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Gaining teeth

Gaining teeth

By Tessa Van Duyn

Child Support Child Welfare Human Rights Young Persons 

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A recent decision of the Supreme Court will ensure that the Victorian government and public authorities will comply with, and have regard to, human rights in their day to day business and when engaging with the community.

Snapshot

  • There has been recent litigation in relation to the Victorian government’s response to the so-called “crisis” in the youth justice system.
  • This article focuses on the Supreme Court decision of Certain Children v Minister for Families and Children & Ors and its findings about the government’s human rights obligations under the Charter.
  • The clear statement from the Court that human rights form an integral part of government decision-making and daily business is a welcome development in Victoria’s evolving human rights legal framework.

In May 2017, the Supreme Court of Victoria categorically reminded the Victorian government that it has legal obligations under the Charter of Human Rights and Responsibilities Act 2006 (Charter) to act compatibly with, and give proper consideration to, human rights when going about its business and interacting with the community.

The catalyst for this definitive and welcome statement of the law in Victoria was Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors (Certain Children No. 2).1 The case involved a challenge from young people detained in the Grevillea Unit of HM Barwon Prison (previously used to house high security adult male prisoners) against the government’s redesignation of the Grevillea Unit as a youth justice centre and remand centre and its decision to transfer these children there.

The Supreme Court’s decision in Certain Children No. 2 is an example of the critical importance of acting compatibly with human rights and the proper consideration by government (and public authorities) of human rights in government decision-making. Not only does this case serve as a reminder to public authorities that they have legal obligations to act compatibly with human rights, it is also a good lesson in the myriad benefits of embedding human rights into the policies and practices of the Victorian public sector. Such a proactive and preventative approach goes a long way to achieving parliament’s overarching intent of the protection and promotion of human rights in Victoria.

Procedural history

The Supreme Court’s ultimate pronouncement of how the Charter imposes legal obligations on government in its work is founded upon a suite of challenges against the government’s response to systemic issues within Victoria’s youth justice system. It is instructive to set out the procedural history as background and context to the current interpretation of what the government’s human rights obligations are in practice.

Certain Children No. 2 was preceded by two earlier challenges (with an appeal in the second challenge) against the government by a litigation guardian, firstly on behalf of a number of Aboriginal young people in youth detention who were transferred to the newly established youth justice centre in the Grevillea Unit in late 2016. This case ultimately settled with the Secretary of the Department of Health and Human Services giving an undertaking to the Court not to authorise or cause the removal of any Aboriginal or Torres Strait Islander children to any adult facility unless there were exceptional circumstances and the Commissioner for Aboriginal Children and Young People provided advice that the transfer was in the child’s best interests. While this was a welcome outcome, other non-Aboriginal children and young people did not benefit and remained at Grevillea.

In December 2016, a litigation guardian initiated proceedings in the Supreme Court of Victoria on behalf of children detained in the Grevillea Unit.2 Justice Garde ultimately held that the Orders establishing the Grevillea Unit were invalid due to jurisdictional error, being failure to consider relevant matters and improper purpose. Importantly, he also held that the government had acted unlawfully under s38 of the Charter by acting incompatibly with the children’s human rights to what is in their best interests as children (s17(2)), their right to be free from cruel, inhuman and degrading treatment (s10(b)) and their right to be treated humanely when deprived of their liberty (s22(1)).3 Justice Garde further found that the government (through the Governor in Council) had not given proper consideration to human rights when taking the decision to designate the Grevillea Unit as a youth justice centre and remand centre.4

The plaintiff children sought administrative law remedies including an order of the Court directing their release from Barwon Prison and an order quashing the two Orders in Council establishing the Grevillea Unit as a remand centre and youth justice centre. The plaintiffs also submitted that a number of their human rights protected by the Charter were limited by the Orders and transfer decisions. Justice Garde found in their favour. In particular, Justice Garde found that the decision making process leading to the Orders did not involve any consideration or evaluation of the human rights of young people to be transferred to the Grevillea Unit.5 His Honour noted that:

“. . . Neither the Minister nor anyone else turned their minds to the impact of the establishment of the new facilities at Barwon Prison on young persons such as the plaintiffs. Their thoughts were directed at coping with the circumstances at Parkville, and the pursuit of their view that tougher measures were needed and that the perpetrators of the damage had to face serious consequences.

"As a result, the impact on the human rights of persons such as the plaintiffs was unplanned and largely unforeseen . . ."6

Arguably, this outcome could have been avoided had human rights been better embedded in the public sector’s policies and frameworks so as to ensure that rights are considered in all instances of government decision-making.

Justice Garde’s decision also stands as important authority in Victoria for the fact that human rights considerations cannot be abandoned in times of emergency or in extreme situations. As His Honour noted:

“[S]ection 38(1) of the Charter will operate to require proper consideration be given by public authorities to relevant human rights in emergencies or extreme circumstances or where great expedition is required in decision-making”.7

The government appealed Justice Garde’s decision and on 28 December 2016, the Court of Appeal dismissed the Minister’s appeal and adjourned its hearing on the human rights grounds of appeal.8

On 29 December 2016, the government re-gazetted the Grevillea Unit as a youth justice centre and remand centre under the Children Youth and Families Act 2005 (Vic), and the human rights aspects of the appeal were then discontinued by the appellant.

Subsequently, in early 2017, the litigation guardian initiated a new challenge against the government on behalf of the detained children – Certain Children No. 2.

The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) exercised its statutory right of intervention under s40 of the Charter in respect of the original challenge regarding the Aboriginal and Torres Strait Islander children, Certain Children, the subsequent appeal of Certain Children, and finally Certain Children No. 2.

Factual history

In mid-November 2016, a series of incidents at the Melbourne Youth Justice Centre in Parkville resulted in extensive property damage and meant that many of the children and young people held on remand and in custody had to be rehoused.

Orders in Council published in the Victorian Government Gazette on 17 November 2016 included Orders to establish the Grevillea Unit within Barwon Prison as a remand centre and a youth justice centre to be used “for emergency accommodation”. The government announced that about 40 young offenders would be sent to the newly gazetted youth justice unit.

Over subsequent days and weeks, children and young people were removed to Barwon from Parkville and the Malmsbury Youth Justice Precinct. During December, conditions within Grevillea were reported as being “harsh and austere”.9 The common area was “completely enclosed, without natural light or airflow”.10 There was no facility that permitted groups of young people to be separated from one another without reliance on lockdown procedures or isolation.11 As a result, some children and young people were locked in isolation for at least 20 hours a day.12 Access to education was very limited, and there was no trade program. Family visits were infrequent, if they occurred at all.13

After the Supreme Court and Court of Appeal decisions in Certain Children, the government made new Orders in Council, published in the Government Gazette on 29 December 2017, establishing the Grevillea Unit again as a youth justice centre and youth remand centre. On various dates between 29 December 2016 and February 2017, the plaintiffs in Certain Children No. 2 were transferred to the Grevillea Unit. On 27 January 2017, Orders in Council were made under the Control of Weapons Act 1990 (Vic), relevantly exempting the possession by Corrections Victoria staff of OC spray and extendable batons within the Grevillea Unit from the prohibitions that would otherwise apply to the possession and use of those weapons (Weapons Exemption).

In Certain Children No. 2 the plaintiffs challenged the validity of the December 2016 Orders in Council and the January 2017 Weapons Exemption on the grounds of jurisdictional error as well as unlawfulness under s38 of the Charter. In addition, the plaintiffs challenged each decision to transfer them to the Grevillea Unit.

Court upholds human rights

Justice John Dixon’s landmark decision in Certain Children No. 2 in May 2017 provides welcome clarity and certainty around the human rights obligations of government and public authorities in Victoria under the Charter. Dixon J underscored that s38 of the Charter requires public authorities to comply with and have regard to the human rights enshrined in the Charter. Perhaps of utmost utility, Dixon J set out a helpful roadmap for how public authorities can comply with human rights in practice.

Section 38 of the Charter imposes two separate obligations on public authorities – they must act compatibly with, and give proper consideration to, human rights.

In relation to the first limb of s38(1), “the substantive limb”, the Court held that determining whether or not a decision or act limits human rights requires the following:

  • construed broadly, identify which human rights are relevant to the act or decision (this includes consideration of what is the quality of the right and the importance of the values that underpin it)
  • consider whether the making of the decision, or taking of action does not comply with what is required by the scope and content of relevant human rights
  • where an act or decision does limit human rights, is that limitation reasonable and justifiable in accordance with s7(2) of the Charter?
  • if it is not a reasonable limitation, then it is incompatible and therefore unlawful under s38(1) of the Charter.

The second “procedural limb” has already been the subject of some judicial interpretation.14 The Court in this case helpfully synthesised the approach to what is required by the obligation to give proper consideration:

  • a public authority decision-maker must understand in general terms which rights may be relevant and whether and how those rights will be interfered with by the decision that is being made
  • a decision-maker must have seriously turned his or her mind to the possible impact of the decision on an affected person’s human rights and the implications for that person
  • to identify the countervailing interests or obligations.

His Honour clarified that, in accordance with s39 of the Charter, an applicant can only bring a claim of Charter unlawfulness where that same act or decision is challenged on the basis of non-Charter unlawfulness (such as jurisdictional error), and that same relief or remedy is being sought for the non-Charter unlawfulness.15 Importantly however, a person need not succeed on that non-Charter ground in order for a court to grant relief under s39(1) for a breach of s38 of the Charter.16 Indeed, in this case, the applicants’ success was based entirely on Charter grounds.

Importantly, Dixon J left open the complex question of whether a breach of s38(1) of the Charter amounts to invalidity or jurisdictional error. The Court found that it was unnecessary to resolve it in this case because it is uncontroversial that relief (such as a declaration or injunction) can flow from a breach of the Charter irrespective of the question of invalidity.17

Ultimately, the Court declared that the government had acted unlawfully under the Charter and prohibited the Secretary from detaining children at a place that has been declared unlawful.

Of note, in determining that the government had unreasonably limited the applicants’ human rights, Dixon J considered whether there were no less restrictive means available to resolve the capacity issues in the youth justice system. Dixon J did not accept the government’s argument and proffered some alternative options that were reasonably available on the face of the evidence and could achieve the purposes of management of safety and security. Importantly, he observed that in a society that protects and promotes human rights, the executive is expected to properly allocate its resources to protect and advance its children.18

After a decade of operation, the Supreme Court has finally given the Charter some “teeth”. That is, the Court’s decision ensures that the Charter has work to do in ensuring that public authorities comply with human rights in their daily business and dealings with the Victorian community. This timely jurisprudential update will hopefully be the breath of fresh air that the Charter needs to bring human rights to life for the Victorian community, particularly in its dealings with government.

Tessa van Duyn is the manager of the Legal Unit at the Victorian Equal Opportunity and Human Rights Commission, where she has practised as a human rights and equality law expert for nine years. Prior to this, she was a senior lawyer at Clayton Utz, practising in their public law litigation practice.

1. [2017] VSC 251.

2. Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 (Certain Children).

3. Note 2 above, at [223].

4. Note 2 above, at [216].

5. Note 2 above, at [216].

6. Note 2 above, at [220]-[221].

7. Note 2 above, at [188].

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

9. Note 1 above, at [43].

10. Note 1 above, at [59].

11. Note 1 above, at [60].

12. Note 1 above, at [65].

13. Note 1 above, at [76].

14. Castles v Secretary to the Department of Justice (2010) 28 VR 141; De Bruyn v Victorian Institute of Forensic Mental Health (2016) 48 VR 647; Bare v IBAC (2015) 48 VR 129.

15. Note 1 above, at [545].

16. Note 1 above, at [549].

17. Note 1 above, at [554]-[556].

18. Note 1 above, at [472]-[475].


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