Victorian Government Loses Barwon Prison Appeal; Re-Gazettes Youth Justice Unit
Tuesday 3 January 2017 @ 10.39 a.m. | Crime
The Victorian Government has lost an appeal against an earlier decision that found that the detention of young people in a unit at the maximum security Barwon Prison was unlawful. The Victorian Court of Appeal dismissed the appeal against Justice Garde’s earlier decision that required the release of the young people involved, although they reserved judgement on a portion of the appeal that dealt with issues arising under Victoria’s human rights charter. In response, the Victorian Government has now re-gazetted Barwon Prison as a youth justice and remand facility, with the Minister for Families and Children saying that “the issues raised by the courts have been addressed in this gazettal”.
The Court Decisions
The transfer of more than 15 teenagers to Barwon Prison followed a series of riots that took place at the Parkville Youth Justice Precinct. The riots led to significant damage to the unit, which required the relocation of a number of young people. The Victorian Government published a number of Orders in Council in Victorian Government Gazette S354, which effectively excised the Grevillea Unit from Barwon Prison, and established it as “a remand centre for emergency accommodations” and “a youth justice centre for emergency accommodation”.
The Courts found that the Orders were unlawful as there was no evidence to demonstrate that the Minister for Families and Children had properly considered the suitability of the Grevillea Unit to:
“enable the developmental needs of present and future detainees to be catered for, and to enable the Secretary [to the Department of Health and Human Services] to discharge her duties to present and future detainees under ss 482(1)(a) and 482(3) [of the Children, Youth and Families Act 2005].”
The original decision by Justice Garde required the Victorian Government to move the young people to a suitable youth facility by 4 pm on the 22 December 2016, but he later granted a stay on his order until December 28, saying:
“The best thing possible for the young people is unfortunately to remain where they are simply because there is no where else satisfactory or safe for them to go.”
Re-Gazettal
However, the day after the court decision, the Victorian Government announced it had re-gazetted the prison in a way it believed would address the issues raised by the court, and that consequentially the unit would continue to house youth offenders. Minister for Families and Children Jenny Mikakos told ABC News:
"Now that that [legal action] is completed, the department will be able to make an assessment in terms of operational needs as to whether further offenders would need to be sent down there… But it certainly is my expectation, based on the advice that I have, that that will need to take place. We are pretty much at operational capacity in terms of our other existing youth justice facilities at the moment, in terms of secure beds, so it's very likely that further offenders will need to be sent down to Barwon."
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Sources:
Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 (21 December 2016)
Minister v Certain Children [2016] VSCA 343 (28 December 2016)
