Detention of Children in Adult Prisons found to be Unlawful in Victoria

Following last year's lost appeal by the Victorian government to a decision that rendered the use of  adult prison facilities for children invalid, a recent Victorian Supreme Court judgement, Certain Children v Minister for Families and Children (No 2) [2017] VSC 251, has found again that detaining children in an adult maximum security prison is unlawful. This case, decided on 11 May 2017, was brought to media attention when about 20 children had been transferred to Barwon since November 2016 after riots damaged facilities at the other youth justice centres, Parkville and Malmsbury.

Plaintiffs' Argument

The plaintiffs, represented by the Human Rights Law Centre ('HRLC'), primarily relied on the evidence of Dr Andrew Deacon, child psychologist, and Ms Liana Buchanan, the principal Commissioner for Children and Young people in Victoria to argue that Barwon was unsuitable for housing children because it was primarily structured to suit the needs of adult prisoners. Specific concerns included the lack of educational facilities, the use of capsicum spray, practices that put children in isolation for up to 23 hours, random periods of handcuffing, and proximity to adult prisoners in Barwon. They also argued the invalidity of declaring the Grevillea unit at Barwon as a designated Youth Justice Centre (‘YJC’) through a gazette, and stated that the human rights of the children there were not being maintained pursuant to the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘The Charter’).  In particular, attention was given to Section 17(2) of the Charter, which stipulates that every child is entitled to protection based on his or her best interests.

Courts' Judgement and Response

In its judgement, the Court referred to the principle of ‘best interests of the child’ in Section 17(2) of the Charter, arguing that this must be a paramount consideration in the case of juvenile detention concerning vulnerable children. In addition to the lack of suitable space for schooling and lack of any accreditation opportunities such as the VCAL or VCE, each of the named plaintiffs described their experience at Grevillea as traumatising and dehumanising, noting that it was frightening, and discouraged family members from visiting them. Justice Dixon highlighted that to continue to incarcerate children in the adult prison would hamper their emotional, intellectual and spiritual needs, and expose them to further mental harm and reduce the chances of rehabilitation. Executive Director of the HRLC, Hugh de Krester said:

This is the third challenge to the Victorian government’s decision to keep children in an adult jail. Last year, after the challenge, the government gazetted the Grevillea unit at Barwon as a youth justice centre.  HRLC Lawyer and the children’s solicitor, Alina Leikin, said:

Her statement echoes that of other parties, who all called for a focus on rehabilitation for juvenile offenders.

Statistics

The findings from a March 2017 report by the Commission for Children and Young People, titled ‘The Same Four Walls,’ suggest that isolation was being used as a key behaviour management tool rather than as a last resort.  Isolation was being imposed on child inmates at least nine times a day on average. While 23 percent of isolation periods were for the duration of an hour, other periods were noted as significantly longer, up to 24 hours. It was also found that some inmates were isolated from other peers at the centre for up to 45 days. Isolation was often imposed for those inmates who had attempted suicide or had been victims of assault.  In the context of this recent Supreme Court decision, the findings suggest that there should be a rethinking of management practices in youth justice centres.

Coalition Response

The Coalition government called for the resignation of the Youth Affairs Minister Jenny Mikakos. Georgie Crozier, the children’s spokeswoman, questioned why Ms Mikakos was still being supported by Victorian Premier Daniel Andrews.  Ms Mikakos said in Parliement that she was disappointed at the judgement, saying:

However, in the context of this judgement, the state government should be working to provide for better incarceration facilities for juvenile inmates, keeping in mind the paramount consideration of the best interests of the child and rehabilitation principles. 

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Charter of Human Rights and Responsibilities Act 2006 (Vic), from TimeBase LawOne.

Julian Cleary, 'Children Transferred out of Adult Maximum Security Prison.' Amnesty International Australia, 18 May 2017.

AAP, 'Victoria's highest court rules against Barwon Prison.' News.com.au, 11 May 2017.

Melissa Coade, 'Adult prison no place for kids, Vic court finds.' Lawyers Weekly, 16 May 2017.

Commission for Children and Young People, 'The same four walls: inquiry into the use of isolation, separation and lockdowns in the Victorian youth justice system' (Melbourne: Commission for Children and Young People, 2017).

Emma Younger, 'Barwon Prison: Teens moved after court rules children should not be held in adult jail.' ABC News Online, 11 May 2017.