Certain Children by their litigation guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors  VSC 251 (11 May 2017)
In its third decision concerning the lawfulness of the government’s move to establish a youth justice centre in a part of the Barwon maximum security adult prison, the Victorian Supreme Court has again ruled it to be unlawful.
Children detained at Barwon prison successfully challenged the initial decision establishing the youth justice centre on 21 December 2016 (summarised in this case note [hyperlink]), and the Minister’s appeal was dismissed by the Court of Appeal on 29 December 2016 (see case note [hyperlink]).
The State government moved to re-gazette the facility on the same day the Minister’s appeal failed, and children detained at the prison challenged several aspects of that decision in this proceeding.
In a judgment handed down on 11 May 2017, Justice Dixon found that the State government had breached the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) and therefore acted unlawfully. Specifically, his Honour found that the following decisions were incompatible with the children’s human rights and best interests:
- Orders establishing the Grevillea unit at Barwon prison as a youth justice centre and remand centre (December Orders in Council).
- Decisions to transfer two of the plaintiff children to the Grevillea unit (Transfer Decisions).
- Orders allowing the possession and use of oleoresin capsicum spray (OC spray) and extendable batons by Corrections Victoria staff (Weapons Exemption).
A series of incidents occurred at the Parkville youth justice precinct in November 2016 that significantly reduced its capacity. In order to accommodate children who could no longer be housed at Parkville, the government established the Grevillea unit of Barwon adult prison as a youth justice centre under the Children Youth and Families Act 2005 (CYF Act).
Certain children detained at the centre issued proceedings challenging the validity of its establishment, and a first decision in their favour was handed down by Justice Garde in December 2016. On 29 December 2016, the Court of Appeal confirmed that the Orders in Council establishing the facility were invalid, and ordered that the children held at Barwon prison be removed by 4pm on 30 December 2016.
However, on 29 December 2016, the State government re-gazetted the facility as a youth justice centre, meaning children remained in the facility.
The plaintiffs in this proceeding challenged several decisions made in this process:
- Orders in Council made on 29 December establishing the Grevillea unit as a youth justice centre and remand centre.
- Decisions made on 1 February 2017 to transfer two of the plaintiffs to the Grevillea unit.
- Orders in Council made on 27 January 2017 authorising certain Corrections Victoria staff to possess and use OC spray and extendable batons against children detained at Barwon prison.
Justice Dixon found that all three challenged decisions were contrary to section 38(1) of the Charter, which requires public authorities to properly consider and comply with the human rights enshrined in the Charter.
His honour held the decisions involved limitations on the human rights of the children, and these limitations were not proportionate – that is, they were not demonstrably justified as reasonable in a free and democratic society based on human dignity, equality and freedom as required by section 7(2). Further, the Governor in Council and the delegate of the Secretary to the Department of Health and Human Services (DHHS)did not give proper consideration to these rights when making the relevant decisions.
Ground 1: Breach of Charter rights
(a) Charter rights engaged
The Court found that two rights under the Charter were engaged and breached:
- Section 17(2), which stipulates that every child is entitled to protection based on his or her best interests. The Court referred to this as the paramount consideration in the case of juvenile detention concerning vulnerable children.
- Section 22(1), which stipulates that all persons deprived of liberty must be treated with humanity and respect for the inherent dignity of the human person.
(b) Evidence of harm
Many of the named plaintiffs described their experiences at Barwon prison as traumatising and frightening, and discouraged family members from visiting them.
In addition to the lack of suitable space for schooling and lack of any accreditation opportunities such as the VCAL or VCE, Justice Dixon accepted evidence by an expert child psychiatrist that the environment was demoralising and dehumanising, and would have a serious and negative impact on young people.
In particular, his Honour noted that many aspects of the Grevillea unit at Barwon prison adversely impacted on the plaintiffs’ human rights:
- The built environment at Barwon prison: the Grevillea unit previously housed maximum security adult prisoners, and despite changes the environment continues to be that of a maximum security adult prison.
- Isolation by lockdown: the plaintiffs were frequently isolated for up to 23 hours a day in cells that were designed for adult men. These conditions were regular at the time of the relevant decisions in December 2016 and continued into February 2017.
- Handcuffing: children were regularly handcuffed for routine activities, such as being moved from a wing of the unit to the outdoor exercise area.
- Risk of mental health problems: the Court found that the Minister had failed to consider the heightened risk of mental health problems posed by the environment at the Grevillea unit, including depression, anxiety, cognitive problems, hypersensitivity and paranoia, or exacerbation of existing mental health problems.
- Limits of the children’s development: the Grevillea unit “significantly limited” the children’s emotional, intellectual and spiritual needs, exposed them to further mental harm and reduced their chances of rehabilitation.
Justice Dixon found that the above limitations on the children’s rights were not proportionate. His Honour was not convinced that the State appreciated the true nature of the engaged rights, and the fact that it is “fundamental that vulnerable children from disadvantaged circumstances be rigorously protected by the law”. In particular, he observed that the focus of both the Charter and the CYF Act is on the child’s opportunity to continue to develop, and should not be treated like adults.
His Honour also gave little weight to the State’s argument that the real accommodation shortage that existed justified the limitations, observing that the corollary of this argument was that “it is better that a few should suffer limitations on their human rights because the human rights of all cannot be respected”.
Finally, his Honour noted that the defendants did not demonstrate that they had thought extensively or creatively about solutions to the accommodation shortage. In these circumstances, the Court found that the limitations were not demonstrably justified and were therefore unreasonable.
(d) Proper consideration
Even if the limits imposed on the children’s rights were reasonable, Justice Dixon found that the State failed to give them proper consideration.
While the Minister had been given an extensive briefing paper that covered the relevant rights, Justice Dixon was not persuaded that she had correctly balanced the competing public and private interests. In particular, the balancing exercise was impaired by incorrect factual assumptions about the incidence of lockdowns, isolation and handcuffing of children, and an apparently complete failure to consider the impact that the environment at Grevillea would have on the mental health or wellbeing of the children there.
Ground 2: Jurisdictional facts
The plaintiffs also argued the power to establish the Grevillea unit as a youth justice centre, to transfer the plaintiffs there and to make the Weapons Exemption were all conditioned on or subject to the existence of various jurisdictional facts, including the ability to meet children’s entitlements under the Act and comply with the defendants’ obligations under the Act.
Justice Dixon rejected this argument, finding that the terms of the Act did not support the characterisation of any of the relevant powers as conditioned on jurisdictional facts. Rather, following Justice Garde in the first Supreme Court decision, Justice Dixon considered that they were mandatory considerations.
Ground 3: Procedural fairness
With respect to the transfer decisions, the plaintiffs also argued that the delegate of the Secretary to the DHHS was required but had failed to accord procedural fairness to the children being transferred. This was because of the Grevillea unit’s limitations, a transfer there might result in a change to the extent to which the child’s entitlements could be met, and the statutory power required consideration of the interests of the child in each case.
Justice Dixon did not accept that the transfer affected any legal right or interest of the child involved, since it was better characterised as a prison management decision.
The Court made declarations that the Orders establishing the facility, the transfer decisions and the Orders authorising the use of OC spray and batons were unlawful under section 38(1) of the Charter. It also ordered that the Secretary to the DHHS and State of Victoria be restrained from detaining, or continuing to detain, children at the Grevillea unit. Orders were also made for the transfer of the plaintiffs remaining at the Grevillea unit, and regarding the use of OC spray in the unit.
This decision is an important one for the Charter, and several aspects of the Court’s approach are worthy of note.
First, the Court held that the statutory task of determining Charter unlawfulness “necessarily require[s] an assessment that is closer to merits review than is usual in judicial review”. Accordingly, Justice Dixon gave careful consideration to the evidence presented by each side, and concluded on several occasions that the State had not made out its case on the facts.
Second, the decision makes clear that courts will give careful consideration to arguments based on resource allocation of a public authority, and will require robust evidence that no alternatives were available. In this case, Justice Dixon acknowledged that the State faced an accommodation shortage, but was not persuaded by the evidence that it had thought “extensively or creatively” about solutions other than Barwon prison.
Finally, it demonstrates that while the Charter does not stand alone as a cause of action, once it has been engaged in a proceeding it is capable of vindicating substantive rights – alone.
The full text of the decision can be found here.
Bobbi Murphy is a Solicitor at King & Wood Mallesons.