Secure Care in Australia—An Overview of Secure Care in Australian States and Territories and Commentary on the Legal Safety of Children Admitted to Secure Care in Australia

Abstract

There is very limited information available on secure care in Australia. There is no national oversight, standards, or data collection mechanisms. This article aims to outline which Australian states and territories deliver secure care, provide an overview of these interventions, identify trends and outlying practice, and highlight the human rights implications. A comparative systemic methodology was utilised, gathering qualitative data on secure care across Australian states and territories to compare and analyse. The findings are presented descriptively, and a qualitative content analysis was completed. This article identifies that there is secure care in all states and territories in Australia except Tasmania, South Australia, and Queensland. The content analysis identified that the Northern Territory and New South Wales do not have secure care legislation, and that the Australia Capital Territory and New South Wales are the only jurisdictions that require a specific secure care judicial order to authorise admissions. Victoria, the Northern Territory, and Western Australia utilise ‘administrative detention’ to authorise a secure care admission—this is when the admission to secure care of children with the involvement of child protection is authorised by the government, not through a court order via the judicial system. A consequence of the use of administrative detention is that children ‘in care’ in Australia are being deprived of their liberty without legal representation or access to the right to appeal in a court of law. There is minimal publicly available admission data on secure care in Australia. This article argues that secure care’s welfare-based position, conceptualisation, and discourse simultaneously obscures visibility, legitimises depriving children of their liberty and the use of restrictive measures, and undermines a rights-based approach to children experiencing extreme vulnerability. The use of administrative detention undermines system accountability, and the legal safety of children admitted to secure care in Australia. This is placing the rights of children in secure care in Australia as secondary to the management of organisational risk.

1. Introduction

This research aims to identify what states and territories in Australia have secure care and what secure care ‘looks’ like across the jurisdictions that have it, and to highlight the human rights implications. The article’s results identify that more than half of Australian states and territories use secure care, and admissions are frequently authorised administratively and sometimes without a legislative basis. The lack of definition and consistency relating to secure care in Australia, alongside its location in the welfare sector, has contributed to its invisibility, hindered the public availability of data, and undermined the development of national standards and oversight mechanisms. It is hoped that this article will enhance understanding of the utilisation of secure care in Australia, pave the way for further research, support the introduction of evidence-based models of secure care, improve the oversight and regulation of secure care, and bring secure care in line with broader rights-based reforms in Australia and internationally.

2. Background

2.1. Australian States and Territories

This study of secure care in Australia will consider the models, legislative basis, and authorising environment for secure care across Australian states and territories. Australia has three tiers of governance: the Federal/Commonwealth Government, state/territory governments, and local governments. The Commonwealth Government is responsible for national affairs, such as immigration and defence, and funding to the states and territories. State and territory government responsibilities include education, health, and justice. As such, child protection and secure care (if this is in place) is the responsibility of state and territories.

Australia’s mainland is made up of six states (New South Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania) and three territories (Australia Capital Territory, Northern Territory, and Jervis Bay Territory). The Commonwealth Government has the power to override laws in territory governments; however, it rarely does so, and the Australian Capital Territory and Northern Territory have their own governments and are generally considered in the same manner as states. Jervis Bay Territory is a very small land mass with a First Nations community and military base, and will not be considered as part of this article.

2.2. Secure Care

The United Nations Global Study on Children Deprived of their Liberty identifies secure care as the most frequently utilised form of child detention worldwide (Nowak 2019). However, the role, purpose (Care Inspectorate 2023; Andow 2023), and efficacy of secure care remains highly contested (Andow 2023; Brogi and Bagley 1998; Care Inspectorate 2023; Eltink et al. 2018; Gevers et al. 2021; Independent Care Review 2020; Walker et al. 2005; Williams et al. 2020).

There is no internationally agreed upon model or definition of secure care (Crowe 2023, 2024; Haydon 2018; Johnston 2017). The definition used in this article for secure care is a locked institution in the welfare sector whose objective is to care for and protect children who are admitted due to significant risk of harm to themselves and/or others. Institutions are residential care houses and/or facilities that house one or more children. As such, ‘separate care’ is considered to be a form of secure care. Separate care is usually considered to be a locked residential care response for a single child. ‘Separate care’ can also be referred to as a separate institution, a Deprivation of Liberty Order, home-based deprivation of liberty, a locked placement, or a ‘boutique placement’ (an individual residential care placement highly tailored to the child’s needs). Internationally, secure care can be delivered publicly or privately (not-for-profit or for-profit organisations). It can also be called secure accommodation, secure homes, secure children’s homes, secure services, secure care estates, secure welfare services, secure care services, safe care, secure residential care, special care, closed care, closed youth care, closed accommodation, intensive therapy places, or a secure residence (Crowe 2024).

Secure care is systemically located within child protection or the out-of-home care/alternative care service delivery area of the welfare sector and characterised by ‘best-interest’ principles (Enell et al. 2022). As the most intrusive measure in the child welfare system, secure care is intended to be a last resort (The Government of Sweden 2024; Victorian Department of Human Services 2024), after all other community-based options have been pursued. There is, however, significant diversity internationally, as well as within countries and jurisdictions, as to the exact threshold for admission and what community-based alternatives should be available (Crowe 2024; Hart and La Valle 2016; Haydon 2018).

Secure care deprives children of their liberty and exposes them to an extensive range of restrictions of liberty. The United Nations (UN) definition of deprivation of liberty is to “confine a human being to a narrowly bounded location that he or she cannot leave at will” (Nowak 2019, p. 11). Secure care is a locked institution where children are not free to leave of their own free will. In the context of secure care, restrictions of liberty include (but are not limited to) the use of seclusion/isolation rooms, the use of force, restraints, clothed and/or unclothed searches, the removal of mobile phones and/or personal belongings, control of movement within the locked institution, video surveillance, and limited/controlled contact with family/friends/professionals. Restrictions of liberty are sometimes referred to as ‘restrictive measures’ or ‘restrictive practices’. Restrictive practices are legally authorised and/or socially and professionally sanctioned non-consensual or coercive interventions said to be undertaken for protection or behavioural and/or medical reasons (Spivakovsky et al. 2023).

Secure care’s welfare-orientated discourse obscures its visibility and legitimises the use of restrictive measures. Seclusion/isolation rooms are referred to, for example, as ‘safe rooms’ (Kerr 2021), and the term ‘secure care’ itself plays a powerful role in facilitating the intervention evading the same criticism and oversight as other ‘detention’ facilities. Secure care discourse constructs children as risk and security as a necessary precursor to meeting their welfare needs (Crowe 2016). These conceptualisations contribute to a lack of safeguarding of children’s rights. Secure care, and the children admitted, are characterised by risk, yet Crowe (2016) highlights how the meaning of this is varied and vague. The rights of children are presented as secondary to managing security and institutional risk (Crowe 2016). The limited critique of secure care in Australia highlights a neo-liberal focus on harm minimisation—rights-based analyses of secure care have been put aside in favour of minimising institutional and organisational risk.

2.3. Administrative Detention

Administrative detention is when authorisation for confinement has not been sought through the judicial system (Nethery 2021). Saul argues that, in the context of immigration detention:

“States may be tempted to utilise administrative detention precisely because it circumvents these [safeguard] protections, including where the authorities do not have evidence that would meet the criminal standard of proof (‘beyond a reasonable doubt’) or which they do not wish to disclose for operational reasons.”

(Saul 2013. p. 21)

In the child protection sector, administrative detention means that a child on a child protection order or its equivalent can be involuntary admitted to secure care by a delegated government official (e.g., a child protection manager or social worker) and no judicial authorisation is required. The government’s parental responsibility for the child is used as legal authority to admit a child to secure care—to ‘administratively’ detain them (Crowe 2023). There is no equivalent power for children who are at serious risk of harm to/in the community and not on a child protection order. Administrative detention can also be referred to as an administrative placement. The use of administrative detention in child protection masks operational obstacles (for example, the isolation of children and management of extreme behaviour issues), and significant challenges substantiating children’s risk of harm to themselves and/or others the standard of judicial proof.

2.4. Secure Care Efficacy

There is extremely limited evidence to support both the efficacy of secure care—its ability to improve the outcomes for the children admitted—or an ‘ideal’ model of secure care design (Williams et al. 2023). Research suggests that secure care is a ‘suspension of risk with questionable outcomes’ (John Trainer in Crowe 2023, p. 21). Secure care immediately separates children from harm and/or enhances levels of supervision but it is unclear if the risks are still evident (or likely to return) after a child’s discharge from secure care. Whether secure care is more effective at improving the outcomes of children than non-secure community-based interventions is also questionable, and at its worst, secure care poses a systemic bias as it deprives children in child protection of their liberty, undermines human rights, exposes children to potential re-traumatisation, and increases the risk of fatality (O’Brien and Hudson-Breen 2023).

Research relating to secure care efficacy is often conflicting, small-scale, anecdotal, and quantitative (Bettmann and Jasperson 2009; Muncie 2006; Smith and Gardner 1996; Williams et al. 2020). Most evidence-based, peer reviewed research focuses on adults. Furthermore, the research focuses on long-term treatment-based confinement programmes in the mental health sector. Research identifying positive outcomes associated with ‘secure youth interventions’ is generally associated with mental health service delivery systems, i.e., ‘inpatient’ facilities (Rovers et al. 2019), or secure care facilities delivering intensive mental health treatment (Williams et al. 2020).

Questionable outcomes for children who have been admitted to secure care include serious physical and mental harms, which can be re-traumatising and potentially fatal (Haydon 2020). The use of seclusion and restraint on children can negatively impact a child’s sense of safety, attachment, and relationships, escalate challenging behaviour and negatively impact self-esteem and mental health (Paterson 2019; Wilton 2020; Whitelaw and Gibson 2024). Research suggests secure care is an ineffective intervention for improving outcomes relating to substance misuse (Klag et al. 2005; Walker et al. 2005) or sexual exploitation (Brogi and Bagley 1998; Care Inspectorate—Scotland 2023). There is evidence it is ineffective in improving externalised and internalised behavioural problems (Eltink et al. 2018; Green et al. 2007). Young people can experience secure care as punitive and harmful (Andow 2023; Enell et al. 2022; Henriksen and Prieur 2019), which can be retraumatising and have long-lasting impacts (Sköld and Swain 2015; Utting and Woodall 2022). Secure care removes children from their community, family, school, and homes (Roe 2021), which can have a detrimental effect on health, access to school, and relational continuity (Henriksen and Prieur 2019). Evidence also highlights that admissions to secure care are often followed by placements in other secure facilities in the youth justice or mental health sector (Williams et al. 2023). A small recent Canadian study, specifically relating to secure care in response to extremely risky substance use, suggested it may be ineffective and can result in an extremely high rate of death post-discharge: 4 out of 17 (24%) young people died from an overdose and 11 continued to struggle with addiction after being in secure care (O’Brien and Hudson-Breen 2023).

Despite the absence of evidence to suggest secure care improves children’s outcomes (Enell et al. 2022), this can be at odds with the strongly held belief by some practitioners in the field that “short term secure placement may hold potential for improving young people lives if institutions are designed on the principles of what works and if elements that are experienced as harmful to young people are reduced” (Henriksen et al. 2023, p. 313). There are pockets of research which highlight opportunities to minimise the harms secure care poses, and suggestions on how the provision of a diversionary framework, community-based alternatives, and legal protections can be rights-adhering (Crowe 2024; Henriksen et al. 2023; Souverein et al. 2023).

2.5. Secure Care Client Group

Understanding the characteristics of the cohort for secure care is vital to ensuring an effective intervention and to ensuring the rights (e.g., cultural rights or disability-related rights) of the cohort are adequately protected. Secure care generally responds to children between the ages of 12 and 18 years at the acute end of the child protection system who have experienced significant trauma (Crowe 2023; Haydon 2018; Roe 2021; Roe and Ryan 2023; Williams et al. 2020). The vast majority of children admitted to secure care are residing in residential care at the time of their secure care admission (Crowe 2024; Haydon 2018; Roe and Ryan 2023; Williams et al. 2020). The children admitted generally have experienced multiple placement breakdowns prior to a secure care admission (Crowe 2023; Roe and Ryan 2023; Wennberg et al. 2023). They have multiple, complex, and acute needs often characterised by mental health, behavioural, and care challenges, which require intensive and specialist interventions across multiple service sectors, including disability, education, health (physical, psychological, and psychiatric), and care (including family violence and child protection) (Crowe 2023; Henriksen et al. 2023; Roe and Ryan 2023; Wennberg et al. 2023; Whitelaw and Gibson 2024; Williams et al. 2020). This cohort’s experience of trauma and marginalisation makes them particularly vulnerable to further harm, such as sexual exploitation, criminal exploitation, and substance misuse (Australian Institute of Health and Welfare 2024), and also susceptible to systematic maltreatment (Goldson and Kilkelly 2013).

Secure care admission data is not publicly available in Australia; however, the Victorian government provided a valuable snapshot of the demographics and complex high-level needs of the secure care cohort to inform Crowe’s (2023) Churchill Fellowship researching alternatives to secure care. The provision and accessibility of this type of data is an important first step towards improving public awareness of secure care and building an evidence basis for effective secure care and alternative interventions. The Victorian data was a snapshot in July 2022, which showed that the age of the cohort was predominately 15–17 years and primarily female. There was a significant over-representation of First Nations children, who made up a consistently high proportion at 20–30 percent, while First Nations people in Victoria make up approximately 1% of the Victorian population (Australian Bureau of Statistics 2022). Approximately two thirds of young people admitted to Secure Care Services were admitted previously and were previously admitted to Secure Welfares Services on multiple occasions. The average length of stay was approximately eight days. Regarding the reasons for admission, the data revealed that substance misuse, going missing from care, mental health issues (self-harm/suicidal ideation), violent behaviours, and sexual exploitation often comprised the combination of reasons for admission. The majority of admissions to Secure Care Services were authorised administratively by the Department of Families, Fairness and Housing, and almost 90 percent of children admitted to Secure Care Services were residing in residential care at the time of admission (Crowe 2023).

3. Materials and Methods

A comparative systemic methodology has been used to gather, present, and analyse data on secure care from each state and territory in Australia. Key questions include the following: Which jurisdictions have secure care in Australia? What are the eligibility criteria? What is the legislative basis for secure care? How are admissions authorised? The findings are presented in a descriptive manner in the results section and Appendix A of this article, with the aim to fill the knowledge gap in Australia on secure care. A content analysis of the qualitative data was completed to identify trends and outlying practices. A content analysis of the qualitative data from states and territories with secure care was also completed. Codes were inductive and the themes were developed latently from the data’s content. Analysis of the data found that a number of jurisdictions with secure care do not have related legislation in place, and that the administrative detention of children with child protection involvement is commonly used in Australia. The significant human rights and system accountability implications are then discussed. This article does not attempt to determine the effectiveness or impact of secure care models in Australia.

This article utilises and builds on qualitative data gathered by the author when they completed a Churchill Fellowship on effective alternatives to secure care for children and young people at serious risk of harm, and a Creswick Fellowship on the model and position of secure care in light of the increase in the age of criminal responsibility. Data was gathered through a desktop review of government databases and reports, academic journals, oversight bodies and/or sector reports, and online information. Online information on secure care, however, was minimal, and often difficult to locate and decipher, revealing a gap in the available information on secure care across Australia. To gain further insight into an under-researched area where limited information is available, qualitative, semi-structured virtual (TEAMS) discussions took place with representatives from government and oversight bodies. Three discussions were conducted to seek additional information on secure care with representatives from New South Wales, Western Australia, and the Australian Capital Territory, and when this data is used, the author references the Churchill Fellowship report (Crowe 2023). The researcher’s aim was to stay as close as possible to directly reported accounts from specific states and territories. To enhance the validity of the data, the researcher adopted a descriptive exploratory design to foreground secure care legislation and policy and models of secure care (with a focus on admission pathways and authorisation). An explanation of the authors’ ability to separate their formal employment from their role as a researcher was presented. The information provided by states and territories was also transcribed by the author and emailed back to the jurisdictions for verification. All states and territories, except the Northern Territory Government, who did not respond to requests for information, were contacted to either validate existing data on secure care or provide additional data that was otherwise not publicly unavailable, or to provide an account of what alternatives were utilised if secure care was not in place.

Information on the Northern Territory’s provision of secure care was sourced from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability website—specifically the exhibits from days 4 and 5 (Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability 2021). The exhibits also provided additional information on secure care in Australia that is not commonly known or easily available in other jurisdictions. The research draws heavily on the researcher’s secure care policy and project-based experience in the Victorian Government. This article also references the quantitative secure care admission data from the Churchill Report (Crowe 2023), provided by the Victorian Department of Families, Fairness and Housing to the Churchill Fellowship research and extracted in July 2022 for the purpose of better understanding the secure care population, the reasons behind admissions, and the admission pathways.

Ethical approval was not sought for this article. The researcher gathered data on government systems, in which children cannot be identified. The data was collected and analysed for the express purpose of improving the delivery of public services, driving the development policy and standards, ensuring accountability in the area of secure care, and enhancing children’s rights and safeguards.

4. Results

This section first presents an overview of the secure care interventions in each state and territory in Australia, as can be found at Appendix A. The results of the content analysis are then presented comparatively in

Table 1. Secure care comparison across Australian states and territories.

	Is Secure Care Utilised	Is Secure Care Admission Data Publicly Available	Is Secure Care Delivered by Government	Is Secure Care Legislation in Place	Are Admissions Authorised Administratively	Cohort Is Children with Child Protection Involvement
Australian Capital Territory	x	-	-	x	-	-
Northern Territory	x	-	x	-	x	x
New South Wales	x	-	x	-		x
Victoria	x	-	x	x	x	x
Western Australia	x	-	x	x	x	x
South Australia	-	N/A	N/A	N/A	N/A	N/A
Tasmania	-	N/A	N/A	N/A	N/A	N/A
Queensland	-	N/A	N/A	N/A	N/A	N/A

, and additional information is provided. The Discussion section puts the qualitative data into context, detailing the implications of these findings in relation to human rights.

4.1. Descriptive Findings

Victoria, Western Australia, New South Wales, the Northern Territory, and the Australian Capital Territory admit children to secure care due to significant risk of harm to themselves and/or others. Tasmania, South Australia, and Queensland do not have secure care. Instead, these states utilise therapeutic residential care and behaviour support plans as alternatives to secure care (Crowe 2023). The newly appointed government in Queensland, however, came into government on a ‘tough on youth crime’ platform and announced they would be implementing ‘Circuit Breaker Sentencing’, a court-ordered intensive rehabilitation programme which would provide an alternative to detention. It is currently unclear what the criteria will be for this intervention and if it deprives children of their liberty (Liberal National Party 2024).

4.1.1. The Northern Territory

The Northern Territory has Safe Care—a secure, long-term, treatment-based intervention for young people displaying extremely complex behaviours that place themselves or others at significant risk of harm. Safe Care is for children who are unable to be supported in a less restrictive environment. There is currently no secure care legislation for Safe Care (Kerr 2021; Territory Families, Housing and Communities 2020). New South Wales has Sherwood House—a long-term model of secure care for children at risk of harm to themselves, recognising that these children may also pose a risk to others.

4.1.2. New South Wales

New South Wales does not have secure care legislation; however, the government can obtain a court order (from the Supreme Court) for admissions. The assessment and treatment of children admitted to Sherwood House is implemented via a ‘care’ and ‘mental health’ partnership. The mental health sector is part of the admissions process, and they deliver clinical support to all children admitted to Sherwood House. The average length of stay is two years. This is usually in three-month schedules and may be in the secure facility or in community transitional houses which have the ability to ‘contain’ when required (Crowe 2023).

4.1.3. Victoria

Victoria has Secure Welfares Services—a short-term crisis response for children at serious and immediate risk of harm to themselves. The provisions are outlined in legislation. Admissions are generally administratively authorised. Admissions are for a period not exceeding 21 days (and, in exceptional circumstances, for one further period not exceeding 21 days). The average length of stay is 8 days (Victorian Department of Human Services 2024; Crowe 2023).

4.1.4. Western Australia

Western Australian has the Kath French Centre for when there is an immediate and substantial risk of the child causing significant harm to themselves or another person, and there is no other suitable way to manage that risk and to support the child to receive the care they need. Admissions are for a period not exceeding 21 days (and, in exceptional circumstances, for one further period not exceeding 21 days). Western Australia is embarking on a review of their secure care service delivery model (Crowe 2023; The Government of Western Australia 2011; Thompson 2020).

4.1.5. The Australian Capital Territory

The Australian Capital Territory’s recent legislation has allowed for Intensive Therapy Places (containment in a residential care facility). It previously had secure care legislation; however, until recently, this had never been utilised and there has been (and continues to be) no dedicated secure care facility. The Justice (Age of Criminal Responsibility) Legislation Amendment Bill 2023 saw an increase in the minimum age of criminal responsibility and the inclusion of Intensive Therapy Orders (which may authorise containment) and a Therapeutic Support Panel in the Children and Young People Act 2008. Confinement directions must not direct the continuous confinement of a child or young person for a period longer than 14 days. However, consecutive confinement directions can be issued up to a maximum of 6 months. Locked residential care facilities (separate care) are being utilised to implement containment for the Intensive Therapy Orders (Australian Capital Territory 2024; The Australian Capital Territory Government n.d.; Crowe 2023).

4.2. Analysis

Table 1 provides a comparative overview of secure care in Australia, which is then discussed in the subsequent sections. Five major themes developed from the analysis of the findings. They are the lack of publicly available admission data, the inconsistent presence of secure care legislation, the predominance of government provision of secure care, and the high prevalence of states and territories utilising administrative detention to authorise secure care admissions.

4.2.1. Public Availability of Admissions Data

No state or territory make their secure care admissions data publicly available.

4.2.2. Secure Care Delivery

States and territory governments delivery secure care in all jurisdictions with secure care, with the exception of the Australian Capital Territory. Secure care is delivered by the departments responsible for children and family services in Western Australia (The Government of Western Australia 2011), Victoria (Crowe 2016, 2024), New South Wales (Crowe 2023), and the Northern Territory (Kerr 2021). In the Australian Capital Territory, a not-for-profit community-based organisation operates as an ‘Intensive Therapy Place’. The Australian Capital Territory Director–General is able to declare a place an Intensive Therapy Place only if the place is not a detention place, a former detention place, or any part of a place that accommodates young detainees; and complies with the intensive therapy standards, which have yet to be finalised (Australian Capital Territory 2008; Australian Capital Territory 2024).

4.2.3. Secure Care Legislation

Secure care provision is outlined in the legislation in Victoria’s Children Youth and Families Act 2005, the Western Australian Children and Community Services Act 2004, and the Australian Capital Territories Children and Young People Act 2008. New South Wales and the Northern Territory do not have secure care legislation (Crowe 2023; Kerr 2021); however, there are practices and policies which perform a similar function.

4.2.4. Administrative Detention

With the exceptions of New South Wales and the Australian Capital Territory, where court orders are obtained for a secure care admission (Crowe 2023), all other jurisdictions (Western Australia, Victoria, and the Northern Territory) with secure care in Australia administratively detain children in secure care (The Government of Western Australia 2011; Crowe 2023; Kerr 2021). A Deputy Chief Executive Officer of the Department of Territory Families, Housing and Communities has stated that the government’s guardianship status provides the legal authority to deprive a child of their liberty for their protection (Kerr 2021).

4.2.5. Secure Care Cohort

The cohort for secure care in all states and territories except the Australian Capital Territory is children, with child protection involvement (Kerr 2021; Territory Families, Housing and Communities 2020; Crowe 2023; The Government of Western Australia 2011; Thompson 2020). The inclusion and attention given to secure care in the Northern Territories as part of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2021) suggests that its cohort comprises children with a disability, despite this not being explicitly stated in its Framework and Model of Care (Kerr 2021; Territory Families, Housing and Communities 2020). The Australia Capital Territory cohort for secure care is all children up to 18 years of age (Australian Capital Territory 2024; The Australian Capital Territory Government n.d.).

5. Discussion

This article highlights trends and outliers in relation to publicly available admission data, models of secure care, legislation, and the use of administrative detention to secure care in Australia. The findings highlight significant inconsistencies in the legal safety of children (predominantly with child protection involvement) deprived of their liberty in secure care facilities who, are as a consequence, are exposed to a range of restrictive measures. This section discusses the significant implications this has for children’s rights, oversight, and future research.

This article has the following limitations. The findings are primarily based on qualitative data provided by system experts (often government) or found online. No qualitative or qualitative outcomes data was evident and/or made available by any jurisdiction to assess the efficacy of each jurisdiction’s secure care intervention—therefore, no conclusions can be made regarding the effectiveness or impact of secure care models. Key academic institutions and professional organisations relating to child protection and out-of-home care in Australia were approached to provide external verification or triangulation of the data; however, none had expertise in secure care or knowledge of secure care interventions across Australian states and territories. This validates the need for this information to be publicly available and means access to information relies heavily on the author’s professional experience in government.

5.1. Administrative Detention, Legal Representation, and Appeals

Administrative detention is a commonly used method of authorising admissions to secure care in Australia. As such, children in Australia with child protection involvement are more likely to be subject to an admission to secure care without legal representation or access to the right to appeal in a court of law. This obscures system transparency and oversight and undermines the ability to safeguard children’s rights. The United Nations Children’s Fund Senior Advisor Child Protection Di Martino states the following:

“There are some administrative processes which are being applied in cases of children under the MACR [Minimum Age of Criminal Responsibility] that de facto deprive them of their liberty in institutions, even if it is the ‘Happy Valley Institution’. But the fact that the child is not free to leave at will, means that she/he should have the means to have somebody representing her/him, such as a lawyer if needed, to ensure that the child can leave the institution and is not deprived of her/his liberty without due process.”

(United Nations Children’s Fund, Regional Office for Europe and Central Asia 2023, p. 18)

This article demonstrates that secure care generally lacks the same structures, data availability, and prioritisation of the rule of law as youth justice. The lack of secure care-specific orders through the judicial system means that admissions data is not publicly available through mechanisms such as court annual reports relating to youth justice, which publish sentencing outcomes (Children’s Court Victoria 2024), or sentencing advisory councils (Sentencing Advisory Council 2024), or parole boards (Youth Parole Board of Victoria 2023). Youth justice custodial data is also published annually through national mechanism such as the Australian Bureau of Statistics. The Australia Bureau of Statistics publishes data for states and territories on how many children are sentenced to custody in correctional institutions in Australia (Australian Bureau of Statistics 2023).

The lack of judicial orders authorising admissions in the Northern Territory is particularly problematic as it is accompanied by a lack of legislation outlining the perimeters of secure care. This means that administrative detention does not have its own specific legislative basis, which legally legitimises administrative detention in states such as Victoria and Western Australia. Over a decade ago, the Northern Territory proposed the introduction of secure care legislation. Submissions to the government regarding its introduction came from agencies such as the Central Aboriginal Legal Aid Service and the North Australian Aboriginal Justice Agency and included concerns that secure care was being introduced in a context in which there was a dire lack of alternatives (Central Aboriginal Legal Aid Service and North Australian Aboriginal Justice Agency 2012). The relevant legislation has still not eventuated. Administrative detention with a lack of legislation is inconsistent with international standards (identified in the following section) and due process in relation to when a child is deprived of their liberty, and is likely to mean that children do not have legal representation and the right to appeal in a court of law.

5.2. International Principles and Standards

The primary international conventions and protocols that outline the principles and standards relating to the deprivation of liberty of children in secure care are the United Nations Convention on the Rights of the Child (UNCRC) (United Nations 1989), the General Assembly of the United Nations (2022), Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), and the European Court of Human Rights Council of Europe (ECHR) (1953).

The international human rights standards and principles provide an inclusive framework which, for example, challenges the discrimination and stigmatisation of children while promoting their individual and collective rights (Haydon 2018). Australia ratified the UNCRC in December 1990. The UNCRC (United Nations 1989) includes a number of standards relating to secure care, with the most prevalent being Article 3 Section 2, which states that State Parties undertake to ensure children such protection and care as is necessary for their well-being, and Article 37 Section B, which states that the detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time. Article 37 Section D also states that every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent, and impartial authority, and to a prompt decision on any such action.

The UN, however, does not provide children exposed to secure care with the same explicit diversionary protections as those provided to children potentially exposed to detention in the youth justice system. These protections include not only a minimum age, but also diversionary protections as set up in the UNCRC, General comment No. 24 (United Nations 2019) on children’s rights in the child justice system, and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”). Rule 11 of The Beijing Rules recommends scaling-up diversionary, non-custodial measures to ensure detention truly is a measure of last resort.

The Australian Government ratified the OPCAT in December 2017; however, the National Prevention Mechanisms (NPMs) are yet to be fully established. OPCAT aims to protect people of any age in any form of detention against torture and mistreatment by the State. States that ratify OPCAT give the Subcommittee on Prevention of Torture and other Cruel, Inhumane or Degrading Treatment or Punishment the right to visit their places of detention and examine the treatment of the people held there. Article 3 of OPCAT states that each State Party shall set up, designate, or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhumane, or degrading treatments or punishments. These NPMs are intended to coordinate and conduct visits to domestic places of detention and to monitor the treatment of persons in detention. Australia was granted an extension to establish the NPMs until January 2023. As of March 2025, NPMs were not in place across all states and territories in Australia (Commonwealth Ombudsman n.d.)

Australia is not part of the European community and not legally compelled to comply with the ECHR; however, this mechanism provides a standard to which Australia should endeavour to comply. Article 5 of the ECHR protects the right of children to liberty by setting out the limited circumstances in which the deprivation of liberty is allowed and outlines strict safeguards that must be in place for those who are deprived of their liberty. Such safeguards include the requirement that any deprivation of liberty must occur through ‘a procedure prescribed by law’ and that those who are deprived of their liberty have the right to have the lawfulness of their detention reviewed by a court.

5.3. A Rights-Based Approach

In order for secure care to protect children’s rights, it needs to be nested in a network of effective systemic diversions and effective legal protections (e.g., legal orders, legal representation, and appeals processes) need to be made available (Crowe 2024; Haydon 2020; Lightowler 2020). There has been an effort by some Australian jurisdictions to reduce the criminalisation of children with child protection involvement, particularly those in residential care (Victorian Department of Human Services 2020). As the quote below by Lightowler (2020) suggests, while secure care might be a better alternative to the criminal justice system it cannot be taken for granted that because it is in the welfare sector it improves children’s outcomes or adequately protects children’s rights:

“If the deprivation of liberty is really the only option to keep the child and other people safe then secure care may be a more appropriate setting than a YOI [Youth Offending Institution], as it is more clearly a child-care setting with less traumatising physical spaces and child-care trained staff. However, there are a range of concerns about compliance with rights in secure care, with measures that are designed to ‘protect’ children regularly leading to breaches of their rights in relation to interactions and intervention which do not prioritise the child’s participation or best interests.”

(Lightowler 2020, p. 6)

Children’s lack of rights and legal safety in respect to secure care has been well-documented internationally (Haydon 2018; Kalliomaa-Puha et al. 2021). Legal safety is how the welfare system structures and prioritises the rule of law and the scope for children to have the ability to access due process and legal protections, such as a right to independent appeal (Kalliomaa-Puha et al. 2021). A legal order, an effective and time-sensitive appeals process, and legal representation are key to a system being held accountable, the ability to protect children rights (access to justice), and the ability to ensure decisions are being made in accordance with the law and can be corrected if needs be (Kalliomaa-Puha et al. 2021).

Haydon (2018) highlights that while it is important to investigate justice/welfare/mental health linkages and effective assessments and interventions, reviews of secure care should primarily focus on addressing the needs and rights of children involved in potentially harmful behaviour. While the structural and inherent vulnerabilities of children need to be acknowledged through care and protection mechanisms, Hayden argues that children need to be viewed and treated as rights-holders and are entitled to be social actors in all aspects of their lives.

5.4. Transparency and Research

Secure care in Australia operates in a vacuum of ‘cultural silence’, a term coined by Eronen et al. (2009) to describe institutions in the child protection systems which function as hidden justice system in Nordic countries. There is extremely poor public awareness that the practice of secure care even exists in Australia. This is likely to be related to the significant lack of publicly available information or data relating to secure care. States and territories do not publish secure care data and it is not in the Australian Institute of Health (AIHW) and Welfare Child Protection Report, which is intended to provide an overview of children in the child protection system, including children subject to notifications, investigations, and substantiations of maltreatment, and the ways children were supported (2024). This absence of publicly available data also means secure care in Australia is excluded from research and international comparisons on the deprivation of liberty practices/numbers relating to children (Souverein et al. 2022). The human rights implications of an absence of reporting and/or oversight include a lack of a shared set of children’s rights and a lack of stated responsibilities for providers relating specifically to secure care.

There are a number of factors that contribute to the lack of publicly available comparative data and oversight and the absence of an interrogation of secure care systems in Australia. There is significant variation in Australia in the design, categorisation, and classification of secure care (it is often not called ‘secure care’), secure care legislation (when in place), systems in which secure care is embedded, its relationship with the judicial system, and policy and practice, which makes comparison difficult. Secure care in Australia is generally delivered by the government, which can be less publicly visible and, in some cases, subject to less oversight and regulation than the community sector. There are no national oversight mechanisms for secure care in Australia. States and territories have not agreed to include secure care in the AIHW Child Protection report. To include secure care in national data collection mechanisms, such as including it in the AIHW Child Protection Report, there needs to be consensus from all state and territory governments. State and territory reviews relating to secure care are generally not made publicly available. Secure care is generally embedded in child protection systems in the welfare sector, which are the responsibility of states and territories, are characterised by privacy, and are subject to significant legislative confidentiality requirements.

In order for Australia to conduct further research into secure care and to enhance the rights of the children admitted to this system, there needs to be a nationally agreed-upon definition of secure care and publicly available data, similarly to what has been present for decades in the youth justice sector. Publicly available admission data on secure care is a first step to facilitating research on what models of secure care are effective, and for whom, in Australia. The inclusion of secure care admissions, and the use of restrictive measures in the alternative care sector, in the AIHW Child Protection report will enable Australian jurisdictions to develop a collective understanding, as well as consistent definitions and data collection mechanisms. If outcomes data for children admitted to secure care is made available to researchers, Australia would have the opportunity to complete comparative outcome studies between jurisdictions with and without secure care.

Secure care has never been a topic of public debate in Australia in terms of the public knowing that secure care is utilised and providing cultural consensus for its use. The question remains as to whether the Australian public would support locking up children (often in the ‘care of the state’) when they are at risk to themselves and have not committed a crime. This question was tested recently in the Netherlands, where young people with lived experience drove a highly publicised campaign against the use of secure care. As a result, there was public outrage that secure care existed, and significant public pressure resulted in the government committing to end the use of secure care by 2023 (Crowe 2024).

By providing secure care with a public profile, there is a potential risk to the government resulting from exposure of their management of children experiencing extreme vulnerability, but there is also the risk of secure care becoming politicised. The last decade of highly politicised responses to youth crime has provided Australia with a cautionary tale of the consequences of placing social justice issues in the political spotlight. An example of this played out recently in relation to Australia’s endeavours to increase the minimum age of criminal responsibility. The minimum age of criminal responsibility is currently 10 years of age in all Australian jurisdictions except the Australian Capital and Victoria. The Australian Capital Territory passed legislation in 2023 which raised the minimum age of criminal responsibility to 12 years on commencement, and to 14 years (with exceptions for serious offences) in July 2025. Victoria passed legislation in 2024 which changed the minimum age of criminal responsibility to 12 years, which commenced in September 2025 (Australian Institute of Health and Welfare 2025). Despite the Commonwealth Government recommending a national increase in the minimum age of criminal responsibility and attempting to facilitate a pathway for jurisdictions to implement reforms (Standing Council of Attorneys-General 2023), political parties in some states and territories struggled to manage the political backlash and did not implement the recommendations or reversed the decisions to raise the minimum age of criminal responsibility (Australian Broadcasting Corporation 2024; Butler 2024). Through not accepting these recommendations or reversing their decisions, these jurisdictions’ legislation and policy continue to operate in opposition to evidence-based research (Amesty International 2018; Jesuit Social Services 2019).

6. Conclusions

There is very limited publicly available information, public awareness, and critique of secure care in Australia. The lack of a definition of secure care, as well as national standards and consistency regarding its use, contribute to its vagueness and invisibility in Australia. This, in turn, has hindered the availability of publicly available data and is likely the reason for the lack of independent, evidenced-based, peer-reviewed research on secure care’s efficacy, models of care, and the needs of children admitted to secure care in Australia. The article makes a significant contribution to the field by offering the first peer-reviewed article focused on outlining and analysing secure care in Australia.

This article found that Victoria, Western Australia, New South Wales, the Northern Territory, and the Australian Capital Territory have secure care in Australia. Tasmania, South Australia, and Queensland do not have secure care. There is significant diversity in Australian models, the legislative basis (if it exists), authorising environments (judicial orders or administrative detention), and policies relating to the use of secure care. In Australia, Victoria, the Northern Territory, and Western Australia utilise administrative detention. Victoria and Western Australia have legislation outlining the use of administrative detention. The Northern Territory and New South Wales, despite having secure care facilities, have no secure care legislation. New South Wales secure care admissions require an order from the Supreme Court. The Australia Capital Territory has recently introduced intensive therapy orders authorised by the children’s court, which may allow for containment in Intensive Therapy Places (Australian Capital Territory 2024).

Depriving an already traumatised cohort of children of their liberty and exposing them to restrictive practices such as seclusion exposes a jurisdiction to moral criticism and political risk. Secure care needs to contemporise by enhancing children’s rights, providing protection mechanisms, and measuring outcomes. Australia has an opportunity to do this by ensuring secure care legislation exists (in all states and territories that utilise the intervention) and by prohibiting the use of administrative detention, requiring judicial orders for all admissions. Prohibiting the use of seclusion and strengthening protections and the oversight of restrictive measures in secure care should also be considered. The introduction of national standards and oversight in Australia could ensure all states and territories utilising secure care require secure care orders for admission. This could ensure that live appeals process and legal representation are baseline requirements to ensure the legal safety of children admitted to secure care in Australia. Secure care also needs to be nested in a context of intensive and specialist holistic supports that are consistently available in the community to avoid secure care admissions when possible. There are relevant, evidence-based teachings from the mental health, youth justice, and disability sectors, which could be incorporated in secure care service design and delivery. Ensuring that there is consistent locked-facility admission authorisation and consistent regulation of restrictive practices for children across sectors (mental health, disability, and care) is a step towards ensuring safety, fairness, and adherence to policy, legislation, and/or standards.

Introducing national standards and oversight (through mechanisms such as UN OPCAT NPMs) with publicly available reporting could also break the cultural and research silence relating to secure care. Bringing secure care out of the darkness is required not only due to the serious consequences of depriving children of their liberty and exposing them to restrictive practices, but also to provide greater system accountability and to safeguard children’s rights.