Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children  VSC 796 (21 December 2016)
In the Supreme Court of Victoria, Garde J found that Orders in Council made in November 2016 establishing the Grevillea unit at Barwon Prison as a youth justice facility were invalid and of no effect because of a failure by the defendants to take into account certain relevant entitlements and duties under the Children, Youth and Families Act 2005 (Vic).
Garde J also held that the defendants failed to give proper consideration to provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Additionally, his Honour held that the express purpose of the Orders in Council, being for the use of the facility as ‘emergency accommodation’, was an improper or extraneous purpose to that required for the exercise of relevant powers by the Governor in Council under the CYF Act.
(This decision was subsequently appealed by the defendants and a summary for that case can be found here.)
Establishing a new youth justice facility at Barwon
In early and mid-November 2016, a series of incidents at the Parkville Youth Justice Precinct resulted in extensive damage to accommodation wings and common areas and a shortage of beds (particularly secure accommodation) at the facility.
Following those incidents, the Minister for Families and Children (“Minister”) was reported as saying that the “perpetrators of this damage will face serious consequences” and that several offenders “will be transferred to an adult correctional facility”.
The Victorian Government elected to use the Grevillea unit at Barwon Prison as the relocation site for a number of children and young persons. At that time the Grevillea Unit housed 40 adult prisoners and needed to be decommissioned as an adult prison.
On 17 November 2016, three notices of Orders in Council were published in the Victorian Government Gazette, purporting to establish the area of the Grevillea unit as a remand centre and youth justice centre respectively, “for emergency accommodation” (“impugned Orders”).
Over subsequent days and weeks, transfer decisions were made affecting a number of children, some of whom were plaintiffs in this proceeding. Children and young people were removed to Barwon from both Parkville and also from the Malmsbury Youth Justice Precinct. Garde J noted that the conditions at the Grevillea unit at that time “were harsh and austere...[a]ids and equipment were limited…Departmental staff had to be found for the new facility to take over from the Corrections staff” (at ).
The first proceeding
This proceeding followed an earlier proceeding, which alleged that the detention of Aboriginal and Torres Strait Islander children and young people at Barwon was unlawful. That earlier proceeding was settled when the Secretary of the Department of Health and Human Services undertook to the Court not to cause the removal of any indigenous children to a youth justice facility at Barwon for 18 months, unless in exceptional circumstances. As a result of that settlement, all Aboriginal and Torres Strait Islander children were removed from Barwon Prison, however, other children and young people who did not gain the benefit of the undertaking remained at the facility.
The subsequent proceeding
Following the settlement of the first proceeding, a fresh challenge was launched by the Fitzroy Legal Service and the Human Rights Law Centre seeking the following three remedies on behalf of the remaining children:
- the issue of the writ of habeas corpus or an order directing the plaintiffs be released from Barwon and transferred to a different remand centre (one that was lawfully established under the CYF Act);
- orders of the Court declaring invalid or quashing the impugned Orders; and
- orders of the Court declaring invalid or quashing the transfer decisions made by the Secretary’s delegate which moved the plaintiffs to the Grevillea unit.
The plaintiffs in this proceeding were children under 18 years of age who were, at the time of the proceeding, detained in the Grevillea unit at Barwon Prison. They initiated proceedings by litigation guardian. The defendants were, in order: the Minister; the Secretary to the Department; and the State of Victoria. The Victorian Equal Opportunity and Human Rights Commission intervened in the proceeding to make submissions concerning the Charter’s application and effect.
Garde J focused most of the reasons for judgment on the second remedy described above, being whether the impugned Orders were invalid because either (i) proper consideration of the relevant provisions of the Charter was not given by the Minister when the orders were made; or (ii) they were made after failing to take into account relevant considerations or were made for improper or extraneous purposes or were otherwise beyond power.
(i) Engagement of Charter rights
The plaintiffs submitted that rights under ss 10(b), 17(1), 17(2) and 22(1) of the Charter were engaged when the impugned Orders and transfer decisions were made. His Honour proceeded to deal with each right separately.
Section 17(2) – protection of children in their best interests
After reviewing the authorities, including international law and commentary on best interests of the child, Garde J found that the impugned Orders engaged section 17(2). His Honour found that the “evidence in this proceeding makes plain” that the establishment of the youth justice facility within the walls of Barwon Prison “has widespread ramifications for the children and young people who may be transferred there”, including in relation to their sense of security, their capacity to receive visits from relatives, friends and lawyers, and their ability to have their medical, religious and cultural needs met (at ).
The evidence referred to by Garde J above detailed the significant shortcomings of the Barwon facility compared to both Parkville and Malmsbury, which ranged from protracted “lockdown periods” where children and young people were only allowed out of their cells for less than one hour per day, through to a lack of proper education facilities and programs and an increased incidence of threats of violence by guards and staff (see -).
Section 10(b) – protection from cruel, inhuman or degrading treatment
Garde J found that section 10(b) was also engaged, as there was evidence that one or more children and young people had been subjected cruel, inhuman or degrading treatment while at Barwon. These incidents included, amongst others:
- “very long” periods of solitary and prolonged confinement of young people in cells designed for adult prisoners;
- fear and threats by staff and the use of the Security and Emergency Services Group of Corrections Victoria inside the unit, including German Shepherd dogs;
- lack of space, amenities and programs for children and young people; and
- absence of family visits and lack of access to legal advisers and religious services.
Section 22(1) – humane treatment when deprived of liberty
In determining whether the right under section 22(1) was engaged, Garde J cited the decision of Emerton J in Castles v Secretary of the Department of Justice (2010) 28 VR 141, where her Honour stated (at ) that “the starting point should be that prisoners not be subjected to hardship or constraint other than the hardship or constraint that results from the deprivation of liberty”.
Garde J found that the right under section 22(1) was engaged as a result of the harsh conditions in the Grevillea unit at Barwon (see section 10(b) section above for details of the conditions).
Section 17(1) – protection of the family unit
While Garde J accepted that it may be less convenient for many families to visit children and young people at Barwon, he was not satisfied that this inconvenience and potential additional cost was enough to engage the human right of family protection.
Incompatibility analysis – section 38(1)
Garde J then considered section 38(1) of the Charter, which imposes an obligation on public authorities to give proper consideration to human rights both in their decision-making processes and in the way they act. The defendants had accepted that they were public authorities for the purposes of the Charter.
Relevantly, his Honour noted that in emergency situations, “there is nothing in the language of s 38 of the Charter to indicate that the obligation…is suspended or removed” (at ). He further noted that “where decisions have to be made with great haste, there are grave risks that human rights may be overlooked or broken” and that the existence of emergency factors “confirms, not obviates” the need for proper consideration (at ).
After reviewing the Briefing Paper and some attached talking points (the Minister did not give evidence in Court or on affidavit as to the consideration of Charter rights), along with media statements made by the Minister prior to the making of the impugned Orders, Garde J found that there was no indication that the Minister or any delegate gave proper consideration to the engaged and relevant human rights before deciding to establish the youth justice facility at Barwon. His Honour stated (at ) that “[t]his is not a case where there is doubt as to whether the consideration given was proper consideration. Rather there is no sign that any consideration was given to Charter rights or human rights at all.”
Reasonable and justifiable limitation of Charter rights – section 7(2)
After considering whether proper consideration was given to Charter rights by the defendants, Garde J then moved to determine whether the limitations on human rights were reasonable and justifiable taking into account all relevant factors, as is required by section 7(2) of the Charter.
Garde J noted that the following factors were relevant in the section 7(2) determination:
- the decision making process leading to the making of the impugned Orders did not involve any consideration of the human rights of the children and young people who were potentially subject to transfer to Barwon;
- the response to human rights issues at Barwon was reactive and was prejudiced by the absence of consideration of the problems before occupancy and how the children and young persons’ entitlements under the CYF Act might be met; and
- there was little to no evidence that Department staff and the Minister had been to the Grevillea unit or knew what the conditions were like.
His Honour noted that the Minister and Department were so focused on coping with the capacity pressures at Parkville that there was no consideration as to whether less restrictive, less consequential means were available. As a result, Garde J found that the limitations on Charter rights were not reasonable and could not be demonstrably justified.
Consequence of section 38(1) unlawfulness
Garde J left open the issue of whether contravention of section 38(1) of the Charter by a public authority gives rise to invalidity of the decision, noting that the issue “stands to be finally decided by the appellate courts at a future time”. His Honour instead found that the defendants’ failure to give proper consideration to Charter rights at the time of the impugned Orders meant that the impugned Orders were made in contravention of section 38(1). This declaration of a breach of section 38(1) did not invalidate the impugned Orders, but this was not of consequence given his Honour’s subsequent findings outlined below.
(ii) Application of the CYF Act
Garde J then turned to the CYF Act, the primary legislation that governs state-based custody arrangements for children in Victoria. Section 482(2) of the CYF Act denotes that children and young people detained in youth justice facilities have certain entitlements, including:
- to have their developmental needs (i.e. physical, social, emotional, intellectual, cultural and spiritual needs) catered for;
- to receive visits from parents, relatives and legal practitioners;
- to have reasonable efforts made to meet their medical, religious and cultural needs; and
- to receive information on the rules of the centre and to be advised of these entitlements.
Section 482(1) of the CYF Act also imposes certain duties on the Secretary, including that they must determine the form of care, custody or treatment which they consider is in the best interests of each person detained at a youth justice facility.
Section 478 of the CYF Act provides that “[f]or the purposes of this Act” the Governor in Council may establish a youth justice facility by publishing a notice in the Victorian Government Gazette. Significantly, the section also provides that the Governor in Council may only establish ‘a youth justice centre’ for the care and welfare of persons ordered to be detained in youth justice centres under this Act.
Jurisdictional facts or relevant considerations?
The plaintiffs primary submission was that the powers given to the Governor in Council in section 478 were predicated on certain ‘jurisdictional facts’ being made out – namely, that the entitlements listed in section 482(2) were able to be met by the proposed facility. They relied on the High Court’s decision in the Malaysian Solution case (M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144), where French CJ said that the term ‘jurisdictional fact’ is often used “to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion”.
In the alternative, the plaintiffs submitted that the statutory duties imposed on the Secretary and the entitlements granted to children and young people under section 482 of the CYF Act are relevant considerations which must be taken into account when a power under section 478 is exercised.
Garde J noted that the powers of the Governor in Council in section 478 were limited by the words “for the purposes of the Act”. Moreover, his Honour also noted that a youth justice centre may not be established unless it was “for the care and welfare” of children and young people detained under the CYF Act and that the form of care, custody and treatment to be provided was described in section 482.
After consideration of the relevant provisions, Garde J held that the existence of duties imposed on the Secretary and the entitlements of children and young people under section 482 were relevant considerations which must be taken into account before a decision is made under section 478, rather than jurisdictional facts.
Failure to take into account relevant considerations
Given the scarcity of documentary evidence before the Governor in Council (as described in the Charter sections above), Garde J found that the decision-making process leading to the impugned Orders did not involve any evaluation of the impacts on children and young people who would be transferred to Barwon. His Honour also did not find any evidence that the Minister considered the nature or suitability of the Grevillea unit in light of the Secretary’s duties under section 482. Tellingly, his Honour stated that “[e]ssentially the Department and the Minister were flying blind as to the real situation and suitability of the Grevillea unit when the Orders in Council were made” (at ).
Improper or extraneous purpose
The plaintiffs also submitted that because the impugned Orders were each made for the express purpose of ‘emergency accommodation’, they were made for an improper or extraneous purpose, as they make plain what the Governor in Council was seeking to achieve by establishing the Barwon facility. Garde J accepted the plaintiff’s submissions, finding that the purpose of ‘emergency accommodation’ is not one that is authorised by section 478 of the CYF Act.
(iii) Other arguments – habeas corpus
Garde J very quickly dismissed the plaintiffs other submission seeking the issue of the writ of habeas corpus, noting that “[t]he issue here is where the plaintiffs can be detained, not whether they should be detained” (at ).
As a result of the failure to take into account relevant considerations as required under the CYF Act, and also because the impugned Orders were made for an improper or extraneous purpose not authorised by the CYF Act, Garde J held that the impugned Orders were invalid and of no effect. As a consequence, the transfer decisions removing the children from Malmsbury and Parkville to Barwon were also held invalid and of no effect, and the plaintiffs were deemed entitled to orders that the Secretary transfer them to a remand centre lawfully established under the CYF Act.
This case is a reminder that the human rights and entitlements of children and young people must be central to decision making, even in circumstances of emergency, crisis or political challenge. Here, critical decisions affecting the lives of children and young people in custody were made hastily and without any consideration of their human rights and entitlements under the CYF Act. Even if the tumultuous political context that gave rise to this proceeding is factored in, the absence of any kind of elementary safeguard — such as a human rights “checkbox” for such decisions — is troubling.
Moreover, relative to other jurisdictions, Victorians are fortunate to have the protections of the Charter and the opportunity to bring human rights claims before the courts. However, it remains to be determined whether a breach of the Charter could amount to a declaration by the Courts that a decision of a public authority is invalid.
This decision was subsequently appealed by the defendants. The Victorian Court of Appeal allowed the appeal in part, finding that Garde J erred in finding that the Orders in Council were made for an improper purpose. However, the Court of Appeal also found that no error had been shown in Garde J’s finding that the Minister — and hence the Governor in Council — failed to take into account relevant considerations bearing on the exercise of the power conferred by section 478. The defendants challenge to Garde J’s finding of invalidity was therefore dismissed. The full text of the Court of Appeal’s decision is available here and a case summary can be found here.
The full text of this decision can be found here.
Antony Freeman is a Solicitor at King & Wood Mallesons