Supreme Court finds Government acted unlawfully in transferring children to Barwon jail

Supreme Court finds Government acted unlawfully in transferring children to Barwon jail

In a landmark case, the Supreme Court held that the Victorian Government’s decision to transfer children to Barwon maximum security adult jail was unlawful. The Court also found that the Government failed to properly consider the Victorian Charter of Human Rights.

Ruth Barson, Director of Legal Advocacy at the Human Rights Law Centre, said that this is a significant outcome for upholding children’s rights in Victoria.

“Jailing children in an adult prison is wrong. This is why Victoria has always maintained separate youth justice facilities,” said Ms Barson.

The Human Rights Law Centre and Fitzroy Legal Service brought the legal challenge after the Government last month backed down from a similar case by agreeing not to transfer any Aboriginal children to an adult prison.

Throughout the case evidence was given that children had been held in cruel conditions including solitary confinement. They had been given barely any time outdoors; were not getting access to proper schooling; and had limited family contact.

“While the Government no doubt had a policy challenge on its hands, the court has today made absolutely clear that children’s welfare needs cannot be sidelined. The Government must now go back to the drawing board and right this injustice,” said Ms Barson.

Meghan Fitzgerald, lawyer at Fitzroy Legal Service, said that children are different to adults and should be held in a safe environment.

“Children held at Barwon adult jail lost more than their freedom. My clients told me that their health and mental health had deteriorated. If children must be detained, it should be in youth appropriate facilities that provide them with the opportunity to change and reach their potential,” said Ms Fitzgerald.

Many children involved in the youth justice system come from backgrounds characterised by trauma, including exposure to family and sexual violence, homelessness and drug and alcohol misuse.

“Confining children in an adult jail is bad for children and bad for public safety. We’re hopeful that this case sets a precedent that Governments cannot expose children in detention to cruel conditions and potentially dangerous environments,” said Ms Fitzgerald.

There are approximately 15-20 children currently held at Barwon adult jail. They will likely now be transferred back to the youth justice facilities at Parkville or Malmsbury.

UPDATE: The Victorian Government will appeal the Supreme Court’s decision. As a consequence, the Judge gave the Government until 28 December before they are required to move the 15 children out of Barwon jail. The Victorian Court of Appeal will hear the appeal on 28 December and will likely decide the case on the same day.

For media inquiries:

Ruth Barson, Human Rights Law Centre: 0417 773 037

Claudia Fatone, Fitzroy Legal Service: 0403 234 156

Michelle Bennett, Human Rights Law Centre, Director of Communications: 0419 100 519