transferred to a juvenile facility, or any inability to comply for only a very short period that did not cause substantial disadvantage. The effect of detention and its attendant conditions were 108 Ibid 3-14 ll 46-49. 109 Ibid 3-18 ll 10-15. -- 48 of 202 -- 49 essentially the same over all relevant periods of detention during a specific 12-month period. [284] Referencing ability to comply to the duration of the applicants’ individual periods of detention substitutes the question of ability to comply with ability to cope. The “ability” to comply is a broader question directed to what the imposed term requires. It is not directed to whether on a particular occasion for a particular duration, the imposed term was tolerated. [285] As has been seen, the State’s submissions assert that serious disadvantage is marked by “long-term harm” or “permanent” effects. The section does not admit of either such requirement. Nor does either requirement emerge as a requirement from the cases, including Hurst. The relevant effects are quintessentially fact specific. [286] Moreover, it would be an odd and apparently unintended interpretation if serious unlawful discrimination that had serious effects on an individual ceased to be actionable because post-event therapy and rehabilitation avoid long-term or permanent effects. Serious disadvantage should not be confined to long-term harm or permanent effects. [287] The State’s submissions also contrast serious disadvantage with short-term “discomfort” or the experience of “tolerable stress” to which each applicant’s experience is said to have been confined. That contention ignores the evidence of distress, including expressions of suicidal thoughts by the applicants and ignores or misinterprets the particular vulnerabilities and psychiatric issues suffered by each as identified by its own expert, Dr Beech. The fact-specific circumstances include, crucially, the specific vulnerabilities and psychological condition applicable to each individual applicant. Summary [288] BA was unable to comply with the requirement that he be detained in an adult facility for two periods of detention of approximately 10 days and 11 days which required him to comply with the proved conditions earlier identified. [289] DC was unable to comply with the requirement that he be detained in an adult facility for one period of detention of approximately nine days, and two periods of detention of approximately three days each, which required him to comply with the proved conditions earlier identified. [290] FE was unable to comply with the requirement that he be detained for ten periods of detention in an adult facility ranging from three days to 12 days which required him to comply with the proved conditions earlier identified. Is the Imposed Term Unreasonable: ss 56 and 415 of the Youth Justice Act [291] Section 56 of the YJA as it applied during the claim period provides the lawful authority for detention of the applicants: Custody of child if not released by court (1) Except where the child remains the prisoner of the court, a court that remands a child in custody must remand the child into the custody of the chief executive despite the provisions of any Act to the contrary. [note omitted] … -- 49 of 202 -- 50 (2) A court that remands a child into the custody of the chief executive must order the commissioner of the police service to deliver the child as soon as practicable into the custody of the chief executive. (3) A child held by the commissioner of the police service under an order made under subsection (4) is – (a) before being delivered to the chief executive – in the custody of the commissioner of the police service; and (b) after being delivered to the chief executive – in the custody of the chief executive. (4) Subject to subsection (7), the chief executive may keep a child mentioned in subsection (4) who is in the chief executive’s custody in places that the chief executive determines from time to time. (5) The chief executive cannot determine under subsection (6) that a child is to be kept in a prison. [292] For the purpose of these proceedings, it is accepted that s 56(4) orders were routinely not being made. A question arises as a result as to whether the detention of juveniles was lawful with the potential consequence that a writ of habeas corpus might successfully issue, or the State or individual watchhouse officers be held liable in false imprisonment. [293] The question arose in Youth Empowered Towards Independence Inc v Commissioner of Queensland Police Service & Anor,110 a case involving writs of habeas corpus. Ultimately, it was not necessary for the court to resolve the central question of the unlawfulness of detention, but it seems clear the decision was a catalyst for amendments to the YJA,111 including to s 56 – and to the effect of s 56. Crucially, s 415 was introduced with relevant retrospective effect. [294] Section 415 provides: a. This section applies if, before the commencement— (a) a child was remanded in custody by a court; and (b) the child was subsequently held by the commissioner of the police service; and (c) the court did not make an order under former section 56(4) in relation to the child. b. The child is taken to have been in the lawful custody of the commissioner of the police service while the child was held by the commissioner. c. Anything done in good faith in relation to the child while the child was held by the commissioner of the police service is as valid and lawful as it would have been if the court had made an order under former section 56(4) in relation to the child. 110 [2023] QSC 174. 111 Child Protection (Offender Reporting and Offender Prohibition Order) and Other Legislation Amendment Act 2023 (Qld), Part 9, s 82. -- 50 of 202 -- 51 d. To remove any doubt, it is declared that, in a proceeding in which good faith under subsection (3) is relevant, the burden of proof is on the person who seeks to show a lack of good faith [295] In its written submissions, the State argues the preconditions for application of the section contained in sub-paragraphs (a) and (c) of s 415(1) were not met. The State’s final written submissions contend s 56 “only applies to those periods of detention where the applicants were held on remand (which is not all of the relevant periods of detention)” (underlining in original).112 The submissions assert, and then set out, “varying circumstances in which a young person may be required to be detained at the Cairns watchhouse”.113 [296] No evidence before the tribunal suggests that any period of detention for any applicant was not the result of either the Childrens Court remanding them in custody or the Supreme Court revoking their bail. Mr Murdoch accepted that s 56 was applicable to both situations.114 Mr Murdoch also conceded that it “appears to have been the case” that an order under s 56(4) was not made “in respect of these applicants during the relevant period of their stay”.115 The consequence is a finding that s 56 applied to all orders resulting in all periods of detention for all applicants during the claim period. [297] The State conceded ultimately that “but for” each applicant’s period of detention having been ‘validated by section 415’”, each “would have been unlawful at that time”.116 The Effect of s 415 on Detention Conceded to be Unlawful [298] Section 415(3) validates and makes lawful anything done by the Police Commissioner to the extent it would have been valid and lawful had an order been made under s 56(4). The section does not make valid or lawful anything that would not have been valid and lawful had the order in fact been made. [299] Section 415(3) assumes accordingly that each applicant was ordered to be in the custody of the Chief Executive (s 56(1)). It also assumes accordingly that an order was made requiring the Police Commissioner to effect delivery of the applicants into the custody to the Chief Executive “as soon as practicable” (s 56(3)). (The interaction of the two sections assumes that children will be in the custody of police after arrest and before the order is made). [300] The question which arises is the effect of s 415(2): what is the effect of each applicant being “taken to have been in the lawful custody of the commissioner of police while the child was held by the commissioner”. [301] In Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs117 (‘Behrooz’) Gleeson CJ referred to a “possible ambiguity in the expression ‘unlawful detention’”.118 112 State’s final written submissions 72 [367]. 113 Ibid 70-72 [365]. 114 Transcript of proceedings on 30 May 2025 1-73 l 46 – 1-74 l 7 (following a previous exchange with the Tribunal at 1-68 l 22 – 1-69 l 5). 115 Ibid 1-69 ll 13-15. 116 Ibid 1-69 l 22. 117 (2004) 219 CLR 486, 494-495. 118 Ibid 494 [10]. -- 51 of 202 -- 52 [302] One meaning relates to the authority to detain. There is no issue that s 415 retrospectively “cures” any failure of a court to make a s 56(4) order, with the consequence that there was lawful authority to detain each of the applicants despite no s 56(4) order having in fact been made. [303] However, the former Chief Justice points out that unlawful detention can have a separate meaning: … a case in which the detention is authorised by law, but the conditions under which the detention is taking place are in some respects contrary to law. In [that] case, the detainee may be entitled to complain, and may have legal remedies, but it does not follow that he or she is entitled to an order of release from custody…119 [304] The applicants argue that “lawful custody” as used in s 415(2) – seen in the context of s 415(3) and its broader statutory context – is addressed to avoiding the possibility of writs of habeas corpus or actions for false imprisonment. It makes custody lawful in the sense of it being an antonym for the first of the two senses of unlawful detention referred to by Gleeson CJ but, crucially, the section does not address the mandatory conditions referred to in s 56(1). [305] The assumed s 56 order conditions the applicants’ detention upon compliance with the Police Commissioner’s obligation to deliver the applicants to the Chief Executive as soon as practicable. And it conditions detention upon the Chief Executive’s concomitant obligation to receive the applicants. [306] The applicants’ central contention is that the non-observance of those mandatory conditions enlivens the second of the senses of unlawful detention referred to by Gleeson CJ and, it contends, unlawful detention cannot be reasonable. [307] The State concedes unlawful detention cannot be reasonable but says the applicants’ detention is lawful. [308] Section 415 must be construed “by reference to [its] text, context and purpose”.120 That requires giving: … due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with.121 [309] The applicants refer to the purpose122 of s 415 which they contend is made explicit in the Explanatory Note to the Amending Act. The Note refers to the possibility that “children have been unlawfully held in police custody where a remanding or sentencing court did not make an order under section 56(4) …”. It goes on to state explicitly that the section is to “address the risk” that, in the absence of a s 56(4) order, 119 Ibid 495 [10]. 120 Australian Education Union v General Manager of Fair Work Australia & Ors [2012] HCA 19, 12 [27] (French CJ, Crennan and Kiefel JJ). 121 Statutory Interpretation 3rd ed (1997), 343-344 cited with approval by McHugh, Gummow, Kirby, Hayne JJ in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78]. 122 Section 14A(1) of the AIA provides that an interpretation which “best achieves the purpose of the Act is to be preferred to any other interpretation.” -- 52 of 202 -- 53 “police officers may be liable for their actions when they are acting in good faith… whilst believing that children were lawfully in their custody”.123 [310] The argument also refers as context to the new s 56 introduced by the amending Act. Sections 56(2) and (3) now specifically refer to the condition that the chief executive receive a child and modify the condition that the police commissioner deliver the child as soon as practicable. Broadly, the obligation of the chief executive to receive a child arises only upon notification by the chief executive to the police commissioner of a date when delivery will be accepted. Further, the chief executive is obliged to notify “as soon as practicable”. [311] That is, the new section addresses the very conditions left untouched by s 415. Section 415 does not alter the instant s 56; it leaves intact the conditions on detention mandated by the s 56 orders which the section assumes have been made. If s 415(2) was intended to remove or alter those conditions, as a section with retrospective effect it needed to do so clearly and unambiguously. Section 415 does not do so. [312] A construction of s 415 which leaves unaffected conditions of detention to deliver and receive is entirely consistent with the separate treatment of children and adults within the criminal justice system which is the core purpose of the YJA and, more specifically, is entirely consistent with Principle 19 earlier quoted, which is also left unaffected by s 415 or the amending Act more broadly. [313] The State is, with respect, correct that Principle 19 of the YJA earlier quoted is not an operative provision. Yet, patently, s 56 is designed to give operative effect to it. Section 415, which leaves untouched the instant s 56, should be construed accordingly. [314] The applicants also argue that s 415(3) does not permit an interpretation of “as soon as practicable” that, by reference to available resources, permits the Police Commissioner to avoid delivering each applicant or the Chief Executive to avoid receiving them. In particular, the section should not be interpreted to permit the Chief Executive to refuse or delay receiving the applicants by reference to issues of practicality determined by him or her. [315] “As soon as practicable” cannot embrace the Police Commissioner effectively defying or ignoring a mandatory condition of detention arising as a result of the (assumed) court order to deliver. Equally, it cannot embrace actions or omissions by the Chief Executive which defy or ignore the concomitant mandatory condition to receive the applicants. [316] The State argues the applicants’ argument does not “deal with the intricacies of … what constitutes ‘as soon as practicable’” and the YJA principles “must be evaluated in the context of all the relevant circumstances”.124 In oral submissions, it was said: … the real consideration here in terms of reasonableness and also in terms of the [YJA] is whether or not the child was delivered as soon as practicable into the custody … of the chief executive.125 123 Explanatory Note (tabled at the Third Reading), Child Protection (Offender Reporting and Offender Prohibition Order) and Other Legislation Amendment Bill 2022 (Qld), 11. 124 State’s final written submissions 73 [415], 74 [418], 76 [426] ff respectively. (It is also contended, of course, that the applicants do not establish the paragraph [8] conditions). 125 Transcript of proceedings on 30 May 2025 1-69 ll 43-45. -- 53 of 202 -- 54 … … self-evidently, if a bed isn’t available at a Youth Detention Centre, it’s not practicable for the police service to deliver the child into the custody of the department, because there’s no safe or secure place for them to be … accommodated. … If the applicants’ contention was correct, the section becomes unworkable, and would oblige the police service, should they have the resources, to simply deliver a child into the … hands of … the department, whether a detention centre was full, … was in lockdown, … was the subject of a riot, … was the subject of some other safety concern.126 [317] Those arguments should be rejected for three reasons. [318] First, as the Explanatory Note to the Amending Act recognises, s 56 gives no discretion. The asserted interpretation would permit the entire object of the section (and the broader purposes of the YJA) to be defeated by the Police Commissioner, the Chief Executive, or both of them jointly, exercising a discretion which the legislation does not give either of them. [319] Second, the arguments proceed from the assumption that it is the Police Commissioner in whom such decisions vest. That interpretation subverts what the section and the YJA require: the treatment of children is distinct from that of adults, and it is for the Chief Executive to receive children into custody and to assume responsibility for them and make decisions accordingly. [320] Third, the State’s contention that the question of “as soon as practicable” should take into account considerations such as availability of beds and other practical factors arising from the uncontroversial fact that there is no YDC in Cairns127 is not sustainable. The question of what “as soon as practicable” means in the context of s 56(4) and s 415 is to be judged in a context where there is no discretion in the order that can be made by a court and no discretion in carrying out the obligation: the purpose is to devolve custody and responsibility for children to a different public functionary (the chief executive) so as to facilitate their mandatory separate treatment including, crucially, decisions consistent with the YJA that have as a consideration limited facilities. [321] The applicants assert that the State’s contentions, “elide the inherent unsuitability of the watchhouse for children” and “each [is] ultimately a symptom of the [State’s] proven failure to provide adequate resources to implement its own law”.128 They contend “the whole answer” to that argument is “the failure by the State to observe its own laws”129: A suggestion that it is impracticable for the Chief Executive to receive those children, because of inadequate infrastructure constructed by the State, does not make lawful an unlawful failure by the Commissioner to deliver a child to the Chief Executive contrary to s 56.130 126 Ibid 1-70 ll 31-44. 127 State’s final written submissions 74-75 [418]-[424]. 128 Applicants’ final written submissions 27 [150]. 129 Transcript of proceedings on 30 May 2025 1-36 ll 41-45. 130 Applicants’ final written submissions 23 [121]. -- 54 of 202 -- 55 [322] The applicants’ detention was unlawful in the sense that it did not comply with mandatory conditions to which the detention was subject. Section 415 of the YJA does not remedy the unlawfulness arising from the non-observance of those conditions. [323] The “…conditions under which the detention is taking place are in some respects contrary to law”. As a consequence, the conditions cannot be reasonable. Is the Imposed Term Otherwise Reasonable? [324] The relevant principles are not in doubt. The State refers, for example, to principles emerging from Waters, Clarke and also Australian Medical Council v Wilson.131 [325] Of course, the factual matrix and consequent questions here, while arising from the same principles, invoke issues and questions markedly different from those that arise where indirect discrimination is alleged in the context of the provision of goods and services for people at liberty. [326] The State asserts the proved paragraph [8] conditions132 are reasonable by reference to a number of factors: “operational and safety considerations” (relying on the evidence of Senior Sergeant Gardiner); “the limited length of detention”; “expected standards of behaviour [by watchhouse police] were enforced”; the “logistics involved in rotating use of the exercise yard”; and “the detention environment generally”. [327] For example, it is said cells with no access to natural light is reasonable because “the applicants were rarely confined to their cells for the entirety of a 24-hour period”. It is said the “protection and privacy” afforded by the in-cell toilets’ “dignity” wall, and the duration of the stays, made this condition reasonable. [328] Detention contrary to Principle 19, and the provisions of the YJA more broadly, does not of itself lead to the conclusion that the applicants’ detention is unreasonable. However, legislation which codifies separate treatment of juveniles in the criminal justice system, and sets out Principles which underlie its operative provisions, should be a component of “all the relevant circumstances” required to be considered by s 11(2) of the ADA. [329] The YJA clearly provides that the applicants should not be detained at the watchhouse (and should not as a consequence have experienced the proved conditions). The circumstances relied upon by the State necessary to discharge its onus should demonstrate that it was reasonable for the applicants to be detained in the watchhouse. [330] Although the State’s written submissions approach the question of reasonableness by reference to each of the paragraph [8] conditions individually, it nevertheless also addresses the question more broadly.133 The written submissions refer to a number of practical considerations all emanating from the fact that, as is uncontroversial, the nearest YDC is in Townsville. [331] Mr Murdoch’s earlier submissions referred to at [316] above are relevant. In addition, the State’s written submissions refer to:134 131 (1996) 68 FCR 46, 61 (Heerey J). 132 This is an alternative submission by the State: as has been noted, it does not accept the conditions are proved. 133 Transcript of proceedings on 30 May 2025 1-69 l 43 – 1-70, l 2. 134 State’s final written submissions 74 [418]-[422]. -- 55 of 202 -- 56 (a) It not being “practicable nor reasonable” to transfer the applicants to Townsville when they had a pending court appearance in Cairns; (b) Distance, and “access to family, legal representatives and other supports” in Cairns; (c) “Prioritisation assessment of the admission of the applicants to CYDC was under active review daily and involved the balancing of a number of competing factors such as age, gender, cultural background, suicide risk, other health issues, cognitive capacity, length of time in the watchhouse, and any other issues which may impact a child’s welfare in the watchhouse”; (d) It is not “practicable” or “reasonable” where a transfer to a YDC “would jeopardise the safe capacity of that facility” (referring to the evidence of the State’s witness, Mr Drane). [332] The State accepts “that at the relevant time there wasn’t the youth detention capacity to take the number of young children who were detained and that was why they had to be detained for periods in the watchhouse”.135 [333] Each and all of the circumstances relied upon the State boil down to there being no YDC with relevant capacity in Cairns (or in close proximity). The applicants’ central response (the asserted “whole answer”) to that proposition is referred to above at [321]. [334] In Waters, above, McHugh J said: The reasonableness of the imposition of the requirement or condition in that paragraph, therefore, must be examined by reference to the relevant circumstances, including in the case of a requirement or condition imposed by a government or statutory body any relevant policy objectives. In par.(c) the circumstances can include economic, financial and policy factors.136 [335] The YJA sets out fundamental policy considerations applicable to the detention of juveniles. The Act provides for the creation and operation of separate detention facilities for juveniles. Its Objectives include “establish[ing] the basis for the administration of juvenile justice”; and “establish[ing] a code for dealing with children who have, or are alleged to have, committed offences”. It clearly sets out Principles, which include the separate detention of children which “underlie” the operation of the Act. The Act (then) required courts to make orders giving effect to the principle of separation and required state functionaries to effect the same.137 [336] The State’s argument is, at heart, a contention that it is reasonable to ignore those mandatory statutory provisions and broader clear policy objectives because the separate facilities required by the Act have not been provided. [337] In Jianxian v Minister for Immigration, Local Government and Ethnic Affairs138 Neaves J held: 135 Transcript of proceedings on 30 May 2025 1-71 ll 25-28. 136 410. 137 Respectively, YJA Part 8, ss 2; 3; Schedule 1; Principle 19; and s 56. 138 (1991) 23 ALD 778 (‘Jianxin’). The applicants also refer to Commonwealth of Australia v AJL20 (2021) 273 CLR 43, 72 [48] (Kiefel CJ; Gageler, Keane JJ). -- 56 of 202 -- 57 Clearly, it is not for the court to dictate to the Parliament or the Executive what resources are to be made available in order properly to carry out administrative functions under legislative provisions. Equally clearly, however, the situation cannot be accepted in which the existence of a right created by the Parliament is negatived, or its value set at nought, by a failure to provide the resources necessary to make the right effective.139 [338] The State points to evidence that capacity in YDCs had increased over time and that various challenges attend the construction of facilities. It submits the situation is quite different to one in which, for example, it can fairly be said that the State was “asleep at the wheel”.140 That submission does not provide an answer to the applicants’ assertion. Respectfully, it ignores the fact that it was the State who, in the same piece of legislation, both provided for YDCs and required juvenile detention to be served within them. Reasonableness should not embrace ignoring those very provisions. [339] That is not to ignore the balancing of the specific factors set out in s 11(2) of the ADA. Rather, it recognises the proper context in which those considerations are to be applied in the instant circumstances and, in particular, to set “the consequences of failure to comply with the term” and the “cost of alternative terms” within the specific context provided by the YJA. [340] The State does not establish that detention in the Cairns watchhouse was reasonable and consequently that the conditions imposed and experienced because of that detention are reasonable. Is Discrimination Excused by s 106 of the ADA? [341] The State seeks to excuse any discriminatory conduct by reference to s 106 of the ADA. Only s 106(1)(b) is relied on: A person may do an act that is necessary to comply with, or is specifically authorised by … (b) an order of a court. [342] The State relies upon the Verdict and Judgment records exhibited to the affidavit of Senior Sergeant Gardiner and contends that the orders there recorded made it necessary for the applicants to be held in the watchhouse pending their transfer to a YDC. [343] The proper interpretation of beneficial legislation and the requirement to interpret the ADA in a manner that best achieves its purpose involves a corollary that exemptions such as s 106 should be interpreted strictly. More specifically, the High Court has said: …. a reference to what is necessary to comply with ‘a provision of ... any other Act’ can be construed as referring only to what it is necessary to do in order to comply with a specific requirement directly imposed by the relevant provision 139 Jianxin 795. Cited with approval in Patrick v Australian Information Commissioner (No 2) [2023] FCA 530, 20-21 [50]. 140 Transcript of proceedings on 30 May 2025 1-72 ll 15 ff. -- 57 of 202 -- 58 as distinct from a requirement imposed by some person in the exercise of some power conferred by the provision.141 [344] The applicants’ argument that the orders there outlined are not orders pursuant to s 56(4) of the YJA is accepted. The discussion above as to the effect of s 56(4) and s 415 pertain. [345] The applicants’ argument that “the purported orders do not, in the Waters sense, make it necessary to or specifically authorise the detention of the applicants” in an adult facility pending their transfer to the custody of the Chief Executive is also consequently accepted.142 [346] The exemption in s 106 of the ADA does not avail the State. The Application to Further Amend the Statement of Contentions [347] The proceedings were adjourned to 30 May 2025 to permit the parties to prepare comprehensive written submissions. The further date was to accommodate supplemental oral submissions from both parties. Shortly prior to 30 May, the applicants filed an application seeking to amend their Statement of Contentions for the fifth time. [348] The amendment foreshadowed adding a further condition: (w) the applicants were required to comply with adult intake processes.143 [349] The amendment was opposed. Written submissions filed by both parties in respect of the proposed amendment were considered by the tribunal prior to 30 May. When proceedings commenced on that date, the tribunal dismissed the application and indicated that reasons for that decision would be given within these reasons. [350] The applicants contend the proposed amendment is crucial: Without the amendment sought, there is a risk that the Applicant144 would be prevented from relying on conditions that are material to their experience of Cairns watchhouse as children. This is critical to the case.145 [351] There is no doubt the tribunal has the power to grant the amendment at a late stage, including after the evidence has closed. The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) specifically permits the giving of a direction “at any time in a proceeding” and permits the tribunal to “do whatever is necessary for the speedy and fair conduct of the proceeding”.146 [352] That latitude occurs within a statutory context that requires the tribunal to act with a minimum of formality and technicality; which permits the tribunal to inform itself in any way considered appropriate; and which requires the tribunal to ensure all relevant 141 Waters 368 (Mason CJ, Gaudron J). 142 Applicants’ final written submissions 30 [163]. 143 The Statement of Contentions (for BA and DC) was filed on 30 September 2022 and amended on 2 November 2022; 4 October 2024; 26 March 2025 and 10 April 2025. 144 Presumed to be an error which should read “Applicants”. 145 Applicants’ Outline of Submissions in Support of Application for a Fifth Amended Statement of Contentions filed 21 May 2025, 3 [17] (‘Applicants’ Written Submissions in Support of the Application for a Fifth Amended SOC’). 146 QCAT Act s 62(1), (6). -- 58 of 202 -- 59 material is before it so as to decide the proceedings with all relevant facts. The overarching consideration is the mandated observance of the rules of natural justice.147 [353] The applicants place reliance on s 95 of the QCAT Act which, it is contended: … contemplates circumstances where a party being denied the opportunity to call or give evidence, and examine, cross-examine and re-examine witnesses is not unfair where the Tribunal ‘considers there is already sufficient evidence about the matter before the Tribunal’.148 [354] The applicants contend in essence that there is evidence before the tribunal as to the intake processes at the watchhouse and that both parties have led fact and opinion evidence relevant to that issue. It is contended that conditions at the Cairns watchhouse have always been in issue and the applicants’ submissions refer to the extensive evidence relevant to the intake processes led by the State. Annexed to their written submissions is a schedule of the terms and evidence before the tribunal said to be relevant to the proposed term. [355] The applicants submit the State has had a reasonable opportunity to “lead and test relevant evidence and it did in fact do so” and there is a proper opportunity for the State to make submissions in relation to the term. The principles of natural justice are not offended because, it is said, the State has had a reasonable opportunity of presenting its case in respect of the proposed term.149 [356] The State submits the amendment occurs at a very late stage in the proceedings. Although some of the evidence relied upon by the applicants emerged during the hearing, a “significant portion” of the evidence relied upon by the applicants has been available for many months prior to the hearing and the application. [357] Those issues are not unimportant, but are not in the tribunal’s view determinative of the application. [358] In Assistant Commissioner Condon v Pompano Pty Ltd150 it was said: … if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid ‘practical injustice’.151 (Italic emphasis in original). [359] The QCAT Act can be seen as legislation providing for “novel procedures”: the provisions earlier referred to pertain, together with, for example, the inapplicability of the rules of evidence and court procedures to tribunal proceedings. 147 Ibid s 28(3). 148 Applicants’ Written Submissions in Support of the Application for a Fifth Amended SOC 2-3 [10], [13]. 149 Referring to Mahommed. 150 (2013) 252 CLR 38. 151 Ibid 100 [157]. -- 59 of 202 -- 60 [360] As the applicants submit, not only is the Tribunal “not bound by an applicant’s formulation of a condition or requirement”, but also the evidence before the Tribunal permits the State to know both the case the applicants seek to make “and how [they] seek to make it”. So much is accepted. [361] However, a determination of practical injustice in the instant circumstances also involves, as the State submits, a consideration of it being denied forensic choices as to what aspects of the evidence given by witnesses would be challenged or questioned by reference to specific allegations as to the terms upon which the applicants found their s 11 claim. Further, the addition of a further specific term raises the possibility of the State wishing to adduce evidence specific to that term. [362] Permitting the amendment at the late stage it was sought would deny the State that opportunity and cause them prejudice accordingly. [363] Those factors sit together with the very late stage of the proceedings at which an amendment is sought and the lengthy period during which the proceedings have been on foot during which any further amendment could have been sought. [364] For those reasons, the application was dismissed. Conclusion as to the Discrimination Claim [365] The applicants establish the State imposed a term upon each of them with which none could comply. The State does not establish that the imposed term was reasonable. The State does not establish the application of s 106 of the ADA. [366] Indirect discrimination within the meaning of s 11 of the ADA is established. B. THE HUMAN RIGHTS CLAIM152 [367] The Objects of the HRA are to be achieved by, among other things, “requiring public entities to act and make decisions in a way compatible with human rights”.153 The State and its associated154 entities are admitted to be “public entities” within the meaning of the Act.155 [368] Section 58 of the HRA makes it unlawful for a public entity to act or make a decision in a way that is not compatible with human rights. The section also makes it unlawful to fail to give proper consideration to a human right relevant to the decision.156 [369] In Owen-D’Arcy,157 Martin SJA cited with approval the three-step process outlined by Richards J in Thompson v Minogue (‘Minogue’):158 (a) first, identify whether any human right is relevant to or engaged by the impugned decision or action of the public authority (the engagement question); 152 At [170] of their written submissions, the applicants abandoned the assertion at [16] of the SOC that rights given by ss 15, 17, 29, 32 and 37 s of the Human Rights Act 2019 (Qld) (‘HRA’) were limited by the State: Applicants’ final written submissions 31 [170]. 153 HRA s 4(b). 154 Thompson v Minogue (2021) 67 VR 301, 317 [49] (‘Minogue’), as summarised with approval by Martin SJA in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, 40-41 [140(a)] (‘Owen-D’Arcy’). 155 HRA s 9. 156 Ibid s 58(1)(a), (b). 157 Owen-D’Arcy. 158 Minogue 323 [80]. -- 60 of 202 -- 61 (b) secondly, determine whether the decision or action has limited that right (the limitation question); and (c) thirdly, consider whether the limit is under law, reasonable, and demonstrably justified having regard to the matters set out in s 7(2) of the Victorian Charter [s 13(2) HRA] (the proportionality or justification question).159 [370] As to the first of the three requirements, the applicants identify each of the human rights specified in ss 25, 26(2), 30(1), 33(1) and 36(1) of the HRA. [371] Each is said to be limited by the decision to detain each applicant in an adult facility and the decision to require them to experience concomitant conditions or by a failure to give proper consideration to the relevant human right in making those decisions. [372] The relevant act or decision is to detain each applicant in an adult facility with the concomitant acts or decisions which saw them required to comply with proved conditions. The relevant failure to properly consider is the failure of the State and its agents to properly turn their mind to the human rights obligations in imposing conditions on each vulnerable child within an adult detention facility: It is primarily a question of fact whether, in a given case, a decision-maker has given proper consideration to relevant rights, as required by the procedural limb of [s 58 of the HRA]. This is a different exercise from proportionality review of a decision for compatibility with human rights.160 [373] As to the second requirement, “[a]n act or decision will limit a human right if it ‘places limitations or restrictions on, or interferes with, the human rights of a person’”.161 The right should be “‘construed in the broadest possible way’ by reference to the right’s ‘purpose and underlying values’”.162 [374] As to the third element: … the burden of establishing that a limit on a human right is justified or proportionate rests with the relevant public authority which, in this case, is the respondent. And that the standard of justification is stringent. The evidence required to prove that a limit on a human right is justified, having regard to the matters set out in the equivalent of s 13(2) of the HRA, should be ‘cogent and persuasive’.163 [375] Section 8 of the HRA provides: An act [or] decision … is compatible with human rights if the act [or] decision … (a) does not limit a human right; or 159 Owen-D’Arcy 38-39 [132]. 160 Owen-D’Arcy 40-41 [140] where Martin SJA summarised with approval what was held by Richards J at 317 [49]-[51] in Minogue. 161 Johnston v Carroll (Commissioner of Queensland Police Service) [2024] QSC 2, 27 [72] (Martin SJA) (‘Johnston’) quoting Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623, 683 [290]; PJB v Melbourne Health; Patrick’s Case (2011) 39 VR 373, 384 [36] (Bell J). 162 Johnston, and the authorities there cited. 163 Owen-D’Arcy 39 [133] citing with approval Richards J in Minogue and Re Application under the Major Crimes (Investigative Powers) Act 2004 (2009) 24 VR 415 (‘Re Application under the Major Crimes Act’). -- 61 of 202 -- 62 (b) limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13. [376] The applicants “… need only establish prima facie incompatibility before the burden would shift to the [State] to justify the limitations caused by the action/decision”.164 Thereafter: The burden on the [State] to justify limitations is high, requiring a degree of probability commensurate with the occasion, and must be strictly imposed in circumstances where the individual concerned is particularly vulnerable.165 [377] The applicants, as children, are “particularly vulnerable”. The compromised circumstances of their upbringing and the “severe disorder” from which each suffers, as discerned by Dr Beech, makes them all the more so. [378] Section 13 of the HRA provides a “proportionality test”:166 (1) A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. (2) In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant— (a) the nature of the human right; (b) the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom; (c) the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose; (d) whether there are any less restrictive and reasonably available ways to achieve the purpose; (e) the importance of the purpose of the limitation; (f) the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right; (g) the balance between the matters mentioned in paragraphs (e) and (f). [379] It has been said of a section 13 analogue applied in a prison context: In a prison context, the exercise of justification required by s [13] of the [HRA] requires attention to a wider range of matters than whether the human rights impact of a decision is justifiable in the interests of the management, good order or security of the prison. Section [13] also requires a decision-maker to have regard to the nature and extent of the limitation of human rights, the relationship between the limitation and its purpose, and any less restrictive means reasonably available to achieve that purpose.167 164 Owen-D’Arcy 38 [131(a)]. 165 Ibid [131(b)] citing with approval Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441, 485 [131]-[132]. 166 Owen-D’Arcy 32-33 [104]. 167 Minogue 342-343 [143] (Richards J), cited with approval by Martin SJA in Owen-D’Arcy 41 [141]. -- 62 of 202 -- 63 [380] There are differences between a prison and detention on remand, but the purpose of relevant restrictions and the consideration of human rights similarly involve justification by reference to “management, good order or security”. [381] “The Court must be guided by the values and principles essential to a free and democratic society.”168 Some at least of those values and principles are given legislative expression in the YJA by demanding that juveniles receive different treatment within the criminal justice system, including in their detention. [382] In Owen-D’Arcy, above, Martin SJA cited with approval169 the following passages from the judgment of Emerton J in Castles v Secretary, Department of Justice,170 relating to a proper consideration of human rights in decision making: Proper consideration need not involve formally identifying the ‘correct’ rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over- zealously by the courts. While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person’s human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.” (Bold emphasis added by Martin SJA). [383] Martin SJA referred to the following principles171 in summarising what was held by Richards J in Minogue: (a) No latitude is to be given to a decision-maker in determining whether the decision-maker gave proper consideration to relevant human rights in making a decision. It is primarily a question of fact whether, in a given case, a decision- maker has given proper consideration to relevant rights, as required by the procedural limb of [s 58 HRA]. This is a different exercise from proportionality review of a decision for compatibility with human rights. (b) While some deference might be given to a decision-maker’s assessment that a limit on human rights is justifiable – that will depend on the context in the circumstances including the extent to which the decision is supported and objectively justified by a transparent process of reasoning. (c) There is no place for deference in determining whether a decision-maker has given proper consideration to relevant human rights. 168 R v Oakes [1986] 1 SCR 103, [39] (Dickson CJ), cited with approval by Warren CJ in Re Application under the Major Crimes Act 424 [38] and in turn by Martin SJA in Owen-D’Arcy 33 [106], 34 [110]. 169 Owen-D’Arcy 40 [137]. 170 (2010) 28 VR 141 (‘Castles’). 171 Ibid 40-41 [140], footnotes omitted. His Honour referred to [49]-[51] of the judgment of Richards J in Minogue. -- 63 of 202 -- 64 (d) Proper consideration requires more than simply balancing the impact of the decision on a prisoner’s human rights against the countervailing considerations of a prison administration. It requires both the identification of the human rights impacts of a decision on those it may affect, and, where a right may be limited, assessing whether the limit is justifiable in accordance with [s 13(2) HRA]. Section 13 – Acts or Decisions “Under Law” [384] Each of the alleged rights and the manner in which they are said to be limited will be discussed below. However it should be found at the outset that, as the applicants contend, any limitations imposed cannot be lawful by reason of them not having been limited “under law” within the meaning of s 13. [385] The applicants rely primarily upon what was said in Minogue: It will be impossible for the public authority to meet the justification requirement if it is established that there has been an unlawful interference because, in such a case, the limitation to the [human] right constituted by the interference would not be ‘under law’.172 [386] The argument is founded upon the contentions of unlawfulness earlier discussed. The findings made above pertain equally to the instant circumstances. The detention of each of the applicants was unlawful in the sense earlier found. [387] The limitations on the identified human rights by reason of each applicant’s detention in an adult facility and the conditions imposed concomitantly during the periods earlier identified did not occur under law within the meaning of s 13. [388] As a consequence, it should be found in respect of any limitations on the human rights to be discussed individually below are not “reasonable” and “demonstrably justified” within the meaning of that section and, thus, an unlawful limitation. The Relevant Human Rights (a) Section 25 – the Right to Privacy [389] Section 25 of the HRA accords to each applicant the right to, relevantly, “not to have [his] privacy [or] family … arbitrarily interfered with”.173 [390] Martin SJA has said: A consideration of whether a requirement is not arbitrary – because it is proportionate – does not involve the same analysis necessary under s 13. It is, instead, a broad and general assessment of whether any interference extends beyond what is reasonably necessary to achieve the purpose being pursued.174 [391] Each applicant asserts their family was relevantly interfered with by reason of family visits being at the discretion of watchhouse staff. For the reasons given earlier, the evidence does not sustain that contention. [392] Otherwise, the applicants allege an interference with privacy by reason of the toilet and shower facilities to which each applicant was subjected while in detention. Reference is made in Johnston175 to human rights instruments, and with apparent 172 Minogue 319 [58]. 173 The applicants’ written submissions do not refer to unlawful interference which must arise independent of unlawfulness under the HRA: Johnston 91 [361]-[362] and the authorities there cited with approval. 174 Johnston 16191-92 [363], citing Minogue 318 [56]. 175 90-91 [359]. -- 64 of 202 -- 65 approval to a decision of the European Court of Human Rights which held that a “private life” covered the “physical and psychological integrity of a person”.176 [393] The findings made earlier, including CCTV monitoring and the frequent sharing of cells, establish a limitation on the privacy of each applicant while using the toilet. Equally, the findings made earlier in relation to the use of the shower by each applicant establish a limitation on that right. [394] Plainly, some safety and security measures are reasonable and justified in a secure facility. The question is not whether some measures directed to toileting and showering are necessary for security and safety but whether these particular restrictions on privacy are reasonable and justified for these particularly vulnerable teenagers detained in a facility designed for and housing adult detainees. [395] The State contends the measures were “both reasonable and justifiable to protect both the safety of each applicant himself as well as other detainees while still respect[ing] an applicant’s dignity” and “the safety of the juvenile applicants was paramount” while in the Cairns watchhouse. In addition, it is said the measures were also necessary “to ensure that any attempt to remove secret contraband was observed”. [396] There is no evidence to suggest that specific concerns attended any of the applicants secreting contraband. In any event, the State does not offer an identifiable connection between that limitation and its purpose. So, too, no identifiable connection links security and safety with an in-cell toilet with a dignity wall, or a shower without a door or curtain attended by a guard. Nor does the State offer any evidence as to any steps having been taken to address the privacy concerns of teenage boys as distinct from concerns of teenage boys in particular. [397] The State’s contentions that limitations are justified by reference to “the ‘limited duration’ of most of the alleged periods of detention within the claim period” respectfully misapprehends the relevant question and onus. A human right limited for (an undefined) limited time is no less a limitation than a limitation for (an undefined) longer time. [398] The State does not explain how it or its agents “seriously turned [their] mind” to how the right to privacy of these particularly vulnerable applicants was impacted by their detention in an adult facility with its concomitant effect of limiting their privacy. There is, for example, no evidence of the consideration of other means of protecting privacy that could meet the stated security and management concerns. [399] The State does not meet the “high burden” of establishing that the limitations were reasonably necessary to achieve the purpose being pursued. The limitation of each applicant’s right to privacy was not reasonable and not demonstrably justified within the meaning of s 13. (b) Section 26(2) – Right of the Child to Protection [400] In Re HL (No 2),177 a decision relating to bail for a juvenile, it was said that “it is generally not considered to be in the best interests of a child deprived of liberty to be 176 Pretty v United Kingdom (2002) 35 EHRR 1, [61]. 177 [2017] VSC 1 (‘Re HL (No 2)’). -- 65 of 202 -- 66 placed in an adult prison or other facility for adults”.178 Principle 19 of the YJA pertains. [401] The applicants contend the right to protection “that is needed by the child and is in the child’s best interests” embraces protections of the nature set out in international instruments which, in turn, have been referred to in applying rights cognate to s 26(2). For example, in Re HL (No 2), Elliot J referred to the Convention on the Rights of the Child which requires state parties to ensure (relevantly): (1) Separate facilities are established for children deprived of their liberty, which include distinct, child-centred staff, personnel, policies and practices. … (2) A physical environment and accommodation in keeping with the rehabilitative aims of residential placement, with due regard given to the child’s need for privacy, sensory stimuli, opportunities to associate with peers, and to participate in sports, physical exercise, arts and leisure time activities. (3) Every child of compulsory school age has a right to education suited to her or his needs and abilities, and designed to prepare her or him to return to society, and that every child should receive, where appropriate, vocational training in occupations likely to prepare her or him for future employment. … (7) Any disciplinary measure is consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care, and that corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child be strictly forbidden.179 [402] The above requirements and the terms of the YJA are a measure of the protection which is in each applicant child’s best interests and their right. [403] This right was limited for each applicant by being detained in an adult facility; by being able to hear adult prisoners within it; having no access to appropriate educational materials; having no access to adequate pro-social activities; and not having access to the exercise yard every day. [404] The State relies upon the physical segregation of adult detainees including during their access to the exercise yard; their ability to meet and remain in contact with family and welfare checks “from a variety of support agencies”. It is contended any limitation “was reasonable and justified having regard to the inherent nature of detention in any custodial environment, the short-term duration of the detentions…, the age of the applicants[,] the prevailing circumstances including the time of apprehension” and the very limited period before being transferred to the CYDC. 178 Ibid 30-31 [122]. 179 Ibid. -- 66 of 202 -- 67 [405] No purpose is identified for the detention with those attendant conditions save for them arising from the fact of detention in an adult facility. That does not answer the question, it begs it. There is no evidence that the State or its agents turned their minds to how this human right could be accommodated while the juvenile applicants were experiencing detention in a place designed for, and contemporaneously housing, adults. [406] The limitation of each applicant’s right to privacy was not reasonable and not demonstrably justified within the meaning of s 13. (c) Section 30(1) – Right to Humanity and Respect While Deprived of Liberty [407] The foundation of this right is treatment with “humanity” and “respect for the inherent dignity of the human person”. “To be treated humanely requires some level of benevolence or compassion and the infliction of the minimum of pain.”180 [408] Citing Owen-D’Arcy, the State contends that there is an absence of individual assessments of the applicants “as to the effects of the alleged conditions of their detention during the relevant stays …”. Psychological impact may inform the limitation of the right, but it is not a precondition to establishing the limitation. In any event, Dr Beech gave evidence that no such assessment was necessary in order to arrive at the opinions referred to above, including in particular that each applicant suffers from a severe conduct disorder. [409] The Explanatory Note to the Human Rights Bill 2018 (Qld) (‘HR Bill’) records: The underlying principle is that a person’s rights should only be curtailed to the extent necessary due to the confinement, reflecting that the punishment is intended to be limited to the deprivation of liberty.181 [410] The Explanatory Note goes on to refer to this right providing “certain minimum standards of treatment” and a cognate right has been called the ‘starting point’ for consideration of detainee rights.182 Those underlying considerations apply all the more so to detention on remand; conviction and punishment has not yet occurred. Importantly, “[t]he right may extend beyond specific incidents of ill treatment to also encompass the general conditions of detention”.183 [411] The earlier findings made in respect of the paragraph [8] conditions, including detention in cells with no natural light; insults from watchhouse staff (even if sporadic); the limitations on privacy earlier referred to; sporadic access to an exercise yard with limited facilities; and interference with sleep, combine to demonstrate little or no compassion or benevolence and also disrespect for the inherent dignity of the (juvenile) human person. The right has been limited. [412] The State contends any limitation “was reasonable and justified having regard to the short term and interim nature of the relevant period of detention”; the applicants’ ages; 180 Owen-D’Arcy 64 [245] (Martin SJA). His Honour said “decisions on this point” all regard “treated humanely” as meaning the same as that which the section prescribes. 181 Explanatory Note, Human Rights Bill 2018 (Qld), 25. 182 Castles 169 [108]. 183 Mizner v State of Queensland (Corrective Services) & Anor [2024] QCAT 468, 32 [107] citing text and authorities, including Re HL (No 2). -- 67 of 202 -- 68 the time of day when apprehended and time of scheduled court appearances and the asserted “limited period” before transfer to the CYDC. [413] Treating juvenile detainees with “[r]espect for the inherent dignity of the human person” and treating them “humanely [with] some level of benevolence or compassion” is not age or situation dependant. Treating juveniles otherwise is not identified with any reasonable of justifiable purpose. Requiring compliance with the conditions earlier referred to indicates the opposite of turning the mind to how this right could be accommodated. [414] The limitation of each applicant’s right to privacy was not reasonable and not demonstrably justified within the meaning of s 13. (a) Section 33(1) – Segregation from Adults [415] It can be accepted that the applicants were, in terms of their accommodation in cells, physically separated from adult detainees. The evidence reveals that (unoccupied) female cells were used to effect that separation. [416] A beneficial interpretation of the section consistent with the Objectives of the HRA supports a wider interpretation of “segregation” than “not sharing a cell” with adults. The wider interpretation is also more consistent with the separate treatment central to the YJA. [417] Consistent with the right conferred by this section, Dr Beech gave evidence that children need to be “detained separately” from adults and he agreed, “that’s not just physically separate … that means that are not able to speak to, or hear, [or observe] adult offenders”.184 The findings earlier made with respect to the applicants being able to hear adults pertain. [418] This right was limited. [419] The applicants rely on the passage from Bell J’s judgment in DPP v SL quoted at the beginning of these reasons and the Explanatory Note to the HR Bill which states: “this [section] recognises that children are entitled to special protections on the basis of their age” in asserting that the limitation was not reasonable and justifiable. [420] The State argues that any limitation was reasonable and justifiable “given that the applicants were kept segregated as much as possible; they were not kept in their cells all day and were often out of their cells” for (segregated) exercise and meetings with family, welfare workers and other agencies. It is also contended “any limitation needs to be evaluated in light of the additional support provided to each applicant during their stays including family visits and welfare checks. Again, the short duration of stays is also relied on. [421] The State’s arguments ask the tribunal to accept that physical separation is sufficient despite the interaction with adults which occurred and despite the detrimental effects referred to by Dr Beech. The State does not refer to how it or its agents “seriously turned their mind” to the possible impact of non-segregation in the wider sense on the applicant’s right “or the implications thereof” for them. Evidence pointing to physical separation is insufficient. 184 Transcript of proceedings day two 3-5 ll 26-29. -- 68 of 202 -- 69 [422] Actions effecting time out of cells do not effect the “special protection” children need and all the more so for this particularly vulnerable cohort. The right applies to all children; whether limitation of it is reasonable and justifiable is not age dependant. It is not contended that failing to segregate in the wider sense serves any purpose. [423] The limitation of each applicant’s right to privacy was not reasonable and not demonstrably justified within the meaning of s 13. (b) Section 36(1) – Right to Education [424] The State asserts that each applicant’s detention was, “for the most part”, of “a limited duration” and asks rhetorically “what right to education do the applicants say they were entitled to in circumstances where for the most part, their detention at Cairns watchhouse was for a limited duration … and included weekends”. [425] The answer to the State’s question is: the right afforded by s 36 of the HRA. That is education appropriate to the child’s needs or abilities (and therefore to their individual circumstances). Put another way, each of the applicants had a right to receive more than education or educational resources than what they were afforded in the watchhouse, which was, on any view of the evidence, nothing. [426] Their right to education was limited. [427] Again, there is no evidence that the applicants’ right to education was seriously in mind. [428] In contending that any limitation on the right was reasonable and justifiable, the State argues the “short term nature of the detentions” and (for BA) age; “the fact that three of the applicants had dropped out of the education system prior to the claim period”; and the “range of activities which was made available during their periods of detention”. [429] The claimed “range of activities” cannot be seen as a reasonable and justifiable limitation on the right to access education; access to materials such as (unspecified) books and playing cards as each applicant received does not meet any reasonable educational purpose. [430] The failure or refusal of an applicant to avail himself of educational activities that were offered might constitute a reasonable and justifiable limitation on continuing to provide access to education adapted to the applicants’ situation. However, it cannot do so when the limitation is offering no access to adequate education at all. Again, limiting access to education for limited duration periods might be reasonable and justifiable, but that cannot be conflated with offering no access to education at all. [431] The limitation of each applicant’s right to privacy was not reasonable and not demonstrably justified within the meaning of s 13. Conclusion as to the Human Rights Claim [432] The applicants establish that the State has acted in a way which is incompatible with each of the identified human rights. The limitation on each of those rights was not reasonable and was not demonstrably justified. -- 69 of 202 -- 70 ORDERS [433] The applicants seek injunctive relief in respect of further breaches of the ADA and the HRA. Each applicant is now an adult. There is in any event no evidence justifying an injunction in either respect. [434] Declarations should be made as sought by the applicants in respect of each of the discrimination and human rights claims. [435] In the event that the applicants succeeded in respect of either or both claims, they seek further relief and postulate formulating the terms of same in the light of the reasons. The parties should formulate relevant agreed procedural orders and jointly file the same within 21 days of the publication of these reasons. Member Lumb Member Gaffney Introduction [436] Each Applicant brings a claim against the Respondent pursuant to: (a) the ADA on the ground of indirect discrimination; and (b) the HRA. [437] We have had the benefit of the draft reasons of the Presiding Judicial Member. [438] With respect to each Applicant’s claim of indirect discrimination brought pursuant to the ADA, we have reached a different ultimate conclusion to that reached by the Presiding Judicial Member. The central issue in respect of which we differ concerns whether each of the Applicants was not able to comply with those terms found to have been imposed during their relevant stays at the Watchhouse. [439] With respect to each Applicant’s claim brought pursuant to the HRA, we generally agree that the Respondent has acted in a way that is not compatible with the human rights of each Applicant, but the extent to which that is so is not as extensive as found by the Presiding Judicial Member (as we identify below). THE INDIRECT DISCRIMINATION CLAIMS Determination of liability [440] On 12 April 2024, the Tribunal ordered that the hearing of this matter be split so that liability and quantum would be heard and determined in separate hearings. Whilst this order applies to both the indirect discrimination claims and the claims under the HRA, we consider that the question of quantum has no application to the claims under the HRA, as a person is not entitled to be awarded damages on the ground of unlawfulness arising under s 58 of the HRA.185 The burden of proof [441] As noted by the Presiding Judicial Member, the former sections 204 to 206 of the ADA continue to apply in relation to the complaints the subject of this proceeding.186 By the former s 204, it is for each of the Applicants to prove, on the balance of 185 HRA, s 59(3); Philipp v State of Queensland (Queensland Police Service) [2025] QCAT 505, [53]. 186 ADA, s 285AA. -- 70 of 202 -- 71 probabilities, that the Respondent contravened the ADA, subject to former ss 205 and 206 of the ADA. By those latter provisions, the Respondent must prove, on the balance of probabilities, that a term complained of is reasonable and that an exemption provided for by the ADA applies. [442] It follows that: (a) each of the Applicants bears the onus of proof of establishing (in summary): (i) that the alleged discrimination occurred in an area of activity187 set out in Chapter 2, Part 4 of the ADA;188 (ii) that he was a person with an ‘attribute’ during each of the relevant stays in the Watchhouse during the claim period; (iii) the Respondent imposed a ‘term’ (or terms) on him during the relevant stays; (iv) that he was not able to comply189 with one or more of the terms imposed on him; and (v) that a higher proportion of people without the attribute complied or were able to comply with the terms imposed on him; (b) the Respondent bears the onus of proof of establishing: (i) that each of the terms found to have been imposed on each Applicant was reasonable; and (ii) that the exemption provided for by s 106 of the ADA had application to the terms imposed on each Applicant during each relevant stay. ‘Pleadings’ and the Tribunal’s process [443] We generally agree with the observations of the Presiding Judicial Member in this context. [444] However, we consider that, in the particular circumstances of this case, the Statements of Contention should be treated as framing the Applicants’ case in a manner akin to a pleading in a Court. Both parties were represented by Senior and Junior Counsel throughout both the interlocutory process (including settling the respective ‘pleadings’) and at the hearing. There were five iterations of the Statement of Contentions190 (with leave refused to amend for a fifth time at the hearing) and the Respondent formally responded on each occasion, and in terms that made it plain that the Respondent was seeking to confine the case to the facts expressly pleaded by the Applicants. The ‘pleadings’ necessarily founded the basis upon which the documentary evidence in the case was adduced (which, we note, ran to in excess of 7,000 pages). In these circumstances, we consider the Statement of Contentions set out the factual and legal framework for the determination of the matter, subject to 187 Specifically, that set out in s 101 of the ADA. 188 ADA, ss 6, 12(1) (see also Preamble, Item 7). 189 We did not understand the Applicants’ case to allege that an Applicant ‘did not’ comply. 190 Each of the five iterations of the Statements of Contentions was settled by a Senior Counsel and two Junior Counsel (with all three Counsel appearing at the hearing involved in settling the latter two iterations). -- 71 of 202 -- 72 matters that may be taken to have been accepted by a party having regard to the position adopted at the hearing, including by written and oral submissions. [445] In this context, we agree with the reasons of the Presiding Judicial Member (‘PJM reasons’) for the refusal of the application for leave to further amend the Statement of Contentions made by the Applicants at the hearing.191 The area of activity in which the alleged discrimination occurred [446] The Applicants allege a contravention of s 101 of the ADA. [447] During the claim period, s 101 of the ADA provided (as it still does): A person who— (a) performs any function or exercises any power under State law or for the purposes of a State Government program; or (b) has any other responsibility for the administration of State law or the conduct of a State Government program; must not discriminate in— (c) the performance of the function; or (d) the exercise of the power; or (e) the carrying out of the responsibility. [448] The Applicants pleaded that in detaining the Applicants in the Watchhouse the Respondent was performing a function or exercising a power under a State law for the purposes of a State Government program.192 In its Response, the Respondent admitted that allegation but did not identify the relevant function or power or the State program in question.193 [449] In its written closing submissions, the Respondent submitted that the State program being administered was the administration of youth detention.194 The submissions did not address the particular function or power in respect of which the alleged discrimination occurred. [450] In oral closing submissions, the Applicants’ contention was that (within the State program of the administration of youth detention) the discrimination involved the performance of a function, namely the custody or detention of children remanded into custody.195 [451] During the claim period, s 6 of the Corrective Services Act 2006 (Qld) (‘CSA’) (relevantly) provided (as it still does), in summary: (a) a person sentenced to a period of imprisonment, or required by law to be detained for a period, must be detained for the period in a corrective services facility;196 191 PJM reasons, [333]-[350]. 192 Statement of Contentions, [6]. 193 At [7]. 194 State’s Outline of Closing Submissions, [35], [39]. 195 30.05.25 T1-7 lines 32-44. 196 Subsection 6(1). -- 72 of 202 -- 73 (b) if the period is 21 days or less, the person may be detained in a watch house for part or all of the period;197 (c) if the period is more than 21 days, the person may be detained in a watch house until the person can be conveniently taken to a corrective services facility;198 (d) (however) s 6 applies subject to, amongst other legislation, the YJA. [452] Section 8 of the CSA provided (as it still does): (1) If a person sentenced to a period of imprisonment or required by law to be detained for a period is, while being taken to a corrective services facility for detention, under the control of a police officer, the person is taken to be in the commissioner’s custody. (2) When admitted to a watch house for detention, a person is taken to be in the commissioner’s custody, even if the person is lawfully outside the watch house, until the person— (a) is discharged; or (b) is lawfully given into another person’s custody. (3) Subsections (1) and (2) apply despite the provisions of a warrant, record or order committing the person into someone else’s custody. [453] We also note the operation of s 56 of the YJA, in particular s 56(5).199 [454] In our view, for the purposes of s 101 of the ADA (in the context of the present case): (a) the performance of the function is properly characterised as the custody or detention in a watch house of persons (both adults and children) remanded into custody or in detention;200 (b) the function was performed under State law (namely, the CSA and the YJA); (c) the function was performed by the Commissioner of the Police Service (‘the Commissioner of Police’). The pleaded ‘attribute’ [455] Identification and proof of a relevant ‘attribute’ is fundamental to establishing a claim of indirect (or direct) discrimination. [456] Section 7 of the ADA provides that the Act prohibits discrimination on the basis of the attributes listed in that section. Section 11 provides, relevantly, that indirect discrimination ‘on the basis of an attribute’ happens if a person imposes, or proposes to impose, a term with which a person ‘with an attribute’ does not or is not able to comply. 197 Subsection 6(2)(a). 198 Subsection 6(2)(b). 199 The relevant parts of s 56 are extracted at [278] of the PJM reasons. 200 We consider that the custody or detention could also involve the exercise of a power. -- 73 of 202 -- 74 [457] As observed by the Presiding Judicial Member,201 the Applicants did not allege, in terms, the relevant ‘attribute’, but it is clear that both parties ran the case on the basis that the relevant attribute was one of ‘age’.202 [458] We consider that this raises two issues for consideration, the first of which is how to approach the attribute of age in the context of the present case. [459] An attribute of ‘age’ (which is an attribute of every person) necessarily contemplates a complainant’s particular age in the context of the alleged discrimination. In many cases, discrimination on the basis of age, in the context of inability to comply, will be a straightforward exercise. For example, an area of activity (e.g. employment) may be precluded, by virtue of an age requirement, to persons who do not meet that age requirement. That is not the case here. [460] The essence of the Applicants’ case is that they had ‘needs’ (specifically, ‘educational, psychological, emotional and developmental needs’)203 and ‘intrinsic vulnerabilities’ as children due to their ‘young age’204 (which appears to be either a reference to the Applicants’ respective ages or that each Applicant was under 18 years of age). It is these alleged needs and vulnerabilities as children which are central to the Applicants’ case. [461] We consider the Applicants’ case brings into play s 8 of the ADA. Section 8 then provided (as it still does): Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of— (a) a characteristic that a person with any of the attributes generally has; or (b) a characteristic that is often imputed to a person with any of the attributes; or (c) an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or (d) an attribute that a person had, even if the person did not have it at the time of the discrimination. Example of paragraph (c)— If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have. (underlining added) [462] In our view, having regard to the Applicants’ case as pleaded and run, the Applicants necessarily rely upon a ‘characteristic’ that a person of the age of each Applicant (or a person under the age of 18 years) ‘generally has’. We proceed on this basis. 201 PJM reasons, [25]. 202 See ADA, s 7(f). We note that, pursuant to s 17 of the Law Reform Act 1995 (Qld), the age of majority is 18 years. 203 Statement of Contentions [10]. 204 Applicants’ Closing Submissions [5]. -- 74 of 202 -- 75 [463] The second aspect of the Applicants’ reliance on the attribute of ‘age’ concerns the assessment of the Applicants’ alleged inability to comply on the basis of that attribute. This is addressed below. Is each Applicant’s case limited to periods of detention of ‘two or more days’? [464] We agree with the Presiding Judicial Member’s findings as to the relevant periods of detention (we refer to each relevant period as a ‘stay’) upon which each Applicant’s case is based and the dates of those stays,205 save that we differ as to the departure time from the Watchhouse in a number of cases (the difference is not material, ranging from a few minutes to a few hours). [465] Before turning to the critical issues of what terms were imposed during the stays, and the alleged inability to comply, we make some observations in respect of each Applicant’s evidence. Each Applicant’s evidence [466] Each Applicant’s evidence comprised affidavit evidence and oral evidence given under cross-examination (and in re-examination). We address the relevant evidence below. However, we make two overarching observations at this stage. [467] First, the Respondent’s material includes both Youth Justice case records of Watchhouse visits whilst each of the Applicants was detained in the Watchhouse, together with internal police records during such stays.206 To the extent of any inconsistency between each Applicant’s evidence and the records, we prefer the evidence contained in the records, noting the contemporaneity of the records, the multiple times that each Applicant spent time in the Watchhouse before the claim period (and DC and FE spent time in the Watchhouse after the claim period207), and the elapse of time between each stay and the date of each affidavit. [468] Second, the Applicants must establish, on the balance of probabilities, that the pleaded terms were imposed during the stays and that any inability to comply is referable to such terms as were imposed during the stays. We note that some of the evidence concerns periods of detention other than the stays, and other evidence is so general that we cannot be satisfied that it relates to the period of a stay. Approach to the imposition of the alleged terms Principles relevant to the framing of the imposed terms [469] The case for the Applicants is founded upon the alleged imposition of a number of requirements or conditions by the Respondent. [470] We respectfully agree with the Presiding Judicial Member’s articulation of the principles relevant to framing the imposed terms.208 We add that, in a case such as the present, the plurality’s observations in Amery reinforce the criticality of the imposition of a requirement or condition in determining whether proscribed discrimination has occurred.209 205 PJM reasons, [75]. 206 Affidavits of Senior Sergeant Gardiner and Ms Harding. 207 31.03.25 T1-47 line 46 - T1-48 line 8 (DC); 01.04.25 T3-6 lines 27-49 (FE). 208 PJM reasons [78]-[81]. 209 See [59]-[62]. See also Callinan J at [205]. -- 75 of 202 -- 76 Is there a ‘primary term’? [471] In the Applicants’ written submissions it is submitted:210 While detained in the Cairns Watchhouse, the Applicants suffered eighteen discriminatory terms imposed by the Respondent. (citations omitted) [472] We consider that this submission is consistent with paragraph 8 of the Statement of Contentions. [473] However, in the closing written submissions it is also contended:211 The primary term is that the Applicants were required to spend the relevant period of custody in Cairns watchhouse … [474] In oral submissions, Mr Scott KC characterised the conditions or terms set out in paragraph 8 of the Statement of Contentions as ‘particulars’ or ‘features’ of that ‘primary term’.212 [475] For something to be a requirement or condition in relation to a matter, it must be separate from that matter.213 The Applicants were required to spend the relevant periods of custody at the Watchhouse (during which periods various adults and (for much of the time) other children were also held in custody. As noted above, we consider that the relevant ‘activity’ (the performance of the function) involved the custody or detention in a watch house of persons (both adults and children). [476] In our view, the relevant ‘matter’ is the custody of persons in a watchhouse and the relevant ‘terms’ to be considered are those alleged by the Applicants in paragraph 8 of the Statement of Contentions. Nevertheless, even if it were concluded that there was a discrete ‘primary’ term imposed on the Applicants (and the pleaded ‘conditions’ are ‘particulars’ or ‘features’ of that term), we consider that the primary term cannot be detached from the various pleaded conditions (terms) in paragraph 8 of the Statement of Contentions. In our view, the fact that the location of the custody or detention was at the Watchhouse cannot, without more, give rise to any inability to comply.214 [477] For completeness, we reject the alternative framing of the terms as ‘two primary overarching terms’ as submitted on behalf of the Applicants in oral closing submissions.215 As to the first term, ‘detention without the supports that are necessary to prevent the detention from becoming more stressful for children’, we respectfully consider it to be too broad and vague to amount to a ‘condition, requirement or practice’, even adopting a beneficial approach. In any event, we consider that, insofar as it asserts a failure to supply necessary supports, it raises a fundamentally different case from that pleaded and run at the hearing. It would require detailed evidence and consideration of each of the ‘supports’ said to be necessary in the circumstances (and to then consider the alleged inability to comply). As to the second overarching term, 210 Paragraph 2. 211 Paragraph 2. 212 30.05.25 T1-5 line 44 – T1-6 line 13; T1-23 line 44 – T1-24 line 21. 213 Waters 394. See also 361 (we note the PJM reasons, [83]). 214 Mr Scott KC appeared to accept that a claim based on the primary term could not succeed if none of the other terms (particulars) could be established: 30.05.25 T1-24 line 35 – T1-25 line 4. 215 30.05.25 T1-42 lines 12-19. -- 76 of 202 -- 77 it essentially amounts to an amalgamation of the terms pleaded in paragraphs 8d and 8e of the Statement of Contentions. Can conditions be considered together? [478] First, as a matter of terminology, we prefer to adopt ‘terms’ rather than ‘conditions’ because, first, in closing submissions, the Applicants argued their case adopting that terminology,216 and second, the focus is on whether the Respondent, by the Commissioner of Police, imposed a ‘term’ (which includes a ‘condition, requirement or practice, whether or not written’) on each Applicant during the stays. [479] Second, whilst the Respondent accepted that a ‘constellation’ of terms may be considered, we respectfully do not agree with the Presiding Judicial Member that, on analysis of the Respondent’s submissions, such terms ‘together become the imposed term’.217 We consider that such terms as were imposed are to be treated as individual terms, but the question of inability to comply can be assessed by reference to the impact or effect of a number of the individual terms found to be imposed during each stay. Periods of detention considered cumulatively? [480] The Respondent contended that, with respect to the terms alleged by the Applicants:218 … the ability of each applicant to comply with an alleged term having regard to their age, is an assessment which must be undertaken by examining the circumstances pertaining to each applicant in respect of each stay. [481] In oral submissions, Mr Murdoch KC submitted that:219 So in our submission, the only way that this matter can be properly determined is to, as I say, to consider each applicant, each stay, each term. And that requires that the applicants have to prove for each applicant individually in respect of each period of detention separately that the alleged discrimination occurred. [482] Later, Mr Murdoch, after an exchange with the Tribunal, said that one could look at a ‘constellation’ of terms (as opposed to ‘accumulation’) in respect of each discrete stay.220 [483] In oral submissions, Mr Scott KC submitted that the Applicants were unable to comply because, as children, they were unable to comply with the cumulative effect of specific terms imposed upon them by agents or workers of the Respondent during each of [their] respective periods of incarceration.221 [484] However, in reply, Mr Scott KC submitted:222 Now can I return to the order that I wish to address in reply. Firstly, in respect of what we – what is said in paragraph 9 of our contentions, we do embrace the proposition that the terms are to be looked at cumulatively. It would be unreal otherwise. And also that it is appropriate, at least to some extent, to have 216 See e.g. 30.05.25 T1-86 line 24 – T1-88 line 7. 217 PJM reasons [99]. 218 Respondent’s Closing Submissions, [55]. 219 30 May 2025, T1-45, lines 32-35. 220 30 May 2025, T1-51 line 18 - T1-52 line 20. 221 30 May 2025, T1-23, lines 9-26. See also T1-2r, lines 20-29. 222 30 May 2025, T1-23, lines 9-26. -- 77 of 202 -- 78 regard to the stays in a cumulative sense because, of course, any stress that’s been experienced in an earlier stay will be remembered by the child for the later stay, and therefore, the earlier stay will contribute to the stress - - - MEMBER MURPHY: But to be clear, cumulatively in respect of each application [sic, applicant]. MR SCOTT: Yes. Yes. And that will be accepted ... (emphasis added) [485] There is no dispute that each Applicant must prove that the relevant terms were imposed upon him individually. [486] In respect of each stay, we consider that each and all of the terms found to be imposed during that stay may be considered in determining whether there was an inability to comply. Although it was not entirely clear, we did not understand the Respondent ultimately to contest this approach. [487] As to the cumulative effect of separate stays during the claim period, we accept that, in principle, evidence that the impact or effect on an Applicant of an earlier stay added to the impact or effect on an Applicant in respect of a later stay (or stays) may be considered in determining whether the Applicant was unable to comply with the terms imposed during such later stay or stays. For the reasons set out below, we consider that the evidence does not support such a conclusion. [488] Regardless, we consider that the issue of inability to comply should be assessed on a stay by stay basis. [489] First, if the elements of s 11 could be established for separate stays by an Applicant,223 we consider that there would be a separate contravention of s 101 in respect of each stay, and this would potentially have an impact on the assessment of compensation. [490] Second, we consider that, in practical terms, the assessment of inability to comply can only be assessed on a stay by stay basis given the difference in some of the terms imposed and the duration of the stays, together with the varying impact (if any) of individual stays on each Applicant. Imposition of terms [491] The term ‘impose’ is defined in the Macquarie Dictionary online to include: ‘to lay on or set as something to be borne, endured, obeyed, fulfilled, etc.: to impose taxes.’ [492] In Waters v Public Transport Corporation,224 McHugh J said:225 In the context of providing goods or services, a person should be regarded as imposing a requirement or condition when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed. 223 Also assuming no exemption is established. 224 (1991) 173 CLR 349. 225 Ibid, 407. -- 78 of 202 -- 79 [493] The question of whether the alleged discriminator has imposed a requirement or condition (or, under s 11, a ‘condition, requirement or practice’) is a question of fact.226 What terms were imposed on each Applicant during each stay? [494] The terms alleged by the Applicants are set out at [94] of the PJM reasons. Introductory observations [495] We refer to the Presiding Judicial Member’s observations at [118]-[120] of the PJM reasons. [496] Each Applicant must prove, on the balance of probabilities, that one or more of the pleaded terms was imposed on him during one or more of the stays. In our respectful view, this exercise can only be meaningfully conducted on a stay by stay basis, particularly having regard to the fact that each Applicant spent at least one stay in the Watchhouse during the claim period not comprising one of the stays,227 and that each of the Applicants spent numerous stays in the Watchhouse outside of the claim period. [497] We respectfully agree with the Presiding Judicial Member’s observations in relation to the approach to the formulation of a relevant term (see PJM reasons [120], second sentence). [498] In determining what terms were imposed (by the Commissioner of Police) at the Watchhouse, the focus is on identifying, relevantly, a ‘condition, requirement or practice’ that was imposed, rather than the impact or effect of a term. For example, the alleged term that, relevantly, ‘Children were required to use the toilet in front of other children’ could have no application if an Applicant was the only person in the cell during a particular stay. Further, we consider that merely because an event happened to an Applicant during the course of a stay at the Watchhouse, does not necessarily establish that a condition, requirement or practice was imposed on that Applicant. [499] The Presiding Judicial Member’s findings in relation to the alleged conditions (terms) appear at [128]-[254] of his reasons. We respectfully agree with the Presiding Judicial Member’s findings that the terms alleged in paragraphs 8f (regarding visitors) and 8s (regrading nutrition) were not imposed. We respectfully disagree that the terms alleged in paragraphs 8g (insults) and 8u (privacy whilst using the shower) were imposed. We respectfully agree that other terms of the nature alleged were imposed, although in most cases we formulate the term differently. We deal with each alleged term in the same order as the Presiding Judicial Member. Term 8a: Children were detained in cells with no natural light [500] It was uncontroversial that, and we find that, the cells had no windows and faced a hall with a rooftop atrium with large windows which allowed natural light into the Watchhouse.228 [501] We formulate the term as follows: The cells in which children (including the Applicants) were held had no windows and no direct natural light. 226 Clarke [102]. 227 In DC’s case, we calculate that there were five additional stays during the claim period. 228 Affidavit of Senior Sergeant Gardiner, [14], B3241. -- 79 of 202 -- 80 [502] We find that the term was imposed for each Applicant, for each stay. Term 8c: Children were required to use the toilet in front of other children and on CCTV camera [503] The Applicants submit that:229 Photographs of the toilets located in the cells and the exercise yard illustrate the extremely limited privacy in using such facilities. The “dignity” half-wall does not obscure a child’s face or upper body while using the toilet (which is also captured on CCTV). Depending on where another person in the cell is situated, the rest of the body may be visible. …each of the Applicants typically shared their cell with other young people.230 [504] The Respondent submits that:231 (a) the dignity wall ‘obscures a person from view when seated on the toilet ‘particularly’ the lower half of the young person; and (b) only the upper body of the person is visible to the CCTV footage and monitors. [505] In oral submissions, the Applicant contended: Now, as we understand the respondent’s case, it relies on the proposition that that concrete wall towards the middle of the photo is an answer to this alleged term. We’d submit, in substance, that’s not an answer to the proposition that children are using the toilet in front of other children within their cell. It’s a minimal amount of privacy and, of course, a child would feel self-conscious and a loss of privacy if all they have is that wall.232 [506] Two photographs are relied on in particular by the Applicants. The first shows the toilet and dignity wall.233 It shows the toilet located between the cell wall and a half- wall. The half-wall would, from certain angles, obscure the lower half of a person’s body if seated on the toilet, but there is nothing to stop an occupant being fully observed by a co-occupant if the co-occupant decided to do so. [507] As to the whether a child would be visible seated on the toilet on the CCTV camera, a photograph showing the proximity of the toilet to the camera was filed by the Applicants,234 but neither party filed evidence of what can be seen from the camera. In the absence of any other evidence we accept the evidence of Senior Sergeant Gardiner in his Affidavit235 that only the upper body of the person using the toilet is visible on CCTV footage and monitors. [508] We accept that the cell occupants, and by extension, the Applicants, had limited privacy whilst going to the toilet, by reason that: (a) they were able to be viewed by CCTV camera; and 229 References omitted. 230 Applicant’s Outline of Closing Submissions [24]. 231 Respondent’s Outline of Closing Submissions. 232 Transcript 30 May 2025, 1-10, ln 29-29. 233 B3339. 234 Tab B2 to the Applicant’s Closing Submissions. 235 Affidavit of Paul Gardiner sworn on 30 August 2024 [13]. -- 80 of 202 -- 81 (b) they were at risk of being seen going to the toilet to the extent they shared a cell with other children. [509] As to the Applicants’ submission that sharing a cell was ‘typical’, the evidence of Senior Sergeant Gardiner is that this was ‘not uncommon’236 and that it was a ‘common practice’ for children to be placed in cells together.237 FE’s evidence was that he ‘normally’ shared a cell with other boys.238 In cross-examination he stated that he could be sharing a cell with up to four other boys.239 We accept this evidence and find that it was common practice for the Applicants to share a cell with other boys. [510] BA gave evidence that he was in a cell by himself for the 10 day detention in April / May 2022.240 However, contemporaneous records indicate that on 25 April 2022 BA was sharing his cell with another young person.241 [511] Neither party directed the Tribunal to evidence identifying each day of each stay when an Applicant was sharing a cell with another child. [512] We formulate the term as follows: Children using the toilet in a juvenile cell had only limited privacy from CCTV surveillance and any other children present in the cell. [513] We find that the term was imposed for each Applicant, for each stay (noting that the impact or effect of that term, insofar as it concerned other children present in the cell, was plainly limited to the occasions on which an Applicant was sharing his cell with at least one other child). Term 8d: Children could hear adult prisoners screaming and kicking doors [514] We examine whether this term is established by first looking at the evidence of each Applicant. [515] BA’s evidence in his Affidavit was that ‘sometimes’ adult prisoners would be screaming and kicking the doors.242 He gave similar evidence during cross- examination,243 including that he could hear people banging doors.244 [516] DC’s evidence did not address this term. The Applicants rely on video taken 30 May 2022 of DC’s induction where people can be heard yelling out.245 The yelling out, as can be heard at the reception desk, is loud enough for us to infer that it could be heard in the male juvenile cells, judging by the Watchhouse layout.246 [517] FE’s evidence in his Affidavit was that he could hear adults in the watchhouse when he was in his cell, stating ‘They yell and swear at police. They are close enough that we can yell at each other.’247 236 Affidavit of Paul Gardiner sworn 30 August 2024 [118]. 237 Affidavit of Paul Gardiner sworn 30 August 2024 [203(a)]. 238 Affidavit of FE affirmed 4 April 2024 [7]. 239 Transcript 01.04.25 T3-7 line 43- T3-8, line 1. 240 Affidavit of BA sworn 5 April 2024 [28]. 241 B6022. 242 Affidavit of BA sworn 5 April 2024 [7]. 243 Updated Table of Terms and Evidence pp 9-11. 244 T1 1-39 ln 5, T1 1-39 ln 10. 245 Updated Table of Terms and Evidence p12, PG-126. 246 PG-1, B3329. 247 Affidavit of FE affirmed on 5 April 2024. -- 81 of 202 -- 82 [518] In re-examination was the following exchange:248 Mr Jackson: When you were getting to bed, [FE], were you hearing any other noises? FE: Um, yeah, sometimes. Mr Jackson: Can you me and the tribunal, if you can, what sort of noises you could hear? FE: Um, like [indistinct] Like, you can hear other people talking down the hallway. You can hear people shouting on the other side. You can hear, like, keys jingling and that and, like, police officers walking around the watch-house. Mr Jackson: And in terms of, [FE], what you said before, about people screaming, can you give me any more detail about what that might have sounded like? FE: Um, just loud and uncomfortable, yeah. Mr Jackson: Are you able to say where it might have been coming from? FE: Um, yeah. I think, down the adult section, yeah. Or – or sometimes, it could be, um, someone getting brought in and refusing to come in to the watch-house, so they get put in to the padded cell. Mr Jackson: Okay. And was that screaming loud, [FE] ?‑‑‑Yep. [519] As can be seen from this exchange, FE’s evidence initially was that he could hear people shouting, as opposed to ‘screaming’. We do not accept that FE heard ‘screaming’ because the answer was given to a leading question. We find that what FE heard was shouting or yelling and that it was loud (and made him feel uncomfortable). [520] The Applicants also point to the evidence of Scott McClaren, State Custody Officer, where he states that a watchhouse is a shared facility and that it is inevitable that those in custody in a watchhouse will hear noise from within the facility, including noises from other cells within a watchhouse.249 [521] The Respondent submits that there is limited evidence as to the existence of this term, and as to whether the alleged circumstances occurred during the claim period.250 In particular, in relation to BA’s evidence, it submits that based on contemporaneous records, the experience was limited to one stay.251 It refers to a file note of [name withheld] of ‘YETI’ (Youth Empowered Towards Independence) on 13 September 2021 which records: ‘YP stated 8 days now of others screaming in the watchhouse…’. [522] We find that the term that was imposed is formulated as follows: The location of the juvenile cells was in such proximity to other parts of the Watchhouse as permitted children in those cells to hear loud noises (including yelling or screaming and banging on doors) from adults held in the Watchhouse. 248 T3 3-16 ln 34-49, 3-17 ln 1. 249 Affidavit of Scott McLaren sworn 29 August 2024 [23]. 250 Respondent’s outline of closing submissions [83], [87], 88]. 251 Respondent’s outline of closing submissions [85]. -- 82 of 202 -- 83 [523] We find that the term was imposed for each Applicant, for each stay applicable to that Applicant. The extent, if any, to which each Applicant was impacted by the term for each stay turns on the evidence of each Applicant. Term 8e: Children were held in close enough proximity to adult prisoners that they could (and did) converse with adult prisoners [524] The Respondent accepts that it was possible to hear and converse with adult male detainees from juvenile cells.252 [525] We formulate the term as follows: The location of the juvenile cells was in such proximity to adult cells that adults could converse with children whilst in their cells or being transferred to their cells. [526] We find that the term was imposed for each Applicant, for each stay. [527] In our view, the question of whether an adult did converse with a particular Applicant on a particular occasion involves the impact or effect of the imposition of the above term, rather than the imposition of a separate term. However, it is convenient to address that question now. [528] We agree with the Presiding Judicial Member that: (a) DC has not established that he conversed with any adults during the stays; (b) FE has established he conversed with an adult on 28 November 2021 (during FE’s sixth stay) as identified by the Presiding Judicial Member [529] With respect to BA, his evidence is not specifically referable to either of his stays. In re-examination, the example given was prefaced with ‘sometimes’. We are not satisfied, on the balance of probabilities, that BA did in fact converse with an adult during either of his two stays. We observe that, in any event, even if it could be inferred that there was some interaction during those stays, and it is not open to identify what that interaction was, much less that it gave rise to some disadvantage to BA. Term 8f: Children had limited access to visitors, including family and cultural ties [530] Determining whether this term is established is made difficult by the vagueness of the reference to ‘limited access’. [531] The Applicants submit that253 the Respondent limited access to family visits and to visits from appropriate service providers, and that at all times, visits were at the discretion to Watchhouse staff and subject to operational and security needs. That visits were at the discretion to Watchhouse staff and subject to operational and security needs is substantiated by the evidence of Senior Sergeant Gardiner.254 This establishes that access was not unlimited. [532] We consider that the question of whether the Respondent imposed a term that children (specifically the Applicants) had limited access to family members and other support persons is a question of fact to be assessed in light of the prevailing circumstances. 252 Respondent’s outline of closing submissions [101]. 253 Applicant’s outline of closing submissions 27 May 2025 [33]. 254 Affidavit of Paul Gardiner sworn 30 August 2024 [67(c)]. -- 83 of 202 -- 84 [533] In dealing with the question of inability to comply below, we have set out a day to day breakdown of what occurred on each day of each stay for each Applicant during the claim period. It reveals that the Applicants received visits from family, Youth Justice, Youth Co-Responders, YETI, legal representatives and others. There were random occasions when visits were declined to a family member or support worker (due to the lateness of the hour or the business of the Watchhouse at the particular time). In the context of each stay for each Applicant, we are not satisfied that any Applicant had limited access to family members or support persons. [534] We respectfully agree with the Presiding Judicial Member that this term is not established for any Applicant, for any stay. Term 8g: Children were subjected to insults from watch-house officers [535] We make four introductory observations about this allegation. [536] First, Appendix 16.2 of the Queensland Police Service Operational Procedures Manual concerned the rights and responsibilities of children whilst in custody in a watchhouse. A copy of that Appendix was sent by email to staff being inducted into the Watchhouse.255 The Appendix included, amongst other matters: (a) that children were ‘To be treated with dignity and respect’; and (b) children were to ‘treat watchhouse staff with dignity and respect’. [537] We consider that the Commissioner of Police imposed a ‘term’, being a condition or requirement, that Watchhouse officers treat children in custody with dignity and respect (‘the respect term’). The Applicants’ case necessarily involves a conclusion that there existed a contrary term that children be subjected to insults from Watchhouse officers during the stays. [538] Second, the Applicants’ submissions appear to proceed on the basis that if specific conduct by an individual Watchhouse officer amounting to an ‘insult’ occurred during one of the stays, that establishes that a term was imposed for the purposes of s 11.256 We accept that if the respect term was breached more often than it was observed, it may amount to a ‘practice’ and, consequently, a ‘term’ for the purposes of s 11.257 However, we consider that an individual insult does not amount to a practice (or a condition or requirement) for the purposes of s 11. [539] To the extent that the Applicants sought in closing submissions258 to rely on s 133 of the ADA in this context, we reject it as basis for establishing the imposition of the alleged insults term. [540] During the claim period, s 133 provided: (1) If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both. 255 Affidavit of Senior Sergeant Gardiner, [50]-[54] and attachment ‘PG-5A’ (B3358-61). 256 For example, Applicants’ Closing Submissions, [38]-[40]. 257 Cf the Presiding Judicial Member’s observations at [162]. 258 30.05.25 T1-22 lines 27-43. -- 84 of 202 -- 85 (2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act . [541] We reject the Applicants’ reliance on s 133 for the following reasons: (a) s 133 is predicated on a worker or agent contravening the ADA. We consider the application of s 133 to be complicated in relation to a claim of indirect discrimination which involves the various elements of s 11. In our view, it would be necessary for the Applicants to establish, on the balance of probabilities, that by an individual officer’s conduct, that officer engaged in indirect discrimination in contravention of the ADA; (b) the Applicants did not plead, or seek to make out at the hearing (prior to closing submissions), a case against individual Watchhouse officers of a contravention of the ADA for which the Respondent is vicariously liable; (c) s 133(2) provides a defence that, in the present case, would have required the Respondent to establish that it took reasonable steps to prevent the individual Watchhouse officers from contravening the ADA; (d) in light of the matters set out in subparagraphs (a) to (c) above, we consider that both the Respondent and individual officers would be denied procedural fairness if the Tribunal were to proceed to determine the indirect discrimination claims on the basis of the Respondent’s alleged vicarious liability under s 133. [542] Third, given that the alleged conduct constituted a breach of the policy implemented by the Respondent, we consider that, particularly in relation to the more serious of the insult allegations (for example, FE alleging that a Watchhouse officer called him a ‘murderer’), consideration should be given to Briginshaw v Briginshaw (‘Briginshaw’)259 in assessing the relevant allegations of fact. A number of police officers were working at the Watchhouse during the stays of each Applicant. Any generalised finding in respect of the more serious alleged ‘insults’ during one or stays would potentially implicate any officer on duty during that stay. [543] In Briginshaw, Dixon J said:260 But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. [544] We respectfully adopt the following observations of Branson J in Qantas Airways v Gama,261 made in the context of the Commonwealth Racial Discrimination Act 1975: 259 (1938) 60 CLR 336. 260 At p 362. 261 (2008) 167 FCR 537, French J (as his Honour then was) and Jacobson J generally agreeing, [110]. See also Cellarit Pty Ltd v Cawarrah Holdings Pty Ltd [2018] NSWCA 213, [196]. -- 85 of 202 -- 86 (a) ‘each of the expressions ‘the Briginshaw standard’ and ‘the Briginshaw test’ should be avoided because of its tendency to mislead’;262 (b) Dixon J was concerned with ‘the appropriate standard of persuasion in respect of individual allegations of material fact rather than with the standard of persuasion appropriate to be adopted in respect of all allegations made in a particular civil proceeding’; 263 (c) Dixon J ‘made plain that before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted’ (and ‘the common law has not developed a third standard of persuasion; it acknowledges only the two standards – the criminal standard of beyond reasonable doubt and the civil standard of balance of probabilities or reasonable satisfaction’).264 [545] Fourth, the term ‘insults’ is open to interpretation. ‘Insult’ is defined in the Macquarie Dictionary online (as a noun) as: ‘an insolent or contemptuously rude action or speech; affront.’ [546] ‘Insolent’ is defined as ‘boldly rude or disrespectful; contemptuously impertinent; insulting: an insolent reply’. [547] We adopt these definitions in addressing the alleged term. [548] We now address the evidence in relation to each Applicant. BA [549] BA gave the following evidence in his Affidavit,265 which he affirmed during cross- examination,266 “There is a lot of name-calling and bullying talk between the police and kids during arrests and at the watch house. The officers would sometimes call me a rat or a pig. They know I dont [sic] like being called a rat so I think they say it to get to me. I feel like they bully me and so I bully them back, calling them pigs too. Sometimes they call me a black cunt and I told them I’m proud to be black. I feel like they hide behind their uniform to say whatever they want...267 (emphasis added) [550] The following exchange occurred during cross-examination:268 You say, “The officers would sometimes call me a rat or a pig.” That’s not true, is it?‑‑‑That is true. You also say, “Sometimes, they called me a black cunt”?‑‑‑That’s a hundred per cent true. 262 See [123]. 263 See [125]. 264 See [126]. 265 [11]. 266 T1 1-38 ln 12 – 16. 267 Affidavit of BA 5 April 2024 [11]. 268 T1-38 ln 12 – 16. -- 86 of 202 -- 87 [551] We observe that BA said that this happens ‘sometimes’, and there is no evidence that such conduct occurred during either of BA’s two stays. [552] The Applicants also rely on BA’s evidence that ‘one time’ Watchhouse officers said to BA ‘we’ll keep you here until your time’s served’ after being taken to ‘separation’.269 There is no suggestion that this occurred during one of BA’s two stays. If the reference to ‘separation’ is a reference to the padded cell (this was not addressed in evidence), it could not have occurred during those stays because BA was not taken to the padded cell during either stay. [553] Video evidence reveals a Watchhouse officer to have said to BA during his intake on 10 January 2022: (a) ‘you’ll get more than bashed in there [Lotus Glen Correctional Centre]’, and saying that a person BA knew ‘got capped in there’;270 and (b) ‘don’t scratch at the fucking thing’271 (referring to the Watchhouse reception counter-top which BA was scratching with his fingernails). [554] We find that the first statement amounted to an insult. [555] We are not satisfied that the second statement amounted to an insult; it did not amount to a statement which was contemptuously rude or disrespectful or contemptuously impertinent. [556] Notwithstanding the insult identified above, we are not satisfied, on the balance of probabilities, that the Respondent, by the Commissioner of Police, imposed a term (a condition, requirement or practice), during BA’s three stays that BA was, or would be, subjected to insults from Watchhouse officers. DC [557] With respect to the evidence referred to by the Presiding Judicial Member:272 (a) as to the evidence in relation to the death of [redacted] in a car accident (which relates to the commencement of DC’s first stay): (i) this evidence was unchallenged in cross-examination; (ii) we find that the statement was made by the Watchhouse officer, and that it amounted to an insult; (b) as to the video evidence which relates to the commencement of DC’s third stay (on 12 June 2022), the statements were made by the Watchhouse officer, and we are satisfied that each amounted to an insult. [558] Another instance relied on by the Applicants (which is within the claim period) is the comment a Watchhouse officer stating on 14 April 2022: ‘Mate you keep doing it you’re going to get stripped it’s that simple. I’m not going to lie, they’ll strip you…They’ll literally fucking strip you.’273 The video of that occurrence reveals that this is not said by the officer in an insolent or contemptuous tone of voice, rather the 269 Affidavit of BA sworn 5 April 2024 [19]. 270 Affidavit of Anna Reynolds affirmed 22 April 2024 Exhibit AR-10 (video) 10 January 2022 at 5.00pm. 271 Ibid, 5:04pm. 272 PJM reasons, [168]. 273 Ibid PG-113 (video) of 14 April 2022 at 1.20. -- 87 of 202 -- 88 words are spoken as a genuine warning as to what the consequence would be if DC continued to fail to cooperate. We are not satisfied this was an insult. [559] As to the other matters relied upon by DC, we are not satisfied, on the balance of probabilities, that: (a) the statement in the video taken on 14 April 2022 amounted to an insult; (b) the other matters occurred during one of the (three) stays or amounted to an insult. [560] Notwithstanding the insults identified above, we are not satisfied, on the balance of probabilities, that the Respondent, by the Commissioner of Police, imposed a term (either a condition, requirement or practice), during one or both of DC’s first stay and DC’s third stay (or during DC’s second stay), that DC was, or would be, subjected to insults from Watchhouse officers. FE [561] With respect to the evidence referred to by the Presiding Judicial Member:274 (a) as to the allegation of FE being called a ‘murderer’: (i) this relates to FE’s eighth stay; (ii) FE did not address this allegation in his affidavit or in oral evidence; (iii) a Youth Justice case note includes an email from the Acting Coordinator, Youth Justice, Far North Queensland Region sent on 22 February 2022,275 which, amongst other information included the following extract from FE’s case worker: The concerns for [FE] that I’m aware of is that the family made a complaint regarding an officer over the weekend following him calling [FE] a ‘murderer’ – a senior sergeant has spoken with [FE’s mother] about this yesterday, however, [FE’s mother] is concerned for his safety following this complaint being made as the officer is due to return to work tonight…. [FE] also attended a counselling session with [we have redacted the name] last week and she has written a letter for court today stating he is experiencing symptoms of PTSD following the incident [redacted] so I feel it would be better to get him into a more supportive environment as soon as possible. (iv) the above refers to a complaint being made regarding ‘an officer over the weekend following him calling [FE] a ‘murderer’’. The evidence does not identify who is alleged to have made the statement nor when this allegedly occurred (other than ‘over the weekend’); and there is no other detail as to where within the Watchhouse this occurred; (v) on the state of the evidence, we are not satisfied, on the balance of probabilities, that a Watchhouse officer called FE a ‘murderer’; 274 PJM reasons, [169]. 275 B6508-6510. -- 88 of 202 -- 89 (vi) similarly, we are not satisfied, on the balance of probabilities, that a Watchhouse officer threatened FE, telling him that he will catch him on the outside, threatening to hurt him when he sees him in the streets, as reported in a Youth Justice case note of a visit on 28 February 2022 (the 28 February 2022 case note).276 FE did not give evidence to this effect; (b) we note that there are contemporaneous records of general complaints by FE about officers raising the car accident with him during FE’s eighth stay (the details of the car accident were not addressed at the hearing). A Youth Justice case note dated 19 February 2022 recorded, amongst other matters, that FE advised that police officers in the Watchhouse ‘keep on trying to get [FE] angry and mad bringing up the car crash to him’.277 The 28 February 2022 case note records, amongst other matters, that FE stated that Watchhouse officers were ‘tormenting’ FE by bringing up the car accident with him. Based on this evidence, we are satisfied that more than one Watchhouse officer raised the car accident with FE during this stay. However, we note the lack of evidence of, for example, what was said, how often it was said, and by how many officers it was said during the course of the stay; (c) as to the evidence about being put in a ‘dress’ [smock]: (i) we are satisfied, on the balance of probabilities, that a statement to that effect was made during FE’s eighth stay having regard to FE’s evidence at paragraph 3 of his second affidavit and the (generally) contemporaneous report in the 28 February 2022 case note that FE stated that ‘he moght [sic, might] need to put a strait jacket on to wear as a dress’; (ii) we are satisfied that the statement amounted to an insult; (iii) we are not satisfied, on the balance of probabilities, that (other than on 28 February 2022) the alleged statements to FE in relation to wearing a ‘dress’ were made during the other stays by FE, particularly in the absence of corroborating evidence and FE’s evidence in relation to the timing of events.278 [562] The Applicants also rely on video footage taken on 26 July 2001 (the commencement of FE’s second stay) which records: (a) a watchhouse officer saying to FE (after FE said to the officer ‘You are dogs, D O G dogs’), ‘so you can spell, that’s good’;279 (b) a watchhouse officer says to FE (after FE said to the officer ‘I have to buy new shit every time I get out of this place’) ‘I wonder how your victims feel’.280 [563] We are satisfied that each of the statements made amounted to an insult. [564] On the whole of the evidence, notwithstanding that some insults were directed at FE, we are not satisfied, on the balance of probabilities, that: 276 B6459. 277 B6459. 278 01.04.25 T3-6 lines 27-48. 279 Affidavit of Paul Gardiner sworn 30 August 2024, Exhibit PG-64 150 (video) 26 July 2021 from 4.13. 280 Ibid. -- 89 of 202 -- 90 (a) the two insults directed at FE during the FE’s second stay established that the Respondent imposed a term that FE was, or would be, subjected to insults from Watchhouse officers during that stay; (b) the evidence concerning the car accident and wearing a straitjacket as a dress during the FE’s eighth stay established that the Respondent imposed a term that FE was, or would be, subjected to insults from Watchhouse officers during that stay; (c) the Respondent imposed a term that FE was, or would be, subjected to insults from Watchhouse officers during the balance of the stays. Term 8h: Children had limited access to the exercise yard and TV Room (all visits to the exercise yard being one hour or less) [565] As the day by day analysis below reveals, for each stay, there was at least one day (and on some occasions more than one day) on which the Applicant did not have access to either an internal exercise yard or the external exercise yard. However, on some occasions an Applicant had access to an exercise yard (including the external exercise yard) on more than one occasion on a single day and, on some occasions, the access to an exercise yard (across one or two visits) on a single day was significantly in excess of one hour. [566] We find that the following term was imposed on each Applicant for each stay: Access to an internal exercise yard and the external exercise yard was subject to operational requirements at the Watchhouse and access was not made available each day of each stay. Term 8i – Children were not provided with appropriate educational materials or resources [567] We agree with the Presiding Judicial Member for the reasons given that this term is established for each Applicant, for each stay. Term 8l: Children’s sleep was inhibited by various conditions and practices, including hot conditions at night, without air conditioning, roll calls being conducted late at night and children being woken up for showers or breakfast early in the morning Hot conditions at night [568] We note BA’s evidence that ‘sometimes’ the air-conditioner was turned off during the night.281 FE’s affidavit evidence was that the air-conditioning was turned off at night.282 However, in cross-examination, FE agreed that it was on all the time.283 Senior Sergeant Gardiner’s evidence (unchallenged in cross-examination) was that the air-conditioning runs 24 hours a day and there is no ability to adjust or amend the temperature for an individual cell.284 We are not satisfied, on the balance of 281 BA’s affidavit [15]; 30.04.25 T1-42 lines 3-10. 282 FE’s first affidavit, [8]. 283 01.04.25 T3-8 lines 38-43. 284 Affidavit of Senior Sergeant Gardiner, [23]. -- 90 of 202 -- 91 probabilities, that the air-conditioning was turned off during either of BA’s stays or any of FE’s stays.285 Roll calls [569] We have been able to identify instances have of roll calls being made after 10.00pm.286 Particulars taken [570] As to DC, we find that there was one occasion during his stays, namely 12 June 2022 at 9.42pm, when identification particulars were taken from him.287 [571] As to FE, identification particulars were taken from FE at 12:23am on 31 May 2022. We note that this was the morning on which FE departed the Watchhouse, and that on each of the two preceding days FE was reported as having slept well. Early showers or breakfast [572] The day by day analysis below sets out the records of when the Applicants were offered breakfast and/or showers early in the morning. Noise [573] We also note the evidence in relation to the general noise of the Watchhouse including at night. Conclusion [574] We find the following term to have been imposed for each Applicant and for each stay: The sleeping conditions for each Applicant overnight included the temperature of the air-conditioning being set at 25 degrees; the Watchhouse may be noisy at night; and operational requirements at the Watchhouse involved occasional roll calls after 10.00pm, the occasional taking of individual particulars at night, and the offering of showers and breakfast generally between 6.00am and 7.00am in the morning. [575] As to whether each Applicant’s sleep was in fact inhibited: (a) we consider this question concerns whether each Applicant was unable to comply with the term imposed as distinct from the term itself; (b) however, we make the following observations in this regard: (i) the evidence does not identify the occasions during each stay of each Applicant on which the Applicant’s sleep was inhibited by the sleeping conditions; (ii) with respect to the taking of particulars plainly that would have inhibited an Applicant’s sleep if the Applicant was asleep at that time. In this context: (A) we infer that FE would have been woken up given the time of night his particulars were taken (12.23am); 285 We observe that BA’s stays commenced in early September and late April respectively (acknowledging that Cairns has a tropical climate). 286 B3747 (BA) (10.14pm); B4194 (DC) (10.03pm); B486 (FE) (10.29pm). 287 B4308. -- 91 of 202 -- 92 (B) however, we are not in a position to draw an inference that DC would have been sleeping at that time his particulars were taken (9.42pm); (iii) with respect to roll calls, it is not clear whether each this required each Applicant to verbally respond, but assuming this was the case, we infer that it is more likely than not that each Applicant would have been woken up by a roll call taken after 10.00pm at night; (iv) with respect to the set temperature of the air-conditioning and noise in the Watchhouse, we are not satisfied, on the balance of probabilities, that any of the Applicants has established that his sleep was inhibited during any of the stays; (v) in this regard, the evidence of an Applicant reporting that he was sleeping well is plainly contrary to such a finding, and we have not been able to identify contemporaneous complaints about poor sleep during the stays; (vi) having regard to the day by day analysis below (in particular, the time at which breakfast or a shower was usually offered), we find it more likely than not that each Applicant was generally woken from his sleep at that time (although it also appears that on a number of occasions an Applicant was allowed to go back to sleep). Term 8m: Children were not allowed to change clothes when detained, including for long periods of time [576] Our day by day analysis below identifies the occasions when fresh clothes were provided and the Applicants changed clothes. We observe that this did not occur on a regular basis. [577] We find the following term to have been imposed for each Applicant for each stay: A change of clothes for each Applicant was at the discretion of Watchhouse officers and a change of clothes was not provided on a regular basis. Term 8n: Children were denied adequate pro-social activities to pass the time [578] In their Outline of Closing Submissions, the Applicants refer to the ‘materials’ given to the Applicants to pass the time: chalk, reading books, playing cards and improvised materials, and that most days there is no record of the Applicants having access to any activities or materials to pass the time.288 [579] The parties are agreed that the Applicants had access to chalk, books and playing cards.289 It was not disputed that these were provided only on some occasions.290 [580] We find that the following term was imposed on each Applicant for each stay: the provision of activities or materials to pass the time was limited in variety (such as a radio with two stations, a television in each exercise yard, chalk, reading books, playing cards) and only provided at the discretion of Watchhouse officers. 288 Applicants’ Outline of Closing submissions [56] – [57]. 289 Applicants’ Outline of Closing submissions [56]; Respondent’s Outline of Closing Submissions [190]. 290 Applicants’ Outline of Closing submissions [56]; Respondent’s Outline of Closing Submissions [181]. -- 92 of 202 -- 93 Term 8p: Children were detained in padded cells [581] Whilst we consider that the alleged term is framed too broadly given that detention in the padded cell only occurred on four occasions across all days of all stays for all Applicants (including none for BA) and only occurred in the event of aggressive or dysregulated behaviour, the Respondent’s Outline of Closing Submissions appears to accept that if an Applicant was detained in the padded cell, that amounted to the imposition of a term for the purposes of s 11. We will proceed on that basis. [582] We find that: (a) BA was not detained in the padded cell during either of his two stays and the term is not established; (b) the term is established in respect of DC insofar as DC was detained in the padded cell on: (i) 14 April 2022, for 1 hour 38 minutes; and (ii) 13 June 2022, for 3 hours 33 minutes; (c) the term is established in respect of FE insofar as FE was detained in the padded cell on: (i) 22 September 2021, for 30 minutes; (ii) 17 October 2021, for 1 hour 18 minutes. Term 8q: Children were clothed only in suicide smocks [583] We repeat our observations in relation to the padded cell, save that only DC was placed in a smock (twice) and that this was done because DC was displaying a high level of dysregulated behaviour. We will proceed on the same basis as we did with respect to the padded cell. [584] We find that: (a) BA was not placed in a suicide smock during his two stays, and the term is not established; (b) the term is established for DC insofar as DC was placed in a suicide smock on: (i) 14 April 2022, for 5 hours 12 minutes; and (ii) 13 June 2022, for 1 hour 31 minutes (and was then provided with a tear proof blanket); (c) FE was not placed in a suicide smock during any of his stays, and the term is not established. Term 8s: Children had inadequate access to appropriate nutrition [585] We agree with the Presiding Judicial Member for the reasons given that this term is not established for any Applicant. -- 93 of 202 -- 94 Term 8t: Children were subjected to a poor standard of hygiene [586] The basis of this claim is that the cells were unclean.291 [587] The Respondent submitted the evidence does not substantiate this term as the accommodation cells at Cairns Watchhouse are cleaned by third party cleaners every day, seven days per week, and when the Applicants created a mess, it was cleaned up by officers on duty.292 [588] The Applicants refer to the evidence of Mr McLaren which indicates occasions on which faeces are smeared on the walls, and toilets deliberately flooded293 the evidence of Mr Gardiner that cells are ‘usually’ cleaned daily.294 More detailed evidence is not provided. [589] BA did not refer to the condition of the cells in his evidence. [590] DC states in his Affidavit of 16 December 2024: [18] In the watchhouse, there’s not a single place that does not have spit on the walls, even shit on the walls, It’s that disgusting. Someone should come through and pressure wash it. Maybe that might get it clean. [19] It’s not just that, its’s the water as well. It floods out the toilet, sometimes it doesn’t flush. It’s disgusting. [20] They should give you socks in there as well, thongs maybe. You can’t walk around on that floor. I’ve caught scabies from that place. [591] In cross-examination DC accepted that the cells were mopped every second day to every day, but denied that the walls were cleaned off.295 [592] In his Affidavit, FE described the watchhouse as ‘miserable and disgusting’,296 that Cairns is the filthiest watchhouse,297 and: [14] When they say the cells are cleaned, back then a cleaner might come in and sweep and mop but sometimes they wouldn’t even move you into the clean cell. And it wasn’t enough to actually make the cell feel hygienic. [593] FE also states that he feels the bubbler attached to the top of the cell toilet ‘seems very dirty’ and that he does not like to drink from it.298 [594] On balance, given the evidence of DC and FE is consistent with that of Mr McLaren with respect to faecal matter being smeared on the walls, DC’s evidence that the walls were not cleaned, and FE’s evidence that the cleaning would comprise sweeping and mopping, we are satisfied that the walls were generally unhygienic. [595] Having regard to the evidence as a whole (and despite the absence of evidence on this issue from BA), we formulate the term as follows: the walls of the juvenile cells were 291 Applicants’ Outline of Closing Submissions [70]-[71]. 292 Respondent’s Outline of Closing submissions [308]-[310]. 293 Affidavit of Scott McLaren sworn 29 August 2024 [38] B5229, Applicants’ Outline of Closing Submissions [72]. 294 Affidavit of Paul Gardiner sworn 30 August 2024 [288]. 295 31.03.25 T1-65 lines 16-17. 296 Affidavit affirmed 5 April 2024 [30]; Affidavit affirmed 19 December 2024 [11]. 297 Affidavit affirmed 19 December 2024 [13]. 298 Affidavit of FE affirmed 5 April 2024 [10]. -- 94 of 202 -- 95 generally not cleaned to a hygienic state. We find it was imposed for each Applicant for each stay. Term 8u: Children were unable to use showering facilities in private [596] We respectfully do not agree with the Presiding Judicial Member that this term is established for all Applicants. Rather, we are not satisfied, on the balance of probabilities, that this term is established for any Applicant for any stay. [597] The evidence of Mr McLaren is that there is no CCTV and the shower cell is able to be secured to protect the person’s dignity.299 [598] The evidence of Senior Sergeant Gardiner is that: (a) the shower area is recessed and there is not a line of sight to other cells;300 (b) although an officer is nearby, they may enter out of concern for the child for example if the child does not respond.301 [599] We have not identified evidence from BA or FE addressing any lack of privacy whilst showering. [600] DC’s evidence in cross-examination included the following:302 Now, if we go back to the shower that I asked you about before, and I took you to the diagram and I showed you the – I showed you the photographs, could I just ask you some general questions about the shower. The first thing is you agreed – you’d agree from what we looked at before that the shower is separate to your cell, isn’t it?‑‑‑Yep. Yep. And I think you agreed with me before that when you’re in the shower, you can’t be seen from the other cells, can you?‑‑‑No, but they do walk people through there. And I suggest that when you’re in the shower, both those doors at either end of that corridor are closed?‑‑‑Yep. Yes. You agree with me?‑‑‑Yeah. Yeah. And the officer stands in a position where he or she isn’t looking into the shower; correct?‑‑‑At times, but they walk through to grab people and they walk back through. I suggest to you that when you’re in the shower, because of the way the shower is recessed, that you’ve got privacy and people don’t see you?‑‑‑Yeah, but an officer’s not going to stop a boy from jumping to the side and, you know, looking in and making fun of you. They don’t walk people through when you’re having a shower, do they?‑‑‑Yeah, they do. (emphasis added) 299 Affidavit of Scott McLaren [22] B5225. 300 Affidavit of Senior Sergeant Gardiner [19]. 301 Second affidavit of Senior Sergeant Gardiner (sworn 28 November 2024), [30]. 302 31.03.24 T1-57 line 31 – T1-58 line 7. -- 95 of 202 -- 96 [601] When regard is had to that evidence and the floor plan of the Watchhouse, it is evident that the two doors referred to are the doors at either end of the section of the corridor, outside the shower area, which leads through to the juvenile cells. [602] DC agreed that ‘when you’re in the shower, because of the way the shower is recessed, that you’ve got privacy and people don’t see you’. We reject DC’s statement that ‘… an officer’s not going to stop a boy from jumping to the side and, you know, looking in and making fun of you’; the evidence is speculative (there is no evidence that any person did, in fact, do that whilst DC was showering). [603] Whilst we accept that DC did not like the Watchhouse officer standing nearby, there is no evidence that any officer came within view of DC whilst showering during each stay. [604] We find that each of the Applicants has failed to establish, on the balance of probabilities, that the Respondent imposed a term that children were unable to use showering facilities in private, for any stay. Term 8v: Children had limited or no access to information about their situation, including about the time of day and when they could be expected to be transferred [605] The Respondent accepts that children held in custody at the Watchhouse did not have access to information about their transfer to a youth detention centre, and explains the justification for it.303 [606] The Respondent submits that the Applicants did not have limited or no access to information about their situation, because the Applicants had access to lawyers, Youth Justice, Co-Responders and YETI to provide them with relevant information.304 We accept this to be the case as is evident from the case notes and police records addressed below. [607] We find that: (a) the Respondent imposed a term that each Applicant, for each stay, would not be provided with information as to when he could be expected to be transferred to a youth detention centre; (b) the pleaded term is not otherwise established. Was each Applicant ‘not able to comply’ with the terms imposed on him? [608] Having identified the terms imposed on each Applicant, we turn to whether each of the Applicants was not able to comply with those terms for the purposes of s 11(1)(a) of the ADA. The Applicants’ case was run on the basis of ‘serious disadvantage’ [609] Paragraph 10 of the Statement of Contentions picks up the language of ‘serious disadvantage’ adopted in Hurst v State of Queensland (‘Hurst’)305. In his closing address, Mr Scott KC made clear that the Applicants sought to establish that the Applicants were unable to comply with the alleged terms because they were subject 303 Respondent’s Outline of Closing Submissions [339]-[345]. 304 Ibid, [347]. 305 (2006) 151 FCR 562. -- 96 of 202 -- 97 to ‘serious disadvantage’306 (or ‘substantial disadvantage’307).308 That is the factual basis upon which the Applicants sought to prove their respective cases.309 That the Applicants were required to establish serious disadvantage was accepted by the Respondent.310 In our respectful view, the Respondent’s submissions were directed to meeting the Applicants’ case on this basis.311 [610] Before addressing how the Applicants sought to establish serious disadvantage, we make the following observations. The interrelationship with the imposed terms [611] Insofar as a pleaded term was not imposed on an individual Applicant during a stay, it necessarily follows that no question of inability to comply arises in respect of such a term. [612] Further, even if a particular term is imposed, we consider that the issue of any inability to comply with that term does not arise if it did not have any (proven) negative effect or impact on a particular Applicant. A temporal consideration [613] In this case, the inability to comply issue is solely determined by examining the alleged serious disadvantage by reference to the stays during the claim period. In contrast, in Hurst, the Court (at trial) was required to consider the impact or effect of the condition or requirement both as to the past and into the future; the imposition of the term being an ongoing one. The expert evidence [614] The Applicants adduced evidence from Ms Hirvonen, Clinical Psychologist. [615] The Respondent adduced evidence from Dr Beech, Psychiatrist. [616] Each of the experts provided a report and was cross-examined. [617] With respect to differences of opinion between the experts, we prefer the evidence of Dr Beech, having regard to the respective qualifications of the experts, Dr Beech’s experience, and that Dr Beech readily made concessions in the course of cross- examination whereas we consider that Ms Hirvonen’s answers were, at times, not properly responsive to the question posed.312 [618] We also accept the comments Dr Beech made in relation to Ms Hirvonen’s report. Dr Beech’s response to Ms Hirvonen’s report included the following:313 … I am uncertain if Ms Hirvonen was provided with sufficient information about the individual capacities of BA, DC, and FE to 306 30.05.25 T1-28 lines 1-32; see also T1-5 lines 14-32; T1-26 line 41 – T1-27 line 6; T1-40 line 41 – T1- 41 line 3. 307 30.05.25 T1-27 lines 21-27. 308 We cannot discern any material difference between the respective phrases adopted. 309 Cf Mizner, [137]-[139]. 310 30.05.25 T1-45 line 43 – T1-46 line 2. 311 Cf the observations of the Presiding Judicial Member at [253]. 312 For example, the exchanges between Mr Murdoch KC and Ms Hirvonen at T3-34 line 35 – T3-36 line 10 and at T3-25 lines 26-32. 313 Dr Beech’s report, lines 814-876. -- 97 of 202 -- 98 comply with the conditions associated with each period of detention in the Watchhouse for more than two days. In the material provided to me, I think there are indications that these young persons each had a conduct disorder, had difficulties with attention and hyperactivity, had learning difficulties, and had a history of mental health issues. The material points to prejudicial childhoods, longstanding behavioural difficulties, and estrangement from mainstream educational facilities. There are indications of substance use. The material provided to me indicates that each young person was vulnerable, and as a result was more likely to suffer disadvantage in the Watchhouse. A review of each Applicant's history and circumstances would better inform an opinion about each Applicant's ability to comply with the Watchhouse conditions. Much of the material provided to me is about their prejudicial, childhoods, their conduct disorder, and their psychosocial difficulties. An independent psychological assessment of each Applicant would provide information on their strengths, resilience, and ability to overcome the impact of stressful situations once they are removed from that environment. I believe that the age of the young person is an important factor to consider if they are to be detained in the Watchhouse for more than two days. Clinically, I think that a 13 year old young person would be more vulnerable to difficulties than a 17 year old person. However, there are individual factors that might affect this including a history of adverse childhood events, the presence of mental illness, and contemporaneous issues around family and other matters. There is also a difference between the level of stress that a young person might experience over three days compared to eight or more days. The impact of stress often has a dose effect. Idleness, boredom, and uncertainty are factors that mount over time to cause distress. Similarly, cramped living conditions, poor temperature regulation, and noise add up over time. Exposure to adults and their issues will cause increasing problems over time. What might be reasonable accommodated on the two to four days can become intolerable after six days. These factors might be mitigated by frequent access to family members, psychological support, and distractions through social and recreational activities. The individual circumstances and history of the individual child are important in assessing the impact of these stresses on them. If there is an issue with the Report, I think that is speaks to general factors, general impact, and detention in adult facilities generally. This is understandable because the questions posed have been in general terms. However, again, there is a dose effect when it comes to stress and trauma. Much of the literature points to the aversive effect of factors in early childhood. The literature often points to the aversive effect of prolonged detention in adult facilities rather than the short-term placement in watchhouses. To that extent, I think that the Report does not sufficiently address the capacity of each child to comply with the conditions. Certainly, she has made pertinent observations of incidents in the CCTV and the general conditions at the Watchhouse. I note that Ms Hirvonen stated that the assumptions in paragraphs 27 to 41 did not change her responses. I think it is likely because of the general nature of questions put to her. I think that there is a longevity effect of detention that is important to consider. There are also issues that arise in detention regardless of where a person is placed. It could be reasonably inferred that a child placed in detention, even in the supported juvenile detention facility, would be stressed and distressed. In my experience, this is common place. Regardless of the best efforts of juvenile facility custodians, the people who are detained struggle with rules and authority. They have problems regulating their emotions and -- 98 of 202 -- 99 their behaviour. They can be affected by separation from family and supports ... (emphasis added) [619] Dr Beech took issue with Mr Hirvonen’s discussion around ‘toxic stress’.314 Dr Beech noted that toxic stress adversely affects brain development and that much of the literature refers to chronic stress becoming toxic to the developing brain in early childhood.315 We accept Dr Beech’s view that there were aspects of Ms Hirvonen’s report that relate to early childhood development and its effect on brain development and psychosocial functioning, and that there has been an extrapolation from this into adolescence and later adolescence.316 [620] Dr Beech agreed with Ms Hirvonen that:317 (a) young persons’ brains do not fully mature until they are 25 years old; (b) children who enter the justice system are more likely to have experienced adverse childhood events, which makes them more vulnerable to stresses and more likely to exhibit emotional and behavioural dysregulation; (c) young persons have different needs to adults, and that ‘staff’ who interact with them need to modify processes, procedures, and information from adult material for them; (d) young persons struggle with idleness and boredom, uncertainty, perceived harassment, and restricted movement, but Dr Beech observed that the traumatic impact of those difficulties is proportional to the amount of time and exposure to the stressors, the resilience of the young person themselves, and their age and maturity. [621] In this context, Dr Beech also opined that:318 In general, the needs of children and adults in detention differ. As above, young persons in detention often have complex needs and may require more psychological support. They perceive time differently and have difficulty with uncertainty. They may not yet have developed a capacity to manage their emotions and deal with separation from friends and family. They are more likely to struggle with inactivity, idleness, and boredom. They are prone to shifts in their emotional states that require support. [622] Dr Beech opined that there is ‘spectrum’ to the stresses placed on young persons in adult facilities, for example:319 (a) age: ‘A 13-year-old young person may be more vulnerable than a 17-year-old person.’320; (b) time in the Watchhouse: 314 Dr Beech’s report, lines 804, 896-919. 315 Dr Beech’s report, lines 903-906. 316 Dr Beech’s report, lines 784-787. 317 Dr Beech’s report, lines 784-802. 318 Dr Beech’s report, lines 881-887. 319 Dr Beech’s report, p 15, lines 745-759. 320 See also 02.04.25 T3-12 lines 2-4; T3-17 lines 33-39. -- 99 of 202 -- 100 (i) ‘Two days placement in a watchhouse is different to 10 days placement, let alone months at [sic, a] time.’321; (ii) ‘A lack of access to educational facilities for a week or so may have less impact for someone who is not engaged with the education system.’322 [623] The impact or effect must also be viewed in what is an inherently negative environment, being one of custodial detention. As Dr Beech observed, youth persons can have a sense of helplessness and hopelessness in youth detention centres because there is such uncertainty about how long they are going to be on remand.323 [624] The expert evidence in the present case stands in contrast to the evidence in cases such as Hurst where substantial expert evidence was led addressing the specific impact on the applicant of the requirement or condition.324 The relevant characteristics of young persons [625] The evidence of Dr Beech, which appeared to be addressing the characteristics of young persons in detention (in comparison with adults in detention), indicates that young persons (the Applicants being described as ‘adolescents’) struggle (or are more likely to struggle) with idleness, inactivity and boredom, uncertainty, perceived harassment, and restricted movement, and are prone to shifts in their emotional state. [626] We now turn to the Applicants’ case on serious disadvantage. The Applicants’ reliance on the attribute of age [627] Paragraph 10 of the Statement of Contentions alleges: The Applicants were not able to comply with the terms. a. As children, the Applicants had particular educational, psychological, emotional and developmental needs; b. Although they may have physically “coped” with the terms, they were placed at a serious disadvantage by reason of their educational, psychological, emotional and developmental needs not being met. (emphasis added) [628] In paragraph 5 of the of the Applicants’ Outline of Closing Submissions it is submitted: Due to their intrinsic vulnerabilities as children, the Applicants were unable to comply with the terms imposed. The expert evidence irrefutably demonstrates that children, unlike adult detainees, are more vulnerable to the negative effects of this manner of detention due to their young age. The evidence also establishes that the Applicants, specifically, were unable to comply with the terms imposed by the Respondent. (citation omitted) 321 Dr Beech’s report, lines 753-754. 322 Dr Beech’s report, lines 754-756. 323 T3-14 lines 4-10. 324 See e.g. Hurst, [108]-[113]. -- 100 of 202 -- 101 [629] The Tribunal must consider the ‘practical effect’ upon each Applicant, as a person ‘with a particular attribute’, by reason of the imposition of the term or terms.325 The particular attribute of each Applicant which founds their respective cases is, as we have noted above, the attribute of ‘age’ and, more particularly, the characteristics that persons under the age of 18 years (or of the Applicants’ respective ages) generally have. [630] A complicating feature of the Applicants’ case is that none alleged that he also had the attribute of ‘impairment’ for the purposes of s 7(h) of the ADA, in particular, ‘a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour’ (including an impairment that presently exists or previously existed but no longer exists).326 [631] This is despite the fact that: (a) Dr Beech’s evidence was that the histories of each Applicant indicated that they had a ‘severe conduct disorder’327 (when questioned by the Presiding Judicial Member at the hearing, Dr Beech agreed that, in its ‘DSM-5 sense’328, a conduct disorder is by definition a condition confined to children and adolescents;329 (b) Dr Beech stated that there were indications in the material that the Applicants had a ‘history of mental health issues’;330 (c) it was pleaded that BA had an ‘intellectual disability’, which was not admitted in the Respondent’s Response; (d) it was pleaded that DC had an ‘attention deficit hyperactivity disorder’, which was admitted in the Respondent’s Response.331 [632] A further complicating factor is, as stressed by Dr Beech, the absence of information about each Applicant’s personal circumstances, including information about the ‘strengths, resilience, or supports’ of each Applicant.332 This adds an overlay to consideration of the issue of inability to comply, particularly where, as noted above, no individual assessment was carried out in respect of each Applicant by Ms Hirvonen or Dr Beech. [633] In this context, Dr Beech gave the following evidence in cross-examination:333 MR SCOTT: All right. So two to four days ‑ ‑ ‑?‑‑‑Yes. 325 Mizner v State of Queensland (Corrective Services) (‘Mizner’) [2025] QCA 169, [131] (Crowley J, Bond JA and Gotterson AJA agreeing). 326 See item (d) in the definition of ‘impairment’ in Schedule 1 to the ADA. 327 Dr Beech’s report, lines 708-709. 328 03.04.25 T1-6 line 48 – T1-7 line 18. We understand ‘DSM-5’ to be a reference to the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition. 329 Dr Beech also agreed that adults might suffer from other conditions, not conduct disorders, with similarities, and said that the adult equivalent of a conduct disorder would more likely be antisocial personality disorder or some of the other personality disorders, like borderline personality disorder: 03.04.25 T1-8 lines 5-12. 330 Dr Beech’s report, lines 817-820. 331 See also 03.04.25 T3-28 line 17 - T3-29 line 19. 332 Dr Beech’s report, lines 1022-1032; see also 826-828, 860-861, and 965; 03.04.25 T3-18 lines 31-41; T3-19 lines 11-30. 333 See also 03.04.25 T3-18 line 29 - T3-19 line 30. -- 101 of 202 -- 102 ‑ ‑ ‑ they may be able to cope, depending on their personal circumstances?‑‑‑Yes. Beyond that?‑‑‑Beyond that, it – it deteriorates. Now, it depends on the individual. Much of the material, it, um, speaks to disadvantage. It doesn’t speak to resilience. Um, and so, uh, individuals their age, um, might be able to continue to comply and cope for longer periods. Um, especially when you’re getting 16, 17 years old, they might be able to cope for longer periods than four days. Um, younger children or disadvantaged children or children, um, and young persons with mental health issues would struggle, I would think, after that. Okay?‑‑‑And they might struggle before that. And – again, not intending to be critical, but the term “cope” has some ambiguity. Can I just clarify, when you say “cope”, are you talking about – you’re not – sorry, what are you talking about?‑‑‑Sorry. Well, it was his Honour who introduced the word “cope”. Um, but I would think it’s ability to tolerate it. You know? You can be stressed, you can be upset, you can become agitated, you can think this unfair, but it doesn’t overwhelm you. It doesn’t ‑ ‑ ‑ I see?‑‑‑ ‑ ‑ ‑ overwhelm your, um, overt strategies to – to manage difficult circumstances, thoughts and emotions. I see. And is that – is this right: whether it will overwhelm you is more relevant to whether or not they will have lasting psychological impacts; correct?‑‑‑The – well, you can become overwhelmed but it may not lead to permanent or lasting side effects. Um, “I’m coping with this, but, um, there’s going to point where it’s, um, just going to overwhelm me, but I will recover.” There’s – but sustained, um, distress, um, can lead to lasting effects. I see. But even if they’re not overwhelmed, children – these children – in the watch-house for between two and four days are still likely to suffer the effects that we’ve discussed of a child being in a detention facility that’s – does not cater to children’s needs; correct?‑‑‑Yes. And – and these applicants in particular, I think. Yes. And you don’t – you can express that opinion without needing an individual psychological assessment for them; correct?‑‑‑I can say that, yeah. Thank you?‑‑‑Well – uh – I’m going along so easily with you. There’s – it’s still not – there’s not – I don’t h – I don’t know their supports. Right?‑‑‑I don’t know their resilience. They’d had to have visits from family. I don’t know how much support and nurture that provided, but I assume it provided a lot of support. Um, and things like that. So what can be stressful can be mitigated by the other factors that are happening, which is frequent contact with family, um, reassurance from support workers, youth workers coming in and going over with them about how things are going, providing coping strategies and things like that. So there’s a lot – if there’s anything – this material is about, you know, pre-sentence reports and youth justice logs and things like that. There’s not a lot of focus on the individual’s resilience and support network. (emphasis added) [634] As we understood the above exchange, Dr Beech qualified his answer ‘I can say that, yeah.’ with the following evidence emphasized above, and Dr Beech did not resile from the view he expressed in his report concerning the absence of information about -- 102 of 202 -- 103 each Applicant’s personal circumstances, including information about the strengths, resilience, or supports of each Applicant. The alleged grounds of serious disadvantage [635] As we understood the Applicants’ case at the hearing,334 the Applicants sought to establish serious disadvantage on two bases,335 namely that, by reason of the imposition of the alleged terms, the Applicants were exposed to (or subjected to): (a) a ‘greater risk’ or an ‘increased risk’ of recidivism; (b) ‘greater hardship’ or ‘increased hardship’ compared to adults. [636] For the reasons addressed below, we respectfully consider that seeking to demonstrate serious disadvantage by reference to greater (or increased) hardship compared with adults detained at the Watchhouse is misplaced. It follows that we do not consider that, in the context of inability to comply, support for the Applicants’ case can be drawn from the Respondent’s admission that a higher proportion of adults on remand would be able to comply with a proved imposed term.336 The Respondent’s concession was that if the Tribunal were to find that a term was imposed and that an Applicant did not or was not able to comply, a higher proportion of people without the attribute, being adults in the Watchhouse, complied or were able to comply.337 In our view, the fact that the Respondent did not put the Applicants to proof on this element does not support an inference that the Respondent accepted that an Applicant was unable to comply with one or more of the imposed terms. [637] We now turn to the asserted greater or increased risk of recidivism. Greater or increased risk of recidivism [638] This issue did not receive much attention during the course of the hearing. The Applicants’ written outline of closing submissions does not address the Applicants’ alleged inability to comply on this basis.338 However, it was raised in oral closing submissions by Mr Scott KC (as identified above) and, briefly, in cross-examination. [639] In his report, Dr Beech said the following:339 There is a risk that the time in the Watchhouse would exacerbate the risk of recidivism. Time in the Watchhouse necessarily meant that they are under the custodial care of the police, which might aggravate existing animosity, hostility, and distrust. Perceived arbitrary, unjust, or retributive punishment could exacerbate pre-existing tendencies to acting out in a criminal manner. It might from there extrapolate to include other adults in authority. Exposure to adult offenders, and their criminogenic thoughts and perceptions, might exacerbate a pre-existing vulnerability to ongoing criminality. That is simply to say that extended periods in a watchhouse could adversely affect a delinquent trajectory. 334 Which we consider put the Applicants’ case on a different basis to that pleaded in the Statement of Contentions. 335 30.05.25 T1-6 line 45 – T1-7 line 12; T1-28 lines 1-32; T1-30 line 40 – T1-31 line 16. See also the written closing submissions [104]-[105], [224] in respect of the greater hardship argument. 336 See the Presiding Judicial Member’s findings at [256]-[257]. 337 30.05.26 T1-66 lines 23-29. 338 See [102]-[111]; see also [88]-[101]. 339 Dr Beech’s report, p 19, lines 937-946. -- 103 of 202 -- 104 [640] In context, this is a reference to young persons generally, rather than the Applicants (who had ‘significant criminal histories’340). The observations by Dr Beech were, on their face, general, and were qualified by references to ‘might’ and ‘could’. [641] In cross-examination of Dr Beech, the following exchange occurred:341 And then you make a point about the trajectory of juvenile delinquents may be further criminalised if they are influenced by adult offenders. Do you see ‑ ‑ ‑?‑‑‑Yes. ‑ ‑ ‑ that? In other words, if they are influenced by adult offenders, their risk of recidivism increases?‑‑‑Yes. The – these are general terms and concepts, but if can imagine that there might be trajectory that an adolescent is on, um, that if they’re placed with a whole lot of pro-social people who, um, are trying to modify their behaviour in a good way, then that trajectory might be influenced in one direction. If they’re placed with a whole lot of adult criminals who are pushing, um, an antisocial agenda, then their trajectory can be influenced the other way. Okay. Thank you, doctor. And to put it into the language of the needs of children ‑ ‑ ‑?‑‑‑Yes. A need of children is that they are detained separately from adults; correct?‑‑‑Yes. And that’s not just physically separate. That means also that they are not able to speak to adult offenders or hear adults offenders; correct?‑‑‑Or observe them. Yes. (emphasis added) [642] As addressed above, we find that: (a) BA has not established that he had any specific interaction with an adult in the Watchhouse during either of his two stays, much less an interaction whereby an adult offender could be taken to have ‘influenced’ BA; (b) DC has not established that he had any specific interaction with an adult in the Watchhouse during his three stays much less an interaction whereby an adult offender could be taken to have ‘influenced’ DC; (c) each of BA and DC has failed to establish that compliance with the terms imposed on him exposed or subjected him to a greater or increased risk of recidivism and, consequently, ‘serious disadvantage’. [643] With respect to FE, we note the evidence addressed at paragraph [154] of the reasons of the Presiding Judicial Member. FE did not attempt to establish, and we find that FE has failed to establish (on the balance of probabilities) that this interaction with an adult in the Watchhouse amounted to the type of influence identified by Dr Beech such as would give rise to an increased risk of recidivism. We also note the inherent unlikelihood of this given the extent of FE’s prior criminal history. [644] We find that FE has not established, on the balance of probabilities, that in complying with the various terms imposed on him during any stay (or collectively across all 340 03.04.25 T3-66 line 6-12. 341 See also 02.04.25 T3-12 lines 2-4; T3-17 lines 33-39. -- 104 of 202 -- 105 stays) he was exposed or subjected to an increased (or greater) risk of recidivism and, consequently, ‘serious disadvantage’. [645] We turn to the next ground. Greater or increased hardship compared to adults [646] In our view, an approach which adopts a comparison as to the hardship endured by the Applicants (or children more generally) compared to adults does not answer the question posed by s 11(1)(a) of the ADA.342 [647] In Hurst, the Court made the following observations:343 Regrettably, in our view, his Honour allowed himself to be distracted by the somewhat unsatisfactory manner in which Tiahna's case was presented below. Ultimately, this led him to focus upon the wrong issues. In considering questions of parity between Tiahna and her hearing peers, and whether she had the ability to “cope”, his Honour failed to address the real issue in Tiahna's case. That was whether, by reason of the requirement or condition that she be taught in English without Auslan assistance, she suffered serious disadvantage. (emphasis) [648] In inviting the Tribunal to assess serious disadvantage by reference to greater increased hardship compared to adults, we respectfully consider that the Applicants focus on the wrong issue. The Applicants’ approach tends to conflate the (discrete) elements under s 11(1)(a) and (b) respectively of the ADA. Subsection 11(1)(b) requires a consideration of whether a higher proportion of people without the attribute, than those with the attribute, comply or are able to comply. As submitted by the Applicants (correctly in our view):344 The comparison in this step is not between the individual Applicants and the base group; rather the comparison is between the groups generally. (citation omitted) [649] In contrast, we consider that s 11(1)(a) focuses attention on whether an individual complainant, being a person with an attribute, does not or, relevantly here, is not able to comply with one or more of the imposed terms. In our view, whether each Applicant experienced the alleged greater or increased hardship compared to adults does not establish this element; it does not, of itself, amount to serious disadvantage. [650] For the above reasons, the second basis of alleged serious disadvantage fails. [651] Is that the end of the Applicants’ case on this issue? The Respondent’s case on serious disadvantage [652] By reference to Hurst in particular, the Respondent submitted that in order for a person to be unable to comply with a term ‘they must, similar to being physically unable, or unable in a binary way, to comply, not be able to comply clearly and demonstrably, in that to do so would cause them to suffer serious or substantial consequences, as 342 This comparison arose during the cross-examination of Dr Beech: 03.04.25: T3-13 line 36 – T3-14 line 24. 343 At [106]. 344 Applicants' Outline of Closing Submissions, [89]. -- 105 of 202 -- 106 opposed to discomfort or tolerable stress.’345 The Respondent submitted, in respect of the term concerning the use of the toilet, that the evidence did not demonstrate, for example, ‘any significant adverse psychological impact’ arising from an inability to comply with the term.346 [653] Mr Murdoch KC addressed this issue in oral submissions, submitting that serious disadvantage requires the Applicants to have suffered serious or substantial consequences as opposed to disadvantage or discomfort for a period or even tolerable stress; that ‘non-trivial disadvantage’ is not sufficient to satisfy the test; and that the bar is set ‘quite high’.347 [654] In answer to a question from the Presiding Judicial Member, Mr Murdoch KC appeared to accept the characterisation of the Respondent’s case as requiring ‘permanent or ongoing disadvantage’.348 However, in context, we did not understand Mr Murdoch KC’s response to re-frame the Respondent’s case differently from that set out in the written submissions. [655] Nevertheless, the Presiding Judicial Member concludes that serious disadvantage should not be confined to ‘long-term harm’ or ‘permanent effects’, positing an example of serious unlawful discrimination that had ‘serious effects’ on an individual but which, by post-event therapy and relevant rehabilitation, avoided long-term harm or permanent effects.349 We respectfully agree that this example would amount to serious disadvantage. [656] On the other hand, we consider the Respondent’s contention that ‘non- trivial disadvantage’ is insufficient to amount to serious disadvantage is consistent with the Court’s observations in Hurst350 and we proceed on that basis. We understood the Applicants to accept that ‘not trivial’ disadvantage is ‘not enough’ to constitute serious or substantial disadvantage.351 [657] Given the approach adopted in the Respondent’s written and oral submissions and the extent of the evidence referenced in those submissions,352 we consider that there is no unfairness or injustice to the Respondent in determining whether the Applicants have satisfied s 11(1)(a) of the ADA having regard to whether each Applicant, having the characteristics of persons under the age of 18, suffered serious disadvantage (other than as framed by the Applicants) by the imposition of one or more terms imposed on that Applicant during each stay. Adopting this approach, we consider that the Tribunal must determine whether, on the balance of probabilities, each Applicant was unable to comply with the terms imposed on him because he suffered a level of disadvantage, from the imposition of the terms, which amounted to serious disadvantage. The answer to this question is ‘highly fact specific’353 and inability to comply is to be judged ‘practically’.354 345 Respondent's Outline of Submissions, [46]. See also 30.05.25 T1-47 lines 7-17. 346 Respondent's Outline of Submissions, [78]. 347 30.05.25 T1-45 line 43 – T1-47 line 17. 348 30.05.25 T1-47 lines 23-45. 349 PJM reasons [273]. 350 See [120]. 351 30.05.25 T1-27 lines 21-43. 352 Respondent's Outline of Submissions, [40]-[361]. 353 Mizner, [140]. 354 Ibid, [133]. -- 106 of 202 -- 107 Evidence of cumulative effect of separate stays? [658] Dr Beech’s evidence included the following (which we accept):355 Certainly, the individual circumstances and history of a child are relevant. Repeated low-dose exposure to the Watchhouse might inoculate against the impact of longer periods; conversely, it might add to the burden of stress. Greater psychosocial and family support, and greater mental resilience, would be protective. A history of recurrent exposure to ACEs might make someone very susceptible to the stress of detention in the Watchhouse. [659] Neither Ms Hirvonen nor Dr Beech carried out an individual assessment in respect of any of the Applicants. Any relevant cumulative impact of separate stays would depend upon evidence that, for example, during two or more stays an Applicant suffered stress (or some detrimental impact) and the cumulative effect of such stress or detrimental impact was such as to found a conclusion that the cumulative effect gave rise to serious disadvantage. Having regard to the evidence (particularly the expert evidence), we are not satisfied that, on the balance of probabilities, in respect of each Applicant, that the impact or effect of the imposition of terms on earlier stays had any identifiable impact or effect on an Applicant in relation to subsequent stays, much less that the there was a cumulative effect giving rise to serious disadvantage. [660] We will address the position in respect of each Applicant in turn, and assess the evidence on a ‘day by day’ basis. Before doing, we note the following in relation to references in the police records which relate to the Applicants spending time in an exercise yard. Evidence regarding exercise yards [661] In his affidavit, Senior Sergeant Paul Gardner stated:356 The watchhouse has four (4) exercise yards, three internal and one external. The external exercise yard has access to direct sunlight and fresh air. The external exercise yard is used by all prisoner types on rotation during the day. Access to internal exercise yard [sic] (2 male section, 1 female section) is subject to capacity. Televisions are located in the exercise yards only and any movement into one of these exercise yards would provide access to television. [662] We deduce from the police records and from the floor plan at attachment ‘PG-1’ to Senior Sergeant Gardner’s affidavit, that the following abbreviations contained in the police records correspond with an exercise yard: (a) ‘EXYARD’: the external exercise yard; (b) ‘MXA’: male exercise yard (A) (internal); (c) ‘MXB’: male exercise yard (B) (internal); (d) ‘FX’: female exercise yard (internal). [663] There is no dispute that each of the four exercise yards had a television. [664] We now turn to BA’s stays. 355 Dr Beech’s report, p 19, lines 965-970. 356 At [27]. -- 107 of 202 -- 108 BA The stays [665] The Presiding Judicial Member identified the two stays in issue: (a) from 1:20pm on 7 September 2021 until 7:56pm on 16 September 2021, a period of approximately 9¾ days; (b) from 4:39pm on 24 April 2022 until 1:12pm on 4 May 2022, a period of just short of 10 days. [666] With respect to the first stay, we find that the reference to 7:56pm on 16 September 2021 is, on the evidence, a reference to when BA was released from police custody after transit to ‘CYDC’ (the Cleveland Youth Detention Centre, at Townsville); and that the evidence indicates that BA was discharged from the Cairns Watchhouse at 3.16pm that day.357 We find that, at this time, the imposition of the alleged terms at the Cairns Watchhouse necessarily ceased. [667] With respect to the second stay, we note that the reference to 1:12pm on 4 May 2022 is, on the evidence, a reference to the time that the custody of BA was handed over to ‘CDYC’. This followed a ‘road transfer’. The evidence indicates that BA was discharged from the Cairns Watchhouse at 8:17am that day.358 We find that, at this time, the imposition of the alleged terms at the Cairns Watchhouse necessarily ceased. [668] We will address each stay in turn. BA’s first stay [669] BA’s first stay was from 1:20pm on 7 September 2021 until 3:16pm on 16 September 2021 (‘BA’s first stay’), a period of 9 nights, and approximately 9 days 2 hours (counting 24 hours as one day). [670] BA was 10 days short of his 17th birthday at the start of BA’s first stay. [671] BA’s affidavit sworn/affirmed on 5 April 2024 refers to the events of BA’s first stay:359 21. During the 10 day stay in September 2021 I had two other kids in the cell with me; during that stay, from what I remember, I was only able to use the exercise yard in the last three days, together with the other boys from my cell. There were about 10 or 12 other boys there too. All visits to the exercise yard were for one hour or less. 22. I asked to go to the TV room but the officers told me I wasn't allowed to go because there were girls in the room. When I was taken past the TV room I didn't see any girls. I did not go to the TV room at all over the 10 days. 23. When I was arrested on this occasion, I had a sore leg from running into a fence. It was really painful so I ripped a bit of my shirt off and tied it around my knee, above and below, to make it numb. I asked for medical attention, but it took two or three days before a doctor came to look at it. I was then given a bandage. I was also sick with the flu. I 357 Exhibit PG105, B3368-3369. See also B5975. 358 Exhibit PG105, B3680-3681. See also B5975. 359 At [21]-[27]. -- 108 of 202 -- 109 asked for Panadol but the officers didn't give me any until many days later. They said the reason for the delay was because I had only been there for a few days. 24. On one occasion there was an incident when I was yelling at the officers and so they strip searched me even though I had been in the watch house a few days already; I think they did it because they were angry. They grabbed my shorts and pulled them off. I have also seen some of my friends strip searched by the police. 25. I listen and I'm respectful towards the watchhouse officers but when something isn't right, I tell them. I just talk straight. For example, one time when I asked for tea in the morning instead of coffee, one of the officers said no because there isn't enough sugar. I got annoyed because they're lying to me and I said - how did you make my coffee then? I was asking in a nice way, I was polite. I don't know why they disrespect me. 26. I saw an officer spit in someone else's tea. After that, I didn't eat anything for days. I was hungry but I just kept drinking water. There's a picture of me from that time and I'm really skinny, my pants are really loose on me. My mum took the picture around 12 September 2021. [672] We refer to paragraphs [467] and [468] above. With respect to BA’s evidence that he was only able to use the exercise yard ‘in the last three days’, the evidence below establishes that BA, in fact, spent time in the external exercise yard on 8 September 2021 (the first full day of the stay), 9 September 2021, 10 September 2021, 11 September 2021 and 12 September 2021 (and on 15 September 2021 (three times) (which was the last full day of the stay)). 7 September 2021 [673] A Youth Co-responder visited BA at 5:00pm to conduct a welfare check. The summary of interactions included the following:360 … [BA] engaged well with the YJ officer and did not raise any issues, he understood why he was in the watchhouse however he mentioned it was his friend’s fault ... [BA] understood that he will be in the watch house overnight and attend court tomorrow morning. [BA] did not present any suicidal ideation and did not identify anything further that YCRT could assist with. [674] Prior to the visit, the police logs refer to a number of cell checks with the notation ‘No complaints. No problems detected.’ For convenience, for the balance of these reasons we will refer to ‘no complaints or problems’ being recorded in relation to such log entries. [675] A log records dinner being provided at 5:41pm.361 [676] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).362 360 B5939. 361 B3439. 362 B3434-7. -- 109 of 202 -- 110 8 September 2021 [677] Following breakfast, BA met with a YETI representative at 7.20am.363 [678] The police records under ‘Temporary absences’ record two consecutive absences from the cell from 8.11am to 8.19am and from 8.19am to 9.05am with the reason being ‘LAWYER – INT 3’. The detention logs do not reflect these visits but we note no cell checks are recorded between 7.56am and 8.55am. [679] The police records record a Youth Justice visit in Interview Room 1 between 9:26am and 9:34am.364 [680] A case note of that visit included the following:365 … [BA] appeared to be at baseline and was happy to see SYW. [BA] advised SYW that he has court this morning and likely to be released … [BA] had no other concerns. [681] The police records indicate that BA was absent from the Watchhouse attending court from 10.53am to 12.13pm.366 [682] Lunch was provided at 12.26pm and BA’s mother attended to visit BA at 2.30pm (for 20 minutes).367 [683] BA spent time in the ‘EXYARD’ from 2.50pm to 3.27pm.368 [684] A log at 5.00pm records a visit by a Youth Co-responder and contains the notation ‘Nil issues’. [685] The summary of interactions in the Youth Justice case note included the following:369 … [BA] engaged appropriately with YCRT and was eating his dinner. He raised NIL concerns but did ask for a Panadol for a stomach ache, and YJ officer advised watch house staff of this. [BA] was asked if he would like his mother to visit him and he agreed and asked YJ officer to call her which I have completed. [BA] understood that CYDC is currently full and as such there are prolonged stays in watch houses. [BA] is aware of his next court date. [BA] mentioned he slept well last night and raised nil other issues. [686] The case note also noted ‘Nil welfare concerns’. We note BA’s mention of having slept well and having raised nil other issues. [687] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).370 9 September 2021 [688] BA took a shower at 6.04am and breakfast was provided at 7.59am.371 363 B3434; see also B3368. 364 B3368, see also B3368. 365 B5942. 366 B3433-3; see also B3368. 367 B3431-2; see also B3368. 368 B3430-1. 369 B5944. 370 B3418-21. 371 B3426. -- 110 of 202 -- 111 [689] Although not mentioned in the detention logs, the ‘Temporary absences’ refer to an absence between 7.32am and 7.49am being ‘INT 1 – YETI’. [690] This appears to be a visit by [Ms Y] of YETI. The case note reported:372 … 2nd day RIC. [BA] awaiting bed in CYCD. SEWB check in. No concerns noted by [BA]. [BA] presented as calm, clean and content. [BA] aware of actions causing effects on family. [BA] concerned for his mother’s well-being. Asked worker to ask YETI worker WE to check in on mother. [691] A log at 12.29pm records a ‘Youth Justice visit’.373 A Youth Justice case note reported amongst various matters:374 … [BA] appeared to be in good health and engaged positively in conversation with SYW. [BA] shared that he is upset about going to CYDC ... [692] BA spent time in the EXYARD from 2.17pm to 4.40pm.375 [693] BA received a visit from his mother and another person from either 5.19pm or 5.33pm to 6.04pm.376 [694] Dinner was provided at 6.05pm.377 [695] BA was provided with chalk at 6.23pm.378 [696] A log at 7.29pm records: ‘Cairns YCRT welfare check conducted nil issues’.379 [697] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).380 10 September 2021 [698] BA took a shower at 6.16am.381 [699] BA met YETI in Interview Room 1 from 6.40am to 7.20am.382 It appears breakfast was given during this time.383 [700] The Youth Justice case note recorded.384 [BA]: Doing well and was in a good mood, understands that he will be going to CYDC and has requested for us to contact his mother to see him today. [701] Lunch was provided at 12.26pm.385 372 B5947. 373 B3424. 374 B5950. 375 B3423-4. 376 B3422, B3368. 377 B3422. 378 B3422. 379 B3421. 380 B3434-7. 381 B3418. 382 B3368; see also B3418. 383 B3417-8. 384 B5953. 385 B3416. -- 111 of 202 -- 112 [702] BA was transferred to the ‘EXYARD’ at 1.19pm.386 BA was transferred from the external exercise yard to cell J1 at 5.09pm.387 It is possible that BA was taken to the external exercise yard twice that afternoon but the records appear to indicate a single period until 5.09pm. It appears dinner was provided during this time.388 [703] BA’s mother attended to visit BA from 7.43pm to 8.05pm.389 [704] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).390 11 September 2021 [705] BA took a shower at 6.12am.391 We could not identify a log recording the provision of breakfast.392 [706] BA’s mother attended to visit BA from 11.31am to 12.38pm.393 [707] Lunch was provided at 12.38pm.394 [708] A log at 3.05pm records that BA was throwing toilet paper on the CCTV camera in his cell and refusing to remove it when requested via intercom. It was reported that BA was pacing the cell, visibly frustrated, stating he needed fresh air and had not been outside today. The log noted that BA was advised multiple times prior to the incident that yard time would be facilitated as soon as it was possible, however he became impatient. BA refused to remove the toilet paper from the camera and an officer entered the cell and removed the toilet paper.395 [709] BA was taken to the ‘EXYARD’ at 4.58pm.396 We have not been able to identify the length of time spent in the external exercise yard, but we infer it would have been no later than 6.26pm. No complaints or problems were recorded between the earlier incident and BA being taken to the external exercise yard. [710] A log at 4.59pm records that YETI attended and BA ‘refused’.397 We infer that the refusal occurred because BA had just been taken to the external exercise yard. [711] A Youth Justice case note reported:398 … [BA] declined visit by workers. Still awaiting transport to CDYC. No concerns raised by QPS. 4 th day in watch house. [712] A log at 6.26pm records a visit from BA’s mother.399 386 B3415-16. 387 B3413. 388 B3413-14. 389 B3368, see also B3412. 390 B3409-12. 391 B3409. 392 We consider that the absence of a record of the provision of breakfast does not, of itself, establish that breakfast was not provided. 393 B3407. 394 B3368, see also B3407. 395 B3406. 396 B3405. 397 B3405. 398 B5955. 399 B3404. The list of Temporary absences does not record this visit. -- 112 of 202 -- 113 [713] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).400 12 September 2021 [714] Breakfast was provided at 7:29am.401 [715] BA spent time in the EXYARD from 9.59am to 10.13am.402 [716] Lunch was provided at 12.12pm.403 [717] BA’s mother attended to visit BA from 12.40pm to 1.04pm.404 [718] Dinner was provided at 5.05pm.405 [719] A log at 6.30pm records ‘reading books provided’.406 [720] No complaints or problems were subsequently recorded (including overnight).407 [721] There appears to be no record of a YETI or Youth Justice visit on, or case note for, 12 September 2021. 13 September 2021 [722] A log at 7:25am records that [name withheld] from YETI attended and it was recorded that there were ‘Nil issues’.408 [723] A log at 7:32am records ‘In interview with YJ interview 1’.409 [724] A case note which appears to refer to the YETI visit records:410 SEWB checks complete nil concerns raised by [BA] [BA] doing well , looking forward to transport to larger facilities [BA] stated 8 days now of others screaming in the watchhouse, requested Wkr ring mother to see how family are. [725] A log at 8.44am records ‘SHOWER GIVEN’.411 [726] Lunch was provided at 12.14pm.412 [727] A log at 5.45pm records ‘Meals offered - accepted’.413 [728] A log at 8.51pm records BA’s mother came in for a visit.414 However, a further log at 8.53pm records that the visit was cut short due to BA spitting on the floor and when 400 B3402-4. 401 B3402. 402 B3400-1. 403 B3400. 404 B3368, B3400. 405 B3398. 406 B3397. 407 B3394-7. 408 B3394. 409 B3394. 410 B5958. 411 B3393. 412 B3392. 413 B3391. 414 B3390. -- 113 of 202 -- 114 directed to stop spitting on the floor in front of his mother, BA failed to do so. It also records that BA was escorted back to his cell without incident.415 [729] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).416 14 September 2021 [730] BA took a shower at 5.13am.417 [731] Breakfast was provided at 5.46am.418 [732] A log at 7.40am records that ‘Seen by YETI – Nil issues identified’.419 [733] A Youth Justice case note records the following in relation to a visit at 7.45am:420 SEWB checks complete nil concerns raised by [BA] Presentation- [BA] presented agitated /streeed [sic, we assume ‘stressed’] [BA] stated that he cant [sic] wait to be out of the watchhouse and that he had not been out of his cell for yard time since in the last 24hrs [734] We have not been able to identify any evidence of a visit to the external exercise yard for BA between 10.13am on 12 September 2021 and the visit by YETI at 7.40am on 14 September 2021. This corroborates BA’s contemporaneous statement that he had not had ‘yard time’ in the last 24 hours. [735] Lunch was provided at 1.17pm.421 [736] No complaints or problems were recorded in respect of cell checks for the remainder of that day. [737] We cannot identify a record of dinner being provided (although we note that no cell check logs are recorded between 5.08pm and 10.15pm). 15 September 2021 [738] A log at 6.54am records that BA was offered a shower (the log does not state whether a shower was taken).422 [739] Breakfast was provided at 7.00am.423 [740] The police records record a visit from YETI in interview room one from 7.28am to 7.46am.424 [741] A Youth Justice case note records the following:425 415 B3390. 416 B3388-90. 417 B3388. 418 B3387-8. 419 B3387. 420 B5963. 421 B3384. 422 B3381. 423 B3381. 424 B3368, B3380-1. 425 B5966. -- 114 of 202 -- 115 [BA] SEWB checks completed nil concerns raised by [BA] Wkr has some concern about [BA] mental state CYHMS to be contacted by Wkr to make visit [742] BA spent time in the ‘EXYARD’ from 11.04am until, we infer, 11.20am.426 [743] The police records record a visit from Youth Justice in Interview Room 1 from 11.20am to 1.11pm.427 Lunch was provided at 1.01pm.428 [744] A Youth Justice case note records the following:429 SYW George and YW Matthew attended the Cairns Watch House at approx. 1120hrs. SYW and YW visited [BA] who appeared to be at baseline. YW’s [sic] observed [BA] to have lost weight. YW’s [sic] asked [BA] if he had been eating while in the watch house. [BA] stated that he has been eating a little. [BA] engaged well in conversation with both YW’s [sic] and advised that he is waiting to be transported to CYDC. YW’s [sic] asked how [BA] is going since after a week being in the watch house. [BA] stated that he is doing okay and just wants to do his time and come out. YW’s [sic] encouraged [BA] to be positive and look forward to working with him in the T2S space when he gets released. [BA] also advised that he hasn’t had any yard time since being arrested. YW’s [sic] advised that they will let the officers know when they leave. YW’s [sic] wished [BA] all the best and that someone from YJ will visit him tomorrow if he is still in the watch house. YW’s [sic] advised officers about [BA’s] yard time. The offices stated that they will get around that [sic] later in the afternoon. [745] BA’s statement that he had not had any ‘yard time’ since being arrested is plainly inaccurate. [746] BA appears to have spent two separate periods of time that afternoon in the ‘EXYARD’, returning to his cell at 2.39pm and 5.34pm respectively.430 The records do not record when BA was taken to the external exercise yard on each occasion. [747] BA received a visit from his mother in Interview Room 1 between 10.14pm and 10.25pm.431 [748] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).432 16 September 2021 [749] Breakfast was provided at 6.56am.433 [750] The police records record a visit from YETI in Interview Room 1 from 7.25am to 7.47am.434 [751] A case note of [Ms Y] reported, amongst other matters, the following:435 426 B3378-9. 427 B3368, B3374-5. 428 B3378. 429 B5969. We infer that that 'SYW' refers to 'Senior Youth Worker' and 'YW' refers to 'Youth Worker'. 430 B3376-7. 431 B3368, B3377-8. 432 B3373-4. 433 B3372. 434 B3368, B3371. 435 B5972. -- 115 of 202 -- 116 ... SEWB check with [BA]. No concerns noted by [BA]. [BA] in good spirits. [BA] has been in WH for 11 days. Still awaiting CYDC transfer. QPS did not confirm a departure date. [BA] has eaten, showered and changed clothes. [BA] had yard time yesterday afternoon, although his yard time is not consistent. ... [752] A police log at 8.20am records that Youth and Forensic Mental Health Court Liaison Officer attended the Watchhouse and in respect of BA there were ‘Nil concerns’.436 [753] No complaints or problems were subsequently recorded.437 [754] The police records record a visit from BA’s mother in Interview Room 3 from 2.50pm to 3.16pm.438 [755] BA was transferred from the Watchhouse at 3:16pm. Conclusion [756] On 11 September 2021, at 3.05pm, BA was reported as throwing toilet paper on the CCTV camera in his cell and refusing to remove it, pacing the cell, and was described as visibly frustrated. We find that BA’s state arose from his reported lack of access to the external exercise yard that day (although we note that BA had an been in the external exercise yard the previous afternoon until late in the afternoon). [757] BA’s behaviour was not such as prompted the Watchhouse officers to either place BA in the padded cell or to place him in a smock. BA was taken to the external exercise yard within two hours of the incident. The cell checks in between reported no complaints or problems. We consider it more likely than not that BA’s state of agitation and stress settled once BA was taken to the external exercise yard. We note that BA’s mother visited at 6.26pm that night. For completeness, we also note that: (a) BA had a visit to the external exercise yard, and a visit from his mother, on 12 September 2021, and the records of the cell checks reported no complaints or problems; (b) at the visit at 7.32am on 13 September 2021, it was reported that ‘nil concerns’ were raised by BA and that he was ‘doing well’.439 [758] BA presented as agitated and stressed at 7.45am on 14 September 2021 and BA stated that he had not been out of his cell for ‘yard time’ in the last 24 hours. Given BA had not been taken to the external exercise yard since 10.13am on 12 September 2021, we find that, having regard to BA’s contemporaneous statement, his agitated and stressed state was attributable to the lack of time in the external exercise yard on 13 September 2021 (acknowledging that the terms concerning the nature of the cells and the lack of 436 B3371. 437 B3369-71. 438 B3368. 439 We note that BA did make a comment of others screaming in the Watchhouse for ‘8 days’ but the case note does not suggest that BA was suffering any adverse state referable to this comment. -- 116 of 202 -- 117 pro-social activities may have been contributing factors to BA’s state). We are not satisfied that any of the other terms imposed on BA were contributing factors. [759] No evidence was adduced from the (identified) author of the case note made on 14 September 2021 (who also made the first of the case notes on 15 September 2021). Other than being described as agitated and stressed, there is no evidence to enable us to form any conclusion as to the manifestation of, and nature or extent of, the agitation or stress. BA’s behaviour was not such as prompted the Watchhouse officers to either place BA in the padded cell or to place him in a smock. No complaints or problems are recorded in the detention logs after 7.45am. [760] The Youth Co-responder noted some concern about BA’s mental state early on 15 September 2021. No details were provided. In any event, we find that there is no evidence that BA was exhibiting any adverse state by 11.20am on 15 September 2021. BA was then described as appearing to be at ‘baseline’, that he ‘engaged well in conversation’, and that BA stated that he was ‘doing okay’. [761] On the morning of 16 September 2021, BA was noted to be in ‘good spirits’ with no concerns noted by BA. [762] As addressed above, we have rejected the particular grounds upon which each of the Applicants sought to establish serious disadvantage. As to whether we are otherwise satisfied that BA suffered serious disadvantage from the imposition of the terms (and, consequently, an inability to comply with the terms): (a) we find that the term imposed on BA concerning the access to the external exercise yard resulted in the two instances of boredom and stress and agitation and stress respectively (as addressed above); (b) having regard to the evidence as a whole (and noting BA’s age and the lack of any individual assessment), we are not satisfied, on the balance of probabilities, that: (i) the respective states (whether viewed individually or collectively) were such as to amount to serious disadvantage440; (ii) BA was not able to comply with the terms imposed on him during BA’s first stay. [763] We reach this conclusion without needing to make a finding as to whether the instances of agitation and stress were experienced by BA a result of a psychological disorder or condition such as an intellectual impairment or BA’s severe conduct disorder or some unspecified ‘mental health issue’ rather than by reason of the characteristics of the attribute of age (childhood). BA’s second stay [764] BA’s second stay was from 4:39pm on 24 April 2022 until 8:17am on 4 May 2022 (BA’s second stay’), a period of 10 nights, and approximately 9 days 15½ hours (adopting 24 hours as one day). [765] BA was approximately 17 years 7 months of age at the start of BA’s second stay.441 440 Or ‘substantial disadvantage’. 441 BA’s second stay commenced more than seven months after the end of BA's first stay. -- 117 of 202 -- 118 [766] BA’s affidavit refers to the events of this stay:442 [28] On the 10 night stay, in April/May 2022 I was in the watch house because bail was refused. I was kept in a cell by myself for the whole time. I had no books, no school work or chalk or anything to do in that cell. It was really boring. There was a screw that came out of a table that I could use to scratch on the walls but that was all I had to do in the cell. [29] After a few days I asked an officer if I could go into the exercise yard. The officer told me “no, shut the fuck up”. I was eventually allowed into the exercise yard three or four times towards the end of my stay but was also alone in the yard. I did push ups and watched tv. I could also call out to the girls in the cells closest to the exercise yard and talk to them but I could not see them. [30] Even though I was able to shower every morning, I was not allowed to change my clothes at all during the whole time in the watch house, even during the really long stretches. When I was released, my property had some youth justice clothes with it that my mum said she didn’t bring in. I talked to a youth worker I know and asked if he had brought me some clothes. He said yes, he had. I think the officers did not let me have them. This 11-day stretch was the worst stay I have had in the watch house. I found it hard, especially alone for a long time and when there was nothing to do. I got really bored and felt very quiet and was overthinking things. It felt a lot longer than 11 days, it felt like more than two weeks. My experience [31] I’d ask the officers what I’m charged with and they wouldn’t tell me. They’d just say you’ll be out soon but then 10 days pass. They wouldn’t even tell me the time. [32] I felt out of place. Like walking home and no one’s there, just an empty home. It feels like you’re the only person in the world when you’re in that cell. After being in the watchhouse for a week I’m another person. When I get out, I’m a different person and I just want to do something real stupid – to get something back. [767] Again, we rely on the contemporaneous documents identified below and find that some of BA’s evidence is unreliable (for example, being kept in the cell by himself for the whole time; being allowed into the exercise yard three or four times; and not being allowed to change clothes at all during the whole stay). 24 April 2022 [768] BA entered the Watchhouse at 4:39pm. [769] A detention log entered at 12.10am, recorded that a family member attended at midnight to visit BA, and noted ‘Extremely busy time with crews lined up in vehicle bay. Child asleep and settled. Visit declined due to circumstances.’443 [770] No complaints or problems were recorded prior to that time. 442 At [28]-[31]. 443 B3748. -- 118 of 202 -- 119 25 April 2022 [771] Breakfast was provided at 7.39am.444 [772] The police record ‘Temporary absences’ records a meeting in Interview Room 3 with ‘W/ATSILS’ (Aboriginal and Torres Strait Islander Legal Service) from 8.20am to 8.29am.445 This does not appear in the detention logs. [773] Lunch was provided at 12.40pm.446 [774] A Youth Justice case note records a visit with BA at 4:00pm to conduct a welfare check. The summary of interactions included the following:447 … I spoke with [BA] through the cell door. [BA] did not raise any issues; he was currently sharing a cell with another young person and was okay with this. [BA] eating and sleeping well. Nil mention of self-harm or suicidal ideation, NIL request. [775] Dinner was provided at 5.12pm.448 [776] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).449 26 April 2022 [777] An email from [Ms Y] of YETI sent at 10.47am records a visit to BA (and other young persons) at 7:00am.450 [Ms Y] reported in respect of BA: 3rd day in custody – court today, [BA’s] mother to appear. declined visit with wkr, nil concerns raised by QPS. [778] A detention log at 7.42am records ‘SHOWERS PROVIDED’.451 We could not identify a log recording the provision of breakfast. [779] The police record ‘Temporary absences’ records ‘VC2’ and includes a person’s name.452 It is unclear what this refers to. [780] BA’s mother visited BA in Interview Room 1 between 9.52am and 10.15am.453 [781] Lunch was provided at 12.39pm.454 [782] Dinner was provided at 5.36pm.455 [783] BA’s mother attended for a visit at 7.16pm.456 The duration of the visit is not identified (the visit does not appear in the ‘Temporary absences’ record). 444 B3745. 445 B3680. 446 B3745. 447 B6022. 448 B3742. 449 B3739-42. 450 B6024. 451 B3738. 452 B3680. 453 B3680, B3737-8. 454 B3736. 455 B3733. 456 B3733. -- 119 of 202 -- 120 [784] A Youth Justice case note records a visit to BA, apparently at the same time as BA’s mother. The summary of interactions included the following (together with statements in relation to injuries sustained in his arrest):457 YCRT entered the watch house and had a chat to [BA] in the interview room whilst his mother was there as well … [BA] stated feels like he is going crazy because he has not been taken out of cell to go in the yard since Sunday. NIL suicidal ideations. [785] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).458 27 April 2022 [786] A log at 7.48am records ‘SHOWERS PROVIDED’.459 [787] Breakfast was provided at 8.09am.460 [788] Lunch was provided at 12.46pm.461 [789] Dinner was provided at 5.27pm.462 [790] A Youth Justice case note records a visit BA when he was in his cell. The time of the visit is not identified but we think it more likely than not to have occurred in the evening (the case note was first created at 8.50pm). The summary of interactions was as follows:463 YCRT spoke to [BA] spoke through the cell door. [BA] do not really engage, he just put his thumbs up when asked if he was okay. [791] The case note included ‘NIL’ welfare concerns. [792] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).464 28 April 2022 [793] Breakfast was provided at 6.39am.465 [794] ‘Dinner’ (lunch) was provided at 12.40pm.466 [795] A log records BA being transferred from the ‘EXYARD’ to cell J2 at 2.58pm.467 The time that BA was transferred to the external exercise yard is not recorded but we infer that it was after lunch was provided. [796] Dinner was provided at 6.42pm.468 457 B6022. 458 B3730-2. 459 B3729. 460 B3729. 461 B3727. 462 B3726. 463 B6029. 464 B3723-6. 465 B3723. 466 B3721. 467 B3720. 468 B3719. -- 120 of 202 -- 121 [797] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).469 29 April 2022 [798] The police records record a visit from YETI in Interview Room 1 from 7.23am to 7.35am.470 [799] Ms Harding was unable to locate records of Watchhouse visits to BA on 28 and 29 April 2022.471 [800] We could not identify a log recording the provision of breakfast. [801] Lunch was provided at 12.33pm.472 [802] A log at 3.56pm refers to a call been received from the office of the Public Guardian advising that BA had requested the nurse.473 The reason for the request is not identified but infer that it was for the sore throat complained of by BA the following day. [803] A log records BA being transferred from the ‘EXYARD’ to cell J2 at 4.36pm.474 The time that BA was transferred to the exercise yard is not recorded. [804] Dinner was provided at 5.32pm.475 [805] A log records that BA was given ‘2 x panadol’ at 6.32pm.476 [806] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).477 30 April 2022 [807] We could not identify a log recording the offer of a shower or the provision of breakfast. [808] Lunch was provided at 12.28pm.478 [809] The police records record a visit from YETI in Interview Room 1 from 12.23pm to 12.35pm.479 [810] A Youth Justice case note contained a summary of interactions including the following:480 • [BA] appeared well & advised he has a sore throat but is drinking water and this is helping. 469 B3717-9. 470 B3680, B3716. 471 Affidavit of Ms Harding, [74(e)]. 472 B3715. 473 B3713. 474 B3713. 475 B3713. 476 B3712. 477 B3709-12. 478 B3707. 479 B3680, B3707-8. 480 B6031. -- 121 of 202 -- 122 • [BA] advised he has fresh clothes from YETI & does not require any more. • [BA] asked to see if his mum & [a named person] can come into the Cairns watch house to visit [BA]. • [BA] advised he had just come back from having TV time. [BA] advised he is about to have lunch and then will go into the yard with the other [Young Person]. • [BA] was reminded to use strategies when feeling stressed like breathing, tapping shoulders, and doing some sort of physical activity in his cell. • [BA] was advised that the YETI diversionary team will be facilitating a visit this afternoon & YCRT will be back tomorrow morning. … [811] The case note included under ‘Welfare concerns’: ‘NIL welfare concerns raised for [BA]. NIL mention of self-harm or suicidal ideation.’ [812] We note the evidence in relation to fresh clothes; BA having had TV time; and that BA would be going into the yard with another young person after lunch. We also note that BA’s time in the TV room was not recorded in the detention logs. [813] A log at 2.24pm records that BA was given ‘2 x panadol’.481 [814] A log records BA being transferred from the ‘EXYARD’ to cell J2 at 4.25pm.482 The time that BA was transferred to the external exercise yard is not recorded. [815] Dinner was provided at 5.32pm.483 [816] A log at 6.26pm records ‘Prisoner complaining that they are still hungry, prisoner was given extra meal with bread to make a roast sandwich’.484 The reference to ‘meal’ may have been intended to refer to ‘meat’. [817] A log at 7.28pm records that ‘Prisoner was given desert left over from lunch time as they were still hungry’.485 [818] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).486 1 May 2022 [819] The police records record a visit from YETI in Interview Room 1 from 8.36am to 8.42am.487 [820] A Youth Justice case note of a welfare visit contained a summary of interactions including the following: 488 481 B3707. 482 B3706. 483 B3705. 484 B3705. 485 B3705. 486 B3702-4 . 487 B3680, B3701. 488 B6034. -- 122 of 202 -- 123 … • [BA] was in a good mood throughout interaction raising no serious issues. • [BA] advised he had a big breakfast and [BA] enjoyed it. • [BA] advised he just wants to get out of the Cairns watchhouse as it is boring. • YCRT reminded [BA] to use the strategies spoken about yesterday as [sic, and] BA advised he is. … [821] The case note included under ‘Welfare concerns’: ‘[BA] had NIL welfare concerns. NIL mention of self-harm or suicide ideation.’ [822] We could not identify a detention log recording the provision of breakfast, but BA had plainly been provided with breakfast (a ‘big breakfast’). [823] BA’s ‘Parent’ visited BA in Interview Room 1 between 11.06am and 11.38am.489 [824] We could not identify a detention log recording the provision of lunch. [825] BA spent time in the ‘EXYARD’ from 1.07pm to 3.42pm.490 [826] Dinner was provided at 5.15pm.491 [827] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).492 2 May 2022 [828] A shower was provided at 7.02am and breakfast was provided at 7.43am.493 [829] A log at 7.30am records that BA was offered an interview with YETI. 494 [830] An email sent by [Ms Y] reported:495 9th day in custody. Awaiting CYDC placement. [BA] declined visit from wkr, nil concerns raised by QPS. [831] We could not identify a log recording the provision of lunch. [832] BA spent time in the ‘EXYARD’ from 1.15pm to 1.57pm.496 [833] Dinner was provided at 5.07pm.497 489 B3680, B3700-1. 490 B3699-3700. 491 B3698. 492 B3695-8. 493 B3694-5. 494 B3695. 495 B6037. 496 B3693. 497 B3691. -- 123 of 202 -- 124 [834] BA received a visit from Youth Co-responders after dinner. The various records are inconsistent but we find that the visit occurred between approximately 6.45pm and 6.59pm.498 [835] The Youth Justice case note recorded visiting BA at 6:45pm. The summary of interactions included the following:499 … • [BA] appeared to be in a good mood throughout conversation. • [BA] stated that he had dinner and it was delicious. • [BA] stated that he had been doing push ups in his cell to keep busy. • [BA] asked if YCRT were able to text his Mum and family good night and that he is well. … [836] The case note included under ‘Welfare concerns’: ‘[BA] had NIL welfare concerns. NIL mention or [sic] self-harm or suicide ideation.’ [837] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).500 3 May 2022 [838] Breakfast was provided at 7.21am.501 [839] The police records record a visit from YETI in Interview Room 3 from 7.25am to 7.50am.502 [840] An email sent by [Ms Y] reported:503 10th day in custody. Still awaiting CYDC placement. SEWB check with [BA], [BA] raised nil concerns. QPS raised nil concerns. [841] A log at 8.09am records that a morning shower was offered and soap and towel provided.504 [842] We could not identify a log recording the provision of breakfast. [843] Lunch was provided at 12.42pm.505 [844] BA received a visit from Youth Co-responders in Interview Room 3 from 5.00pm to 5.09pm.506 498 B3680, B3691. See also the Youth Justice case note. 499 B6039. 500 B3688-91. 501 B3688. 502 B3680, B3687. 503 B6042. 504 B3687. 505 B3686. 506 B3680. See also the Youth Justice case note. The detention logs do not record this visit. -- 124 of 202 -- 125 [845] The Youth Justice case note records a visited to BA at 5:00pm. The summary of interactions included the following: 507 … • [BA] was in a good mood throughout conversation & advised he was just bored and wanted to get out of the Cairns watchhouse. • [BA] asked when his next court date was ... • [BA] advised he hasn’t spoken to family yesterday or today & asked if YCRT can tell them to see if they can visit. • [BA] advised he is getting dinner soon and can’t wait to eat. … [846] The case note included under ‘Welfare concerns’: ‘[BA] had NIL welfare concerns. NIL mention of self-harm or suicide ideation.’ [847] Dinner was provided at 6.11pm.508 [848] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).509 4 May 2022 [849] Breakfast was provided at 7.59am.510 [850] BA was transferred from the Watchhouse at 8.17am.511 Conclusion [851] On 26 April 2022 BA stated that he had not been taken to the exercise yard since Sunday (BA entered the Watchhouse late Sunday afternoon)512 and that he ‘feels like he is going crazy’. This was not canvassed with BA in evidence. The (identified) author of the case note was not called as a witness to describe how BA presented at that time. We note that the case worker did not record any particular concerns (other than laceration of a lip) and recorded ‘NIL suicidal ideations’. There was no mention of BA exhibiting agitation or stress. The case note of the visit at 4.00pm the previous day noted that BA did not raise any issues; and noted that he was currently sharing a cell with another young person and was okay with this; that he was eating and sleeping well; and that there was nil mention of self-harm or suicidal ideation. [852] We find that, on 26 April 2022, BA was experiencing boredom as a result of the lack of any access to an exercise yard since entering the Watchhouse which, in turn, was a consequence of the imposed term concern access to the exercise yard (and, possibly, the terms concerning the nature of the cell and the pro-social activities). We infer that the extent of the boredom was such as to give rise to a degree of stress, noting a reported sense of feeling like he was ‘going crazy’ (the specific nature of which is 507 B6044. 508 B3684. 509 B3682-4. 510 B3681. 511 B3680-1. 512 The evidence indicates that BA had not spent time in the external exercise yard between that time and the time of his mother’s visit. -- 125 of 202 -- 126 unclear on the evidence). The evidence does not establish that this particular state persisted for any significant period of time. The detention logs of 27 April 2022 do not record any behaviour of concern on the part of BA. By the evening of that day, BA appeared to be ‘okay’ and no concerns were raised by the Youth Co-responder. [853] Otherwise, the evidence points to BA being in a generally positive state during the latter days of the stay. We find that BA was, as he reported, ‘bored’ in the Watchhouse during the last few days of his stay. However, despite this, over that period BA was (or appeared to be) variously ‘well’, in a ‘good mood’, or in ‘good spirits’ and, seemingly, eating well. The detention logs do not record complaints or problems or any problematic behaviour on the part of BA. BA spent time in the external exercise yard each day from 28 April 2022 to 2 May 2022. [854] As to whether we are satisfied that BA suffered serious disadvantage from the imposition of the terms (and, consequently, an inability to comply with the terms): (a) we find that the term concerning access to the exercise yard imposed on BA up to 26 April 2022 resulted in the boredom and stress identified above; (b) we find that BA experienced boredom over the last few days of the stay although it is difficult to attribute the boredom to any particular term imposed on BA given that he spent time in the external exercise yard each day from 28 April 2022 to 2 May 2022 inclusive (but possibly due to a lack of pro-social activities); (c) having regard to the evidence as a whole (and noting BA’s age and the lack of any individual assessment), we are not satisfied, on the balance of probabilities, that: (i) the boredom and stress experienced by BA on 26 April 2022, and the subsequent boredom (assuming it was attributable to the imposed terms), whether viewed individually or collectively, were such as to amount to serious disadvantage; (ii) BA was not able to comply with the terms imposed on him during BA’s second stay. [855] We reach this conclusion without needing to make a finding as to whether the boredom and stress were experienced by BA a result of a psychological disorder or condition such as an intellectual impairment or BA’s severe conduct disorder or some unspecified ‘mental health issue’, rather than by reason of the characteristics of the attribute of age (childhood). [856] It follows that BA has failed to establish that the Respondent contravened s 11 of the ADA, and his claim based on indirect discrimination must be dismissed. DC DC’s first stay [857] This stay was from 1:00pm on 7 February 2022513 until 2.54pm on 15 February 2022 (‘DC’s first stay’).514 This stay was for 8 nights, and approximately 8 days 2 hours 513 B3992, B4056. 514 PG B3994-3995. -- 126 of 202 -- 127 (counting 24 hours as a day). DC was approximately 15 years 10½ months at the start of this stay. [858] DC’s affidavit refers to the events of this stay:515 7. In February 2022, I was detained for at least nine days in the watch house, having been refused bail. During this period, I: a. Was kept in the cell all day most days. b. Shared the cell with between one and three other boys. We slept on mattresses on the floor with the cushions and blankets provided to us. c. Had to use a shared toilet in the cell in front of the other children. It is also visible on the CCTV cameras. d. Went into the exercise yard once with some other boys, where we sat and watched tv for an hour. e. Did not have any access to the TV room. f. Had nothing to do in the cell, no school work, no TV or books. Some other children were allowed books but not me. g. Was unable to change clothes. I was allowed to shower but usually chose not to. I also did not like the officer standing nearby when l was in the shower. h. Received visits from youth workers and my family. I recall that the youth workers brought in chalk but the watch house sergeant or officer put it in the bin. 8. The most upsetting thing during that long stay in February 2022 happened a few days in. Several officers took me into a padded cell by myself, held me face down on the floor, forcibly striped [sic] my clothes off, then threw a suicide smock at me. They took away all my clothes, including my underwear. I was left in the padded cell for the whole day. They didn't give me a blanket and cranked the air conditioning; I was cold because a suicide smock is just a short dress and is not warm or comfortable. 9. Later I asked to go back to a cell by myself because I wasn't boy with no pants on, but I was taken back to my regular cell with another kid, and was made to wear the smock for six days. I was not given a mental health assessment or any treatment, just the smock. 10. I was also put in a suicide smock during my most recent stay in June 2022. At one point after talking to my mum, I was taken to a padded cell, forced to the floor- this time on my back, stripped and given the smock. I was upset. One police officer said to me "this is our place. This is our house. You do what we tell you to." After about four hours an officer told me I was going back to my normal cell. I asked if I could go in a cell by myself because I wasn't wearing any pants and this time that was allowed. [859] We refer to paragraphs [467] and [468] above. DC’s evidence that he went into the exercise yard once (which we interpret to be a reference to the external exercise yard) 515 At [7]-[10]. -- 127 of 202 -- 128 is corroborated by the contemporaneous records which indicate that DC went to the external exercise yard on 13 February 2022. However, other important parts of the above evidence are contradicted by the contemporaneous records. DC states that he did not have any access to the ‘TV room’. We have noted above that there were three internal exercise cells, each with a television in it. Contrary to DCs evidence, he spent time in one of the internal exercise cells on 9 February 2022, 11 February 2022, and 12 February 2022 (twice). With respect to DCs evidence that he was unable to change clothes, the evidence establishes that he changed clothes on 10 February 2022. With respect to DC’s evidence that he was made to wear a smock for six days, the evidence indicates that DC was not placed in a smock at all during DC’s first stay. Similarly, the statement that he was left in the padded cell for a whole day is contrary to the evidence. The evidence indicates that he was not placed in the padded cell at all during DC’s first stay. We note the following events having regard to the contemporaneous records. 7 February 2022 [860] DC was transferred to a cell at 1:45pm.516 [861] DC was transferred from cell ‘J2’ to cell ‘F2’ (one of the female cells) at 2:54pm.517 [862] At 4:05pm, an email was logged from the Court co-ordinator. It noted amongst other matters:518 … There are historical suicidal risk alerts on the YJ ICMS database for [DC] and a current behavioural alert in relation to [DC] expressing or committing acts of self-harm when circumstances are outside his control. Previous suicide risk alerts have identified self-harming behaviour whilst remanded at CYDC or in the WH ... [863] A log records dinner being provided at 6.36pm.519 [864] On 7 February 2022, a Youth Co-responder visited DC at 8:00pm:520 … [DC] seemed to be a bit out of it not keeping direct eye contact with YCRT when speaking. [DC] advised he is feeling fine and asked when he is going to CYDC. YCRT advised they were unsure but when a bed becomes available, they will send [DC] down … Watch house staff advised [DC] has raised no issues or concerns. [865] Under the heading ‘Welfare concerns’ it was stated: [DC] appeared to be in good physical mental health condition, nil suicidal ideation. [DC] advised he had dinner. (WH Staff Confirmed) [866] A police log at 8:28pm records a visit by ‘YJ Co-Responders in INT Rm1’.521 It is unclear whether this is a reference to the time that the interview commenced or the interview ceased. 516 B4054. 517 B4054. 518 B4053-4. 519 B4053. 520 B6056. 521 B4052. -- 128 of 202 -- 129 [867] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).522 8 February 2022 [868] A log records breakfast being provided at 6.14am.523 [869] Showers were offered to ‘all’ at 7.34am.524 Toothbrush and paste was supplied at 8.22am.525 [870] An email from [Ms Y], of YETI, refers to a welfare check with DC at, it appears, around 7.00am. It was recorded, amongst other matters, that DC requested the worker to ask Watchhouse staff for a phone call to his mother, toast, yard time, extra blanket and a book.526 [871] A log records lunch being provided at 12.46pm.527 [872] A log records dinner being provided at 6.14pm.528 [873] A police detention log at 8:38pm records a visit by ‘YJ Co-Responders in INT Rm1’.529 [874] A case note summary from a Youth Justice Co-responder notes included the following:530 … [DC] advised he was he [sic] mucking up with fellow cell mate today and flooded the cell, which has resulted in loss of blankets (need cleaning) and other watch house privileges like read books, go outside. [DC] advised he cleaned the mess up with fellow cell mate and has apologised to the watch house staff. (WH staff confirmed this). YJ officer asked [DC] if he had any requests, [DC] has requested to speak with mum … [875] Under the heading ‘Welfare concerns’ it was stated: [DC] appeared to be in good physical mental health condition, nil suicidal ideation. [DC] advised he had dinner. (WH Staff Confirmed) [876] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).531 9 February 2022 [877] A log records breakfast being provided at 8.30am.532 522 B4050-2. 523 B4050. 524 B4050. 525 B4049. 526 B6060. 527 B4046. 528 B4046. 529 B4046. 530 B6064. 531 B4043-6. 532 B4043. -- 129 of 202 -- 130 [878] A case note summary from a Youth Justice Co-responder notes included the following:533 … [DC] was polite and receptive throughout the engagement. [DC] has requested if YCRT can organise a phone call between mum and himself tomorrow. YJ officer advised they would get the morning crew to follow-up with YPs request. No further concerns. [879] Under the heading ‘Welfare concerns’ it was stated: [DC] appeared to be in good physical mental health condition, nil suicidal ideation. [DC] advised he had breakfast. (WH Staff Confirmed) [880] A log records lunch being provided at 12.33pm.534 [881] A case note detail from a Youth Justice Co-responder notes:535 Watch House staff stated it was too busy to see all of the YP. YW could not see [DC] for a welfare check. [882] At 3:07pm, an email was logged from the Senior Court Liaison Officer. It noted amongst other matters:536 Please be advised that when assessed today [DC] detailed some experiences that indicated further mental health assessment is required. Whilst these symptoms are not causing him acute distress at present, and he remains under 24/24 close observation in custody he does not meet criteria for application under the Mental Health Act for this assessment to occur urgently. However, please observe closely for any signs of increased distress, or if he is responding to any stimuli, you are not observing or hearing, he expresses any suicidal thoughts, or actions, or any desire to hurt himself or others please have him transferred to the Emergency Department Cairns Hospital for a comprehensive mental health assessment ... [883] A log at 4:22pm records that DC was transferred from cell ‘FX’ (female exercise yard) to cell ‘F2’.537 The logs do not record when DC went to the internal exercise yard. [884] A log records dinner being provided at 6.29pm.538 [885] A log records a visit from a Youth Justice Co-responder in Interview Room 1 from 8.37pm to 8.45pm:539 [886] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).540 533 B6064. 534 B4042. 535 B6068. 536 B4040-5. 537 B4036. 538 B4039. 539 B3994, B4038. 540 B4036-8. -- 130 of 202 -- 131 10 February 2022 [887] A log at 5:37am records that DC ‘Asked to swap his shorts to his track pants. Approved by SGT and swapped to track pants. Shorts to be washed.’541 [888] A case note detail from a Youth Justice Co-responder included the following in relation to a welfare visit at 7am:542 … [DC] appeared low, agitated, and was crying throughout contact. [DC] stated that he needed time outside to get fresh air and to speak with his Mother. [DC] stated he would kill himself if he didn’t receive time outside. Wkr advised WH staff of disclosure and asked if the [DC] can have some time out in the yard and call his Mother. QPS advised that they will facilitate a call to [DC’s] Mother at some point today and give him time in the yard ... [889] A log at 7:50am records: ‘Breakfast provided and taken.’543 [890] A case note detail from a Youth Justice Co-responder notes the following:544 YW called Cairns Watch House at approximately 2:30pm. YW spoke with a [sic] officer asking if there was capacity for YW to speak with [DC]. Officer informed YW that there was no room to see YW at that time. [891] There were a number of cell checks made between breakfast and dinner and ‘No complaints. No problems detected.’ was recorded on each occasion (there was also reference to the giving of medication). We could not identify a reference to a visit to an exercise yard during this time. [892] A log at 6:40pm records: ‘[DC] called up advising he wanted dinner. He stated that the other boy took it from him. CCTV footage reviewed and it is clearly recorded that ‘[DC] has eaten his own dinner and his claims are false.’545 A log at 6:44pm records: ‘Police Prisoner Dinner provided.’546 It is unclear whether DC was provided with a further dinner. [893] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).547 11 February 2022 [894] We could not identify a log recording the provision of breakfast. [895] A log at 10.40am records that ‘morning meds given’.548 [896] A log at 12:08pm contains a list, only some of which are answered, namely:549 (a) Do you intend to set out a Care Plan? Answer ‘No’; (b) Comments: ‘APPEARS WELL’; 541 B4036. 542 B6070. 543 B4035. 544 B6074. 545 B4032. 546 B4032. 547 B4030-2. 548 B4028. 549 B4027. -- 131 of 202 -- 132 (c) Level of observation: ‘Level 2 – Intermittent’. [897] We could not identify a log recording the provision of lunch, although the Watchhouse occurrence sheet for that day records the delivery of prisoner’s meals at 11.29am.550 [898] A log at 12:53pm records that DC was transferred from cell ‘FX’ (female exercise yard) to cell ‘J2’.551 There is no record of when DC was taken to the internal exercise yard. [899] A log at 1:20pm records that DC was transferred from cell ‘J2’ to cell ‘F2’.552 [900] A case note detail from a Youth Justice Co-responder notes the following:553 YW called Cairns Watch House at approximately 2:30pm. YW spoke with a [sic] officer asking if there was capacity for YW to speak with [DC]. Officer informed YW that there was no room to see YW at that time. [901] We note that the case note detail is identical to the case note detail made the day before. [902] A Youth Co-responder visited DC at 5:30pm and the case note detail includes the following:554 … [DC] was highly agitated and presented as frustrated. [DC] had thrown water and paper throughout his cell, and as a result had lost his blanket in bed. [DC] started to punch the cell door and kicked the toilet, demanding I listen to his orders. I waited for [DC] to stop yelling and spoke to him, [DC] asked for cleaning equipment so he could clean his cell, and I passed this information onto the watch house Sargent [sic] … There was no suicidal ideation or mention of self-harm during the visit, however [DC] mentioned he is acting out due to his ADHD and being confined to 4 walls, for four days now. Nil other issues raised. [903] Under the heading ‘Welfare concerns’ it was stated: ‘NIL welfare concerns’. [904] A log at 6.14pm records that DC was given and took medication.555 [905] A log records dinner being provided at 6.23pm.556 [906] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).557 12 February 2022 [907] A log at 5:05am records the ‘STATUS OF JUVENILES IN CUSTODY’ and notes, amongst ‘Nil incidents with these juveniles overnight …’.558 550 B4082. 551 B4026. 552 B4026. 553 B6072. 554 B6076. 555 B4025. 556 B4025. 557 B4021-5. 558 B3997-8. -- 132 of 202 -- 133 [908] A log at 6.25am records: ‘Shower offered and refused.’559 However, a log at 6.39am records: ‘Shower offered and accepted.’560 [909] A log at 8.35am records: ‘Cereal and hot beverage provided. Toothbrushes provided.’561 [910] A log at 9.27am records that medication was taken.562 [911] A log at 10:10am records that DC was transferred from cell ‘F2’ to cell ‘MXA’ (male exercise yard).563 [912] A log at 1:37pm records that DC was transferred from cell ‘MXA’ (to cell ‘FX’ (female exercise yard).564 We could not identify a log recording the provision of lunch. [913] A Youth Co-responder visited DC (it appears some time prior to 2.49pm that day).565 The case note records, amongst other matters: … [DC] presented well, nil concerns. [DC] requested we tried to contact Mum as he would like her to bring in shirt, jumper, shorts, and conditioner. [DC] also asked if we could speak to officers on front desk about him being able to be provided with a piece of chalk to draw with. YW suggested maybe playing cards and advised will follow-up with officers on duty. YW returned 45 mins later and dropped off cards as approved to the officers on duty … [914] A log at 3:11pm records that DC was transferred from cell ‘FX’ to cell ‘F4’.566 It appears that DC spent a combined total of approximately five hours in the two internal exercise yards. [915] A log at 4:54pm records that, relevantly, ‘Inspection of all prisoners and no issues.’567 [916] Dinner was provided at 5.09pm.568 [917] A log at 5.27pm records that evening medications were given.569 [918] No complaints or problems were subsequently recorded in respect of cell checks for the remainder of that day (or overnight).570 559 B4021. 560 B4021. 561 B4020. 562 B4020. 563 B4019-20. 564 B4018-19. 565 B6079. 566 B4018. 567 B4017-18. 568 B4017. 569 B4017. 570 B4014-17. -- 133 of 202 -- 134 13 February 2022 [919] A log at 6:38am records that, relevantly, DC was still awaiting placement and ‘Nil incidents’ with DC overnight.571 [920] A log at 8.18am records: ‘Cereal and hot beverage provided. Toothbrush provided.’572 Medication was given also given at 8.18am.573 [921] Lunch was provided at 1.17pm.574 [922] A log at 2:46pm records that DC was transferred from cell ‘F4’ (a female cell) to cell ‘J1’.575 [923] A Youth Co-responder visited DC at 4:00pm and the case note detail includes the following:576 … [DC] was brought into an interview room and engaged well with me. [DC] presented well and a lot better than previous visits. [DC] advise that he is now sharing a cell with two other YP and he is happy with this as it keeps him company and occupied, he stated that they have been playing cards, which were provided by YETI. [DC] asked to speak with his mother [redacted], so I facilitated a phone call between the two, [DC] spoke with [redacted] for approximately five minutes, he requested fresh clothes and [redacted] agreed to deliver fresh clothes tomorrow to the watch house. [DC] then spoke with me about his release from custody and that he would like to re-engage in schooling and would like support around this, I advised [DC] that YETI and YJ would support him with these goals. [DC] stated that he was hungry and ready for dinner, he mentioned he has been eating and sleeping well. NIL other issues raised nor identified at time of visit. [924] Under the heading ‘Welfare concerns’ it was stated: ‘NIL welfare concerns’. [925] Medication was provided at 5:35pm.577 [926] Dinner was provided at 5:41pm.578 [927] No complaints or problems were subsequently recorded in respect of cell checks for the remainder of that day (or overnight).579 14 February 2022 [928] Medication was given at 7.18am.580 [929] A log at 7.50am records: ‘Showers offered to offenders.’581 571 B4017-18. 572 B4013. 573 B4012-13. 574 B4010-11. 575 B4011. 576 B6082. 577 B4010. 578 B4010. 579 B4007-9. 580 B4007. 581 B4008. -- 134 of 202 -- 135 [930] Breakfast was provided at 8.11am.582 [931] Lunch was provided at 12.47pm.583 [932] A log at 1.42pm records that shorts, T-shirt and underwear were added.584 [933] A Youth Co-responder visited DC at 2:20pm and the case note detail includes the following:585 … [DC] was talkative and appeared to be in a good mood. He stated that he wanted to go to Smithfield High School because he felt that if he was in Cairns he can’t stop getting in trouble with other young people. [DC] stated that he had been getting regular showers and the food was all good. [DC] was aware of his next court date on Friday and stated that he hoped if he got sent to detention he would go to BYDC because he had a better experience there the last time. … [934] A log at 3:47pm refers to ‘INT 1 YOUTH JUSTICE’ between 3:36pm and 3:47pm.586 It may be that this is the same visit as noted above. [935] A log at 4:13pm records that DC was transferred from cell ‘EXYARD’ to cell J1.587 The time of DC being taken to the external exercise yard is not recorded. [936] A ‘Meal’ was provided at 6.19pm. 588 [937] A log at 7:43pm extracts an email noting that DC (and other young persons) are awaiting placement and also noting ‘Nil incidents with these juveniles overnight.’.589 [938] No complaints or problems were subsequently recorded in respect of cell checks for the remainder of that day (or overnight).590 15 February 2022 [939] A log at 5:37am records the ‘STATUS OF JUVENILES IN CUSTODY’ notes, among other matters, that DC would be escorted by road to CYDC this afternoon and also noted ‘Nil incidents with these juveniles overnight.’.591 [940] Medication was taken at 6.36am.592 Breakfast was provided at 7.47am.593 582 B4006. 583 B4005. 584 B4004. 585 B6085. The reference to ‘BYDC’ appears to be a reference to Brisbane Youth Detention Centre. 586 B4003-4. 587 B4003. 588 B4003. 589 B4000-1. 590 B3998-4002. 591 B3997-8. 592 B3997. 593 B3997. -- 135 of 202 -- 136 [941] A case note detail of what appears to be a YETI watchhouse visit at an unidentified time referred to, amongst other matters, the following:594 Awaiting CYDC transfer, should be today at 3pm. [DC] presented and engaged well with wkr. [DC] discussed wanting to re-engage in school once he is released. [DC] requested wkr call [DC’s] mother to advise of his movement, request a visit, and for her to call his GF … [942] Lunch was provided at 12.40pm.595 [943] DC was transferred from the Watchhouse at 2.54pm that day.596 Conclusion [944] Having regard to the evidence in respect of DC’s first stay, we find that: (a) between 1:00pm on 7 February 2022 and mid-afternoon on 9 February 2022, there is no evidence of DC being in any adverse state, although we note that, as reported by DC, he was ‘mucking up’ with a cell mate on 8 February 2022 and flooded the cell; (b) on the afternoon of 9 February 2022, concerns were raised in relation to DC’s mental health and that, although he did not meet criteria for application under the Mental Health Act for an assessment to occur urgently, it was recommended that DC should be observed closely; (c) at 7.00am on 10 February 2022, DC was crying throughout the visit and appeared ‘low’ and ‘agitated’ in stating that he needed time ‘outside’ to get fresh air and to speak with his mother, and that he would kill himself if he did not receive ‘time outside’; (d) it does not appear that DC received time in the external exercise yard on 10 February 2022, but no subsequent adverse behaviour has been recorded in the police records for that day; (e) DC spent time in the female exercise yard (internal) in the early afternoon of 11 February 2022, however, by that evening, DC was reported to be highly agitated and frustrated; (f) DC had settled by no later than mid-morning on 12 February 2022, with no subsequent adverse state being reported;597 (g) from that point onwards, DC appears to have been in a generally positive state, particularly from late afternoon on 13 February 2022 until his transfer from the Watchhouse on the afternoon of 15 February 2022. [945] With respect to DC’s adverse state on 10 February 2022, no other evidence was adduced from the Youth Justice Co-responder who visited DC on that occasion (save for the case note). Despite DC’s reported threat to kill himself, the case note makes no mention of suicidal ideation or any need for an immediate mental health assessment. DC was not placed in the padded cell, and a smock was not placed on him. In the logs for the succeeding hours (and the balance of the day) no complaints 594 B6088. 595 B3995. 596 B3995. 597 DC spent a total of approximately five hours in the two external internal exercise yards that day. -- 136 of 202 -- 137 or problems were recorded. Having regard to these matters and the content of the case note made the following day, we are not satisfied on the balance of probabilities, that DC was experiencing suicidal thoughts. In light of the subsequent logs noting no complaints or problems detected, we find that DC’s adverse state settled during the course of the day. [946] With respect to DC’s adverse state on 11 February 2022, no further evidence was adduced from the Youth Justice Co-responder who visited DC on that occasion. The case note recorded that there was no suicidal ideation or self-harm during the visit (DC mentioned that he was acting out because of his ADHD). There were ‘nil’ welfare concerns. DC was not placed in the padded cell and a smock was not placed on him. No complaints or problems were subsequently recorded that day. Having regard to these matters and the content of the case notes made the following morning, we find that DC’s adverse state settled either on the night of 11 February 2022 or, at the latest, by mid-morning the next day. [947] As to whether we are satisfied that DC suffered serious disadvantage from the imposition of the terms (and, consequently, an inability to comply with the terms): (a) we find the term concerning access to the exercise yard imposed on DC up to and including 11 February 2022 (specifically the external exercise yard), coupled with the term concerning the nature of the cells, resulted in the adverse states experienced by DC on 10 February 2022 and 11 February 2022; (b) having regard to the evidence as a whole (and noting the lack of any individual assessment), we are not satisfied, on the balance of probabilities, that: (i) DC’s low, agitated and tearful state on 10 February 2022 and DC’s highly agitated and frustrated state on 11 February 2022, whether viewed individually or collectively, were such as to amount to serious disadvantage; (ii) DC was not able to comply with the terms imposed on him during DC’s first stay. [948] We reach this conclusion without needing to make a finding as to whether the boredom and stress were experienced by DC was as a result of a psychological disorder or condition such as DC’s ADHD, or his severe conduct disorder, or some unspecified ‘mental health issue’, rather than by reason of the characteristics of the attribute of age (childhood), although noting that DC himself appears to have attributed his behaviour on 11 February 2022 as resulting from his ADHD. DC’s second stay [949] This stay was from 10:10am on 13 April 2022598 until no later than 1:55pm on 15 April 2022599 (‘DC’s second stay’). The police records concerning DC’s departure time appear to be inconsistent. Under ‘Temporary absences’, an entry suggests that BA was transferred to CYDC at 7.51am.600 This does not appear to be accurate given that a log at 8:41am records that DC was transferred from cell ‘FD’ to cell ‘INTRANSIT’.601 Cell checks are recorded at 10.37am and 11.18am. An entry under 598 B4200. 599 B4200. 600 B4180. 601 B4181. -- 137 of 202 -- 138 ‘Release’ refers to a ‘Disposition time of 1:55pm.602 Whilst this may be a reference to the time at which DC was released from police custody following the police transport, in the absence of any other evidence, we adopt 1:55pm as the time when BA left the Watchhouse (noting that, on any view, DC must have departed after 11.41am). [950] DC’s second stay was for 2 nights, and approximately 2 days 4 hours (counting 24 hours as a day). DC had turned 16 years of age by the start of this stay. 13 April 2022 [951] A log at 10:28am records that ‘child safety’ was notified at 10:25am.603 [952] A log at 1:04pm records that ‘lunch provided’.604 [953] There is video footage of an interaction between DC and a Watchhouse officer commencing at 1.52pm at a time when DC was in a very distressed state and throwing items at the CCTV camera. Dr Beech was cross-examined about the interaction.605 Dr Beech described the statements made by the officer to DC as ‘very unhelpful’. The statements were to the effect that if DC did not take the items off the camera, ‘the boys’ would come and put DC in ‘the pad’ (the padded cell). Dr Beech denied that the statements were ‘punitive’ but described them as ‘threatening’ (we interpreted this as threatening the outcome of DC being taken to the padded cell if the behaviour continued). It seemed to Dr Beech that this is how an adult would often be managed in such a situation. [954] The police records, under ‘Temporary absences’, record a meeting with ‘YOUTH JUSTICE’ in Interview Room 2 from 2.15pm to 2.38pm.606 [955] A Youth Justice case note, which we infer relates to the above visit, includes the following:607 … Upon arrival [DC] could be heard screaming and banging in his cell. During the visit, [DC] was extremely upset and was making statements such as “I am going to kill myself, I wont [sic] be here in a few hours”. [DC] had attempted to break the desk/shelf in the interview room without success. [DC] was advised he would be going before the Court the following day. [DC] had shown CW his hand and stated that his hand was broken due to punching the wall in the watch house. CW asked if [DC] was under the influence of any substances to which he stated he wasn’t [sic]. [DC] was able to state he had slept the night before and eaten food today, prior to his arrest. CW advised the watch house sargent [sic] of the suicidal and medical concerns. CW has advised TL [name withheld] of concerns and [name withheld] has followed up with CYDC to potentially escalate a bed space as a priority should the YP be transported to CYDC. CW has then advised YETI [name withheld] and requested additional welfare checks be conducted by the bail support team. 602 B4200-1. 603 B4198. 604 B4198. 605 03.04.25 T3-25 line 18 - T3-23 line 2. 606 B4180. 607 B6169. -- 138 of 202 -- 139 CW has followed up with CYMHS, speaking to team leader Peter who advised that there were not forensic staff available to conduct a welfare check. Peter stated he recommended that the YP be taken to the Cairns ED to follow up advise [sic] and treatment. CW called the watchhouse sargent [sic] to advise of the CYMHS recommendation however, the officer had stated he felt the YP was ok at this point in time given he was throwing pillows up at the cameras. The officer said he had also had one of his other officers look at the YP’s hand and was satisfied that there was no concerns around his hand being broken. CW will follow up with YP in custody on Thursday. [956] A log at 2:37pm (which appears to relate to a conversation which appears to have taken place during or immediately after the above visit) records that:608 DOCS have advised that [DC] may need a medical inspection as he stated he thought he may have broken his finger punching the wall. He has raised this issue only after DOCS staff have advised he was not being granted bail. Staff have attended his cell and looked at his hand, nil signs of injury and nil signs of swelling. After staff left, [DC] commenced picking up cushions with both hands and throwing them at the camera. Nil signs of injury. Staff to be briefed to monitor team. Nil medical treatment required at this time. [957] Lunch was provided at 1.04pm.609 [958] DC was given ‘Ex Yard’ (EXYARD) time at 4.06pm.610 The duration of time in the yard is not recorded. [959] A log at 5:21pm records ‘Attempted to call mother & grandmother twice with no answer each time.’611 [960] We cannot identify a log recording the provision of dinner. [961] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).612 We note that there was a roll call at 10.03pm.613 14 April 2022 [962] A log records breakfast being provided at 6.45am.614 [963] A log at 9:28am records a ‘Temporary absence’.615 This appears to be a meeting between DC and a Duty Lawyer in Interview Room 2 between 9:28am and 9.39am.616 [964] A log at 9:56am records ‘reading book provided’.617 [965] There are two logs recorded at 10:51am.618 608 B4198. ‘DOCS’ appears to refer to the Department of Child Safety. 609 B4198. 610 B4196-7. 611 B4196. 612 B4192-4. 613 B4194. 614 B4191. 615 B4190. 616 B4180. 617 B4190. 618 B4190. -- 139 of 202 -- 140 [966] One log records: ‘RIC - unable to obtain date of next crt matter, due to [DC] making threats of self harm and banging head during crt proceedings’.619 [967] The other log records that DC had been transferred from cell J3 to cell ‘PAD1’ (which is the padded cell). [968] A Cairns Watchhouse Occurrence Sheet includes an entry at 11:12am which includes the following:620 … Circumstances: Remanded in custody and proceeded to head-butt the Perspex and threatened to kill himself to the Magistrate. Removed and placed in padded cell to prevent injury. Has continued to attempt self-harm since placed in the padded cell. Child Forensic Mental Health contacted to arrange a visit to review him … Prisoner Suicidal: Yes … [969] A log at 11:09am records:621 [DC] placed into a smock due to continual threats of self harm and secreting items in his underwear which he was using to cover cameras. Further details recorded in mental health referral log entry. [970] A log at 11:26am records:622 After being smocked in PAD 1, [DC] has attempted to rip the smock unsuccessfully and strangle himself with his own hands. Continual attempts of self harm. Child and Youth Mental Health contacted to arrange visitation and assessment. To be treated as suicidal and monitored closely. [971] A log at 12:28pm records ‘lunch and cup of milk provided’.623 [972] A log at 12:29pm records that DC was taken from the padded cell to cell J1.624 [973] A log at 2:01pm records that:625 Seen by Child Forensic Mental Health and YJ - unruly behaviour, refusing to engage and has damaged the interview room. Script written for Olanzapine, FMO authorised. Watchhouse stock to be utilised and script placed into property. [974] A case note from a Youth Justice case worker which, we assume, relates to the visit recorded above, includes the following:626 619 We infer that ‘RIC’ refers to ‘remanded in custody’. 620 B4208. 621 B4189-90. 622 B4189-90. 623 B4188-9. 624 B4189. 625 B4189. 626 B6178. -- 140 of 202 -- 141 CW attended the watch house to conduct a welfare check on [DC]. [DC] had been placed in a padded cell and dressed in a “SMOCK” as he had made additional suicidal threats and was banging his head against the wall. CW was able to obtain verbal consent for a bail merrit [sic] application ([DC] was not permitted to have access to a pen) and will lodge this application with LAQ. CW further attempted to arrange transport to CYDC and was able to obtain a support letter from the forensic CYMHS team which had seen [DC] during the same time at the watch house. [DC] was also prescribed Olanzapine 10mg for the next few days whilst in custody. The senior sergent [sic] Neil explained that the [DC] was not fit to be transported via Qantas link to CYDC given his behaviour. A road transport was also not an option as there are limited staff available with the QPS. An option of “quadriple time” was put forward by QPS to transport [DC] to CYDC however this was also not approved. [DC] will be transported to CYDC on Tuesday 19/04/2022. [975] Subsequent logs record that DC’s shorts were given back to him at 4:21pm; medication was given and taken at 5:24pm; and (it appears that) a book was provided to DC at 5:26pm. [976] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).627 15 April 2022 [977] DC refused a shower at 6.58am.628 [978] A log at 7:18am records that DC was transferred from cell J1 to cell ‘FD’ (it is unclear what cell this is, it may possibly be a reference to female cell 4).629 [979] Logs record that medication was taken by DC at 7:29am and breakfast and a toothbrush were provided to DC at 7.44am.630 [980] A log at 8:21am records that DC was transferred from cell ‘FD’ to cell ‘INTRANSIT’.631 [981] No complaints or problems are subsequently recorded.632 [982] DC departed from the Watchhouse by police transport at 1:55pm.633 Conclusion [983] We find that, on 13 April 2022, by approximately 1.50pm, DC was screaming and banging in his cell and was described as ‘extremely upset’. DC made statements that 627 B4184-7. 628 B4182. 629 B4182. 630 B4181-2. 631 B4181. 632 B4181. 633 B4304. -- 141 of 202 -- 142 he was going to kill himself. This occurred within four hours of DC being placed in the Watchhouse, after having been arrested that morning. [984] We find that DC has failed to establish, on the balance of probabilities, that the terms that were imposed on him at the Watchhouse within that approximate four period resulted in DC’s dysregulated state. Further, having regard to the police logs for the balance of that day, we are satisfied that DC’s dysregulated state had settled by no later than the evening of that day. [985] We find that, on 14 April 2022, during an appearance in Court, mid-morning, a Magistrate remanded DC in custody and DC proceeded to head-butt the Perspex (we infer, the Perspex in the dock) and threatened to kill himself to the Magistrate. DC was then removed and placed in padded cell to prevent injury but continued to attempt self-harm. We find it more likely than not that DC’s dysregulated state was solely triggered by the Court’s refusal to grant bail and to remand DC in custody, and it did not result from any terms DC had experienced in the period of time he had been detained in the Watchhouse to that point of time (approximately 24 hours). [986] We consider the contemporaneous records of the various events support this conclusion, as does the evidence of Dr Beech who said the following:634 … Um, DC, I think had had difficulties with distress tolerance. They thought at times – uh, I think it’s DC. Perhaps FE. Um, conc – substance use or substance withdrawal. Um, as I understand the material, and it's – it’s potted, your Honour. Um, but as I say in the material, that his distress occurred when he was told he was going to be remanded again, or things like that, and he had very diffi – great difficulty managing that and developed suicidal thoughts or behaviours. (emphasis added) [987] When it was put to Ms Hirvonen in cross-examination that DC’s state was triggered by being remanded into custody, as opposed to being in the Watchhouse, Ms Hirvonen responded: ‘I’m not able to answer that.’635 [988] We also conclude that the placing of DC in the padded cell and in a smock did not cause serious disadvantage to him; rather, such measures were necessary to protect DC against the self-harm which he was already engaging in. [989] In this context, Dr Beech was cross-examined at length, particularly in relation to the smocking of DC.636 Dr Beech: (a) described DC as ‘very distressed’; (b) did not agree that it was ‘punishing’ rather than supportive to be taken to a separate area and given a smock (although DC may have perceived it as such); (c) said that the officer at some point appeared to become ‘exasperated’ and then became ‘stern or perfunctory’, with no support provided that might settle DC down; (d) said that it could have been ‘handled better’; 634 03.04.25 T3-15 lines 32-38. 635 01.04.25 T3-32 lines 26-31. 636 03.04.25 T3-21 line 31 - T3-23 line 2. -- 142 of 202 -- 143 (e) said, however, that if ‘you’ looked at CCTV footage from any place where it manages distressed and suicidal adolescents, you are going to see something along the lines of being taken to a room, people trying to talk to you and putting on the smock and, eventually, having to be ‘smocked’ if they keep refusing it; and this would happen in a youth detention centre and in a mental health unit; (f) said that what was ‘missing’ was ‘afterwards’; ‘… when the person is settled, coming back and going over why it happened, um, the debriefing of it, the discussion about the stress and how to manage that stress …’. [990] Having regard to the evidence as a whole: (a) we are not satisfied either of DC’s dysregulated states on 13 April 2022 and on 14 April 2022 occurred as a result of the imposition of such of the pleaded terms as were imposed on DC during the respective periods leading up to each event; (b) we find that the measures of placing of DC in the padded cell and in a smock or 14 April 2022 were necessary to (and did) protect DC against self-harm; and such measures did not cause overall disadvantage to DC, much less serious disadvantage; (c) DC has failed to establish, on the balance of probabilities, that he was not able to comply with the terms imposed on him during DC’s second stay. [991] Had we concluded that each of DC’s dysregulated states on 13 April 2022 and on 14 April 2022 occurred as a result of the imposition of one (or more) of the imposed terms: (a) we would not have been satisfied, on the balance of probabilities, that DC’s dysregulated state on 13 April 2022 was such as to amount to serious disadvantage; (b) we would have been satisfied that DC’s dysregulated state on 14 April 2022 was such as to amount to serious disadvantage, having regard to the high level of distress exhibited by DC, the physical acts of, and attempts to, self-harm, and the medical decision to give DC 10mg of Olanzapine to address his dysregulated state; (c) in either event, we would not have been satisfied, on the balance of probabilities, that the dysregulated states were experienced by DC by reason of the attribute of age (or childhood) (more particularly, the characteristics of that attribute), having regard to the evidence of Dr Beech, and noting DC’s ADHD,637 his severe conduct disorder, and a ‘mental health issue’ (unspecified by Dr Beech). DC’s third stay [992] This stay at the Watchhouse was from 1:18pm on 12 June 2022638 until, possibly as late as, 4:58pm on 14 June 2022 (‘DC’s third stay’).639 Adopting a departure time of 637 03.04.25 T3-28 line 17 - T3-29 line 19. 638 B4283; B4304. 639 At B4283, the ‘Temporary Absences' refer to a Departure time of ‘12:01’ and an entry ‘IN TRANSIT TO CCC’ with no return time. However, a log entry at 12:58pm notes that DC was transferred from cell ‘HC1’ to cell ‘INTRANSIT’. There is also a subsequent log entry at 4:58pm which refers to ‘check for IRRESPECTIVE classification’. There is also an entry in the Document list at B4304 that includes an entry at 4:58pm which simply refers to 'VJR – [DC]'. -- 143 of 202 -- 144 4:58pm, this stay was for 2 nights, and approximately 2 days 4 hours (counting 24 hours as a day). [993] DC was approximately 16 years 2½ months at the commencement of this stay. [994] DC’s affidavit evidence included the following:640 I was also put in a suicide smock during my most recent stay in June 2022. At one point after talking to my mum, I was taken to a padded cell, forced to the floor- this time on my back, stripped and given the smock. I was upset. One police officer said to me "this is our place. This is our house. You do what we tell you to." After about four hours an officer told me I was going back to my normal cell. I asked if I could go in a cell by myself because I wasn't wearing any pants and this time that was allowed. 12 June 2022 [995] It appears that DC was placed in his cell shortly after 1:35pm.641 [996] A Youth Co-responder visited DC, it appears sometime after 2:00pm, for the purpose of a welfare check. A case note included the following:642 … [DC] was sharing a cell with another YP. [DC] was receptive and respectful throughout the WH visit, [DC] spoke briefly about why he was in here. YCRT encouraged [DC] to make positive decisions once he is released and to contact us if he ever needs support. Conversations were brief. Nil concerns or requests from [DC]. [997] Under the heading ‘Welfare concerns’ it was stated: ‘[DC] appeared to be in good physical mental health condition. No suicidal ideation by [DC]. NIL concerns raised.’ [998] A log at 6:59pm records that DC returned from an interview outside of the Watchhouse.643 [999] This appears to relate to an interview with a Team Leader of Brisbane North YJSC.644 Under the heading ‘How is the young person currently behaving? It was recorded: [DC] was visibly emotional at the time of arrest, however has since stabilised. There are nil immediate concerns regarding well-being or welfare and QPS noted that he appears to have remained settled since he arrived at the watchhouse. QPS advised that [DC] had expressed concern that he would be further remanded in custody following court tomorrow and transported to BYDC. No conflict or other issues identified, just that [DC] did not wish to return to custody. Email has been sent to Cairns YCRT for WH welfare check to be conducted if they have capacity. [1000] We note the record of DC’s concern of being remanded in custody the following day. [1001] The case note also included the following: 640 Paragraph 10. 641 B4301-2. 642 B6082. 643 B4300. 644 B6201-5. -- 144 of 202 -- 145 Mother supported [DC] in interview earlier this evening. Cairns YCRT have been emailed to conduct a welfare check if they have capacity. [DC] will appear in court in the morning and will be seen by Cairns CC court coordinator. [1002] Dinner was provided at 7:06 pm.645 [1003] Identification particulars were taken from DC at 9.42pm.646 [1004] No complaints or problems were recorded in respect of cell checks for the remainder of that day (and overnight).647 13 June 2022 [1005] DC was offered and declined a shower at 6.20am.648 [1006] Breakfast was provided at 7.45am.649 [1007] The police records record that DC received a visit from ‘YETI’ in Interview Room 1 from 7:41am to 7:51am and a visit from ‘LEGAL’ in Interview Room 3 from 8:18am to 8:22am.650 [1008] The evidence indicates that DC attended Court that day.651 The case note records that DC’s bail was refused and his case was adjourned until 24 June 2022. [1009] We have not been able to identify from the police records the timing of that appearance.652 The appearance must have taken place after 8:22am. Having regard to the logs concerning ‘cell checks’ and those at paragraph [1010] below, we consider it more likely than not that the appearance occurred sometime between 11:30am and 1:11pm.653 [1010] The logs note that lunch was provided at 1:24pm and that, at 1:32pm, DCs mother presented at the Watchhouse reception and brought in some clothing.654 A log at 1:32pm refers to ‘Court results’.655 [1011] A log at 1:56pm refers to ‘CHANGE TO SMOCK’ and includes various information including ‘Remarks – making threats to self harm’.656 [1012] A log at 2:02pm refers to DC being transferred from cell J1 to cell ‘PAD1’ (the padded cell).657 A log at 2:03pm records that while in the cell, DC made a motion as if he was going to spit on the officer and DC was placed on to the wall with head held so he 645 B4300. 646 B4308. 647 B4295-7. 648 B4295. 649 B4294. 650 B4283. 651 B6208-9. 652 It appears to us that the Cairns Watchhouse Occurrence Sheets for 13 January 2022 and 14 January 2022 have been inadvertently included in lieu of the Sheets for 13 June 2022 and 14 June 2022: see B4312-4. 653 B4292-4. 654 B4291-2. 655 B4291. 656 B4291. 657 B4291. -- 145 of 202 -- 146 could not spit on officer.658 A telephone call was made to youth mental health at 2:43pm and a message left to return the call to the Watchhouse.659 [1013] A log at 3:33pm records the following:660 Smock removed as [sic] [DC] and provided with a tear proof blanket. [DC] had taken the smock off himself and attempted to wrap around his neck. [DC] continues to be monitored. [1014] The evidence also includes a Youth Justice case note that appears to have been first created on 13 June 2022 at 4:29pm.661 The case note records a number of matters including: (a) that DC had been admitted to ‘CDYC’ but could not be transported this afternoon due to being ‘escalated’ (as referred to in the case note) and that DC would be transported ‘as soon as possible’ to CDYC; (b) that acting Team Leader Vanessa Brown called Jackie Atkinson of ‘CYFOS’ (Child and Youth Forensic Outreach Service) at 2:30pm to request that DC be seen again due to significant escalation but that on Jackie’s arrival, DC had escalated further and refused to engage due to ‘wanting his clothes back first etc.’ and DC could not be assessed by Jackie Atkinson (c) that Jackie Atkinson had stated the following: (i) DC has tried to strangle himself with his smock so now he is in a ‘blanket’; refusing to calm down for Jackie to assess him due to wanting his clothes back on; (ii) ‘Dysregulated and very red-faced’ due to the above, so Jackie has asked that he receive some food and water to ‘get his brain working more efficiently’ (‘Important that this is done despite officers worried they are rewarding his behaviour.’); (iii) the aim is to calm him down enough so that he can be visited and then reassessed; (iv) the psychiatrist at ‘CYHMS’ (Child and Youth Mental Health Service) will be alerted to the case as they are on call (but ‘unlikely medication would be used’); (v) DC would be ‘unsafe in EMD due to being dangerous to be moved so best recommendation is to try and settle him there with food and water’; (vi) DC will be assessed tomorrow morning ‘at the least’; (d) that DC had a visit from his mother earlier and that ‘seemed to escalate him further’. 658 B4291. 659 B4291. 660 B4290. 661 B6215-8. -- 146 of 202 -- 147 [1015] The time of the visit by Jackie Atkinson is unclear but we infer that it was subsequent to 3:33pm (because it refers to DC being placed in a blanket) but prior to 4:25pm (the case note refers to an email being sent to Co-responders at 4:25pm). [1016] A log at 5:35pm refers to DC being transferred from cell ‘PAD1’ to cell J1.662 [1017] A log at 6:06pm records the following:663 MEDICATION GIVEN: taken in cell no problems – 35314 [1018] We infer that the medication was a one off dose of Olanzapine (5 mg) prescribed by the Senior Forensic Physician having regard to a subsequent log at 8:06pm.664 [1019] Dinner was provided at 6:24pm and no subsequent complaints or problems were recorded that day (and overnight).665 [1020] A log at 6:06pm records the following:666 Marion MCKINNON call to check on welfare of young persons as youth co- responder not on until night shift. Update given as requested. [1021] A case note by Ms McKinnon includes the following:667 … [DC] was arrested 12.52pm on 12/6/22 and was lodged in the Cairns Watch house. [DC] attended Cairns CC today and his bail was refused and adjourned to 24/6/2022. Welfare check conducted by phone as no CRT tonight until 10 pm. Michael Johnston Cairns WH advised that [DC] has been attempting to self-harm earlier this afternoon by breaking a plastic cup, and using a piece of plastic to try and cut his wrist. When this was removed he began scratching at his wrist with his fingernails. He was then placed in the VDC with a smock which he attempted to tie around his neck, this was removed and he was given a tear resistance [sic] blanket. [DC] was given elanzapine [sic] 5 mg prescribed and authorised by our doctor through CYMH earlier today to help settle him. [DC] has now settled and is having dinner and been placed back in a smock and put in his cell. 14 June 2022 [1022] A log at 7:02am records that DC was provided with breakfast.668 [1023] A log at 7:13am records ‘REFUSED TO TALK TO YETI’.669 [1024] A log at 11:47am records that DC was transferred from cell J1 to cell ‘HC1’ (Holding Cell 1).670 [1025] A log at 12:27pm records that lunch was provided.671 662 B4290. 663 B4290. 664 B4288. 665 B4285-9. 666 B4290. 667 B6219; see also B6209. 668 B4285. 669 B4285. 670 B4284. 671 B4283-84. -- 147 of 202 -- 148 [1026] A log at 12:28pm records that DC was transferred from cell HC1 to cell ‘INTRANSIT’.672 As noted above, DC departed the Watchhouse that afternoon. Conclusion [1027] We find that DC’s dysregulated state commenced between 1:32pm and 1:55pm on 13 June 2022. Having regard to the above evidence in relation to DC’s third stay, we find that DC has failed to establish, on the balance of probabilities, that any of the terms that were imposed on him at the Watchhouse in the period of time he had been detained in the Watchhouse to that point (approximately one day) resulted in this state. To the contrary, we find it more likely than not that DCs dysregulated state was solely triggered by the Court’s refusal to grant bail and to remand DC in custody on 13 June 2022. [1028] The case notes made on 12 June 2022 include that DC was ‘settled’ and no ‘conflict or other issues’ were noted, save that DC had expressed concern about being remanded in custody after the court appearance the following day (this concern was not limited to being remanded in the Watchhouse). Similarly, the evidence does not suggest any issue of concern in respect of DC during the morning of 13 June 2022. [1029] We also conclude that the placing of DC in the padded cell and in a smock did not cause serious disadvantage; rather, such measures were necessary to protect him against self-harm. [1030] Having regard to the evidence as a whole: (a) we are not satisfied that DC’s dysregulated state on 13 June 2022 occurred as a result of the imposition of such of the pleaded terms as were imposed on DC during the period of custody leading up to this event; (b) we find that the measures of placing of DC in the padded cell and in a smock were necessary to (and did) protect DC against self-harm; and such measures did not cause overall disadvantage, much less serious disadvantage; (c) DC has failed to establish, on the balance of probabilities, that he was not able to comply with the terms imposed on him during DC’s third stay. [1031] Had we concluded that each of DC’s dysregulated state on 13 June 2022 occurred as a result of the imposition of one or more of the imposed terms: (a) we would have been satisfied that DC’s dysregulated state was such that, although not as heightened as his state on 14 April 2022, it did amount to serious disadvantage, having regard to the various attempts of self-harm and the prescription of a one off dose of 5mg of Olanzapine to address his behaviour; (b) however, we would not have been satisfied, on the balance of probabilities, that the dysregulated state was experienced by DC by reason of the attribute of age (or childhood) (more particularly, the characteristics of that attribute), having regard to the evidence of Dr Beech, and noting DC’s ADHD,673 his severe conduct disorder, and a ‘mental health issue’ (unspecified by Dr Beech). 672 B4283. 673 03.04.25 T3-28 line 17 - T3-29 line 19. -- 148 of 202 -- 149 [1032] It follows that DC has failed to establish that the Respondent contravened s 11 of the ADA and his claim based on indirect discrimination should be dismissed. FE FE’s first stay [1033] This stay was from 4:21pm on 11 July 2021 until 7:16pm on 12 July 2021 (‘FE’s first stay’).674 The stay was for 1 night, and approximately 1 day 3 hours (adopting 24 hours as one day). FE was aged approximately 13 years and 9 months at the commencement of the first stay. [1034] None of the affidavits of FE, Senior Sergeant Gardiner and Ms Harding deal with the events which occurred, or contain records of FE’s state during FE’s first stay. The evidence of Mr Drane is that FE was arrested overnight and watchhouse bail was refused, although bail was granted on 12 July 2021.675 Conclusion [1035] Given the lack of evidence in respect of this stay, we are not satisfied, on the balance of probabilities, that FE suffered any disadvantage, much less serious disadvantage, as a result of any terms imposed on him during this stay. FE’s second stay [1036] This stay was from 11.33am on 26 July 2021 until 7.10am on 28 July 2021 (‘FE’s second stay’).676 The stay was for 2 nights, and approximately 1 day 19½ hours (adopting 24 hours as one day). 26 July 2021 [1037] A detention log at the time of detention indicated FE did not appear unwell.677 In video of his induction, FE presents as tired, irritable and repeatedly swears at officers.678 [1038] FE was provided with lunch at 12:33pm.679 [1039] Dinner was provided at 6.45pm.680 [1040] No complaints or problems were reported in the subsequent logs.681 FE was visited by a Youth Co-Responder who recorded in a Youth Justice case note that FE had nil concerns but did not wish to engage as he was tired.682 The time of the visit is not known. 674 Affidavit of Michael Drane affirmed 29 August 2024, [146]. 675 B3096. 676 Exhibit PG-143, B4395, B4374, B4376. 677 B4394. 678 PG150. 679 B4392. 680 B4392. 681 B4388-92. 682 B6245. -- 149 of 202 -- 150 27 July 2021 [1041] Detention logs indicate FE was provided with breakfast and a toothbrush at 6:25am, and FE refused a shower (although no reason was given).683 FE refused to see YETI at 8:03am.684 [1042] At 8:42am FE appears to have met with his lawyer in interview room 2 until 8:59.685 FE left to attend court at 11:27am and returned at 12:16pm.686 He was remanded in custody.687 A record of a Youth Justice Court Coordinator indicates there were ‘nil issues’ with FE on 27 July 2021 at 12:15pm.688 [1043] At 1.25pm FE was taken to the ‘EXYARD’689 but the time that he was returned to his cell is not recorded. [1044] FE received a visit from Youth Forensic Mental Health at 3:30pm although the duration is unknown, and the visit is recorded in a Watchhouse Occurrence Sheet690 rather than the relevant detention log. [1045] Dinner was provided at 5:55pm.691 [1046] FE received a visit from his mother at 7:00pm.692 Although there is no record of how long this visit lasted, it appears to have been a maximum of one hour, given that a cell check occurred at 8:01pm.693 [1047] There were no complaints or problems detected following cell checks on 27 July 2021 (and overnight).694 28 July 2021 [1048] FE refused a shower on 28 July 2021 at 5:37am, stating that the shower was too cold.695 Breakfast was provided at 6:21am, with ‘Nil issues’ reported. [1049] No complaints or problems were detected in a cell check at 6.35am.696 [1050] FE departed the Watchhouse at 7.10am. Conclusion [1051] FE’s second stay in the Watchhouse was uneventful, with no complaints or issues detected. As addressed above, we have rejected the particular grounds upon which each of the Applicants sought to establish serious disadvantage. As to whether we are 683 B4386. 684 B4386. 685 B4376. 686 B4376. 687 B4384. 688 B6241, B6243. 689 B4383. 690 B4406. 691 B4382. 692 B4379. 693 B4379. 694 B4377-9. 695 B4377. 696 B4376-8. -- 150 of 202 -- 151 otherwise satisfied that the practical effect upon FE697 by reason of the imposition of the term or terms resulted in serious disadvantage (and, consequently, an inability to comply with the terms), we are not satisfied, on the balance of probabilities, that: (a) that FE suffered any adverse state or disadvantage during this stay, much less serious disadvantage; (b) FE was not able to comply with the terms imposed on him during FE’s second stay. FE’s third stay [1052] This stay was from 6.21pm on 28 August 2021 until 2.57pm on 30 August 2021 (‘FE’s third stay’).698 The stay was for 2 nights, and approximately 1 day 20½ hours (adopting 24 hours as one day). FE was aged 13 years and approximately 10 months during this stay. 28 August 2021 [1053] FE did not appear unwell at the commencement of detention.699 Video of his induction revealed him to be argumentative, un-cooperative and constantly swearing at officers. This resulted in him being grabbed at the back of the neck by an officer for a sustained period and then released. [1054] FE was offered an interview with ATSILS at 6:29pm but declined.700 [1055] FE was provided with dinner at 6:53pm.701 [1056] FE received a visit from two YETI representatives at 8:51pm, ending at 8:59pm.702 [1057] A case note reported that FE was ‘Fine – a little bit rowdy but not concerning’.703 There were ‘Nil’ concerns regarding presentation, behaviours, emotional state/suicide risk.704 [1058] A case note which may relate to the same visit (this is unclear), reported a visit to FE at 9:00pm.705 The case note recorded that, amongst other matters: (a) FE presented as ‘frustrated but calm during conversations’; (b) FE complained of excessive force used during his arrest, but there were no observable or reported injuries; (c) FE engaged in conversation ‘well’; (d) there were no concerns in relation to FE’s well-being of note; (e) FE ‘declined’ when asked whether he needed anything. 697 As a person with the pleaded attribute or, more particularly, the characteristics that children generally have. 698 Affidavit of Paul Gardiner sworn 30 August 2024 [221], B4441. 699 B4459. 700 B4458. 701 B4458. 702 B4441, B4457. 703 B6264. 704 B6269. 705 B6272. -- 151 of 202 -- 152 [1059] No complaints or problems during cell check records were subsequently recorded for the balance of that day (and overnight).706 29 August 2021 [1060] FE refused the offer of a shower offered at 6:53am.707 [1061] A log at 7.00am records that FE and another juvenile engaged in ‘unacceptable’ behaviour during breakfast by swearing and raising their voices at Watchhouse staff and FE began violently kicking the mesh cell wall.708 At 7:22am FE was observed to wet toilet paper and throw it at the camera.709 At 7:30am FE began swearing at an officer causing ‘dessert and drink privileges’ to be revoked.710 [1062] A log at 7:44am records breakfast being provided. 711 A toothbrush and toothpaste were provided at 7.51am.712 [1063] A Youth Co-Responder conducted a welfare check on FE at 12:00pm.713 A case note of the visit records that, amongst other matters:714 (a) FE advised that he was very angry and stressed about being in the Watchhouse; (b) FE advised that he was in the cell with two young persons; (c) the Youth Co-Responder spoke to FE about swearing at staff and gave advice to try and be calm while in his cell; (d) the duty sergeant had advised that FE had been swearing at Watchhouse staff all morning. [1064] Lunch was provided at 12:58pm715 [1065] Dinner was provided at 5:13pm.716 [1066] FE met with his mother between 6:44pm717 and 7:11pm.718 [1067] No complaints or problems were subsequently reported (including overnight).719 30 August 2021 [1068] Breakfast was provided at 7:00am.720 706 B4453-6. 707 B4452. 708 B4452. 709 B4452, B4440. 710 B4452. 711 B4451-B4452. 712 B4451. 713 B4469. 714 B6275. 715 B4450. 716 B4449. 717 B4471, B4448. 718 B4441. 719 B4445-8. 720 B4441. -- 152 of 202 -- 153 [1069] FE received a visit from YETI between 8:03am to 8:06am.721 ‘Nil’ concerns were raised by YETI’s representative,722 although it was noted that FE stated that he was worried for his safety if sent to CYDC ‘as he has Mix issues there and would not be safe’. [1070] Between 8:47am and 9:01am FE met with a Mental Health Court Liaison Officer.723 [1071] FE attended court between 9:58am and 10:16am.724 [1072] Lunch was provided at 12:23pm.725 [1073] FE met with Youth Justice between 2:15pm and 2:25pm.726 [1074] No complaints or problems during cell check records were subsequently recorded for the balance of that day.727 [1075] FE was transferred to CYDC at 2:57pm.728 Conclusion [1076] FE was behaving in what we would describe as combative behaviour when he entered the Watchhouse on the evening of 28 August 2021. Later that night he was reported as being ‘a little bit rowdy’ and ‘frustrated’ but FE engaged ‘well’ in conversation, there were no concerns regarding presentation, behaviours, emotional state or suicide risk. [1077] On 29 August 2021, FE engaged in further combative behaviour towards the Watchhouse staff which included swearing at the staff during the morning. At noon that day FE reported being ‘angry and stressed’ about being in the Watchhouse. No subsequent complaints or problems were recorded and we note that FE received a visit from his mother that evening. [1078] FE departed the Watchhouse the following afternoon without any further reports of behaviour of note on the part of FE. [1079] Having regard to the evidence as a whole, we are not satisfied, on the balance of probabilities, that: (a) FE’s belligerent behaviour and his reported anger and stress was attributable to any of the terms imposed upon him during this stay; (b) even one or both of those states had been attributable to an imposed term, that the effect was such as to amount to serious disadvantage; (c) FE was not able to comply with the terms imposed on him during FE’s third stay. [1080] We reach this conclusion without needing to make a finding as to whether the boredom and stress were experienced by FE a result of a psychological disorder or 721 B4441. 722 B6278. 723 B4441, B4444. 724 B4441, B4443. 725 B4443. 726 B4441. 727 BB4442. 728 B4441. -- 153 of 202 -- 154 condition such as an intellectual impairment or FE’s severe conduct disorder or some unspecified ‘mental health issue’, rather than by reason of the characteristics of the attribute of age (childhood). FE’s fourth stay [1081] This stay was from 10.19am on 21 September 2021 until 5:36am on 23 September 2021 (‘FE’s fourth stay’).729 The stay was for 1 night, and approximately 1 day 19 hours (adopting 24 hours as one day). 21 September 2021 [1082] At the start of the stay, FE appeared safe and fit for custody, according to detention logs.730 [1083] FE was transferred to an interview room from 11:25am to 12:02pm.731 [1084] In Youth Justice records it is reported that there were ‘No concerns’ but whether this was as a result of a visit to the Watchhouse is unclear.732 There is also a note ‘Suicide alert’.733 [1085] At 5.32pm a log records that an evening meal and evening drink were offered but declined and bread or toast was also offered but also declined.734 [1086] No complaints or problems were subsequently reported (including overnight).735 22 September 2021 [1087] FE refused a shower at 6:19am.736 [1088] He refused to see YETI representatives at 7.38am.737 [1089] Between 8:40am and 8:49am FE met with his legal representative,738 and attended Court between 11:05am and 11:31am.739 FE was remanded in custody.740 [1090] An email from the Acting Court Co-ordinator from the Department was sent at 12.38pm in relation to FE’s court appearance.741 It stated, amongst other things, that: The family are going through sorry business and both FE and his mother were understandably upset when bail was refused. [1091] Lunch was provided at 12:35pm.742 729 PG-163, B4531, B4509. 730 B4529. 731 B4509 (although a record B4529 indicates FE was returned to his cell at 11:39am). 732 B6301-5, esp. B6302. 733 B6303. 734 B4525, B4508. 735 B4251-4. 736 B4508, B4521. 737 B4520, B6307. 738 B4509. 739 B4519, B4509. 740 B4519, B6311. 741 B6326. 742 B4518. -- 154 of 202 -- 155 [1092] At 2:08pm FE met with his mother (who also dropped off clothing for him) until 3:06pm.743 [1093] At 3.06pm received a visit from ‘Youth Services’ until 3:35pm.744 [1094] A Youth Justice case note dated 23 September 2021 included an extract from an email from a representative of YETI sent to various persons on 22 September 2021 at 3.00pm.745 The email noted that FE was ‘not in a good head space’ at the moment in and that he ‘kicked off’ in Court, threatening the Magistrate and refused to see his mother. It referred to ‘recent familial conflict’ and that FE was starting to ‘withdraw’, and it was also noted that although FE had not articulated it yet, there was a belief that there may be ‘self harm concerns’.746 [1095] From 4:40pm until 5:47pm, FE spent time in the EXYARD.747 [1096] FE met with Youth Co-Responders between 5:47pm and 5:50pm.748 [1097] Dinner was provided at 6:09pm.749 [1098] From 7:50pm until 8:20pm FE was detained in the padded cell.750 The circumstances were recorded as: ‘Prisoner throwing plastic cup around cell. When officers entered to remove cup FE shaped up to officers in a fighting stance.’ He was reported as not suicidal. Senior Sergeant Gardiner deposes that a ‘Use of Force’ notification was recorded ‘after FE smashed a cup in his cell and was verbally challenging to officers to assault them. FE was agitated and upset and continued to say that he would assault staff before he was escorted to a padded cell.751 [1099] The police records do not refer to any complaints, problems, or adverse behaviour on the part of, FE subsequently that night (or overnight).752 23 September 2021 [1100] FE had a shower at 4:48am,753 and at 5:18am refused breakfast and a toothbrush.754 FE was transferred to CYDC at 5:36am. Conclusion [1101] Having regard to the evidence as a whole: (a) we are not satisfied, on the balance of probabilities, that FE’s state on 22 September 2021 was attributable to the imposition of such of the pleaded terms as were imposed on FE leading up to this event, having regard to the numerous times that FE had been out of his cell earlier that day, including for a court 743 B4517, B4509. 744 B4516, B4509. 745 B6328. 746 We note, without extracting, other details in the email concerning FE. 747 B4514-5. 748 B4509. 749 B4513. 750 B4539 (Watchhouse Occurrence Sheet). This is not recorded in the detention logs. 751 Affidavit of Senior Sergeant Gardiner [236], PG-170, B4651, 752 B4508-12. 753 B4510. 754 B4510. -- 155 of 202 -- 156 appearance, a visit from his mother, and a visit to the external exercise yard for in excess of one hour; (b) we are satisfied, on the balance of probabilities, that FE’s state was attributable to a combination of the underlying personal issues of FE (the sorry business and familial conflict) and the refusal of bail at approximately 11.30am that day; (c) we find that FE was placed in the padded cell, for half an hour, as a result of aggressive and confrontational behaviour; (d) the evidence does not suggest that any behavioural issues continued after FE was returned to his cell, nor does it establish that FE suffered any identifiable adverse impact, effect or disadvantage as a result of that brief period of detention in the padded cell, much less serious disadvantage; (e) FE has failed to establish, on the balance of probabilities, that he was not able to comply with the terms imposed on him during FE’s fourth stay. FE’s fifth stay [1102] FE was detained from 9.49am on 17 October 2021 until 2.17pm on 20 October 2021 (‘FE’s fifth stay’).755 The stay was for 3 nights, and approximately 3 days 4½ hours (adopting 24 hours as one day). FE had recently turned 14 before the start of this stay. 17 October 2021 [1103] FE was transferred to his cell at 10.56am.756 [1104] FE was provided with lunch at 12.30pm.757 [1105] FE was given an additional blanket on request at 4:11pm.758 [1106] A Youth Co-responder’s welfare check at 5:07pm reported nil issues.759 [1107] Dinner was provided at 5:43pm.760 [1108] FE was placed in the padded cell from 8:37pm until 9:55pm.761 The circumstances for this were stated to be: ‘Repeated banging on cell door. Previous warning given.’ FE was noted as not suicidal. [1109] A Youth Justice case note indicates no issues were noted by police.762 [1110] No complaints, problems, or adverse behaviour, in respect of FE were noted in the subsequent logs that night (and overnight).763 755 B4598, B4564. 756 B4595. 757 B4594-5. 758 B4593. 759 B4592. 760 B4592. 761 B4590-1, B4604. There is a non-material discrepancy in the times of entry and exit between detention logs and the Watchhouse Occurrence Sheet, but the detention logs have been preferred. 762 B6339. 763 B4588-90. -- 156 of 202 -- 157 18 October 2021 [1111] FE was offered a shower at 6:41am but declined.764 Breakfast was provided at 7.10am.765 A toothbrush was recorded as being provided at both 7:12am and 8:20am.766 [1112] Two visits from YETI on 18 October 2021 at 7:29 am and 7:44am were declined.767 [1113] FE received a visit from a duty lawyer at 9:07am,768 but the duration of the visit is not identified. [1114] Lunch was provided at 1.57pm.769 [1115] FE met with his mother and a representative of Youth Justice from 4:23pm to 5:35pm.770 A Youth Justice case note of the visit recorded, amongst other matters:771 (a) in the context of recent offending, that there was a discussion about whether FE would be prepared to undertake a mental health assessment; (b) FE denied any other issues or concerns. [1116] Dinner was provided at 5:50pm.772 [1117] No complaints or problems were recorded in the subsequent logs that night (and overnight).773 19 October 2021 [1118] FE was offered and declined a shower at 6:22am.774 FE was provided with breakfast and offered a toothbrush at 8:30am.775 [1119] Lunch was provided at 12:45pm.776 [1120] FE had a visit from Youth Justice from 4:34pm until 4:38pm.777 [1121] Dinner was provided at 5:41pm.778 [1122] FE attended the EXYARD, finishing at 6:41pm.779 [1123] FE had a visit with his mother between 6:55pm780 and 8:11pm.781 It appears a Youth Co-Responder, a QPS representative, and a YETI support worker were also in 764 B4587. 765 B4587. 766 B4587. 767 B4586. 768 B4585. 769 B4583. 770 B4564. 771 B6343. 772 B4581. 773 B4576-80. 774 B4577. 775 B4576. 776 B4575. 777 B4573. 778 B4573. 779 B4572. 780 B4572. 781 B4564. -- 157 of 202 -- 158 attendance.782 The case note of this visit contained little detail but in respect of the item ‘Follow-up required/planned’ it was stated ‘NIL’.783 [1124] An independent inspection of prisoners by a Senior Sergeant at 11:47pm did not identify any issues. [1125] The detention logs before and after that inspection (including overnight) recorded no complaints or problems.784 [1126] A status update on 20 October 2021 at 1:47am states that recent behaviour by FE was ‘Compliant/ Nil Issues’ and noted that FE engages with YETI and Youth Co- Responders.785 20 October 2021 [1127] FE declined the offer of a shower at 6:12am.786 [1128] FE had an interview with a YETI representative between 7:18am and 7:42am.787 The case note of the visit records:788 FE appeared well and engaged in discussion. Wkr checked in on [FE’s] physical and mental health- nil concerns. FE advised that his mother visited him last night. Requested to change into clothes his mother had dropped off. Requested visit from YJ caseworker, Krystal. [1129] Breakfast was provided at 7:50am789 and a toothbrush at 7:51am.790 [1130] Although not recorded in the police records, FE also received a visit from two Youth Justice representatives at an unidentified time (but, we infer, after the visit by the YETI representative). It appears that two case notes were generated following this visit. One case recorded, amongst other matters, that the ‘A/TL’ (we assume ‘Acting Team Leader’) confirmed that she had delivered a change of clothes for FE earlier that morning however, he was unaware of this as the clothes had not been passed on. It was also recorded that FE ‘voiced nil other concerns or issues’.791 [1131] A further case note is quite lengthy.792 Amongst other matters, it was reported that: … [FE] just wanted to confirm when he would be going to CYDC as he was over being in the watch house and had been in the same clothes since Sunday despite having a change of clothes available to him. A/TL spoke with the officers about this however, they advised that [FE’s] behaviour had been quite challenging so he had been denied all priviliges [sic], including changing his clothes. [FE] was quite talkative during the visit and spoke about wanting to make a change as he doesn’t want to have to return to the watch house in future due to the way he’s been treated during this and historical visits … 782 B6345. 783 B6345. 784 B4570-9. 785 B4569. 786 B4568. 787 B4567. 788 B6349. 789 B4567. 790 B4567. 791 B6355. 792 B6352. -- 158 of 202 -- 159 [1132] Lunch was provided at 12.30pm.793 [1133] FE departed the Watchhouse for CYDC at 2:17pm.794 [1134] A Youth Justice case note at CYDC on 21 October 2021 recorded that: ‘Brief mental health assessment completed in the Watch House due to young age - no acute mental health concerns were identified’.795 The date of the assessment at the Watchhouse is not identified although it seems likely to have been some time after the discussion about a mental health assessment on 18 October 2021. Conclusion [1135] FE was placed in the padded cell on the first night of this stay for repeatedly banging on cell door. FE had been in custody at the Watchhouse for less than 10 hours at that point. There is also the reference in the Youth Justice case note of officers describing FE’s behaviour as ‘quite challenging’ and FE being denied privileges. However, subsequent to FE being placed in the padded cell, there is no reported adverse behaviour of FE in the police records and no issues reported in the case notes concerning FE’s mental health (noting the suggestion that FE undertake a mental health assessment). [1136] Having regard to the evidence as a whole, we are not satisfied, on the balance of probabilities, that: (a) FE’s state on 17 October 2021 was attributable to the imposition of such of the pleaded terms as were imposed on FE leading up to this event, given that FE had been in the Watchhouse for less than 11 hours and there is no expert or other evidence supporting the conclusion that the conduct was referable to the terms imposed during that period; (b) the placing of FE in the padded cell for half an hour resulted in FE suffering any identifiable adverse impact, effect, or disadvantage, much less serious disadvantage; (c) FE otherwise suffered serious disadvantage as a result of the terms imposed on him during the stay; (d) FE was not able to comply with the terms imposed on him during FE’s fifth stay. FE’s sixth stay [1137] FE was detained from 5.46pm on 27 November 2021796 until 2.57pm on 30 November 2021 (‘FE’s sixth stay’).797 The stay was for 2 nights, and approximately 2 days 21 hours (adopting 24 hours as one day). 793 B4567. 794 B4566. 795 B6361-3. 796 B4672, B4667. 797 B4644. -- 159 of 202 -- 160 27 November 2021 [1138] No issues were noted by police on arrival to the Watchhouse.798 Between 8:06pm and 9:16pm FE was interviewed by police with his mother present.799 [1139] Dinner was provided at 9:20pm.800 An independent inspection of ‘all’ was carried out by an Acting Inspector at 9:59pm, and ‘nil issues’ was noted.801 [1140] An email dated 27 November 2021 at 10.40pm records that: ‘Since arriving in Cairns [FE] has been compliant whilst in custody and there have been no issues with his management whilst in custody.’802 28 November 2021 [1141] On 28 November 2021, a Senior Sergeant carried out an independent inspection of all prisoners at 5:15am with no issues noted.803 Breakfast was provided at 6:57am.804 [1142] FE had access to the EXYARD from 12:18pm805 but the duration of the time in the external exercise yard is not noted in the logs. [1143] FE met with his mother between 4:13pm until 4:43pm.806 [1144] The logs note did not record any complaints or problems until 5:22pm.807 The log at that time records:808 Child has thrown his meal inside the corridor, when asked by Officers why he did that was the anything wrong with the food he stated “you dogs spat in my food.” Juvenile was strongly assured that his food was untouched but he continued to state that we don’t like him and you all spit in my food because that’s what you do. All other meals given to prisoners where (sic) eaten without complaint. [1145] A log at 5:38pm records: ‘Offered a second dinner to replace the first he threw down corridor. [FE] accepted a burger. Burger heated and served.’809 Bodycam footage records the officer’s repeated offers, and FE, eventually, politely accepting.810 [1146] Youth Co-Responders visited FE at 7:35pm.811 Both the Watchhouse Occurrence Sheet and the detention log record ‘nil concerns’.812 The relevant case note813 records (relevantly) under ‘Summary of interactions’: 798 B6381. 799 B4667, B4643. 800 B4669. 801 B4668. 802 B4667. 803 B4665. 804 B4664-5. 805 B4663. 806 B4662, B4644. 807 B4661-4. 808 B4661. 809 B4661. 810 PG189. 811 B4660. 812 B4676, B4660. 813 B6389. -- 160 of 202 -- 161 YCRT attended the [Watchhouse] to complete a welfare check for [FE]. Watch house staff advised [FE] had been yelling and chucking his food everywhere earlier this afternoon. Watch house staff advised [FE’s] mother had attended the watch house at about 5:00pm to visit [FE]. YCRT spoke with [FE] who was a lot calmer then [sic] this afternoon. [FE] advised that he was angry because another adult in mate [sic] had words with [FE] as [sic, and] [FE] didn’t like what he said.814 [FE] advised the staff gave [FE] another meal as he apologised. YCRT gave advise [sic] to [FE] to do some push ups and shadow boxing to ease his stress as [sic, and] [FE] agreed. [FE] advised he has court tomorrow and is going to speak with Zara from ATSILs as [FE] advised a watch house staff pushed [FE]. YCRT left [FE] on a good note as he was happy to see YCRT … [1147] Under ‘Welfare concerns’ it was recorded: [FE] had NIL concerns at the time YCRT visited [FE]. [FE’s] mother visited [FE] earlier this afternoon as [FE] was very upset and frustrated for being in the watch house. [1148] The Watchhouse Sergeant noted in an extract from an email to Senior Sergeant Gardiner at 10:08pm that FE’s behaviour had been a little erratic this evening (food thrown down the corridor) and a little agitated this evening but had since settled.815 [1149] The subsequent logs inspection (including overnight) recorded no complaints or problems.816 29 November 2021 [1150] FE was offered a shower at 6.41am.817 We could not identify an entry for the provision of breakfast. [1151] FE declined a visit from YETI at 8:17am.818 FE received a ‘LEGAL VISIT’ between 9:09am and 9:13am.819 FE attended Court, departing the Watchhouse at 11:27am and returning at 11:47am.820 FE was remanded in custody.821 [1152] FE attended an interview with [name withheld] between 12:53pm and 2:04pm.822 No other record we can identify indicates the nature of this interview. [1153] FE met with Youth Justice at 3:35pm until 4:08pm.823 [1154] Dinner was provided at 5:24pm.824 An independent inspection by a Senior Sergeant Atkinson at 5:56pm which noted no issues with the three juvenile detainees and that the juveniles had just met with ‘YCR’.825 A Youth Justice case note records that:826 814 B6389. 815 B4659. 816 B4657-9. 817 B4657. 818 B6392. 819 B4644. 820 B4655, B4644. 821 B4654-5. 822 B4644. 823 B4644, B4653. 824 B4652. 825 B4652. 826 B6385. -- 161 of 202 -- 162 (a) FE was eating dinner in his cell with two other youths that were in the same cell; (b) FE asked when his mother was coming to visit him and he was advised that YCRT was picking her up after this visit; (c) FE was in ‘good health condition’ and Watchhouse staff raised no concerns for FE; (d) under ‘Welfare concerns’: ‘[FE] had NIL concerns at the time YCRT visited [FE]’. [1155] FE met with his mother between 6:13pm and 6:46pm.827 [1156] The subsequent logs inspection (including overnight) recorded no complaints or problems.828 30 November 2021 [1157] Breakfast was provided at 6:48am.829 FE refused the offer of a toothbrush at 7.00am.830 [1158] A log at 9:12am records that FE was abusing staff claiming that he was not offered breakfast, and he was advised that breakfast was left for him and removed when food was seen to be untouched, food was removed when it was believed it would be unsafe for FE to eat.831 [1159] A log at 10:15am records that FE was asked by staff whether he wanted to speak to ‘Youth Mental Health’, and reported that staff were told ‘you are a white cunt and fuck off’.832 The subsequent logs recorded no complaints or problems.833 [1160] Lunch was provided at 1:04pm.834 [1161] FE was taken to the EXYARD at 1:29pm.835 A Band-aid was supplied at 1:44pm.836 [1162] FE was transferred from the external exercise yard to cell ‘INTRANSIT’ at 2.55pm.837 [1163] FE departed the Watchhouse at 2.57pm. Conclusion [1164] No issues with FE’s behaviour were noted the first night of his stay or the following morning (on 28 November 2021). It appears that during the afternoon FE was ‘very upset and frustrated’ for being in the Watchhouse. FE’s mother visited FE at 4:13pm. At 5.22pm that day FE threw his meal inside the corridor claiming that the officers had spat in his food. We find that this allegation has not been established. 827 B4644. 828 B4648-50. 829 B4647. 830 B4647. 831 B4647. 832 B4646. 833 B4645-6. 834 B4646. 835 B4645. 836 B4645. 837 B4644-5. -- 162 of 202 -- 163 [1165] The subsequent case note also reported that FE was angry because another adult ‘inmate’ had words with FE and FE did not like what he said. We are satisfied, on the balance of probabilities that: (a) the words spoken were the verbal threat identified in the PJM reasons at [154]; (b) FE made the complaint to the Watchhouse officer at 5.30pm;838 (c) although the timing of the verbal threat is not identified in the evidence (nor is there evidence of the location of the adult at that time), the interaction occurred either whilst FE was being escorted back from the interview room to his cell at 4.42pm839 or following FE’s outburst in relation to his meal whilst FE was in his cell840. [1166] We find that FE’s behaviour had settled by later that night having regard to the police record to that effect at that time and the Youth Justice case note of the visit at 7.35pm which reported that they left FE on a ‘good note’. [1167] No issues or concerns were reported with respect to FE on 29 November 2021. We accept the evidence in the case note that FE was in a ‘good health condition’. [1168] On the day of FE’s departure (on 30 November 2021) FE directed abuse at Watchhouse officers at 9:12am and 10.15am, but no other issues were noted. [1169] Having regard to the evidence as a whole: (a) we are satisfied, on the balance of probabilities, that : (i) FE experienced what, we infer, was some initial fear, and then experienced anger following the verbal threat by an adult in custody; (ii) the initial fear and anger was attributable to the imposed term concerning the location of the juvenile cells; (iii) FE’s initial fear and anger had settled by the end of the visit commencing at 7.35pm on 28 November 2021; (b) we are not satisfied, on the balance of probabilities, that the initial fear and then anger was such as to amount to serious disadvantage, or that the evidence supports the conclusion that there was any ongoing sequalae amounting to serious disadvantage; (c) otherwise, we are not satisfied, on the balance of probabilities, that the balance of FE’s behaviour (including the instances of abusive language) and his reported state of mind were attributable to any of the terms imposed upon FE during this stay (and, for completeness, we are not satisfied that same amounted to serious disadvantage, even if considered with the matters in subparagraph (a) above); (d) we are not satisfied, on the balance of probabilities, that FE was not able to comply with the terms imposed on him during FE’s sixth stay. [1170] We reach this conclusion without needing to make a finding as to whether FE’s behaviour (other than his reaction to the threat) was a result of a psychological 838 Affidavit of Senior Sergeant Gardiner, [251(d)]. 839 Affidavit of Senior Sergeant Gardiner, [251(b)]. 840 Affidavit of Senior Sergeant Gardiner, [251(c)]. -- 163 of 202 -- 164 disorder or condition such as FE’s severe conduct disorder, or post-traumatic stress disorder, or some unspecified ‘mental health issue’, rather than by reason of the characteristics of the attribute of age (childhood), but noting, in particular, the instances of FE’s abusive behaviour towards Watchhouse officers in this context. FE’s seventh stay [1171] FE was detained from 10.23pm on 15 January 2022841 until 3.26pm on 19 January 2022 (‘FE’s seventh stay’).842 This stay was for 4 nights, and approximately 3 days 17 hours (adopting 24 hours as one day). FE was aged approximately 14 years and 3 months at the commencement of this stay. 15 January 2022 [1172] Video evidence of FE’s induction at the watchhouse revealed FE to be compliant but distant and disengaged; FE spoke very little.843 Youth Justice records for 15 January 2022, on arrival at the Watchhouse, report that FE ‘doesn’t wish to talk to anyone, including legal rep, [FE] displays a poor attitude according to police this is normal behaviour’.844 [1173] No complaints or problems were reported overnight.845 16 January 2022 [1174] At 6:15am showers were offered to all young persons (we infer, including FE) and this was declined.846 [1175] Breakfast was provided at 9:05am, and a toothbrush at 9.06am.847 [1176] No complaints or problems were reported in respect of cell checks at 9.51am, 10.32am, and 11.16am.848 [1177] Lunch was provided at 12:04pm.849 No complaints or problems were reported in respect of cell checks between then and 4.41pm.850 [1178] Between 4:57pm and 5:09pm FE was interviewed by Youth Co-Responders.851 A case note of a Youth Justice Co-Responder records that he had an interview with FE, at 5.00pm. The case note reported, amongst other matters:852 … [FE] was brought into an interview room and engaged well with me … NIL requests from [FE] and on departure from the interview room [FE] has stood up on the bench and was jumping up and down and would not get down, I advised [FE] to get down or he would find himself in more trouble, and [FE] replied. ‘I 841 B4720. 842 B4722-3. 843 Affidavit of Senior Sergeant Gardiner, exhibit PG-201. 844 B6410. 845 B4753-5. 846 B4753. 847 B4753. 848 B4752. 849 B4752. 850 B4750-1. 851 B4722; B4749-50. 852 B6414. -- 164 of 202 -- 165 don’t give a f*ck’. [FE] was escorted from the interview room by the watch house officers. [1179] The case note also reported ‘NIL welfare concerns’. [1180] A meal was provided at 5:23pm.853 [1181] No complaints or problems were reported in the subsequent logs (including overnight).854 17 January 2022 [1182] FE was offered and declined a shower at 5:53am.855 [1183] Breakfast was provided at 7:42am.856 [1184] FE met with his legal representative between 7:43am and 8:13am.857 [1185] FE attended court by video link between 9:20am and 9:48am858 and was remanded in custody until 28 January 2022.859 FE met with ‘Legal and Youth Justice’ between 10:12am and either 10.57am or 10:59am.860 [1186] FE spent time in the internal exercise yard ‘MXA’ from 10:57am until 12:56pm and, at that time was taken to the ‘EXYARD’ until 2:09pm.861 Lunch was provided at 12:20pm.862 [1187] No complaints or problems were reported in respect of cell checks at 2.54pm, 3.34pm, 4.27pm and 5.11pm.863 [1188] A log at 5:23pm recorded: ‘Prisoner destroyed cushion by removing breathing eyelets and using it to scratch camera lens’.864 [1189] A subsequent log at 6.47pm, which appears to be an extract of an email written by the Acting Sergeant at the Watchhouse, recorded, amongst other matters:865 … There have been issues with [FE] who has thrown a rubber band at staff, spat at officer’s [sic] through the cell grating but not hitting them and damaging a bed cushion as well as the Perspex covering the cell camera which requires emergency repairs… [1190] A Youth Co-Responder attended to visit FE after that occurred, at 5:27pm.866 A case note of that visit reported, amongst other matters:867 853 B4749. 854 B4746-9. 855 B4746. 856 B4745. 857 B4745, B4722. 858 B4745, B4722. 859 B4745. 860 B4744, B4722. 861 B4742-4. 862 B4741. 863 B4741-2. 864 B4741. 865 B4740. 866 B4741, B6417-19. 867 B6417. -- 165 of 202 -- 166 … I spoke with [FE] through the cell door as WH staff advised that they were not escorting [FE] to an interview room due to his erratic behaviours today. [FE] had damaged a cell camera just before my arrival and would be charged with this. [FE] was sharing a cell with another YP and had no issues around this. [FE] demanded that I speak with the watchhouse staff and ask them to provide them with some type of activity as he was bored and stressing out, I reminded [FE] that he needs to show respect and he will be rewarded that way, however [FE] disagreed and mentioned he would assault the watch house staff, I advised [FE] that this would not be a good move as he would find himself in more trouble, to which [FE] mentioned he did not give a f*ck’. I asked [FE] if he would like his mother to visit and he stated he would. YCRT to organise transport for [FE’s mother] to the watch house. [1191] The case note also reported ‘NIL Welfare concerns’. [1192] Dinner was provided at 5.43pm.868 [1193] At 6.36pm, FE was transferred to Holding Cell 1 whilst the cell camera in cell J1 was repaired.869 [1194] No complaints or problems were reported in respect of cell checks at 6.58pm and 7.38pm.870 [1195] FE met with his mother at 8:15pm. We cannot identify the duration of the visit from the police records.871 [1196] No complaints or problems were reported in the subsequent police logs (including overnight).872 18 January 2022 [1197] FE refused a shower at 6:51am.873 FE refused a visit from a Youth Co-Responder at 7:00am.874 A Youth Justice case note reported that all ‘young people’ (seven) present in the Watchhouse declined a visit and ‘requested to continue sleeping’.875 [1198] At 7.13am FE refused a visit from YETI.876 [1199] Breakfast was provided along with a toothbrush at 7:55am.877 [1200] A subsequent log at 8.01am contains extracts of two emails between the Acting Inspector for the Cairns Metro Patrol Group which was overseeing the Watchhouse to Ms Harding.878 [1201] An email from the Acting Inspector to Ms Harding sent at 7:44am stated, amongst other matters:879 868 B4741. 869 B4740. 870 B4739-40. 871 B4739. 872 B4737-9. 873 B4735. 874 B4783 (Watchhouse Occurrence sheet). 875 B6420. 876 B4735. 877 B4735. 878 B4734. 879 B4734. -- 166 of 202 -- 167 … [FE] is probably the main one we transfer. He has caused damage in the cells while here (Has court this morning for wilful damage) and is a major disruptor among the other kids and very antagonistic/belligerent toward staff, he’s an incident waiting to happen. Anything you could do would be appreciated … [1202] Given the timing of that email, we find that the reference to FE’s behaviour is to his behaviour the previous evening. [1203] Ms Harding’s response sent at 7:53am included: ‘I’ll see what I can do to have him bumped up the priority list. There’s not many scheduled releases in the next few days, but we can hope for something unexpected …’. [1204] FE met with his lawyer between 8:59am and 9:02am.880 [1205] No complaints or problems were reported in respect of cell checks at 9:22am, 10.09am, and 11.48am.881 [1206] A log at 12.04pm recorded that a phone call had been received from CYDC advising that FE ‘has a bed’ and that arrangements for transport were to be made for 19 January 2022. [1207] Lunch was provided at 12:50pm.882 The log for that entry also records ‘Been extremely abusive and making racist comments towards officer’. [1208] No complaints or problems were reported in respect of cell checks at 1.31pm, and 2.14pm.883 [1209] FE refused to speak ‘with YETI’ at 2:38pm.884 [1210] No complaints or problems were reported in respect of a cell check at 3.40pm.885 [1211] FE was transferred to the ‘EXYARD’ at 3.46pm.886 FE was transferred from the EXYARD to his cell at 4:55pm.887 Although not recorded in the detention logs, it appears that FE spent time with a representative from the ‘On Country’ program in Interview Room 3 between 4:04pm and 4:22pm.888 [1212] FE refused to speak with ‘YJ’ (Youth Justice) at 4:54pm.889 It appears that FE was still in the external exercise yard at this time (but was returned to his cell immediately afterwards). The Youth Justice case note reported that:890 YCRT attended the Cairns watch house to complete a welfare check on [FE]. Watch house staff advised [FE] did not wish to speak with anyone at this time. Watch house sergeant advised [FE] has been very rude to staff and keeps on pressing the buzzer in his cell. 880 B4722, B4733. 881 B4733. 882 B4732. 883 B4733. 884 B4732. 885 B4732. 886 B4731-2. 887 B4730-1. 888 B4722. 889 B4730. 890 B6423. -- 167 of 202 -- 168 [1213] No complaints or problems were reported in respect of a cell check at 5.07pm.891 [1214] Dinner was provided at 5:37pm.892 [1215] No complaints or problems were reported in respect of cell checks at 5.59pm and thereafter for the balance of the day (and overnight).893 19 January 2022 [1216] A Youth Justice case note records a visit to the Watchhouse by a representative of YETI at 7:20am.894 The case note reports under ‘Engagement’: SEWB checks completed Nil concerns raised by YP,’. [1217] Under the heading ‘Assistance/Support provided’ it was stated: ‘Support visit by key Wkr, legal rep question passed on to key Wkr’ [1218] A Cairns Watchhouse Occurrence Sheet records that at 7.40am ‘YETI’ attended the Watchhouse to see a number of young persons including FE.895 [1219] Breakfast was provided at 7:42am.896 [1220] A log at 9:42am records that FE refused to speak with a representative from YETI.897 [1221] FE had a meeting with a Youth Justice representative from 10:46am898 until 10:59am.899 [1222] No complaints or problems were reported in respect of cell checks thereafter. [1223] FE was transferred from cell J1 to cell ‘INTRANSIT’ at 3.22pm.900 [1224] FE departed the Watchhouse for CYDC at 3:26pm.901 Conclusion [1225] Having regard to the evidence in respect of FE’s seventh stay, we find that: (a) the first reported adverse behaviour of FE was at approximately 5.00pm on 16 January 2022. We would describe this behaviour as defiant. No welfare concerns were noted and the conduct is not reported as continuing. We are not satisfied that the behaviour was attributable to any particular term imposed on FE to that point, although we note that FE does not appear to have been provided with any time in any exercise yard during the course of that day; (b) by approximately 5.23pm on 17 January 2022, FE was engaging in behaviour subsequently described as very ‘antagonistic’ and ‘belligerent’ towards Watchhouse officers as described above. We find that such behaviour was 891 B4730. 892 B4730. 893 B4727-30. 894 B6427. This visit is not noted in the detention logs. 895 B4789. 896 B4726. 897 B4725. 898 B4725. 899 B4722, B4725. 900 B4724. 901 B4724. -- 168 of 202 -- 169 consistent with FE being, as he described it, ‘bored’ and ‘stressing out’. We note that FE had spent time in an internal exercise from 10:57am until 12:56pm and then the external exercise yard until 2:09pm. Given FE’s reported ‘demand’ for some type of ‘activity’, we infer that FE was attributing his boredom and stress to a lack of pro-social activities, which was a consequence of the term imposed in relation to pro-social activities. We find that FE’s state settled having regard to the subsequent detention logs, also noting that FE received a visit from his mother at 8.15pm that night; (c) on 18 January 2022, no adverse behaviour of FE was reported until lunch was delivered at 12.50pm when FE engaged in the behaviour directed towards the Watchhouse officer identified above. Having regard to the evidence attributable to that day, we are satisfied that it was an isolated escalation of behaviour on the part of FE. Further, we are not satisfied, on the balance of probabilities, that it was attributable to any term that was imposed on FE. We also note that FE spent time in the external exercise yard from 3.46pm until 4:55pm, punctuated by an 18 minute meeting with a representative from the ‘On Country’ program. [1226] As to whether we are satisfied that BA suffered serious disadvantage from the imposition of the terms (and, consequently, an inability to comply with the terms): (a) we find that the term concerning the provision of the means to engage in pro- social activities resulted the boredom and stress over a number of hours on 17 September 2022; (b) we find that FE’s belligerent behaviour on 18 January 2022 was not referable to any term imposed by the Respondent during the stay; (c) having regard to the evidence as a whole, we are not satisfied, on the balance of probabilities, that: (i) the boredom and stress experienced by FE on 17 January 2022 was such as to amount to serious disadvantage; (ii) there was any other disadvantage suffered by FE in complying with one or more of the terms imposed, much less serious disadvantage; (iii) FE was not able to comply with the terms imposed on him during FE’s seventh stay. [1227] We reach this conclusion without needing to make a finding as to whether the boredom and stress (or other mental state) was experienced by FE as a result of a psychological disorder or condition such as FE’s severe conduct disorder or some unspecified ‘mental health issue’, rather than by reason of the characteristics of the attribute of age (childhood), although we note the conduct of FE towards the Watchhouse officers. [1228] Our conclusions in relation to the FE’s second stay would be no different even if the effects of the term imposed during FE’s earlier stays considered together with the effect of the seventh stay. -- 169 of 202 -- 170 FE’s eighth stay [1229] FE’s stay at the Watchhouse commenced at 12:38pm on 18 February 2022902 and ended on 1 March 2022 at 3.26pm (‘FE’s eighth stay’).903 The stay was for a period of 11 nights, and approximately 11 days 3 hours (counting 24 hours as a day). FE was aged approximately 14 years 4 months. [1230] FE gave the following evidence in his Affidavit in relation to this stay: 21. During the 12-day stretch in February/March 2022 I was in a cell with two boys; one was 17 years old and the other was 15 years old. I was in the watch house this time because bail had been refused. 22. My cell had 2 platforms for beds. All three of us slept on cushions on the floor. There wasn’t much room for all of us. We had two blankets during the night which would get taken away in the daytime sometimes. The pillows are so hard, sometimes I roll up my blanket and use it as a pillow. 23. During the long stay in February/March I was sometimes able to go into the exercise yard with some other children. Visits to the exercise yard only happened in the middle of the day around midday, for about an hour when there were no adults in it. 24. I don’t like the exercise yard because it is too hot. There is no roof, only a metal grate, over the top of the exercise yard. There is a toilet and a TV, but no exercise or gym equipment in the exercise yard, not even a ball to play with. When I’m in the exercise yard, I sit down and watch TV or walk up and down. 25. In late February 2022 midday temperatures in Cairns were above 33 degrees most days; 26 and 27 February were above 37 degrees. The exercise yard was very hot. 26. We were allowed to shower every day but had no clean clothes to change into. 27. There were no activities for us to do in the cells. Youth Justice workers brought in books and chalk but the sergeant refused to let us use them. There was a TV room on the other side of the watch house but I wasn’t able to access it because male adults were there. 28. My mum [redacted] visited me every night. Each visit last around 45 minutes. My experience 29. I feel stressed when I am in the watch house. Half the time I don’t know what is happening. We aren’t told how long we will be there or when we are being moved. We only find out we are being transferred to Cleveland when the officers come and get us. 30. There is nothing to do. It is miserable and disgusting. [1231] We note paragraphs [467] and [468] above and assess FE’s evidence against the contemporaneous records created during the course of the stay. 902 B4907. 903 B4818-9. -- 170 of 202 -- 171 18 February 2022 [1232] The stay commenced at 12:38pm. [1233] FE refused a meeting from Youth Justice.904 [1234] A mental health counsellor attended to see FE at 4:08pm, for an unknown duration.905 [1235] A log at 4.18pm records bail was denied and FE was remanded in custody until 22 February 2022.906 [1236] Dinner was provided at 5:11pm.907 [1237] FE was visited by his grandmother at 6:05pm (for an unknown duration).908 [1238] No complaints or problems were subsequently reported (including overnight).909 19 February 2022 [1239] FE refused a shower at 6:16am.910 There is no record of breakfast being provided. [1240] FE was transferred to a juvenile cell at 10.38am.911 [1241] Lunch was provided at 12:08pm.912 [1242] A Youth Justice Co-Responder visited FE sometime after at 12:51pm.913 A case note of the visit recorded, amongst other matters:914 (a) FE seemed to be in a good mood throughout the interaction; (b) however, FE advised that police officers in the Watchhouse in ‘keep on trying to get [FE] angry and mad bringing up the car crash to him’. [1243] The case note also recorded, under the heading ‘Welfare concerns’: [FE] appeared to be in good physical and mental health condition, nil suicidal ideation. [FE] advised he had just had lunch and no major concerns raised. [1244] FE spent time in the EXYARD between 2:15pm and 3:35pm.915 [1245] Dinner was provided at 5:16pm.916 [1246] FE had an interview with a representative of YETI from 6.57pm to 7.04pm.917 An email concerning that visit reported:918 904 B6453, B4905. 905 B4904. 906 B4904. 907 B4903. 908 B4903. 909 B4900-B4902. 910 B4900. 911 B898-99. 912 B4900. 913 B4917, B4916. 914 B6459. 915 B4897. 916 B4897. 917 B4895. 918 B6456. -- 171 of 202 -- 172 [FE] presented agitated but engaged fine with YW [we infer, Youth Worker] once he was made aware that his Mother was coming to visit this evening. [FE] had nil suicidal ideation. [1247] FE met with his mother between 7:04pm and 7:31pm.919 [1248] No complaints or problems were subsequently reported for cell checks on that day (and overnight).920 20 February 2022 [1249] FE was offered but refused a shower at 5:58am.921 There is no record of breakfast having been provided but a toothbrush was provided at 8:11am.922 [1250] FE spent time in the EXYARD from 8:25am to 9:52am.923 [1251] FE declined to speak with a Youth Co-Responder at 10:45am.924 A Youth Justice case note of the visit925 reported that Watchhouse staff advised that: (a) FE was sleeping in his cell and they did not wish to wake him up; (b) FE had been throwing toilet paper in the ‘yard’ earlier and had to go back to his cell because of this; (c) there were nil issues with FE, and nil self-harm or suicidal ideation thoughts. [1252] Lunch was provided at 12:12pm.926 [1253] FE’s mother came to visit him between 3:44pm and 4:37pm.927 [1254] Dinner was provided at 5:32pm.928 [1255] No complaints or problems were subsequently recorded (including overnight).929 21 February 2022 [1256] Between 7:20am and 7:26am FE met with a representative of YETI.930 An email concerning that visit reported:931 SEWB check with [FE], nil concerns at present. [FE] declined an offer of referral to CYMHS [we infer, the Child and Youth Mental Health Service] … [FE] is sleeping and eating well. 919 B4895. 920 B4893-5. 921 B4892. 922 B4892. 923 B4981-2 924 B4891. 925 B6462-4. 926 B4890. 927 B4889, B4818. 928 B4889. 929 B4886-8. 930 B4885. 931 B6465. -- 172 of 202 -- 173 [1257] Breakfast was provided at 7:36am.932 An independent inspection by a Senior Sergeant recorded in a log at 7.46am reported ‘No issues identified’.933 [1258] FE met with ‘Youth Justice’ between 9:09am and 9:26am.934 We could not identify a corresponding Youth Justice case note of this interaction. [1259] Lunch was provided at 12:23pm.935 [1260] FE spent time in the EXYARD between 12:42pm and 2:35pm.936 [1261] A Youth Justice representative called the Watchhouse at 2.30pm and was told that that ‘they were too busy with moving inmates around due to construction work’.937 [1262] FE met with an ATSILS representative between 1:12 and 3:19pm.938 [1263] Dinner was provided at 5:53pm.939 [1264] A Youth Co-Responder (a Police Constable) attended the Watchhouse with FE’s mother between 8:07pm and 8.44pm.940 An email from the Youth Co-Responder to YETI reported, amongst other matters, that:941 (a) FE was in ‘good spirits’;942 (b) Watchhouse staff advised there were ‘nil issues’ with FE and ‘nil self-harm or suicide ideation thought’s [sic]. [1265] No complaints or problems were subsequently recorded.943 22 February 2022 [1266] Breakfast was provided at 7:18am.944 A shower was offered at 7:19am.945 [1267] An independent inspection at 7:50am by a Senior Sergeant did not identify any issues.946 FE declined a visit from YETI, but it was reported that ‘Nil concerns raised by QPS’.947 [1268] A log at 9:58am recorded: 948 CELL CHECK: Spoke to FE this morning to ascertain if he had any issues. Stated he was fine. Spoke with [FE’s mother] on the phone. Nil issues. Had previously spoken to [FE] on the 21/02/2022 in company with Sgt Flynn in 932 B4885. 933 B4884. 934 B4883, B6473-4. 935 B4882. 936 B4881-2. 937 B6470. 938 B4881. 939 B4881. 940 B4818, B6473-4, B4927. 941 B6473-4. 942 B6467-8. 943 B4878-9. 944 B4876. 945 B4876. 946 B4876. 947 B6475. 948 B4876. -- 173 of 202 -- 174 relation to [FE] raising an issue with YJ that officers had made comments to him about [redacted] the Traffic Accident. Nil issues at this time. [1269] Toast and tea was provided at 10:45am.949 [1270] FE met with an ATSILS representative from 11:30am until 12:35pm.950 [1271] Lunch was provided at 12.55pm.951 [1272] A log at 2:11pm records ‘CHALK provided to juveniles’.952 [1273] No complaints or problems were reported in respect of cell checks at 1.07pm, 1.33pm, 2.15pm, 3.06pm, 3.45pm, 4.29pm, 5.15pm, and 6.00pm.953 [1274] A log at 6:30pm records (in relation to the provision of dinner): ‘Juvenile males threw their food all down the corridor and began kicking and screaming because they did not want the food’.954 We assume that FE was one of the ‘juvenile males’ although there appears to be an anomaly in the records, noting the record of a visit by FE’s grandmother with FE between 6:15pm and 7:15pm.955 [1275] FE received a visit from his mother between 7:15pm and 7:57pm.956 [1276] An email from a Youth Co-Responder Team sent at 8.47pm were unable to complete welfare checks as the Watchhouse was ‘busy both times they called’ and noted that believed that FE had family contact ‘this afternoon’.957 [1277] No complaints or problems were reported in respect of cell checks at 8.08pm, 8.50pm, and 9.22pm.958 [1278] A log at 9:23pm, records that FE was ‘throwing his cup around’ and that after Watchhouse staff removed the cup, FE ‘became highly aggressive and began kicking the door and screaming racial slurs’.959 [1279] No complaints or problems were reported in respect of cell checks at 10.17pm, 11.00pm, and 11.41pm (and overnight).960 [1280] A Youth Justice case note includes an email from the Acting Coordinator, Youth Justice, Far North Queensland Region sent on 22 February 2022 (and was copied to Ms Harding).961 Amongst other information, the following information from FE’s case worker was extracted: The concerns for [FE] that I’m aware of is that the family made a complaint regarding an officer over the weekend following him calling [FE] a ‘murderer’ – a senior sergeant has spoken with [FE’s mother] about this yesterday, 949 B4875. 950 B4874. 951 B4874-5. 952 B4874-5. 953 B4872-4. 954 B4872. 955 B4818, B4932. This visit does not appear in the detention logs. 956 B4818, B4932. This visit does not appear in the detention logs. 957 B6477. 958 B4870. 959 B4870. 960 B4868-4870. 961 B6508-6510. -- 174 of 202 -- 175 however, [FE’s mother] is concerned for his safety following this complaint being made as the officer is due to return to work tonight…. [FE] also attended a counselling session with [we have redacted the name] [redacted] and she has written a letter for court today stating he is experiencing symptoms of PTSD following the incident last week so I feel it would be better to get him into a more supportive environment as soon as possible. [1281] We cannot recall the issue of FE possibly suffering from Post Traumatic Stress Disorder being raised at the hearing. 23 February 2022 [1282] On 23 February 2022, FE refused a shower at 6:14am as he did not want to get up.962 [1283] FE met with YETI at 7:26am (for an unknown duration).963 Breakfast was provided at 7:50am.964 [1284] An independent inspection of ‘all prisoners’ by a Senior Sergeant recorded at 8.14am did not identify any issues.965 ‘Cell Watch’ attended to see persons in custody at 8:45am but without a corroborating record that a representative met with FE, we are not satisfied that one took place.966 [1285] Lunch was provided at 12:51pm.967 [1286] FE was visited by a Youth Co-Respondent at 6:02pm.968 A case note of the visit reports that:969 (a) the visit took place at 5.30pm; (b) Watchhouse staff advised that FE has been very well behaved in his cell; (c) FE commented that he was being ‘miss treated’ but did not say much more about this as a Watchhouse officer was present at the visit; (d) FE advised he was hating being alone in his cell and asked if another young person in the cell to talk with; (e) FE asked to be provided with some cards; (f) FE did not appear to have any self-harm or suicide ideation thoughts. [1287] FE met with his mother between 7:10pm970 and 8:30pm.971 [1288] A log at 10:29pm records that, during roll call, FE abused watchhouse staff calling out ‘You white cunt’.972 962 B4868. 963 B4867. 964 B4867. 965 B4867, B4936. 966 B4937. 967 B4864. 968 B4863. 969 B6479. 970 B4941 (Watchhouse Occurrence Sheet). 971 B6479. 972 B4861. -- 175 of 202 -- 176 [1289] No complaints or problems were reported in respect of cell checks at 11.01pm and 11.49pm (or overnight). 973 24 February 2022 [1290] On 24 February 2022 FE showered and accepted a change of clothes at 6:42am.974 [1291] YETI attended to see ‘juveniles in custody’ at 7.15am975 but, without a corroborating record, we cannot be satisfied that they met with FE. [1292] Breakfast was provided at 7.40am and a toothbrush and toothpaste were provided at 7.41am.976 [1293] An independent inspection of ‘all prisoners’ by a Senior Sergeant, recorded in a log at 7:51am, did not identify any issues.977 [1294] Between 9:58am and 12:18pm, FE spent time in internal exercise yard ‘MXB’.978 [1295] We could not identify a log recording the provision of lunch. [1296] FE attended the ‘EXYARD’ at 2:44pm.979 We could not identify a log recording when FE left the external exercise yard, but possibly approximately 3.10pm. [1297] FE spoke with a Youth Justice Co-responder at 3:10pm as part of a welfare check.980 The case note of the visit records that:981 (a) the visit took place at 3:10pm; (b) FE seemed to be in a ‘very god [sic, good] headspace, raising no concerns’; (c) Watchhouse staff advised that FE had been well-behaved and ‘NIL concerns or worries’ and that there was ‘nil self-harm or suicide ideation thoughts’. [1298] FE was interviewed by Child Safety between 4:20pm and 5:41pm.982 [1299] FE met with his mother between 7:38pm and 8:12pm.983 [1300] FE spent time in the EXYARD, commencing at an unknown time (but plainly after 8.12pm) and ending at 9:41pm.984 [1301] A log at 11:55pm records during a cell check that FE shouted at staff: ‘What’s the time you old fucking cunt’.985 [1302] No complaints or problems were reported in respect of cell checks overnight.986 973 B4859-B4861. 974 B4859. 975 B4943 (Watchhouse Occurrence Sheet). 976 B4859. 977 B4859. 978 B4857-B4858. 979 B4856. 980 B4856. 981 B6482. 982 B4855, B4818. 983 B4818. 984 B4854. 985 B4854. 986 B4853. -- 176 of 202 -- 177 25 February 2022 [1303] Breakfast was provided at 7:36am.987 [1304] A record at 7:41am records that FE refused a visit from YETI.988 [1305] ‘Extra breakfast of toast’ was provided at 8:23am.989 [1306] Between 9:13am and 9:16am, FE met with his lawyer.990 [1307] No issues were identified on an independent inspection of all prisoners by a Senior Sergeant recorded at 9:37am.991 ‘Cell Watch’ attended to see persons in custody992 but without a corroborating record we are not satisfied that its representative met with FE. [1308] Between 10:41am and 10:50am, FE attended an interview with ‘CYFOS’ (we assume, Child and Youth Forensic Outreach Service).993 At 11:00am FE attended a session with Key Counselling for 33 minutes.994 We could not locate a record of the details of that meeting. [1309] FE spent time in internal exercise yard ‘MXA’, commencing at an unknown time (but after 11.33am) and returning to his cell at 12:11pm.995 Lunch was provided at 12:48pm.996 [1310] FE attended an interview in Interview Room 3 between 1:12pm until 1:29pm.997 The reason was identified as ‘YP RIC’ (it was possibly a court attendance via video link). [1311] FE was transferred to the EXYARD at 2:31pm (the duration is not identified in the records).998 A log at 2.34pm records: ‘Visit to cell area by PLO Joseph BANU – to check on welfare of [FE]’.999 [1312] A welfare check was conducted by a Youth Worker and a Youth Justice Co-responder at approximately 3:00pm.1000 The case note records that FE informed them that he was ‘feeling stressed’ and kept asking when he would be out. FE was informed that they have been able to make contact with FE’s mother most nights and the next court date was 1 March. The case note also records that FE had no complaints with the Watchhouse or the guards. [1313] Dinner was provided at 5:31pm.1001 987 B4852. 988 B4852. 989 B4851. 990 B4818. 991 B4851. 992 B4951 (Watchhouse Occurrence Sheet). 993 B4850, B4818. 994 B4850. 995 B4849. 996 B4849. 997 B4848. 998 B4848-9. 999 B4848-9. 1000 B6485. There is no detention log record for this visit. 1001 B4848. -- 177 of 202 -- 178 [1314] FE met with his mother between 6:30pm and 7:46pm.1002 [1315] FE spent further time in the EXYARD for an unknown period (but, we infer, after the visit from FE’s mother), finishing at 9:38pm.1003 [1316] No complaints or problems were reported in respect of cell checks at 10.11pm, 10.58pm and 11.46pm (and overnight). 1004 26 February 2022 [1317] FE was offered a shower at 6:07am but refused.1005 [1318] Breakfast was provided at 7:34am.1006 A log at 7:43am records that ‘Showers and toothbrushes provided’.1007 FE was also provided with new clothes which were dropped off by his mother (and his dirty clothes were placed in laundry to be washed).1008 [1319] FE spoke with a Youth Co-Responder through the cell door at 9:09am.1009 A case note of that visit records that:1010 (a) FE was asleep at the time but woke up and briefly engaged with the Youth Co- Responder; (b) FE presented well and did not raise any issues, nor did the Watchhouse staff; (c) the staff advised that FE had been behaving well and following instructions; (d) FE had showered that morning and been given fresh clothes; (e) FE asked when he would be transported to CYDC, and the Youth Co-Responder advised that there were currently no available beds, and FE ‘understood’; (f) FE stated that he had been eating and sleeping well, with ‘NIL suicidal ideation or mention of self-harm’; (g) FE requested that his mother visit him this afternoon and the Youth Co- responder advised that either YCRT or YETI would assist with this request; (h) ‘NIL other issues raised’. [1320] Lunch was provided at 12:26pm.1011 [1321] FE spent time in the EXYARD between 12:57pm and 2:11pm.1012 [1322] FE spoke with a representative of YETI between 4:45pm and 4:57pm.1013 1002 B4819. 1003 B4846. 1004 B4844-6. 1005 B4844. 1006 B4844. 1007 B4844. 1008 B4844 1009 B4843. 1010 B6488. 1011 B4842. 1012 B4841-2. 1013 B4841. -- 178 of 202 -- 179 [1323] Dinner was provided at 5:23pm.1014 [1324] FE was transferred to another juvenile cell at 10.05pm.1015 [1325] No complaints or problems were reported in respect of cell checks at 10.05pm, 10.55pm and 11.43pm (and overnight).1016 27 February 2022 [1326] FE was offered and refused a shower at 6:03am.1017 Breakfast was provided at 7:06am.1018 A toothbrush is recorded as being provided at 7:07am and 9:00am.1019 [1327] FE met with a Youth Justice representative briefly at 10:33am.1020 A case note of the visit records, amongst other matters that: (a) FE engaged well with him; (b) FE had just woken up from sleep and was currently in the ‘TV room’ with other ‘YP’; (c) FE raised ‘NIL issues’, no mention any self-harm or suicidal ideation’; (d) FE requested that his mother visit again this afternoon; (e) FE mentioned he has been eating and sleeping well; (f) ‘NIL other requests made.’ [1328] We note that the detention logs do not record the visit to the ‘TV room’. [1329] Lunch was provided at 12:43pm.1021 [1330] FE spent time in the EXYARD between 1:05pm and 2:03pm.1022 [1331] FE received a visit from his mother between 7:30pm and 8:19pm,1023 who brought some fresh clothes.1024 [1332] No complaints or problems were recorded for the balance of that day (or overnight).1025 28 February 2022 [1333] FE showered at 6:44am.1026 We could not identify a record of breakfast being provided. 1014 B4840. 1015 B4839. 1016 B4838-9. 1017 B4837. 1018 B4837, B4836. 1019 B4836-7. 1020 B4819. 1021 B4835. 1022 B4835. 1023 B4833, B4819. 1024 B4833. 1025 B4830-3. 1026 B4830. -- 179 of 202 -- 180 [1334] FE spoke with Youth Justice at 11:39am for an unknown period. A case note of the visit records, amongst various matters, that:1027 (a) FE appeared to be in ‘good health’; (b) FE stated that he was fed well; he was being fed good food (and that there were not any issues with this whatsoever); and was playing card games and reading other source of reading books; (c) FE has been having showers but was only recently given his fresh clothes; (d) FE was still feeling really anxious about not being able to get a bed yet in any detention centre and stated that he just wanted to get out of the watchhouse (and noted the various issues about FE being tormented about the car accident, having to put on a straitjacket as a dress, and the alleged threat to hurt him); (e) there was a discussion books about First Nations history being left with the Watchhouse staff for FE to read; (f) FE stated that he has been reading the books that have been in there. [1335] FE spent time in the EXYARD from 2:03pm to 2:24pm.1028 [1336] At 17:02pm, FE spoke to a representative of the Office of the Public Guardian by telephone, in which FE expressed concerns about going to CYDC.1029 [1337] FE spoke to ATSILS by telephone at 5:11pm, for an unknown duration.1030 [1338] Dinner was provided at 5:35pm.1031 [1339] FE was visited by [name withheld] of Key Counselling at 7:10pm (for an unspecified duration);1032 and by his mother between 7:12pm and 8:20pm.1033 [1340] No complaints or problems were recorded for the balance of that day (or overnight).1034 1 March 2022 [1341] FE was provided with a change of clothing at 6.30am.1035 An independent inspection carried out by a Senior Sergeant at 7:35am reported ‘Nil issues’.1036 FE was offered a shower and provided with a toothbrush at 8:37am and 8:38am respectively.1037 Breakfast was provided at 8:39am.1038 [1342] Lunch was provided at 12.25pm.1039 1027 TH-181, B6495. 1028 B4828. 1029 B4827. 1030 B4827. 1031 B4827. 1032 B4826. 1033 B4826, B4819. 1034 B4823-5. 1035 B4823. 1036 B4822. 1037 B4822. 1038 B4821. 1039 B4820. -- 180 of 202 -- 181 [1343] FE met with his mother and a YETI representative between 1:00pm and 1:15pm.1040 [1344] At 1:54pm a Youth Co-Responder advised that FE’s mother asked whether a police liaison officer would be able to assist with the escort to CYDC due to a concern held that police would switch off their bodycams and assault FE enroute to CYDC.1041 [1345] A Youth Justice case note refers to FE declining a visit. It is unclear when the visit occurred, save that we infer that it was prior to 3.06pm.1042 The case note reports ‘Nil concerns raised by QPS …’. [1346] DC was transferred to CYDC at 3:36pm. Conclusion [1347] Having regard to the evidence in respect of FE’s eighth stay: (a) it was reported that FE was ‘feeling stressed’ on 25 February 2022 and feeling ‘really anxious’ on 28 February 2022; (b) however, the case notes do not record any observation or report by the maker of the note of FE exhibiting any adverse or dysregulated behaviour. There was no note of suicidal ideation or self-harm. Rather, the notes included positive reports of FE, such as FE appearing to be in ‘good physical and mental health condition’ (on 19 February 2022); being in ‘good spirits’ (on 21 February 2022); being in a ‘very good headspace’ (on 24 February 2022); having ‘presented well’ (on 26 February 2022); and appearing to be in ‘good health’ (on 28 February 2022). FE had the support of his mother (each day, other than on 18 September 2022 and 26 September 2022) (and his grandmother on 18 September 2022 and 22 September 2022);1043 (c) FE’s report of feeling stressed on 25 February 2022 was preceded by a variety of activities as addressed at paragraphs [1306] to [1311] above, including time spent in an internal exercise yard and in the external exercise yard. If (as appears to be the case) FE was further remanded in custody earlier that day, that appears to be the most likely reason for any feeling of stress. In any event, we cannot attribute the stated feeling of stress to any of the imposed terms during that stay; (d) as to the report on 28 February 2022 of a feeling of anxiety, in the context of case note, it appears to have been attributed by FE to the car accident being raised with him. The stated feeling of anxiety does not appear to have manifested itself in any reported observable behaviour. Subsequent to this visit, FE spent time in the external exercise yard from 2:03pm to 2:24pm. FE also spoke to a representative of the Office of the Public Guardian (during which he expressed concerns about going to CYDC); FE spoke to a representative of ATSILS by telephone; FE was visited by [name withheld] of Key Counselling; and he was visited by his mother. No evidence was called from any of those persons about FE’s state of mind or outward behaviour. On the state of the evidence, we are satisfied that FE was feeling a state of anxiety in relation to remaining in the Watchhouse and that this was possibly attributable to concerns about further comments by Watchhouse officers about the car accident. There 1040 B4820. 1041 B4820. 1042 B6498-99. 1043 We note Dr Beech’s evidence of the protective effect of family support. -- 181 of 202 -- 182 is no evidence that this state persisted for any identifiable period of time, nor that it had any outwardly observable impact on FE. [1348] In conclusion, we are not satisfied, on the balance of probabilities: (a) FE suffered any adverse state or disadvantage during this stay1044 that was attributable to any of the terms imposed and, even if he had, the evidence is not such as demonstrates that FE suffered serious disadvantage; (b) FE was not able to comply with the terms imposed on him during FE’s eighth stay. [1349] We reach this conclusion without needing to make a finding as to whether the stress or anxiety was experienced by FE a result of a psychological disorder or condition such as FE’s severe conduct disorder, or post-traumatic stress disorder, or some unspecified ‘mental health issue’, rather than by reason of the characteristics of the attribute of age (childhood). FE’s ninth stay [1350] FE was detained from 12:30pm on 24 March 20221045 until 5.33am on 29 March 2022 (‘FE’s ninth stay’).1046 The stay was over a period of 5 nights, and approximately 4 days 17 hours (counting 24 hours as a day). 24 March 2022 [1351] Video footage taken of FE’s induction shows him to be compliant, but mostly silent and impassive. According to the detention logs he appeared fit for custody,1047 and did not appear unwell.1048 [1352] FE declined a visit from YETI.1049 [1353] Dinner was provided at 5:30pm.1050 [1354] No complaints or problems were subsequently reported (including overnight).1051 25 March 2022 [1355] FE refused a shower at 6:43am.1052 Breakfast was provided at 7:15am.1053 [1356] FE had an interview with ATSILS between 7:38am and 7:52am.1054 FE refused to speak with YETI at 7:56am.1055 1044 Including the reported behaviour such as the isolated abusive language of FE on the nights of 22 February 2022, 23 February 2022 and 24 February 2022 (and his apparent involvement in the throwing of food on 22 February 2022). 1045 B5059. 1046 B4999. 1047 B5058. 1048 B5057. 1049 B6528. 1050 B5054. 1051 B5051-3. 1052 B5050. 1053 B5050. 1054 B5049, B4999. 1055 B5049, B6528. -- 182 of 202 -- 183 [1357] FE spent time in an internal exercise yard ‘MXB’, commencing at an unknown time (but sometime after 7.56am) and finishing at 11:23am.1056 [1358] Lunch was provided at 12:51pm.1057 [1359] FE attended the ‘EXYARD’ commencing at 1:23pm.1058 [1360] FE attended court from 1:40pm until 2:23pm1059 and a log records that FE was ‘RIC’ (remanded in custody).1060 [1361] FE again spent time in the EXYARD, finishing at 3:47pm (the start time is not recorded).1061 [1362] Dinner was provided at 5:17pm.1062 [1363] An independent inspection by then Acting Inspector Gardiner at 6:03pm with the notation ‘all inspected’.1063 [1364] No complaints or problems were reported in respect of cell checks for the balance of that day (and overnight).1064 26 March 2022 [1365] Breakfast was provided at 7:27am.1065 [1366] Youth Justice attended at 7:53am to see ‘juveniles in custody’.1066 There is no case note for Youth Justice indicating that Youth Justice met with FE and we are not satisfied a meeting occurred with FE. [1367] There was an attempted phone call to FE’s mother at 4.34pm but ‘no answer’.1067 [1368] Dinner was provided at 4:57pm.1068 [1369] An independent inspection by an Acting Inspector occurred at 5:05pm with the notation ‘all spoken to’.1069 [1370] FE met with his ‘GRANDPARENT’ between 5:34pm1070 and 6:32pm.1071 [1371] No complaints or problems were reported in respect of cell checks for the balance of that day (and overnight).1072 1056 B5048. 1057 B5047-8. 1058 B5047. 1059 B5047. 1060 B4999, B5046-7. 1061 B5044. 1062 B5043-4. 1063 B5043. 1064 B5040-3. 1065 B5040. 1066 B5076. 1067 B5032. 1068 B5032. 1069 B5031. 1070 B5031. 1071 B4999. 1072 B5028-31. -- 183 of 202 -- 184 27 March 2022 [1372] Breakfast was provided at 7:52am.1073 Toothbrushes were provided at 9.06am.1074 [1373] An independent inspection by an Acting Inspector occurred at 5:05pm with the notation ‘all inspected’.1075 [1374] Lunch was provided at 12:35pm.1076 [1375] No complaints or problems are recorded in respect of cell checks between 12.36pm and 4.34pm.1077 [1376] A log at 5:04pm records that dinner was provided and that ‘J2’ was ‘abusive and threatening officers whilst handing out dinners’.1078 We assume ‘J2’ is a reference to FE. Notwithstanding the earlier interaction, at 5.06pm there is a record of ‘extra jelly/cake provided with dinner’. [1377] FE had a telephone call with his mother at 5:47pm.1079 [1378] A log records a visit from a Youth Co-Responder, at 7:02pm.1080 A case note of the visit recorded that:1081 (a) the visit was at 6.30pm; (b) FE was in a cell with another young person; (c) FE seemed to be in a good mood, advising he was ‘just bored’; (d) FE asked when his grandmother was coming in; (e) FE raised no issues for YCRT to pass on; (f) the Watchhouse staff advised that FE had not showered this morning due to them being too busy but FE would be able to shower tomorrow morning; (g) the Watchhouse staff advised that they were currently too busy for FE’s grandmother to visit but she would be able to visit tomorrow. [1379] Under the heading ‘Welfare concerns’ it was recorded: Watchhouse staff advised there were NIL concern’s [sic] with [FE]. [FE] showed no signs of suicide ideation thoughts or nil self-harm thoughts. [1380] No complaints or problems were reported in respect of cell checks for the balance of that day (and overnight).1082 1073 B5027. 1074 B5027. 1075 B5027. 1076 B5026. 1077 B5018-26. 1078 B5018. 1079 B5017. 1080 B5017. 1081 B6530. 1082 B5014-6. -- 184 of 202 -- 185 28 March 2022 [1381] A shower was provided at 7.27am.1083 [1382] FE met with a representative of YETI between 7:42am and 7:45am.1084 [1383] An email from the YETI representative reported, amongst other matters:1085 (a) that FE had had regular visits from his grandmother and had spoken to his mother via phone; (b) SEWB check with FE: ‘nil concerns raised’; (c) FE requested that Krystal from Youth Justice visit him. [1384] Breakfast was provided at 8.20am.1086 [1385] An independent inspection of the Watchhouse by a Senior Sergeant recorded in a log at 8.40am reported ‘Nil issues identified’.1087 [1386] Between 10:34am and 11:03am FE met with a Youth Justice representative.1088 [1387] FE was supplied with clean clothes, and his clothing taken for laundering, at 11:42am.1089 [1388] Lunch was provided at 1.06pm.1090 [1389] FE met with Youth Justice again between 4:10pm and 4:53pm.1091 The case note of that visit recorded that:1092 (a) FE did not report any concerns and reported that he thinks it is better when there are other young people there so he has someone to talk to; (b) he said he preferred to go to Brisbane Youth Detention Centre but accepted it was better to be sent to any detention centre than have to stay in the Watchhouse. [1390] Dinner was provided at 5:42pm.1093 [1391] FE had a telephone call with his mother at 7:36pm.1094 [1392] No complaints or problems were reported in respect of cell checks for the balance of that day (and overnight).1095 1083 B5013. 1084 B5013. 1085 B6533. 1086 B5012-13. 1087 B5012. 1088 B5012, B4999. 1089 B5011. 1090 B5011. 1091 B56535-6. 1092 B4999, B5010. 1093 B5010. 1094 B5002. 1095 B5000-2. -- 185 of 202 -- 186 29 March 2026 [1393] Breakfast was provided at 4:47am, and a toothbrush was refused.1096 [1394] FE was transferred to CYDC that morning by air transport departing the Watchhouse at 5.33am.1097 Conclusion [1395] Having regard to the evidence in respect of FE’s ninth stay: (a) the stay appears to have been almost entirely uneventful; (b) there was an isolated outburst of abusive language by (we assume) FE on the evening of 27 March 2022; (c) however, within two hours a Youth Co-Responder reported that FE seemed to in a good mood and Watchhouse staff advised there were ‘nil’ concerns with FE and FE raised no issues (although FE did state that he was ‘bored’); (d) no subsequent issues or concerns were reported; (e) we are not satisfied, on the balance of probabilities, that FE: (i) suffered any adverse state during this stay that was attributable to any term imposed on FE, much less that he suffered any serious disadvantage; (ii) was not able to comply with the terms imposed on him during FE’s eighth stay. FE’s tenth stay [1396] FE was detained from 6:11pm on 28 May 20221098 until 6:30am on 31 May 2022 (‘FE’s tenth stay’).1099 The stay was over a period of 3 nights, and approximately 3½ days (counting 24 hours as a day). FE was approximately 14½ years old at the commencement of this stay. 28 May 2022 [1397] FE was assessed as appearing fine and well at 6:20pm.1100 [1398] No complaints or problems were reported in respect of cell checks for the balance of that day (and overnight).1101 29 May 2022 [1399] FE was offered a shower at 6:32am1102 and breakfast and a toothbrush were provided at 6:48am to 6:50am respectively.1103 1096 B5000. 1097 B4997 – B5001. 1098 B5059. 1099 B5143, B5144. 1100 B5166-7. 1101 B5162-4. 1102 B5161. 1103 B5161. -- 186 of 202 -- 187 [1400] A log at 10:20am records an independent inspection of all prisoners by a Senior Sergeant took place, with the notation ‘no issues identified’.1104 [1401] FE attended the EXYARD between 1:35pm and 2:58pm.1105 [1402] A log at 2.58pm contains the notation: ‘APPEARS FINE AND WELL. ANSWER NO TO ALL QUESTIONS.’1106 [1403] A Youth Co-Responder visited FE for a welfare check. A case note of that visit reported that it took place at 2.30pm. However, having regard to the detention logs and the content of the case note, we infer that it must have taken place at approximately 3.00pm. The case note recorded, amongst other matters, that:1107 … [FE] had just been moved back to his cell after being in the yard, WH Staff advised that [FE] had been well today, however, had started being disruptive. [FE] was currently sharing a cell with another YP; however, no issues were raised around this. [FE] stated that had eaten and had slept well ... [FE] began to shout and sing whilst I was present and continued to be disruptive before coming back down and engaging. NIL signs of being drug affected/ coming down from drugs. NIL mention of suicidal ideation nor self-harm. [FE] requested his mother visit and bring him fresh clothes and I agreed to follow this request up. NIL other issues or requests at time of visit. [1404] No complaints or problems were subsequently reported until 9:57pm1108 at which time it was reported that FE spat at an officer through the cell door, saying ‘fuck off you fat cunt’.1109 [1405] No complaints or problems were reported in respect of cell checks for the balance of that day (and overnight).1110 30 May 2022 [1406] FE declined a visit with YETI at about 7.00am.1111 [1407] FE was offered but declined a shower at 7:18am.1112 [1408] FE met with a Youth Justice Co-responder between 8:08am and 8:37am for a welfare check.1113 A case note of that visit reported that:1114 (a) FE presented well, was in a cell by himself and was ok with this; (b) FE’s mother was currently unwell and could not visit and FE acknowledged this; (c) FE requested that his mother visit when she was feeling better and deliver fresh clothes; 1104 B5160. 1105 B5158-9 1106 B5157-8. 1107 B6553. 1108 B5155-8. 1109 B5156. An identical record is reported at 10.00pm (B5156). 1110 B5154-5. 1111 B6556. 1112 B5153. 1113 B5143, B5152. 1114 B6558. -- 187 of 202 -- 188 (d) FE did not raise any issues, no mention of self-harm or suicidal ideation; (e) FE had been eating and sleeping well; (f) ‘NIL other requests’. [1409] Breakfast and a toothbrush were provided at 8:38 and 8.39am respectively.1115 [1410] Lunch was provided at 12:47pm.1116 [1411] FE attended court by video between 2:38pm and 2:56pm.1117 FE declined a visit from YETI, but no concerns were raised by the Watchhouse.1118 [1412] No complaints or problems were reported in respect of cell checks for the balance of that day (and overnight).1119 31 May 2022 [1413] FE refused a shower when offered at 5:05am.1120 FE was provided with breakfast at 5:18am but refused a toothbrush.1121 [1414] FE departed the Watchhouse to CYDC at 6:30am. Conclusion [1415] Having regard to the evidence in respect of FE’s ninth stay: (a) the stay appears to have been largely uneventful; (b) on 29 May 2022: (i) it was reported that FE had started being ‘disruptive’ (no details are provided); (ii) FE started shouting and singing during the visit by the Youth Co- responder ‘before coming back down and engaging’; (iii) there was an isolated instance of abusive language by FE towards a Watchhouse officer reported that night; (c) at approximately 8.30am the next morning it was reported that: (i) FE ‘presented well’, was in a cell by himself and was ‘ok’ with this; . (ii) FE did not raise any issues, and had been eating and sleeping well; (iii) there was no mention of self-harm or suicidal ideation; (d) no subsequent complaints, problems or issues were reported and FE left the Watchhouse early on the morning of 31 May 2022; (e) we are not satisfied, on the balance of probabilities, that FE: 1115 B5152. 1116 B5151. 1117 B5143. 1118 B6556. 1119 B5145-7. 1120 B5145. 1121 B5144. -- 188 of 202 -- 189 (i) suffered any adverse state or disadvantage during this stay that was attributable to any term imposed on FE, much less that FE suffered any serious disadvantage; (ii) was not able to comply with the terms imposed on him during FE’s eighth stay. [1416] We reach this conclusion without needing to make a finding as to whether the catalyst for FE’s disruptive behaviour was a psychological disorder or condition such as FE’s severe conduct disorder or some unspecified ‘mental health issue’, rather than by reason of the characteristics of the attribute of age (childhood). [1417] It follows that, in respect of each and all of FE’s stays, FE has failed to establish that the Respondent contravened s 11 of the ADA, and his claim of indirect discrimination must be dismissed. [1418] Notwithstanding our conclusion that each Applicant’s claim of indirect discrimination should be dismissed for the reasons set out above, for completeness, we will consider the balance of the elements of the claim. Higher proportion of people without the attribute comply/able to comply? [1419] This element requires that a higher proportion of people without the attribute comply or are able to comply with the term or terms imposed.1122 The provision calls for a comparison between a ‘base group’ and a ‘comparator group’.1123 We consider that the base group comprises adults detained in custody by the Queensland Police Service at the Watchhouse and the comparator group comprises children detained in custody by the Queensland Police Service at the Watchhouse. [1420] We note the Respondent’s concession in respect of this element is identified at paragraph [27] of the PJM reasons. We consider this element to be established. Is each of the imposed terms reasonable? Introduction [1421] The Respondent bears the onus of proof on this issue. The Applicants’ primary contention on this issue is that reasonableness must be considered in the context that the State, by the Commissioner of Police, breached: (a) s 56(4) of the YJA; and (b) the Youth Justice principles contained in the YJA, in particular Principle 19. [1422] If we have correctly understood the Applicants’ position taken in closing addresses, the Applicants did not contend that the detention of the Applicants was unlawful.1124 [1423] Mr Scott KC submitted:1125 Can I then again – a little bit out of order, but it’s also important because it’s important to be very clear about what our case is. My note of what Mr Murdoch said about our case regarding reasonableness and the relationship to what we 1122 ADA, s 11(1)(b). 1123 See, e.g. State of Queensland v Forest (2008) 168 FCR 532, [7]. 1124 Contrast the Applicants’ written closing submissions, [116] and [118] (including the heading). 1125 30.05.25: T1-86 line 45 – T1-87 line 22. -- 189 of 202 -- 190 say is breach of the Youth Justice Act, this is my note. He said, “Our” – I think he said: “Our case is that the detention was unlawful, therefore, the terms were unreasonable.” We don’t say the detention was unlawful and we don’t say that because of the careful distinction we seek to draw between unlawful detention - - - MEMBER MURPHY: And conditions. MR SCOTT: - - - and conditions, and in particular the conditions that are relevant here are, firstly, a breach of section 56, that is, the requirement to deliver the children to the custody of the chief executive as soon as practicable. It’s not a contention that the detention was unlawful. It’s a breach of that requirement of delivery. Secondly, breach of the Youth Justice principles, and that is that there’s been – our case is there’s been a breach of the Youth Justice principles which doesn’t render the detention unlawful, just that it’s been a breach of those provisions that contribute to the position that the conditions were unreasonable. And as to that, it’s important that whatever might be said about the examples given at paragraph 365 of the respondent’s outline about various circumstances in which someone can be held in a watch-house, they don’t answer the proposition that even if they’d been lawfully held in a watch-house and not delivered to a chief executive – to the chief executive pursuant to 56 that there is still a problem for the respondent in terms of contravention of the Youth Justice principles . [1424] The Applicants rely upon observations by Gleeson CJ in Behrooz recorded by the Presiding Judicial Member at [301]-[303] of his reasons. [1425] We respectfully adopt the analysis of Behrooz by the Full Federal Court in Azimitabar v Commonwealth.1126 The Court concluded, relevantly:1127 What may be observed from the way in which members of the High Court put the point is that close attention must be paid to what renders detention lawful, or unlawful, and that the identification of some element of illegality associated with detention does not, of itself, render the detention unlawful on the basis that it is no longer “immigration detention” under the Act … [1426] We now turn to the alleged breach of s 56(4) of the YJA. Breach of s 56(4) of the YJA? [1427] Subsection 56(4) of the YJA provided: A court that remands a child into the custody of the chief executive must order the commissioner of the police service to deliver the child as soon as practicable into the custody of the chief executive. [1428] A threshold question concerns the operation of s 415 which was introduced with retrospective effect. This is addressed in the Presiding Judicial Member’s reasons at [293]-[313]. As the Presiding Judicial Member observes, there is no issue that s 415 cures any failure of a court to make an order under s 56(4), with the consequence that 1126 (2024) 303 FCR 282, [121]-[126]; Special leave to the High Court refused: [2024] HCASL 236. 1127 At [126]. -- 190 of 202 -- 191 there was lawful authority to detain each of the Applicants despite no order having been made under that provision.1128 [1429] We also agree that s 415 ‘leaves intact the conditions on detention mandated by the s 56(4) orders which the section assumes have been made’.1129 [1430] In addressing the parties’ submissions in relation to the alleged breach of s 56(4), it is convenient to commence with an examination the process for placement of children in custody. [1431] During the claim period, s 262 of the YJA provided: The Governor in Council may, by regulation— (a) establish detention centres and other places for the purposes of this Act; and (b) determine the purpose for which a place (other than a detention centre) may be used; and (c) name a detention centre or other place . [1432] During that period, the Watchhouse was not named a detention centre for the purposes of the YJA by Regulation.1130 The Regulation also did not name the Watchhouse as an ‘other place’ for the purposes of the YJA. [1433] During the claim period, s 265 of the YJA provided: (1) The chief executive must decide the detention centre at which a child ordered to be detained or remanded in custody is to be detained. (2) The chief executive may direct that a child detained in a detention centre be transferred to another detention centre. [1434] Subsection 56(6) provided: Subject to subsection (7), the chief executive may keep a child mentioned in subsection (4) who is in the chief executive’s custody in places that the chief executive determines from time to time. [1435] A question arises as to whether s 56(6) permitted the Chief Executive to keep a child remanded into custody in a ‘place’ other than a detention centre (or other ‘place’ established by Regulation), but excluding a prison.1131 We consider it unnecessary to decide this question because we consider that a pre-condition to the making of that determination is that the child must be ‘in’ the Chief Executive’s custody. As to when this occurs was made clear by s 56(5) which provided: A child held by the commissioner of the police service under an order made under subsection (4) is— (a) before being delivered to the chief executive—in the custody of the commissioner of the police service; and (b) after being delivered to the chief executive—in the custody of the chief executive. 1128 Reasons [302]. 1129 Reasons [311]. 1130 See Youth Justice Regulation 2016 (Qld) (‘the Regulation’), s 9 and Schedule 1. 1131 YJA, s 56(7). -- 191 of 202 -- 192 [1436] In the present case, there is no evidence that any of the Applicants was delivered ‘to’ (into the custody of) the Chief Executive before being detained at the Watchhouse during each of the stays. The evidence supports a contrary conclusion. [1437] The next question is whether each Applicant, for each of the stays, was delivered ‘as soon as practicable’ into the custody of the Chief Executive. [1438] The Applicants submit that: (a) s 56(4) requires the Commissioner of Police to ‘deliver’ the Applicants as soon as practicable and does not refer to the practicality of the Chief Executive ‘receiving’ the Applicants into custody:1132 (b) ‘The provision does not permit the Chief Executive to avoid receipt of child because the Chief Executive regards that as impracticable, nor does it permit the Commissioner to acquiesce to such avoidance by the Chief Executive.’1133 [1439] The Respondent submits the question of whether timing of ‘as soon as practicable’ involves a ‘fact-driven exercise which must be informed by the evidence’.1134 [1440] As to the phrase ‘as soon as practical’, we respectfully adopt the following observations of Andrews CJ (with whom McPherson J, as his Honour then was, agreed) in Wills v Whiteside; ex parte Wills1135 (in relation to the use of that phrase in s 16 of the Traffic Act 1949-1984 (Qld)): … It is my clear view that “as soon as practicable” does not mean “as soon as possible”. There is a plain distinction in meaning between these phrases according to the ordinary usage of the terminology involved. Although the terms in each phrase are not terms of precise meaning it is plain enough that “as soon as possible” in the ordinary course of events means something different from “as soon as possible”. In my view the former phrase applies a more stringent requirement of the person making the appropriate request … [1441] In Al-Kateb v Godwin,1136 Gummow J said, in relation to the phrase ‘as soon as reasonably practicable’ in s 198 of the Migration Act 1958 (Cth): … there is a temporal element, supplied by the phrase "as soon as". The term "practicable" identifies that which is able to be put into practice and which can be effected or accomplished. The qualification "reasonably" introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme. [1442] Having regard to the language of s 56, in the context of the YJA as a whole (including Principle 19), we consider that what must be done ‘as soon as practicable’ is the physical delivery of the child from the Commissioner of Police into the custody of the Chief Executive. Contrary to the Applicants’ first submission, we consider that such delivery entails a logistical exercise involving both the Commissioner of Police and the Chief Executive. However, we consider that matters such as an upcoming Court appearance or the unavailability of a bed at the Cleveland Youth Detention Centre (or another detention centre) are not material to the practicability of Commissioner of 1132 Applicants’ Outline of Closing Submissions, [119]. 1133 Ibid, [120]. 1134 State’s Outline of Closing Submissions, [148]. 1135 [1987] 2 Qd R 284, 288. 1136 (2004) 219 CLR 56. -- 192 of 202 -- 193 Police causing the child to be physically handed over to a representative of the Chief Executive following a Court remanding the child into custody. The logical extension of the Respondent’s argument concerning the availability of a bed in a detention centre is that if a bed did not become available for, say, three months, the Commissioner of Police could hold a child in the Watchhouse for that period, with the consequential imposition of relevant terms during that time, without breaching s 56(4). Such an outcome would be at odds with the objects of the YJA. [1443] Was each Applicant delivered into the custody of the Chief Executive as soon as practicable for each stay? [1444] We have rejected the Respondent’s argument in relation to practicability encompassing an upcoming Court appearance or the unavailability of a bed in a detention centre. We note that, other than FE’s first stay, each stay for each Applicant was for a minimum of two nights. In our view, on the basis of the evidence adduced, save for the following circumstances, we are not satisfied that each of the Applicants was physically delivered to the Chief Executive as soon as practicable, as required by s 56(4) of the YJA. With respect to each stay of each Applicant, we consider that some period of time would have been required to prepare paperwork and make arrangements for the delivery of an Applicant to the Chief Executive. We consider that this would likely take a number of hours and, in the case where an Applicant was remanded mid to late afternoon or at night, it may, practically, require an overnight stay. However, other than for such periods: (a) we are not satisfied that the Respondent delivered each Applicant to the Chief Executive as soon as practicable; (b) we find that the Respondent breached s 56(4) in respect of each Applicant, for each stay. [1445] In our view, the breaches of s 56(4) did not render as unlawful the detention or custody of each Applicant during the stays. However, in circumstances where the breach of the YJA had the result that each Applicant continued to be held in the Watchhouse, we consider that the breaches are material to, but not determinative of, an assessment of whether each of the terms imposed during such stays was reasonable. In our view, the breaches of s 56(4) the YJA fall within the ambit of ‘the relevant circumstances of the case’ contemplated by s 11(2) of the ADA. Breach of youth justice principles? [1446] We respectfully agree with the Presiding Judicial Member that Principle 19 of the YJA (and, we add, Principle 21 of Schedule 1 to the YJA1137) is not an operative provision.1138 There was no contravention of the YJA as a result of the failure to abide by Principle 19 (or Principle 21). [1447] However, we consider that ss 56 and 265 of the YJA reflect Principle 19. We consider that, as with the breaches of s 56(4), a failure to abide by Principle 19 is also material to, but not determinative of, an assessment of whether each of the terms imposed during such days was reasonable. 1137 This was raised in oral closing submissions during an exchange with the Tribunal: 30.05.25 T1-30 lines 4-7. However, this argument was not further developed by the Applicants. 1138 PJM reasons [313]. -- 193 of 202 -- 194 Was each of the imposed terms reasonable? [1448] In our view, reasonableness must be adjudged by reference to the individual terms that were (as we have formulated them) imposed on each Applicant.1139 We discuss below whether the terms found to be imposed limited each Applicant’s human rights and whether any limitations were reasonable and demonstrably justified (which we will refer to as ‘justified’).1140 Although we are cognisant of the different tests to be applied in s 11(1)(c) of the ADA and s 13 of the HRA (noting that the Respondent bears the onus of proof in each case), our findings below in relation to whether a limitation was reasonable and justified (for the purposes of s 13 of the HRA) also support a conclusion that the Respondent has failed to establish that an imposed term (or an aspect of a term) was not reasonable for the purposes of s 11(1)(c) of the ADA. The breach of s 56(4) of the YJA and the failure to act consistently with Principle 191141 are, in our view, relevant to a consideration of both s 11(1)(c) and s 13. We also observe, without deciding the point, that a finding of unlawfulness under s 58(1)(a) of the HRA arising out of an imposed term may be relevant to a consideration of reasonableness under s 11(1)(c) of the ADA. [1449] We find that the Respondent has failed to establish, on the balance of probabilities, that the each of the following terms (or an aspect of a term) was reasonable for the purpose of s 11(1)(c) of the ADA: (a) detention in cells with no windows and no direct natural light ([500]-[502]); (b) limited privacy when using the toilet whilst other children were present in the cell ([512]-[513]); (c) hearing loud noises from adults in the Watchhouse due to proximity ([522]- [523]); (d) ability of the Applicants to converse with adults in the Watchhouse ([524]- [526], [528(b)]); (e) access to the exercise yards ([566]); (f) the provision of appropriate educational materials or resources ([567]); (g) changing clothes ([577]); (h) provision of pro-social activities ([580]); (i) the detention of FE in the padded cell on 17 October 2021 ([582(c)], [1484]); (j) the lack of cleaning of the walls to a hygienic state ([595]); and (k) the lack of information provided about transfer to a youth detention centre ([607(a)]). 1139 Cf PJM reasons [322]. 1140 We note that the HRA refers to ‘demonstrably justified’ in s 13(1) but refers to ‘demonstrably justifiable’ in s 8(b) (and ‘justifiable’ in s 13(2)). We consider that nothing material turns on the different language (at least in the circumstances of the present case). 1141 Subject to our findings at [1444] above. -- 194 of 202 -- 195 Has the Respondent established that the exemption under s 106 of the ADA applies? [1450] We respectfully agree with the reasons of the Presiding Judicial Member at [341]- [345] that the Respondent has failed to make out an exemption under s 106 of the ADA. Summary [1451] For the reasons set out above, we find that: (a) each of the Applicants had the attribute of ‘age’ and the characteristics identified at paragraph [625] above; (b) each of the Applicants has failed to establish, on the balance of probabilities, for each and all of his stays, that he was not able to comply with the terms found to be imposed on him; (c) s 11(1)(a) of the ADA is not satisfied for any Applicant; (d) each Applicant’s claim of indirect discrimination must be dismissed. [1452] For completeness, we find that the Respondent failed to establish that: (a) the terms (or aspects of the terms) identified at [1449] above were reasonable; (b) the exemption under s 106 of the ADA applied. THE HUMAN RIGHTS CLAIMS The ‘piggyback’ aspect of these claims [1453] Although the Applicants’ claims under the ADA have failed, this does not preclude the Applicants from seeking declaratory or injunctive relief1142 on the ground of unlawfulness under s 58(1) of the ADA, provided that the basis for relief of the ADA claims is bona fide and arguable.1143 We find that to be the case. We note that the Respondent accepted success on the HRA claims only was ‘theoretically’ available.1144 The Applicant submitted that such an outcome was open to the Tribunal.1145 Applicable provisions [1454] We respectfully adopt the principles identified by the Presiding Judicial Member at PJM reasons [367]-[369], [373]-[376], and [378]-[383]. [1455] We consider that the starting point is to identify whether the Applicants’ case involves the Respondent (by the Commissioner of Police) acting in a way that is not compatible with human rights or making a decision in a way that is not compatible with human rights (or both). 1142 As to the Tribunal’s powers in this regard, see ss 59 and 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). 1143 HRA s 59(2); Chief Executive, Department of Environment, Science and Innovation v Nagana Yarrbayn Wangan and Jagalingou Cultural Custodians Ltd [2026] QCA 7, [171] (Doyle JA; Mullins P and Boddice JA agreeing). 1144 30.05.25 T1-85 line 44 – T1-86 line 6. 1145 30.05.25 T1-86 lines 24-29. -- 195 of 202 -- 196 Acting or making a decision? [1456] An act, decision or statutory provision is compatible with human rights if it does not limit a human right or limits a human right only to the extent that is reasonable and justified in accordance with s 13.1146 [1457] This case does not involve a challenge to a statutory provision. [1458] The HRA draws a distinction between acts and decisions of public entities.1147 The distinction is clearly drawn in s 58. It is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights.1148 However, a further ground of unlawfulness in s 58(1)(b) is limited to making a decision only. [1459] The term ‘act’ is defined to include ‘a failure to act or a proposal to act’.1149 [1460] The term ‘decision’ is not defined in the HRA (or in the Acts Interpretation Act 1954 (Qld)). [1461] The Applicants do not address the above distinction, but we note that the Applicants submit that, for the reasons identified in their closing submissions, the Respondent’s ‘actions’ limited the Applicants’ human rights.1150 The Applicants’ alleged limitations on their human rights appear to rely on the same ‘conditions’ the subject of the indirect discrimination claims.1151 However, the submissions also refer to the detention of the Applicants in the Watchhouse and the conditions imposed therein.1152 [1462] The Respondent initially framed the Applicants’ case as alleging that the Respondent ‘acted’ in a way which was incompatible with the various human rights.1153 However, the Respondent also refers to ‘the decision to detain’ and ‘the act of detention’.1154 [1463] As is the position with respect to the alleged terms in the indirect discrimination claims, we consider that any limitations on the Applicants’ human rights arose from the conditions under which each of them was detained at the Watchhouse during each stay, rather than the ‘decision to detain’ (in circumstances where each of the Applicants had been remanded into custody by a Court and, consequently, was required to be detained). We consider that any limitations on human rights arose out of the operational matters adopted at the Watchhouse, involving either acting or failing to act as the case may be. If s 58(1)(b) of the HRA did arise for consideration, we note that the Respondent did not address the specific issue of whether or not it failed to give proper consideration to a human right relevant to the decision to detain. Rather, it sought to rely upon the operation of s 58(2) of the HRA.1155 [1464] We now address the alleged limitations on the respective human rights. 1146 HRA, s 8. 1147 See ss 8, 58, 59, 63 and 108(2)(b). See also ss 4(b), s 74(1)(b) and 95(4)(b). 1148 HRA, s 58(1)(a). 1149 HRA, s 6, Schedule 1. 1150 Applicants' closing submissions, [170]. 1151 Applicants' closing submissions, [170]-[201], [225]-[227]. 1152 Applicants' closing submissions, [227], see also [168]. 1153 Supplementary Closing Submissions, [5]. 1154 Supplementary Closing Submissions, [18]. See also Closing Submissions [435]. 1155 Supplementary Closing Submissions, [18]; Closing Submissions [435]. -- 196 of 202 -- 197 Section 25(a) – right to privacy [1465] We agree with the Presiding Judicial Member’s finding at [391]. [1466] A person’s right to privacy must not be arbitrarily or unlawfully interfered with. Having regard to the position taken by the Applicants in oral closing submissions, we did not understand the Applicants to contend that their right to privacy was unlawfully interfered with. [1467] Further to the principles identified by the Presiding Judicial Member at PJM reasons [390] and [392], as to arbitrary interference, it was said by Smith J in Bobeldyk & Anor v Moreton Bay City Council; Eichin & Ors v Moreton Bay City Council:1156 Interference will be arbitrary where it is capricious or has resulted from conduct which is unreasonable, unnecessary, and disproportionate to the legitimate aim sought. The test for arbitrariness requires a broad assessment of whether in all the circumstances the interference extends beyond what is reasonably necessary to achieve the statutory or other lawful purpose being pursued by the public authority. (citations omitted) [1468] With respect to showering, we refer to our reasons in relation to the indirect discrimination claims. Insofar as a Watchhouse officer was standing nearby we find that this was reasonably required as a safety measure, particularly given that there was no CCTV (for privacy reasons). To the extent of the limitation on privacy using the showers, we do not consider that extends beyond what was reasonably necessary to achieve the safety measure; it is not unreasonable, unnecessary, or disproportionate to the legitimate aim of safety. Further, even if the right had been limited, we would have found, for the same reasons, that it was reasonable and justified for the purposes of s 13. We add that we have not identified evidence of any complaint of a lack of privacy by BA or FE (in relation to the stays or at all). [1469] With respect to use of the toilet, this involves a limitation on privacy in relation to CCTV and when a cell was shared by an Applicant with another child). Was this limitation arbitrary? [1470] With respect to the CCTV, we consider that CCTV is a necessary and obvious security and safety measure. The examples of DC’s attempted self-harm demonstrate the need for constant surveillance. A dignity wall is provided such that only the top of a young person is captured on CCTV whilst the toilet is being used. We also note the evidence of FE that there was a camera in the cells of the Cleveland Youth Detention Centre and the camera was on whilst using the toilet in those cells.1157 In all the circumstances, we are not satisfied that the limitation on privacy posed by the CCTV camera extends beyond what was reasonably necessary to achieve the safety and security measure; it was not unreasonable, unnecessary, or disproportionate to those aims. Further, even if the right had been limited, we would have found, for the same reasons, that it was reasonable and justified for the purposes of s 13. [1471] With respect to the placement of other children in the same cell, we find that there is no safety or security justification (or any other justification) for the limitation on the Applicant’s privacy. We find that it was arbitrary. However, as noted above, any such 1156 [2026] QSC 27, [516]. 1157 01.04.15 T3-9 lines 37-46; T3-18 lines 20-28. -- 197 of 202 -- 198 limitation is only relevant to the occasions on which an Applicant was sharing a cell with at least one other child. [1472] Further, the Respondent has not identified any basis upon which it could be said that the limitation was reasonable and justified pursuant to s 13 of the HRA. We find that it was not reasonable and justified. Section 30(1) – treatment with humanity and respect [1473] We respectfully adopt the principles identified by the Presiding Judicial Member at PJM reasons [407]-[410]. [1474] With respect to the various limitations contended for by the Applicants,1158 adopting our reasons in relation to the various alleged terms in respect of the indirect discrimination claims, we find that each Applicant’s right under s 30(1): (a) was not limited in relation to the alleged insults; (b) was not limited in relation to the alleged lack of proper nutrition; (c) was limited in relation to privacy but only with respect to the use of the toilet with others present in the cell; (d) was limited in relation to the sleeping conditions, but only in the respects identified at [568]-[575] above; (e) was limited in relation to the imposed terms set out at paragraphs [501] (natural light), [566] (access to exercise yards), [577] (change of clothes) [580] (pro- social activities), [595] (hygiene), [582(c)(ii)] (FE’s detention in the padded cell on 17 October 2021) and [607(a)] (information about transfer). Whether the identified limits on each Applicant’s human rights was reasonable and justified [1475] We turn to whether the limits identified above in respect of each Applicant’s human rights were reasonable and justified. As the Presiding Judicial Member points out, the burden of showing reasonableness and justification is on the Respondent. (a) Privacy in relation to the use of the toilet [1476] We refer to the matters discussed at [1469]-[1471] above. To the extent to which the Applicants were required to use the toilet with others present in the cell we consider that the limitation of the right under s 30(1) was not reasonable or justified. (b) Sleeping conditions [1477] We find that the limitation on the Applicants’ human rights arising out of the sleeping conditions is limited to the occasions on which the Applicants were woken from their sleep during their respective stays as identified at [575] above. With respect to the (limited) occasions on which particulars were taken (we infer as a procedural requirement) and late night roll calls occurred (we infer as a security measure), we are satisfied that they were reasonable and justified. [1478] We have found that the Applicants were regularly woken up from their sleep upon being offered either a shower or breakfast. The time was generally between 6.00am 1158 Outline of Closing Submissions, [183]. -- 198 of 202 -- 199 and 7.00am. Further, it appears from the evidence that the Applicants were free to refuse a shower or breakfast (and, we infer, to continue sleeping). Having regard to the context in which this occurred, namely custodial detention, we are satisfied that this limitation was reasonable and justified in the circumstances. (c) Lack of access to direct natural light and the external exercise yard [1479] In our view, the limitation imposed by being detained in a window-less cell could have been ameliorated by the provision of sufficient daily time in the external exercise yard. We consider that a less restrictive and reasonably available way to address this limitation was to prioritise the access of the Applicants to the external exercise yard each day. [1480] We consider that the limitation of the right under s 30(1) by the time spent in the cell and that lack of consistent and sufficient access to the external exercise yard was not reasonable or justified. (d) Change of clothes [1481] The absence of justification for the Applicants lack of regular changes of clothes is made clear by the Respondent’s ‘Cairns Watchhouse Instruction 1/2022: Custodial Management for Children’1159 to the effect that children were to be provided with clean clothing every day. We find that the limitation of the right under s 30(1) was not reasonable or justified. (e) Lack of access to pro-social activities and to the internal exercise yards [1482] We consider that the regular provision of various means to engage in pro-social activities, both within the individual cells (for example, cards, chalk, books) and in any of the exercise yards (for example, a soft ball), together with greater access to the internal exercise yards (which contained a television), would have assisted with avoiding boredom and idleness of the Applicants during their detention. With respect to the pro-social activities, the question of financial resourcing would not be material, given the likely modest costs of doing so. Additionally, in terms of operational matters, we consider that the withholding of such activities in the event of poor behaviour was not justified and was possibly counter-productive. As with the external exercise yard, access to the internal exercise yards could also have been prioritised for the Applicants (and other young people in detention). We find that the limitation of the right under s 30(1) was not reasonable or justified. (f) Lack of cleaning of cell walls to ensure hygiene [1483] As we have found, the walls were not cleaned regularly. No justification has been put forward for that, for example, that this would result in significantly increased cost. We find that the limitation of the right under s 30(1) was not reasonable or justified. (g) Information about transfer to YDC [1484] We refer to the Presiding Judicial Member’s reasons at PJM reasons [249] and to the Queensland Police, Operational Procedures Manual (Issue 82, Public Edition, effective 11 June 2021)1160 which provides that juveniles have a right: ‘To be informed of your situation in relation to bail, court appearance and transfer to a youth 1159 B3364. 1160 B3361. -- 199 of 202 -- 200 detention centre’. We are not satisfied that the Respondent has established that it was reasonable and justified to withhold all information about transfer to a youth detention centre, particularly when Youth Justice workers and Youth Co-Responders were available to assist the Applicants with managing expectations in the case of delays in being transferred. (h) Detention of DC and FE in a padded cell and placement of DC in a smock [1485] Although the Applicants’ outline of closing submissions did not expressly contend that DC’s human rights under s 30(1) were limited by being placed in a padded cell and ‘smocked’ on two occasions, it is convenient to address this matter here. In dealing with the indirect discrimination claims, we concluded above that this did not cause serious disadvantage to DC; rather, such measures were necessary to, and did, protect DC against the self-harm which he was already engaging in. For this reason, we find that DC’s human rights under s 30(1) (or any other relevant provision) were not limited (and, in any event, were reasonable and justified in the circumstances). [1486] As noted above, FE was detained in a padded cell on 22 September 2021 for 30 minutes and on 17 October 2021 for 1 hour and 18 minutes. [1487] As to 22 September 2021, we note the matters set out at [1089] to [1098] above. Given those matters, and the limited time FE was placed in the padded cell, we find that FE’s human rights under s 30(1) (or any other relevant provision) were not limited (and, in any event, were reasonable and justified in the circumstances). [1488] We take a different view of FE being placed in a padded cell on 17 October 2021. FE was placed in the padded cell from 8:37pm until 9:55pm, because he had repeatedly banged on his cell door despite being warned to stop.1161 FE was noted as not suicidal (and there is no suggestion of physical aggression towards officers). We infer that the noise FE created was disruptive to the operation of the Watchhouse, particularly given the time of night that it occurred. However, it seems to us that there were other measures that could have been implemented, such as providing time in an internal exercise yard (each of which had a television). We are not satisfied that the limitation on FE’s rights (under each of s 30(1) and 26(2) of the HRA) by placing him in a padded cell was reasonable and justified. Section 33(1) – children must be segregated from adults [1489] We respectfully agree with the reasons of the Presiding Judicial Member at PJM reasons [415] to [418] that each Applicant’s right under s 33(1) was limited by the terms we have formulated at [522] (proximity of juvenile cells) and [525] (proximity allowing adults to converse with children) above. [1490] Having regard to, in particular, the evidence of Senior Sergeant Gardiner,1162 we are not satisfied that location of the juvenile cells in immediate proximity to adult cells1163 was justified by any operational, safety, or other purpose. Accordingly, we find that the limitation was not reasonable and justified. 1161 See our reasons at [1108]. 1162 B3239 – B3240 [6]-[18]. 1163 See the exhibit PG-1 plan of the Watchhouse (B3329). -- 200 of 202 -- 201 Section 36(1) – right to education [1491] We respectfully agree with the conclusion and reasons of the Presiding Judicial Member at PJM reasons [424] to [431]. Section 26(2) – right of child to protection [1492] We respectfully adopt the principles identified by, and the observations of, the Presiding Judicial Member at PJM reasons [400]-[402]. [1493] We find that this right was limited by the terms set out at paragraphs [522] and [525] (proximity to adult cells), [566] (access to exercise yards), [567] (access to educational materials) and [580] (access to pro-social activities) above. [1494] For the reasons given above in relation to the corresponding limitations on other human rights, we find that these limitations under s 26(2) of the HRA were not reasonable and justified. Subsection 58(2) of the HRA [1495] Subsection 58(1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law. [1496] The Respondent relies on s 58(2) of the ADA in contending that the Respondent could not reasonably have acted differently or made a different decision as to the detention of the Applicants at the Watchhouse during the relevant periods.1164 [1497] The argument is stated in one paragraph. It refers to ‘the relevant provisions of Chapters 14 and 15 of the Police Powers and Responsibilities Act 2000 (Qld) and Parts 5, 7 or 11 of the YJA, and cross-references a table of ‘circumstances’ in which a young person may be detained at the Watchhouse.1165 [1498] Given the Tribunal’s findings in relation to s 56 and s 415 of the YJA in particular, we are not satisfied that the Respondent could not have acted differently in relation to the terms (or any aspect of the terms) imposed on the Applicants during their respective stays because of, relevantly, a statutory provision or otherwise under law. Summary [1499] It follows from our reasons at [1453] to [1498] above, that the acts of the Respondent (by the Commissioner of Police) in imposing the terms (or aspects of the terms) as identified above, with the consequential limitations on the respective rights, were unlawful by virtue of s 58(1)(a) of the HRA. Relief [1500] In relation to the human rights claims, we agree with the Presiding Judicial Member that given that each Applicant is now an adult, there is no justification for granting injunctive relief. [1501] We agree that declarations should be made in respect of each human rights claim, with such declarations to reflect the findings in the joint reasons. 1164 Respondent’s outline of closing submissions, [435]; Supplementary Closing Submissions, [18]. 1165 Respondent’s outline of closing submissions, [365]. -- 201 of 202 -- 202 ORDERS [1502] In respect of the indirect discrimination claim by each Applicant, we find that the claim should be dismissed. In circumstances where final orders are still to be made in relation to the human rights claims, we will postpone the making of final orders in relation to each indirect discrimination claim until such time as final orders are made in respect of each human rights claim. [1503] The following orders are made: 1. The Applicants must, within 14 days of the receipt of these reasons, file in the Tribunal two (2) copies of, and give to the Respondent one (1) copy of: (a) draft proposed final orders giving effect to the reasons in the joint reasons; (b) written submissions of not more than 10 pages in support of the proposed orders sought; and (c) a proposed timetable for the parties to file submissions in respect of the costs of the proceeding. 2. The Respondent must, within 14 days of the receipt of the Applicants’ material filed pursuant to Order 1, file in the Tribunal two (2) copies of, and give to the Applicants one (1) copy of: (a) draft proposed final orders incorporating: (i) any agreed orders proposed by the Applicants; and (ii) any different orders sought; (b) written submissions of not more than 10 pages: (i) in response to the orders sought by the Applicants; and (ii) in support of any different orders sought by the Respondent; (c) a proposed timetable for the parties to file submissions in respect of the costs of the proceeding (if the Applicants’ timetable is not agreed). 3. The Applicants must, within 14 days of the receipt of the material filed pursuant to Order 2, file in the Tribunal two (2) copies of, and give to the Respondent one (1) copy of, written submissions of not more than ten (10) pages in response to the Respondent’s submissions and proposed timetable. 4. Unless otherwise ordered, the making of final orders, and orders for submissions on costs, will be determined on the papers following compliance with Orders 1, 2 and 3. -- 202 of 202 --