Victorian Court of Appeal upholds finding that establishment of youth justice centre at Barwon adult prison unlawful

Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA 343 (29 December 2016)


On 28 December 2016, the Court of Appeal heard an urgent appeal from a decision of Justice Garde of the Supreme Court. Justice Garde’s decision (which is summarised in another case summary here) had been handed down just one week prior.

The trial and appeal concerned the lawfulness of the government’s decision to establish a youth justice centre inside the Barwon maximum security adult prison to accommodate young offenders. This was done by means of a gazettal declaring the site to be a “youth justice centre” for the purposes of the Children, Youth and Families Act 2005 (Vic) (CYF Act), following disturbances at the Parkville youth justice precinct that left some parts of the facility unusable.

The Court of Appeal (comprised of Warren CJ, Maxwell P and Weinberg JA) upheld Justice Garde’s finding that in establishing the facility as a youth justice centre, the Minister and Governor in Council had failed to have regard to mandatory considerations relating to the children’s rights and the State’s obligations under the CYF Act. However, it overturned a finding that the Minister had acted for an improper purpose in establishing the facility.


The facts of the original case are covered in detail in the case summary relating to the trial proceeding, available here.

In brief, over the weekend of 12–13 November 2016, a series of incidents occurred at the Parkville youth justice precinct, which resulted sixty beds becoming unusable, and an issue arose as to where to accommodate the children who had previously been housed there.

After some consideration of options, Corrections Victoria identified the Grevillea Unit of the Barwon adult prison. 

At the time the unit housed 40 adult prisoners, and was wholly within the Barwon maximum security facility. No children could be moved there until Orders in Council were made to decommission the site as an adult prison and to re-define it as a youth justice centre.

These orders were made on 17 November 2016.

Once the Grevillea unit was established as a youth justice centre, decisions were made to transfer certain children there from 21 November 2016.


The Court of Appeal heard oral argument on 28 December 2016, and then briefly adjourned in order to announce that it would unanimously dismiss the appeal. Reasons were handed down the following day, on 29 December 2016.

Findings at trial

Justice Garde found two independent bases on which the Orders in Council, and the transfer decisions based upon them, were invalid and of no effect:

  • First, the Minister and the Governor in Council failed to take into account relevant considerations.
  • Second, the Minister and the Governor in Council acted for an improper or extraneous purpose.

Justice Garde also found that the Orders in Council were unlawful under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) because the Minister and the Governor in Council had failed to give proper consideration to the human rights described in ss 10(b), 17(2) and 22(1) of the Charter.

Ground 1

(a)  What were the relevant considerations?

The CYF Act provides the power to establish a youth justice centre in section 478.  However it also provides for:

  • obligations relating to the form of custody (s 482(1)); and
  • rights of children who are detained under the Act (s 482(2)).  Among these rights is the right to have their “developmental needs” catered for.  The Act defines development to mean “physical, social, emotional, intellectual, cultural and spiritual development”.

The trial judge found that the capacity to comply with the obligations under s 482(1) and the ability to meet the developmental needs of children under 482(2) were mandatory considerations which conditioned the exercise of the power to establish a youth justice centre under s 478.

The State submitted this was not the case, as it would require the Governor in Council to evaluate the Secretary’s ability to comply with the provisions at “an unspecified point (perhaps far) into the future”.

The Court of Appeal rejected this argument, concluding the State sought to draw an “unsustainable distinction between the power to establish a detention centre for children and Parliament’s express specification of the essential attributes of detention in such a centre”.  Instead, the Court held that the two sections should be read together.  This was because, among other things:

  • the language of s 482(2) makes plain that young people in a detention centre have the right to have their development needs ‘catered for’;
  • Parliament has reinforced the importance of this entitlement by imposing an absolute obligation on the Secretary (‘make sure’ rather than merely ‘take reasonable steps’) and requiring yearly reports on the extent of compliance;
  • the ‘informing philosophy of the Act and its stated purposes’ treat the rights and interests of children as governing considerations;
  • the power conferred is a power to establish a centre ‘for the care and welfare’ of young persons detained there; and
  • the rights under s 482 accrue as soon as a person is detained, indicating the Parliament intended the place of detention to be somewhere where those rights and entitlements could be enjoyed.

Finally, the Court recalled the importance of the principles at stake: “a decision under s 478 is a decision about the setting in which detainees will experience the deprivation of their liberty, imposed on them for their breaches, or alleged breaches, of the criminal law. On ordinary principles, that is a powerful consideration supporting the conclusion that the rights and entitlements conferred on detainees in respect of their detention should be at the forefront of the decision-maker’s mind.”

(b)   Did the Minister fail to take the relevant considerations into account?

There was little material before the trial judge and Court of Appeal going to factors that were considered by the Minister.  The Minister did not give evidence at trial, and there was no statement of reasons for the gazettal decision. 

The Court of Appeal agreed that the Minister had no obligation to give reasons for her decision, however noted that “the absence of a statement of reasons [cannot] operate to the advantage of the decision-maker”.  In these circumstances, the Court will proceed on the basis of the material that is before it, on the assumption that the decision-maker wishing to uphold the decision will put into evidence all material that would demonstrate that the relevant considerations were taken into account.

Both courts therefore relied on a briefing paper provided to the Minister at the relevant time.  The briefing paper contained no references to the rights of the children under s 482(2) or the obligations of the Secretary under s 482(1). The Court was prepared to infer from this that these matters were not considered by the Minister, and she thus exceeded the authority conferred on her by the Act.

Ground 2: Did the Minister act for an improper purpose?

The Court of Appeal overturned the finding of improper purpose.

The trial judge found that on the evidence, the Barwon facility was established solely for the purpose of “emergency accommodation”, which was not one of the purposes enumerated in s 478.  Therefore Garde J concluded that the facility was established for an “extraneous purpose”.

The Court of Appeal disagreed, holding that the words “for emergency accommodation” contained in the orders were merely descriptive of the circumstances in which the new youth justice centre and new remand centre were being established.  The description of “emergency accommodation” could not affect the validity of the decision to establish them.


The Orders in Council and transfer decisions were invalid as a result of the Minister’s failure to take into account relevant considerations.  The Court ordered that the children at the Barwon adult prison site be removed by 4.30pm on 30 December 2016.

However, on 29 December 2016, the State government re-gazetted the facility as a youth justice centre, meaning children remain in the facility.


The trial and appeal both took place in a charged atmosphere – a fact of which the Court of Appeal was well aware.  In the opening paragraphs of its reasons, the Court attempted to defuse some of the controversy, underscoring that the supervisory role of the court is not a political one.  The Court “is not concerned with, and expresses no view about, the merits of the decision made by the Minister to establish a youth detention centre at Barwon Prison. … It is one of the foundations of our democratic society that the courts perform this supervisory role, and do so independently of Government and immune from political pressure.  This is one of the guarantees of the rule of law.”

The court also showed significant flexibility in dealing with the issues raised by the proceeding.  Given that less urgency attached to the Charter arguments, oral submissions relating to these were not heard on 28 December, and a date was set down to consider them in February 2017.  However, the State discontinued its appeal on the Charter grounds on 18 January 2017.  Justice Garde’s findings and reasons with respect to Charter breaches therefore stand.

Finally, the re-gazettal of the facility just one day after the Court of Appeal’s ruling that the first gazettal was invalid raises questions about the ability of advocates to effectively mount challenges to government actions in these circumstances.  A further challenge to the second gazettal is currently on foot.

The full text of the decision can be found here.

Bobbi Murphy is a Solicitor at King & Wood Mallesons.