TWELVE young offenders who have brought a court challenge against their transfer from juvenile to adult jails have been dealt a blow after the State Government rushed laws into Parliament that may ensure they are moved.
Seven were shifted to adult jails from juvenile detention centres in March and April soon after their 18th birthdays despite judges' orders that they serve their sentence in a juvenile facility until 21 because of special vulnerabilities.
The transfer of the other five to adult prisons was stopped after an injunction was sought and temporary agreement reached with the Department of Juvenile Justice.
The Minister for Juvenile Justice, Barbara Perry, last week introduced measures that will limit judges' sentencing powers in similar cases, subject the judges' orders to departmental review after six months, and let the department shift detainees to jail with less fear of legal challenge.
"It seems the Government is seeking to enact these changes as a direct response to the legal action taken by the young people," said Jane Sanders, principal solicitor at the Shopfront Youth Legal Centre.
Ms Perry denied the charge, saying the legislation was being planned well before any challenges to the Supreme Court were lodged.
For the past two years the department's director-general has had the power to move detainees to jail once they turned 18, irrespective of judges' orders.
Until this year the power was used only if the people were disruptive or a danger to younger detainees, and has never been legally challenged.
Juvenile justice advocates say severe overcrowding in the centres has prompted the new use of the transfer power.
The overcrowding is a result mainly of an earlier toughening of the Bail Act that has led to a huge increase in young detainees on remand.
The 12 detainees argue they have been denied procedural fairness, and the legitimate expectation they would serve their sentence in a juvenile detention centre. The first directions hearing was held on May 22. The full matter is not expected to be heard for four months.
Even if the youths win under the old laws, it is possible they could be returned to jail under the proposed changes to the Children (Detention Centres) Act and the Children (Criminal Proceedings) Act. Moving other youths will be made easier.
Although the youths are guilty of serious crimes such as armed robbery and sexual assault, all have exemplary conduct records in detention, psychologists' and counsellors' reports say.
Three were completing their HSC, three had completed year 10 in detention, and all had undertaken TAFE courses and weekly rehabilitation programs.
All but one were due for parole before their 21st birthday, although the transfers cast doubt over their release date, lawyers say.
Ms Sanders said sending young offenders to adult jail jeopardised their rehabilitation.
In introducing the measures, Ms Perry said: "I frankly query the benefit of a 21-year-old running down the clock in a juvenile facility when they are disinterested in mending their ways and diverting resources away from a 12-year-old who we might just have a chance of helping."
The shadow attorney-general, Greg Smith, accused the Government of "calling it quits" on rehabilitation. "This is just a cheap exercise by the Iemma Government to try and fix the problem of overcrowding," he said.
The shadow cabinet will decide on Tuesday whether to support the legislation.
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