Certain Children v Minister for Families and Children (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 00409

BETWEEN:

CERTAIN CHILDREN BY THEIR LITIGATION GUARDIAN SISTER MARIE BRIGID ARTHUR	Plaintiffs
And
MINISTER FOR FAMILIES AND CHILDREN & ORS	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3, 4, 5, 6, 7, 10 April 2017
DATE OF JUDGMENT:	11 May 2017 (Revised [22(h)], 18 May 2017)
CASE MAY BE CITED AS:	CERTAIN CHILDREN v MINISTER FOR FAMILIES AND CHILDREN & ORS (NO 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 251

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ADMINISTRATIVE LAW – Jurisdictional Error – Jurisdictional fact – Children Youth and Families Act2005 (Vic) – Whether existence of certain ‘facts’ required to enliven power vested in Governor in Council by Order to establish a remand centre and youth justice centre under s 478 (a) and (c) or power under s 484 vested in the Secretary of the Department of Health and Human Services to cause the removal of a person from one youth justice facility to another – Control of Weapons Act 1990 (Vic) – Whether existence of certain ‘facts’ required to enliven power vested in Governor in Council by Order to exempt a class of persons from prohibitions under the Act – Entitlements under s 482(2), prohibitions under s 487, and purpose under s 478 of Children Youth and Families Act2005 (Vic) considered – Statute not mandating jurisdictional fact – No jurisdictional error –Children Youth and Families Act2005 (Vic), ss 1, 3, 8, 9, 10, 11, 478, 482, 484, 487, 488; Control of Weapons Act1990 (Vic) ss 5AA, 8B.

ADMINISTRATIVE LAW – Jurisdictional Error – Denial of procedural fairness – Decision by delegate of Secretary to remove a person in the lawful custody of the Secretary from a youth remand centre to Grevillea youth remand centre – Whether remandee has a right to be heard – Whether denial of procedural fairness – No jurisdictional error – Children Youth and Families Act2005 (Vic) ss 1, 3, 8, 9, 10, 11, 478, 482, 484, 487, 488.

CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES – Unit at Barwon maximum security adult gaol excised and established as a youth justice centre and a youth remand centre – Order in Council – Public authority – Whether acts incompatible with a human right – Whether in making decision proper consideration given to a human right – Protection of children in their best interests – Protection from cruel, inhuman or degrading treatment – Humane treatment when deprived of liberty – Public authorities – Whether demonstrably justified that rights subject to reasonable limits – Proper consideration – Effect of incompatibility and failure to give proper consideration – Remedies available – Habeas Corpus and Certiorari considered – Declarations and injunctions granted – Charter of Human Rights and Responsibilities Act2006 (Vic) ss 1, 7(2), 10(b), 17(1), 17(2), 22(1), 38(1), 39(1).

CHILDREN – Detention of children in remand centres and youth justice centres – Unit at Barwon maximum security adult gaol excised and established as a youth justice centre and a youth remand centre – Rights and entitlements of children in lawful custody of the Secretary of the Department of Health and Human Services – Children Youth and Families Act2005 (Vic) ss 1, 3, 482, 484, 487, 488.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr I R L Freckelton QC, with Mr M L L Albert, Ms S M C Fitzgerald and Dr A McBeth	Human Rights Law Centre
For the Defendants	Mr R M Niall QC, Solicitor General for the State of Victoria, with Ms M J Richards SC, and Mr L T Brown	Victorian Government Solicitors Office
For the Victorian Equal Opportunity and Human Rights Commission as intervenor	Mr P R D Gray QC, with Ms K Evans	Victorian Equal Opportunity and Human Rights Commission

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Parties............................................................................................................................................. 1
Factual and litigation background............................................................................................. 2
Exercise of power challenged..................................................................................................... 3
The plaintiffs’ claim...................................................................................................................... 4

Questions to be decided.................................................................................................................... 5

Legislative scheme........................................................................................................................... 11

Children, Youth and Families Act 2005......................................................................................... 11
Control of Weapons Act 1990........................................................................................................ 17

Jurisdictional Fact............................................................................................................................. 18

Principles applying.................................................................................................................... 18
Plaintiffs’ submissions............................................................................................................... 21
Grevillea Orders................................................................................................................ 21
Transfer Decisions............................................................................................................. 31
Weapons Exemption......................................................................................................... 32

Defendants’ submissions........................................................................................................... 34
Grevillea Orders................................................................................................................ 34
Transfer Decisions............................................................................................................. 40
Weapons Exemption......................................................................................................... 41

Jurisdictional fact – Analysis..................................................................................................... 42
The power to establish centres – CYF Act, s 478........................................................... 42
The power to transfer – CYF Act, s 484.......................................................................... 50
The Weapons Exemption – CoW Act, s 8B.................................................................... 51

Conclusions.................................................................................................................................. 52

Procedural fairness........................................................................................................................... 53

Plaintiffs’ submissions............................................................................................................... 53
Defendants’ submissions........................................................................................................... 55
Analysis........................................................................................................................................ 59

Charter of Human Rights and Responsibilities Act 2006 (the Charter)................................... 63

How the Charter applies............................................................................................................ 63
Relevant provisions.................................................................................................................... 66
Approach to Charter assessment.............................................................................................. 68
General approach.............................................................................................................. 69

Rights engaged................................................................................................................................. 89

Orders in Council........................................................................................................................ 89
Cruel inhuman or degrading treatment, s 10(b)........................................................... 92
Right of detainee to humanity, respect and dignity, s 22(1)....................................... 96
Conclusion on engagement of s 10(b) and s 22(1)....................................................... 100
Best interests of the child, s 17....................................................................................... 103

Transfer Orders......................................................................................................................... 109
Weapons Exemption................................................................................................................ 109

Limitations on rights...................................................................................................................... 110

Plaintiffs’ submissions............................................................................................................. 110
Defendants’ submissions......................................................................................................... 115

The evidence................................................................................................................................... 116

The defendants’ evidence........................................................................................................ 117
Overview.......................................................................................................................... 117
Kym Peake........................................................................................................................ 117
Robert Pemberton............................................................................................................ 131
Craig Howard................................................................................................................... 133
Matthew Belleville.......................................................................................................... 135
Monica Tulloch................................................................................................................ 136
Tracy Beaton..................................................................................................................... 136
Jodi Henderson................................................................................................................ 138
Decision to transfer Marco Gillespie-Jones to Grevillea.............................. 139
Decision to transfer Andrew Pound to Grevillea.......................................... 140

Victoria Idoniboye........................................................................................................... 142

The plaintiffs’ evidence............................................................................................................ 142
Overview.......................................................................................................................... 142
Alina Leikin...................................................................................................................... 142
Marco Gillespie-Jones..................................................................................................... 146
Andrew Pound................................................................................................................. 146
Simon Last........................................................................................................................ 148
Liam Arnell....................................................................................................................... 148
Griffin Hosking................................................................................................................ 149
Phillip Davey................................................................................................................... 149
Angus Loynes.................................................................................................................. 150
Damien Keryk.................................................................................................................. 151
Gabi Alleyne..................................................................................................................... 151
Liana Buchanan................................................................................................................ 151
Dr Adam Deacon............................................................................................................. 155

Visit to Grevillea....................................................................................................................... 161
Videos of incident within Grevillea....................................................................................... 162

Limitation of rights - Analysis..................................................................................................... 164

Grevillea Orders........................................................................................................................ 164
Transfer Orders......................................................................................................................... 165
Weapons Exemption................................................................................................................ 165

Proportionality/Justification......................................................................................................... 168

Grevillea Orders........................................................................................................................ 169
Transfer Decisions..................................................................................................................... 171
Analysis...................................................................................................................................... 175
Weapons Exemption................................................................................................................ 186
Analysis...................................................................................................................................... 188

Proper Consideration.................................................................................................................... 189

Grevillea Orders........................................................................................................................ 190
Transfer Decisions..................................................................................................................... 194
Weapons Exemption................................................................................................................ 199

Remedies and relief....................................................................................................................... 203

Preliminary observations......................................................................................................... 203
Some relevant legal principles................................................................................................ 205
Plaintiffs’ submissions............................................................................................................. 213
Defendants’ submissions......................................................................................................... 215

Conclusion....................................................................................................................................... 217

Declarations............................................................................................................................... 217
Certiorari and injunctions.......................................................................................................... 218

Orders............................................................................................................................................... 224

HIS HONOUR:

Introduction
Parties

The plaintiffs in this proceeding are all of the children detained at the remand centre and youth justice centre contained within the Barwon adult maximum security prison, known as the Grevillea Unit. The children are between 15 and 18 years of age. As minors, their litigation guardian, Sister Marie Brigid Arthur, brings the proceeding. Their identities are protected by pseudonym orders and their pseudonyms are used in these reasons.

The plaintiffs seek orders for their removal from the Grevillea Unit to a place of lawful detention primarily on the basis that the Grevillea Unit is not a lawful place of detention for children remanded or sentenced under the Children, Youth and Families Act 2005 (the Act or CYF Act).

The defendants are the Minister for Families and Children (‘the Minister’), the Secretary to the Department of Health and Human Services (‘the Secretary’), the Minister for Police and the State of Victoria. At the relevant time the Department of Health and Human Services was responsible for the statutory supervision of young people in the criminal justice system.[1] Exercising its statutory right under s 40 of the Charter of Human Rights and Responsibilities Act2006 (the Charter), the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) intervened in the proceeding.
[1]During the course of the trial this was apparently changed, with the responsibility now lying with the Department of Justice.

Factual and litigation background

The events and litigation background that led to this proceeding are set out in the earlier decision of Garde J in Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (‘Certain Children’).[2]
[2][2016] VSC 796, [8]-[54].

Prior to November 2016, there were two Youth Justice Custodial Precincts in Victoria: the Malmsbury Youth Justice Precinct (‘Malmsbury’) and the Parkville Youth Justice Precinct (‘Parkville’).

On 17 November 2016, following a riot at Parkville that significantly reduced its capacity, the Governor in Council made orders establishing the Grevillea Unit, located within the site of Barwon Prison at 1140 Bacchus Marsh Road, Anakie, as a remand centre and youth justice centre for children (the ‘November Orders in Council’). The first children were transferred to Grevillea on 21 November 2016. Since then, an unknown number of children including the plaintiffs have been moved to Grevillea pursuant to transfer decisions under the CYF Act.

On 2 December 2016, certain children issued a proceeding challenging the November Orders in Council. On 21 December 2016, Garde J made declarations that the November Orders in Council were invalid. His Honour’s decision was based on two key conclusions, a finding of unlawfulness under s 38(1) of the Charter and two findings of jurisdictional error, being failure to consider relevant matters and improper purpose. As a result, his Honour did not otherwise consider the validity of the transfer decisions challenged in that proceeding. His Honour also ordered that the defendants take all necessary steps to transfer the plaintiffs held on remand at Grevillea to a remand centre in Victoria lawfully established under s 478 of the Act.

Before Garde J published his reasons, the defendants announced that they would seek leave to appeal, and on that basis obtained a stay of the order requiring the transfer of the plaintiffs. On 28 December 2016, the Court of Appeal upheld the decision of Garde J, confirming that the November Orders in Council were invalid, and required the plaintiffs to be detained in a lawful facility by 4.30pm on 30 December 2016.

Exercise of power challenged

The defendants then made certain decisions that are challenged in this proceeding by the plaintiffs. On 29 December 2016, before the Court of Appeal had published its reasons in Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur (‘Certain Children Appeal’),[3] the Governor in Council again made two Orders in Council that re-established Grevillea as a remand centre and as a youth justice centre under s 478(a) and (c) of the Act respectively (the ‘Grevillea Orders’ or the ‘December Orders in Council’).
[3] [2016] VSCA 343.

On various dates between 29 December 2016 and 9 February 2017, the plaintiffs were transferred to Grevillea in purported exercise of the power in s 484 of the CYF Act, which empowers the Secretary to remove a child from one youth justice facility to another. Only the transfer decisions of plaintiffs who remain at Grevillea are now challenged (‘the Transfer Decisions’). Specifically, the challenged decisions are:[4]

(a) Decision made on 1 February 2017 under s 484(1) of the Act by Ms Jodie Henderson, Acting Director, Secure Services, as delegate of the Secretary, to cause the removal of Marco Gillespie-Jones from Parkville to Grevillea; and

(b) Decision made on 1 February 2017 under s 484(1) of the Act by Ms Jodie Henderson, Acting Director, Secure Services, as delegate of the Secretary, to cause the removal of Andrew Pound from Parkville to Grevillea.

[4]The challenges to the transfer decisions of the plaintiffs known by the pseudonyms Damien Keryk and Ian Plane were abandoned as each of them were removed from Grevillea during the trial.

On 27 January 2017, the Governor in Council made Orders in Council under s 8B of the Control of Weapons Act 1990 (Vic) (CoW Act), exempting, inter alia, the possession and use by Corrections Victoria staff (specifically, Security and Emergency Services Group and Emergency Response Group officers) of oleoresin capsicum spray (OC spray) and extendable batons within the area gazetted as a youth justice centre and remand centre at the Grevillea Unit at Barwon Prison from the prohibitions that would otherwise apply to the possession and use of those weapons under the CoW Act (the ‘Weapons Exemption’).[5] The stated purpose for the exemption was:

That person’s duties in relation to being engaged in the Precinct to perform duties in relation to ensuring the security and good order of the Precinct (including any person in the Precinct) or the safety and security of any detainee in the Precinct).

[5]On the same day equivalent exemptions were made for the use of OC spray and extendable batons at Parkville and Malmsbury which are not the subject of this litigation.

The exemption is conditional on the relevant officers performing their duties in accordance with, among other things, the CYF Act and any relevant Operational Orders. An Operations Order for the emergency response to incidents at Grevillea had been in place since 5 December 2016. Coinciding with the Weapons Exemption, it was supplemented by an addendum dated 29 January 2017 and signed by Ms Henderson and Mr Howard[6] which included specific guidelines for the use of an OC product at Grevillea.
[6]Whose evidence I will come to in due course.

The plaintiffs’ claim

The plaintiffs now seek declarations of invalidity of the December Orders in Council. The plaintiffs’ litigation guardian, Sister Marie Brigid Arthur, exercising her right to standing[7] invited the court to determine whether children not named as plaintiffs but detained at Grevillea are lawfully detained and sought the writ of habeas and an order directing their release from Grevillea and transfer to a youth justice facility lawfully established under the Act.
[7] See Ruddock v Vadarlis (2001) 110 FCR 491 509 [66], 530-531 [153].

The plaintiffs also seek declarations that the transfer decisions made by the Secretary’s delegate which removed them to Grevillea from another remand centre or youth justice centre (YJC) be declared invalid or quashed.

The plaintiffs contended that this court should determine that the Grevillea Orders and the Transfer Decisions constituted an unlawful attempt to circumvent the decision in Certain Children. By final submissions the plaintiffs contended for unlawfulness on two grounds, jurisdictional error in the form of want of jurisdictional fact and unlawfulness under s 38(1) of the Charter.

They also contended, on the same grounds, that the Weapons Exemption was infected with jurisdictional error and Charter unlawfulness. The plaintiffs challenge to this decision was focussed on the use of OC spray in the context of the built environment at Grevillia and no specific challenge was made to the use of extendable batons.

In addition to declarations of invalidity in respect of each impugned decision, the plaintiffs seek a writ of habeas corpus, alternatively relief in the nature of certiorari, and/or injunctions, including a mandatory injunction requiring the removal of children from Grevillea and an injunction restraining the transfer of children to Grevillea.

Questions to be decided

The questions for determination are as follows.

With regard to the December Orders in Council:

(a)       Jurisdictional facts
1.        Which of the following, if any, are:
a.         jurisdictional facts that condition the exercise of; or
b.        conditions on;
the power of the Governor in Council to establish a remand centre under s 478(a) of the Act or a youth justice centre under s 478(c) of the Act, that the facility so established is capable of fulfilling:
c.the obligation of the Secretary under s 482(1)(c) of the Act to separate persons on remand from those serving a period of detention, except as provided in s 482(1)(c);
d.the entitlements under s 482(2) of the Act of persons detained in a remand centre or a youth justice centre;
e.the prohibitions in s 487 of certain actions in relation to a person detained in a remand centre or a youth justice centre; and/or
f.the purpose in s 478(c) of the Act of providing for the care and welfare of children detained there?

(the conditions for establishment)
2.If the answer to question 1 is ‘c, d, e and/or f’, did the conditions for establishment exist when the Governor in Council made the Orders in Council establishing Grevillea as:
a. a remand centre; and
b. a youth justice centre,

on 29 December 2016?

(b)In addition to jurisdictional fact as an incident of jurisdictional error, the plaintiffs had also pleaded that the Governor in Council had an improper purpose when making the December Orders in Council. This ground of jurisdictional error was abandoned at trial and I need say no more about it.

(c) Charter of Human Rights
3.Did the making of the Orders in Council establishing Grevillea limit any of the human rights in ss 10(b), 17, 22(1), 22(3), 23(3) and 25(3) of the Charter?
4.If the answer to any part of question 3 is ‘yes’, was that limit reasonable and justified in accordance with s 7(2) of the Charter?

With regard to the Transfer Decisions:

(a)       Jurisdictional facts
5.        Which of the following, if any, are:
a.         jurisdictional facts that condition the exercise of; or
b.        conditions on;
the power of the Secretary under s 484 of the Act to decide to cause the removal of a person from one facility to another that the facility to which the person is removed is capable of fulfilling:
c.the obligation of the Secretary under s 482(1)(c) of the Act to separate persons on remand from those serving a period of detention, except as provided in s 482(1)(c);
d.the entitlements under s 482(2) of the Act of persons detained in a remand centre or a youth justice centre;
e.the prohibitions in s 487 of the Act of certain actions in relation to a person detained in a remand centre or a youth justice centre; and/or
f.the purpose in s 478(c) of the Act of providing for the care and welfare of children detained there?

(the conditions for transfer)
6.If the answer to question 5 is ‘c, d, e and/or f’, did the conditions for transfer exist when each of the transfer decisions under s 484(1) of the Act was made?

(b) Procedural fairness
7.When making a decision under s 484(1) of the Act to cause the removal of a person from one youth justice facility to another youth justice facility, is the Secretary obliged to afford procedural fairness to the person to be removed?
8.If the answer to question 7 is ‘yes’, in the case of each of the transfer decisions under s 484(1) of the Act, was procedural fairness afforded to the person removed prior to the decision to remove that child?

(c) Charter of Human Rights
9.In making each of the transfer decisions under s 484(1) of the Act, did the Secretary’s delegate give proper consideration to relevant human rights of the plaintiff concerned for the purposes of s 38(1) of the Charter?
10.Did the making of any of the transfer decisions limit, at the time the decision was made, the human rights of the plaintiff concerned in ss 10(b), 17, 22(1), 22(3), 23(3) and 25(3) of the Charter?
11.If the answer to any part of question 14 is ‘yes’, was that limit reasonable and justified in accordance with s 7(2) of the Charter?

With regard to the Weapons Exemption:

(a)       Jurisdictional facts
12.      Which of the following, if any, are:
a.         jurisdictional facts that condition the exercise of; or
b.        conditions on;
the power of the Governor in Council to exempt a class of persons pursuant to s 8B of the Control of Weapons Act:
c.the obligation of the Secretary under s 482(1)(c) of the Act to separate persons on remand from those serving a period of detention, except as provided in s 482(1)(c);
d.the entitlements under s 482(2) of the Act of persons detained in a remand centre or a youth justice centre; and/or
e.the prohibitions in s 487 of the Act of certain actions in relation to a person detained in a remand centre or a youth justice centre.

(the conditions for exemption)
13.If the answer to question 12 is ‘c, d, and/or e’, did the conditions for exemption exist when the Order in Council under s 8B of the Control of Weapons Act was made on 27 January 2017?

(b) Charter of Human Rights
14.Did the Order in Council made under s 8B of the Control of Weapons Act on 27 January 2017 limit any of the human rights in ss 10(b), 17(2) and/or 22(1) of the Charter?
15.If the answer to any part of question 14 is ‘yes’, was that limit reasonable and justified in accordance with s 7(2) of the Charter?

The issues are resolved as follows:

(a)Issues 1, 5, and 12 were resolved against the plaintiffs and in each case the answer to the question posed is that none of the matters set out in subparagraphs (c)–(f) inclusive of questions 1 and 5 and subparagraphs (c)–(e) inclusive of question 12 is –

(i) a jurisdictional fact that conditions the exercise of; or

(ii) a condition on;

the power of the Governor in Council to establish a remand centre under s 478(a) or a youth justice centre under s 478(c) of the CYF Act, the power of the Secretary to transfer persons from one facility to another under s 484 of the CYF Act, or the power of the Governor in Council to exempt a class of persons pursuant to s 8B of the CoW Act respectively.

(b) By reason of those findings, it was unnecessary to consider issues 2, 6, and 13.
(c)Issue 7 was resolved against the plaintiffs. I find that the Secretary was not required to accord procedural fairness to either of the two plaintiffs whose transfer decisions remain under challenge before they were removed to Grevillea. It was unnecessary to consider issue 8.
(d)Issue 3 was answered in the affirmative, but only to the extent that it refers to rights under ss 17, and 22(1) of the Charter.
(e)Issue 9 was answered in the negative. The Secretary’s delegate did not give proper consideration to human rights.
(f)Issue 10 was resolved in the affirmative, but only to the extent that it refers to rights under ss 17, and 22(1) of the Charter.
(g)Issues 4 and 11 were answered in the negative, resulting in a finding of Charter unlawfulness in respect of the Grevillea Orders and the Transfer Decisions in relation to the rights under ss 17 and 22(1) of the Charter.
(h)Issue 14 was answered in the affirmative, but only in respect of the rights in ss 17(2) and 22(1) of the Charter. In respect of the right under s 10(b), issue 14 was answered in the negative.
(i)Issue 15 was answered in the negative, resulting in a finding of Charter unlawfulness but only in respect of the second limb of s 38(1) in respect of the rights under ss 17(2) and 22(1) of the Charter.

The resolution of the issues in this manner has five consequences.

(a) None of –

(iii) the power of the Governor in Council to establish a remand centre under s 478(a) or a youth justice centre under s 478(c) of the CYF Act;

(iv) the power of the Secretary to transfer persons from one facility to another under s 484 of the CYF Act; or,

(v) the power of the Governor in Council to exempt a class of persons pursuant to s 8B of the CoW Act respectively;

is subject to, or conditional for its valid exercise on, any of the jurisdictional facts argued for by the plaintiffs. None of the impugned decisions was invalid on that ground.
(b)I found that the Secretary was not required to accord procedural fairness to either of Marco Gillespie-Jones and Andrew Pound before they were removed to Grevillea.

(c) Pursuant to s 38(1) of the Charter, the Grevillea Orders were unlawful actions of the Governor in Council being incompatible with human rights under ss 17 and 22(1) of the Charter, and unlawful decisions in that the Governor in Council did not give proper consideration to those human rights.

(d) Pursuant to s 38(1) of the Charter, the transfer of Marco Gillespie-Jones and Andrew Pound to Grevillea, were unlawful actions of the second and third defendants, being incompatible with human rights under ss 17 and 22(1) of the Charter and unlawful decisions in that the Secretary’s delegate did not give proper consideration to those human rights.

(e) Pursuant to s 38(1) of the Charter, the Weapons Exemption was an unlawful decision in that the Governor in Council did not give proper consideration to human rights under ss 17(2) and 22(1) of the Charter.

My reasons follow.
Legislative scheme

The legislative provisions that regulate the establishment of corrective services for children in Victoria and of the rights of children under the Children, Youth and Families Act 2005 are critical to resolution of the issues in this proceeding.

Children, Youth and Families Act 2005

The purposes of the Act are stated in s 1.

1. Purposes
The main purposes of this Act are—
(a)to provide for community services to support children and families; and
(b)to provide for the protection of children; and
(c)to make provision in relation to children who have been charged with, or who have been found guilty of, offences; and
(d)to continue The Children's Court of Victoria as a specialist court dealing with matters relating to children.

Section 3 sets out the following relevant definitions.

3. Definitions
"care", in relation to a child, means the daily care and control of the child, whether or not involving parental responsibility for the child;
"development" means physical, social, emotional, intellectual, cultural and spiritual development;
"remand centre" means a remand centre established under section 478(a);
"youth justice centre" means a youth justice centre established under section 478(c);

Part 1.2 of the Act sets out certain principles that require the Secretary and the Children’s Court, among other relevant decision makers, to have regard to the best interests and decision making principles set out in this Part in making any decision or taking any action under the Act. Sections 8(4) and 9(2) explicitly exempt decisions or actions under Part 5 of the Act from the application of those guiding principles.

8. Decision makers to have regard to principles
(1)The Court[8] must have regard to the principles set out in this Part (where relevant) in making any decision or taking any action under this Act.
[8]"Court" means The Children's Court of Victoria – see s 3 of the Act.
(2)The Secretary must have regard to the principles set out in this Part (where relevant) in making any decision or taking any action under this Act or in providing any service under this Act to children and families.
(3)A community service must have regard to the principles set out in this Part (where relevant) in making any decision or taking any action in relation to a child for whom it is providing, or is to provide, services under this Act.
(4)This section does not apply in relation to any decision or action under Chapter 5 or Chapter 7 (in relation to any matter under Chapter 5).
9.Role of principles
(1)The principles set out in this Part are intended to give guidance in the administration of this Act.
(2)The principles do not apply to Chapter 5 or Chapter 7 (in relation to any matter under Chapter 5).
10.Best interests principles
(1)For the purposes of this Act the best interests of the child must always be paramount.
(2)When determining whether a decision or action is in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered.
(3)In addition to subsections (1) and (2), in determining what decision to make or action to take in the best interests of the child, consideration must be given to the following, where they are relevant to the decision or action—
…

11.Decision-making principles

In making a decision or taking an action in relation to a child, the Secretary or a community service must also give consideration to the following principles—
…
(c) the decision-making process should be fair and transparent;
(d)the views of all persons who are directly involved in the decision should be taken into account;
(e)decisions are to be reached by collaboration and consensus, wherever practicable;
(f)the child and all relevant family members (except if their participation would be detrimental to the safety or wellbeing of the child) should be encouraged and given adequate opportunity to participate fully in the decision-making process;
(g)the decision-making process should be conducted in such a way that the persons involved are able to participate in and understand the process, including any meetings that are held and decisions that are made;
(h)persons involved in the decision-making process should be—
(i)provided with sufficient information, in a language and by a method that they can understand, and through an interpreter if necessary, to allow them to participate fully in the process; and
(ii)given a copy of any proposed case plan and sufficient notice of any meeting proposed to be held; and
(iii)provided with the opportunity to involve other persons to assist them to participate fully in the process; and
(iv)if the child has a particular cultural identity, a member of the appropriate cultural community who is chosen or agreed to by the child or by his or her parent should be permitted to attend meetings held as part of the decision-making process.

Chapter 5 of the Act deals with the interaction between children and the criminal law.

Part 5.7, which is comprised by five sections, deals with the establishment of corrective services for children. The power to establish a remand centre and a youth justice centre is found in s 478 and is exercisable by the Governor in Council. It is the power conferred by sub-sections 478(a) and (c) with which this case is concerned.

478 Governor in Council may establish corrective services
(1)For the purposes of this Act the Governor in Council may, by notice published in the Government Gazette, establish or abolish—
(a)remand centres for the detention of children awaiting trial or the hearing of a charge or awaiting sentence or in transit to or from a youth residential centre or youth justice centre; or
…
(c)youth justice centres for the care and welfare of persons ordered to be detained in youth justice centres under this Act, ... ;
…

In relation to young persons detained in corrective services, s 482 of the Act imposes duties on the Secretary (s 482(1)(a)) and confers entitlements on young persons (s 482(2)). By s 482(3), the Secretary is given responsibility for ensuring that the entitlements conferred on young people by s 482(2) of the Act are observed and the Secretary must report to the Minister about the extent of compliance.

Relevantly, s 482 provides:

482 Form of care, custody or treatment
(1) The Secretary must—
(a)determine the form of care, custody or treatment which he or she considers to be in the best interests of each person detained in a remand centre, youth residential centre or youth justice centre; and
(b)not detain in a community service or secure welfare service a person who is on remand or is serving a period of detention and is not released on parole; and
(c)separate persons who are on remand from those who are serving a period of detention by accommodating them separately in some part set aside for the purpose unless—
(i)the Secretary considers it appropriate not to separate them, having regard to the best interests, rights and entitlements of the persons on remand; and

(ii) the persons on remand consent; and
(d)separate persons held on remand who are under the age of 15 years from those held on remand who are of or above the age of 15 years unless exceptional circumstances exist.

(2)Persons detained in remand centres, youth residential centres or youth justice centres—
(a) are entitled to have their developmental needs catered for;
(b)subject to section 501, are entitled to receive visits from parents, relatives, legal practitioners, persons acting on behalf of legal practitioners and other persons;
(c)are entitled to have reasonable efforts made to meet their medical, religious and cultural needs including, in the case of Aboriginal children, their needs as members of the Aboriginal community;
(d)are entitled to receive information on the rules of the centre in which they are detained that affect them and on their rights and responsibilities and those of the officer in charge of the centre and the other staff;
(e)are entitled to complain to the Secretary or the Ombudsman about the standard of care, accommodation or treatment which they are receiving in the centre;
(f)are entitled to be advised of their entitlements under this subsection.

(3)It is the responsibility of the Secretary to make sure that subsection (2) is complied with and he or she must, at least once each year, report to the Minister on the extent of compliance with subsection (2).

As noted, ‘care’ is defined but the phrase ‘developmental needs’ in s 482(2)(a) is not defined in terms, although s 3 of the Act defines ‘development’.

Part 5.8 deals with persons in detention. Within that part of 8 divisions, Div. 1 deals with legal custody and s 484 grants to the Secretary power to transfer a person between centres established under the Act, relevantly providing:

484 Removal of person from remand centre etc.
(1)The Secretary may by warrant under his or her hand cause the removal of a person –
(a)from any remand centre to any other remand centre or to a youth residential centre or youth justice centre;
…
(c)from a youth justice centre to any other youth justice centre or remand centre.

Div. 2 of Part 5.8 provides for the management of detainees. Section 487 prescribes actions that cannot be undertaken:

487 Prohibited actions
(1)The following actions are prohibited in relation to a person detained in a remand centre, youth residential centre or youth justice centre or a child detained in a police gaol—
(a)the use of isolation (within the meaning of section 488) as a punishment;

(b) the use of physical force unless it is reasonable and—
(i)is necessary to prevent the person or child from harming himself or herself or anyone else or from damaging property; or
(ii)is necessary for the security of the centre or police gaol; or
(iii)is otherwise authorised by or under this or any other Act or at common law;

(c)the administering of corporal punishment, that is, any action which inflicts, or is intended to inflict, physical pain or discomfort on the person or child as a punishment;
(d)the use of any form of psychological pressure intended to intimidate or humiliate the person or child;

(e) the use of any form of physical or emotional abuse;
(f) the adoption of any kind of discriminatory treatment.

Section 488 explains the meaning of isolation for the purposes of s 487 as follows:

488.Isolation
(1)The officer in charge of a remand centre, youth residential centre or youth justice centre may authorise the isolation of a person detained in the centre, that is, the placing of the person in a locked room separate from others and from the normal routine of the centre.

(2) Isolation may only be authorised under subsection (1) if—
(a)all other reasonable steps have been taken to prevent the person from harming himself or herself or any other person or from damaging property; and
(b)the person's behaviour presents an immediate threat to his or her safety or the safety of any other person or to property.

(3) The period of isolation must be approved by the Secretary.
(4)If necessary, reasonable force may be used to place a person in isolation under this section.
(5)A person placed in isolation must be closely supervised and observed at intervals of not longer than 15 minutes.
(6)The officer in charge of a remand centre, youth residential centre or youth justice centre must make sure that the prescribed particulars of every use of isolation under subsection (1) are recorded in a register established for the purpose.
(7)In addition to his or her powers under this section, the officer in charge of a remand centre, youth residential centre or youth justice centre may cause a person detained in the centre to be isolated in the interests of the security of the centre.
(8)This section (except subsection (4)) does not apply to the use of isolation under subsection (7).

Control of Weapons Act 1990

The purpose of the Control of Weapons Act 1990 (CoW Act) is to regulate weapons other than firearms and body armour.[9] Section 5AA prohibits a person possessing, using, or carrying a ‘prohibited weapon’ without an exemption under s 8B or an approval under s 8C. Section 8B relevantly provides as follows:
[9] Control of Weapons Act 1990 (Vic), s 1.

8B       Exemptions for prohibited weapons and body armour
(1)The Governor in Council may, by Order published in the Government Gazette –
(a)exempt from any provision of section 5 (except section 5(1AC) or (1AD)) or 8A (as the case requires)[10] –
(i)        a class of persons or class of prohibited weapons or body armour; or
(ii)       a corrections officer, military officer or police officer (by name or description of office; and
(b)specify conditions and limitations to which an exemption under paragraph (a) is subject.
[10]These exemptions concern the sale of weapons to children and are not presently relevant.

Jurisdictional Fact

It is convenient, before setting out the evidence, to deal with the issues of jurisdictional fact, being issues 1, 5, and 12.

Principles applying

The plaintiffs rely on a ground of jurisdictional error described as error in jurisdictional fact to impugn the Grevillea Orders, the Weapons Exemption and the Transfer Decisions. In Gedeon v Commissioner of the New South Wales Crime Commission,[11] the High Court explained that:[12]

The expression ‘jurisdictional fact’… is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker. The concept of a jurisdictional fact is related to, but distinct from, the other grounds of jurisdictional error.

[11](2008) 236 CLR 120.

[12]Ibid, 139 [43].

In Plaintiff M70/2011 v Minister for Immigration and Citizenship,[13] French CJ explained what was meant by jurisdictional fact:

The term “jurisdictional fact” applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements”. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.

[13](2011) 244 CLR 144, 179–80 [57] (citations omitted).

As ‘a fact that must exist, objectively, before an administrative jurisdiction to exercise a power is enlivened’,[14] the critical issues with respect to the statutory powers under consideration are:

(a) what facts, if any, must exist before the power is enlivened; and
(b) who decides whether those facts exist.

[14]Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 148 [28]; Plaintiff M70/2011 v The Minister for Immigration and Citizenship (2011) 244 CLR 144, 179 [57], 194 [107].

These issues are resolved on the proper construction of the relevant legislation. Because jurisdictional facts must exist before jurisdiction is enlivened it will be for the Court to determine whether such facts existed at the relevant time and find those facts in the usual way. Where the jurisdictional fact is the existence of a fact, the reviewing court can determine on the balance of probabilities whether the fact exists.[15] The ‘fact’ may be a complex of elements and need not be an evidentiary fact. For example, in Timbarra Protection Coalition Inc v Ross Mining,[16] the relevant jurisdictional fact was the likelihood that a development would significantly affect threatened species, which involved quite a complex factual enquiry.
[15]Saville v Hallmarc Construction Pty Ltd (2015) 47 VR 177, 199 [60] (Warren CJ and Tate JA).
[16](1999) 46 NSWLR 55.

As Edelman J observed in Pilbara Infrastructure Pty Ltd v Economic Regulation Authority:[17]

As Justice Leeming has observed, the process of 'jurisdictional fact' review is not 'something approaching merits review; it is merits review'. And in Minister for Immigration and Citizenship v SZMDS, Gummow ACJ and Kiefel J, although dissenting in the result of the case, explained that:
apprehensions respecting 'merits review' assume that there was jurisdiction to embark upon the determination of the merits. But the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed.

[17][2014] WASC 346, [116].

Whether the exercise of a statutory power is conditioned by the existence of certain facts is a question of statutory construction according to ordinary principles – the proper approach is to look to the text, context and purpose of the statute read as a whole.[18] The language used alone may not be determinative.[19]
[18] Plaintiff M70/2011 v The Minister for Immigration and Citizenship (2011) 244 CLR 144, 194 [109].
[19] Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154, 173 [74].

When considering the proper construction of the CYF Act, it is convenient to keep in mind what the plaintiffs pleaded were the relevant facts said to condition the powers. The allegations were that:

(a)for each of the Grevillea Orders, the Weapons Exemption and the Transfer Decisions, Grevillea must have the capacity to fulfil the observance of the rights and interests of children in detention, in particular, the rights set out in ss 482(1)(c), 482(2) and 487 of the Act;[20] and
(b)additionally, for the Grevillea Orders and the Transfer Decisions, Grevillea must have the capacity to serve the statutory purpose of providing for the ‘care and welfare’ of detained children.[21]

[20]Amended Originating Motion, [25]–[28], [30], [39]–[40].

[21]Ibid, [25]–[27], [29]–[30].

These allegations were initially understood by me and, I suspect, also by the defendants, to identify a concept of capacity, or capability, that was limited to the location and built environment of Grevillea. However, during argument, the jurisdictional fact allegations shifted from the physical capacity of Grevillea as a proposed location for a YJC or a remand centre to the concept of Grevillea as a complete and functioning YJC or remand centre, extending to the resources, staffing, administration, systems, and procedures that defined its operative functioning capacity. In this sense, the relevant jurisdictional facts, for which the plaintiffs contended, were matters of considerable complexity.

In closing, the plaintiffs submitted that the power of the Governor in Council to establish a remand centre under s 478(a) of the Act and to establish a youth justice centre under s 478(c) of the Act is conditioned on the existence, at the time the power is exercised, of four jurisdictional facts, namely that the centre has the capacity to:

(a)meet the ‘paramount consideration’[22] of providing for the care and welfare of the children who would be detained there;
(b)meet the entitlements in s 482(2) of the Act of the children who would be detained there, specifically their developmental needs being catered for, and proper access to family and legal visits;
(c)comply with the second defendant’s obligation under s 482(1)(c) of the Act to separate children on remand from children serving a sentence; and
(d)operate without engaging in any of the prohibited actions in s 487 of the Act.
[22]This expression is sourced from Certain Children Appeal, [71], not the statutory language.

Plaintiffs’ submissions
Grevillea Orders

The plaintiffs submitted that Parliament framed the CYF Act to provide for both the protection of children and the provision of ‘care and welfare’ for children when deprived of their liberty. The Minister in the second reading speech told the Parliament it was ‘legislation covering the most vital issue to the people of Victoria – the welfare of children’.[23] Children have special vulnerabilities and needs by reason of their developmental stage. In Secretary to the DHS v Sanding,[24] Bell J, when stating that children have fundamentally different needs and attributes than adults when in detention by court order, either on remand awaiting trial or under sentence, acknowledged why Parliament had provided strong protections for children.

Children are especially entitled to protection from harm, and to human development. Those values are inherent in the best interests of the child which is the foundational principle of the Children, Youth & Families Act… The legislation contains a detailed scheme for identifying and protecting the child’s best interests which it is the responsibility of the secretary to administer and the jurisdiction of the court to enforce.

[23] Second Reading Speech, 6 October 2005, 1380 (Dr Napthine).

[24] (2011) 36 VR 221, 227 [11].

The Act defines ‘development’ to mean physical, social, emotional, intellectual, cultural and spiritual development,[25] and the plaintiffs submitted that development necessarily relates to enabling and facilitating the rehabilitation of children.
[25] Children, Youth and Families Act 2005, s 3.

The plaintiffs conceded that s 9(2) exempts the relevant part of the Act (Chapter 5) from the paramount purpose provision in s 8 and the best interests principle in s 10. However, they submitted that there is no question that absolutely intrinsic to the rationale of the legislation, its construction and the values embedded in it is the obligation of all persons applying it to act in the best interests of children and so as not to cause adverse consequences for vulnerable individuals. This submission was developed in the following way.

Because the court must analyse the scope of the power for each challenged decision by reference to the text, context and purpose of the statute as a whole the ‘paramount consideration’ of the Act - for the care and welfare of children – is critical and finds expression in part 5.7 of the Act in the Secretary’s obligation in s 482(1) and the entitlements of children under s 482(2). The plaintiffs also referred to the prohibited actions under s 487 of the Act, that are found in Part 5.8, Div 2, which is concerned with the management of detainees.

The plaintiffs submitted that s 478 identified the fundamental non-negotiable attribute of a youth justice centre – that it provide for the care and welfare of persons detained there. In the statutory text, the words ‘for the care and welfare of persons’ qualify the concept of a youth justice centre, by setting a minimum statutory standard. This language extended the notion of youth justice centres beyond the building itself to the functioning centre, that is, to more than just a building established in a place for a purpose. The plaintiffs submitted so much was said by the Court of Appeal in the Certain Children Appeal. The following passage, to which I will return, was a foundational plank in the plaintiffs’ contentions on jurisdictional fact:[26]

We note at this point that the power conferred by s 478(c) of the Act is a power to establish youth justice centres ‘for the care and welfare of persons ordered to be detained’ in such centres. Plainly, as the Solicitor-General conceded, the Parliament viewed the care and welfare of detainees as the paramount consideration in the establishment of such a centre. It necessarily followed, he accepted, that it would not be open to the Minister to recommend that a place be established as a youth justice centre unless it was capable of serving that statutory purpose.

[26]Certain Children Appeal, [76].

As noted above, the plaintiffs identified two limbs to their submission:

(a)The primary submission was directed at the built environment, the contention being, in summary, that Grevillea that could not possibly be considered to be a youth justice centre because it is, incompatibly, an adult high security gaol.
(b)The secondary submission developed, on closer analysis of the structure of the Act in the provision of minimum standards and from the statement of the Court of Appeal just quoted, was that the capacity to meet minimum standards must exist before the power under s 478 is enabled.

The plaintiffs submitted that the statutory purpose of a youth justice centre required a sophisticated, complex, amalgam of physical location with carefully designated services and programs, approved, overseen, and managed as is necessary to ensure that that which is aspired to has been accomplished. The defendants have re-gazetted a place found unlawful and then attempted to, in a necessarily futile manner, incrementally ameliorate its non-compliant features over time. Whatever hopes, beliefs and expectations existed on the relevant day play no role in the assessment.[27] When the power to establish a YJC and remand centre under s 478 was exercised afresh on 29 December 2016, a building at a location that was incapable of serving the statutory purpose was cloaked with a youth justice appellation.
[27]Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 181 [62].

The plaintiffs submitted that when determining whether statutory language gives rise to a jurisdictional fact assessment, the indicia that Kaye J identified, following his analysis of the authorities, in Shalom v Health Services Commissioner,[28] are relevant.
[28] [2009] VSC 514, [28] (citations omitted).

(1)As usual, the logical starting point is the actual language of the legislative provision. Where the power, contained in the statute, is not expressed to be dependent on the formulation by a decision maker of a particular opinion or judgment, it is more likely that the existence of the particular fact in question was intended, by Parliament, to be a “jurisdictional fact”.
(2)If the statute requires an authority to form a judgment based on a number of facts, or to reach a conclusion which is substantially evaluative, it is likely that Parliament intended that the statutory authority have power to make a conclusive determination, based on those facts.
(3)An important indication of Parliamentary intention is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision maker, or whether it necessarily arises in the course of the consideration by the decision maker of the exercise of the power. A factual reference in a statutory formulation, relating to the instigation of a statutory decision making process, is more likely to turn on the existence of the fact as an objective fact, than is a factual reference arising in, or in relation to, the conduct of the actual decision making process itself.
(4)In the case of an inferior court or tribunal, references as to fact are generally not construed as being jurisdictional, unless an intention to the contrary is clearly expressed. However, no such rule of construction applies to the exercise of a statutory power by an administrative decision maker.
(5)Another relevant factor is the inconvenience, which may arise from classifying a factual reference, in a statutory formulation, as a jurisdictional fact, rather than as a fact, the existence of which is to be determined by the decision maker, rather than the court. It is presumed that Parliament would not intend the legislation to operate in a manner whereby the powers and functions of a particular authority were susceptible to substantial disruption resulting from frequent challenges to the authority’s jurisdiction.
(6)On the other hand, a factor which militates in favour of a fact being a jurisdictional fact is the question whether what has been described as “transcendent” or “important” values are affected by the exercise of the statutory power. In the absence of clear language, a statutory authority, possessing powers which might infringe important rights, is presumed not to have the ability to conclusively determine, for itself, a fact which is critical to the exercise by it of those powers.
(7)Finally, the role and function of the particular fact in the relevant statutory scheme is an important consideration. In Timbarra Protection Coalition Inc v Ross Mining NL, Spigelman CJ considered that, in that case, the particular purpose of the relevant fact in the legislative scheme was of critical importance in determining that that factor was a jurisdictional fact. His Honour concluded that the role of the “species impact statement”, in the statutory scheme then under consideration, was so significant that it was appropriate to consider it an “essential” condition or “jurisdictional fact”, the existence of which must be proven on review.

The plaintiffs submitted that –

(a)none of the gazettal power in s 478, the transfer power in s 484 of the CYF Act, or the exemption power in s 8B of the CoW Act, is framed by reference to the decision maker being ‘satisfied’ or having a belief. Other, related powers, are so framed by reference to satisfaction – see, for example, s 467(2) of the CYF Act, dealing with the power of the Youth Parole Board to transfer a person to prison.
(b)The express words of the statutory powers make clear that a fact finding process is not to be exercised by the primary decision maker or does not necessarily arise in the course of the consideration by the decision maker of the exercise of the power. For example:

(i) Section 478 requires that a place established be ‘for the care and welfare of persons’.

(ii) Section 482(2) requires, among other things, that a child detained have their developmental needs catered for and have visits from family and lawyers, among others.

(iii) Section 487 requires that the place of detention not use or require isolation as punishment and any form of psychological intimidation.

The plaintiffs conceded that the language of s 8B of the CoW Act is less explicit. The connection between the exercise of power by the Governor in Council in respect of that Act and the CYF Act arose from the text of the exemption relating exclusively to a place established by the same Governor in Council under the latter Act, a matter to which I will come in due course.
(c)The rule of construction in the case of an inferior court or tribunal that references as to fact are generally not construed as being jurisdictional, unless an intention to the contrary is clearly expressed, is not applicable to the exercise of a statutory power by an administrative decision-maker, as is the case here in ss 478 an 484 of the Act and under s 8B of the CoW Act.
(d)As to the presumption that Parliament would not intend the Act to operate in a manner whereby the powers and functions of the Governor in Council were susceptible to substantial disruption resulting from frequent challenges to its jurisdiction, the plaintiffs contended that the gazetting of a location under s 478 has happened only four times, of which one has been found to be unlawful. That is, such gazettals are very rare and the Court being called upon to review them would be an equally rare event. The gazetting of the use of weapons in youth justice facilities has only happened once, on this occasion, and is challenged. This presumption has no present application.
(e)That ‘transcendent’ or ‘important’ values are affected by the exercise of the statutory power militates in favour of a fact being a jurisdictional fact. In the absence of clear language, a statutory authority, possessing powers which might infringe important rights, is presumed not to have the ability to determine conclusively for itself a fact which is critical to the exercise by it of those powers. The plaintiffs submitted that this consideration was the most powerful indicator present in this case. Again, the reasons of the Court of Appeal in the Certain Children Appeal were the foundation of the submission. The plaintiffs drew my attention to the following passages:[29]
It is entirely consistent with the informing philosophy of the Act, and its stated purposes, that the legislature has here treated the rights and interests of young people in detention as governing considerations.
… as the Solicitor-General conceded, the Parliament viewed the care and welfare of detainees as the paramount consideration in the establishment of such a centre.
…as a matter of necessary implication, that Parliament intended a place established under s 478 for the detention of young people to be a place where those entitlements could be enjoyed, and those duties performed.
….it is an essential attribute of detention in such a centre that [s 482] be — and hence be able to be — complied with.

(f)Finally, the role and function of the particular fact in the relevant statutory scheme is an important consideration. The plaintiffs relied again on the emphatic words of the Court of Appeal in this respect, as set out immediately above.

[29]Certain Children Appeal, [69], [71]-[73].

At trial in Certain Children, Garde J rejected the plaintiffs argument that jurisdictional facts conditioning the power under s 478 were found in s 482 of the Act.[30] The plaintiffs contended that I should not follow his Honour’s reasoning because:

(a)inferentially the Court of Appeal rejected Garde J’s reasons for not finding those matters to be jurisdictional facts when expressing its reasons for upholding his Honour’s conclusion in respect of mandatory relevant considerations. The plaintiffs submitted that the unanimous court was identifying a jurisdictional fact when it said ‘it would not be open to the Minister to recommend that a place be established as a youth justice centre unless it was capable of serving the statutory purpose’ of providing for the care and welfare of children detained there;
(b)in that case, unlike the present, the court was not invited to consider s 487;
(c)when the relevant sections are considered in their statutory context, Garde J’s reasons are wrong; and
(d)Garde J did not consider (because of the result he reached) whether the relevant facts nevertheless were jurisdictional facts in respect of transfer decisions under s 484.

[30]Certain Children, [263].

The plaintiffs developed the submission that the Court of Appeal’s reasons demonstrate that the proper construction of the Act requires that ss 482 and 487 are jurisdictional facts or pre-conditions on the exercise of power under s 478, and not just ‘relevant considerations’, in the following way.

(a)Section 478 is properly subject to the ‘governing consideration’ of the statute, being the rights and interests of the children detained.[31]
[31]Certain Children Appeal, [69].
(b)The Court of Appeal made the clear observations set out above at [51], indicating that a paramount consideration was higher than a mandatory relevant consideration;
(c)The Court of Appeal found that Parliament intended that a youth justice centre established under s 478 must be capable of enabling the Secretary to discharge her duties to (s 482(1)&(3)), and meet the entitlements of (s 482(2)), the children who would be detained there: [32]
… as a matter of necessary implication, … Parliament intended a place established under s 478 for the detention of young people to be a place where those entitlements could be enjoyed, and those duties performed.
Put another way, Parliament has expressly treated the fact of a young person’s detention in a s 478 centre as enlivening that person’s entitlements under s 482(2) and the Secretary’s duties to that person under (relevantly) ss 482(1)(a) and 482(3). That being so, it is an essential attribute of detention in such a centre that those provisions be — and hence be able to be — complied with.

(d)The Court of Appeal further observed, in relation to the capacity to separate children on remand from sentenced children, also required by s 482, that:
Plainly enough, as the Solicitor-General conceded, it was seen as essential to the suitability of Grevillea as a youth justice centre or remand centre that it was a place where the Secretary would be able to discharge her statutory duty under s 482(1)(c) as soon as any young person was detained there. We note that the duty to ensure the physical separation of remandees was here described as ‘required by the [Act]’.[33]

[32]Ibid, [72]-[73].

[33]Ibid, [76].

The plaintiffs submitted that, importantly, s 482(2) bestowed unqualified rights that must be observed by all persons. As Garde J put it:[34]

The entitlements granted by s 482(2) represent standards required by Parliament for the conduct of remand centres, youth residential centres and youth justice centres. The converse of an entitlement is a right. Young persons detained in remand centres, youth residential centres and youth justice centres have the right to be provided with the entitlements described in s 482(2).

[34]Certain Children, [240].

For these reasons, the statute must be construed as requiring that capacity to provide care and welfare to, and the capacity to fulfil the s 482(2) entitlements of, children in detention, are jurisdictional facts that must have existed at the time the power was exercised, namely 29 December 2016.

Further, the plaintiffs submitted that the capacity of a facility to operate without engaging in any of the prohibited actions in s 487 is a jurisdictional fact for the exercise of the power in s 478. This issue was not raised before the Court of Appeal, but the plaintiffs submitted that support for that proposition is found in the Court of Appeal’s conclusion that Parliament intended that a young person’s entitlements under s 482(2) would be met from the moment he or she is transferred to an established centre, necessarily requiring that Parliament intended that none of the prohibited actions in s 487 would occur when a child was detained there. This is especially so because the prohibition is at large, directed to anyone with any role under the Act in respect of a youth justice centre.

If prohibited actions are integral to the facility to be gazetted, whether as a consequence of the built environment or a result of the management of detainees, a lawful youth justice centre cannot be established. The pernicity and incidence of prohibited actions detracts from the attribute of the building being a youth justice centre because it has aspects to it which are irretrievably incompatible with that designation. By way of example, the plaintiffs postulated a facility where impermissible corporal punishment was inflicted as a fundamental part of the daily routine. Such a facility could not be said to be a youth justice centre because it has attributes which are fundamentally incompatible with that descriptor.

Accordingly, the capacity to engage in prohibited actions at the proposed facility is a jurisdictional fact and if it was objectively apparent at the time of gazettal that the facility would be incapable of preventing such prohibited acts to occur, power to establish that facility as a remand centre or youth justice centre would not be enlivened and the purported exercise of the power would be invalid. The plaintiffs submit that the evidence shows that this was the case here.

The plaintiffs concluded that as each of these matters was a jurisdictional fact, each of them was a precondition which needed to exist on 29 December 2016 for the exercise of power under s 478 to have been valid.[35]
[35]Timbarra Protection Coalition Inc v Ross Mining (1999) 46 NSWLR 55, 63-64 [37]; M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 181 [61], [62] (French CJ), 236 [256] (Kiefel J).

Transfer Decisions

The plaintiffs further submitted specifically in respect of the Transfer Decisions as follows.

The Secretary through her delegate made each transfer decision under s 484 of the CYF Act. At that time, the child was in her legal custody. The Secretary must determine the form of care, custody or treatment that is in the best interests of the child (s 482(1)(a)). The child’s s 482(2) entitlements accrue once the child is detained, and it is the Secretary’s responsibility to ‘make sure’ that those entitlements were delivered (s 482(3)). It followed that at the time each transfer decision of a child to Grevillea was made, the capacity of that place to satisfy the particular child’s s 482(2) entitlements is a jurisdictional fact that conditions the exercise of the Secretary’s power to transfer under s 484.

The plaintiffs submitted that the Court of Appeal’s reasons supported this contention. In Certain Children Appeal the Court of Appeal held:[36]

It is unambiguously clear that Parliament intended that those entitlements, and those duties, should subsist whenever a young person was detained and in whatever place of detention he/she was held. Once again, the Solicitor-General properly conceded that this was so. For the remandees who were to be transferred, Grevillea was not a place where entitlements would spring into existence for the first time. On the contrary, the effect of s 482 was that it had to be a place where those entitlements could continue to be enjoyed and the Secretary’s duties could continue to be performed.

This construction is especially clear given that the power of transfer under s 484 and the duties to ensure that entitlements are delivered and to make decisions in the best interests of the detained child are vested by Parliament in the same person.

[36]Certain Children Appeal, [80].

The plaintiffs further contended that, by parity of reasoning, it is a jurisdictional fact conditioning the power under s 484 that the child will be transferred to a place where the prohibited actions under s 487 will not occur.

Weapons Exemption

It is an accepted principle of statutory interpretation that the words of a statute need to be interpreted in the context in which the statutory provision will be applied. For example, in Australian Broadcasting Tribunal v Bond,[37] Toohey and Gaudron JJ said of the phrase ‘fit and proper’:

It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.

[37] (1990) 170 CLR 321, 380 (Toohey and Gaudron JJ).

The plaintiffs submitted that for the purposes of identifying the relevant jurisdictional fact in this case, the nexus is to be found in the text of the order rather than the CoW Act itself. The provisions in the CoW Act, including the prohibition in s 5AA and the power of exemption in s 8B, should be interpreted in the context in which the weapons have the potential to be used, rather than interpreted in isolation. In this case, the exemption to the prohibition under the CoW Act permitted use by SESG and ERG staff of OC spray and extendable batons within Grevillea, being the area of Barwon Prison gazetted as a youth justice centre and remand centre.

The plaintiffs developed the submission that for the exemption to be lawful it must be consistent with the statute that establishes and regulates the facility in which the exempted weapons may be deployed, that is, specifically, with the entitlements and prohibited actions found in ss 482 and 487 of the CYF Act. Thus, the power of exemption will only be enlivened where the deployment of the exempted weapons within Grevillea:

(a) would not constitute a prohibited action under s 487 of the Act; and
(b)would be consistent with the entitlements of the children under s 482 of the Act; and

The plaintiffs invited me to reject that submission, contending that the defendants’ evidence merely highlighted logistical difficulty and did not reach the threshold of impossibility. Furthermore, if the defendants’ submissions regarding discretion to decline certiorari or the issue of a mandatory injunction were accepted, in circumstances where the facility has been found to be unlawful, the defendants’ position is effectively that the State should be permitted by the Court to detain children unlawfully. They submitted that telling against discretionary refusal of certiorari or an injunction was the balancing of the effect of sanctioning illegality on the part of the State against the administrative inconvenience of transferring approximately 14 children into a form of custody that was not consequent on s 38(1) Charter unlawfulness.

Alternatively, the plaintiffs submitted that the time to determine whether to exercise discretion is the time at which the children would otherwise have to be moved, and not before. For that purpose the evidence of the situation in youth justice generally and Grevillea in late March cannot rationally be used to determine whether to allow the plaintiffs detention in Grevillea to continue or their removal to Parkville or Malmsbury to be ordered. That was a consequence of uncertainty in the administration of the youth justice system in the period between late March and the delivery of judgment. The plaintiffs submitted that the Court can only exercise its discretion with respect to certiorari on the basis of evidence contemporaneous with delivery of judgment and the plaintiffs would wish to put on evidence at that time.

I do not accept this last submission. The plaintiffs objected at the start of the trial that evidence of conditions relevant to such matters, provided as close to the date of trial as was reasonably practicable, was inadmissible as irrelevant and that objection was overruled. Given the evidence that the plaintiffs led at trial, it is likely that the plaintiffs would be doing no more than requiring the defendants to again prove the state of current conditions with the opportunity for the plaintiffs to test that evidence by cross-examination. In full knowledge that the issue of current conditions was being led by the defendants as relevant to such discretionary conditions should they arise, the plaintiffs did not contradict or challenge that evidence at all at trial and did not reveal in final submissions the nature of the evidence they would wish to put on in a further hearing.

Finally, the plaintiffs submitted that regardless of whether any other relief is granted, the court should declare that the acts and decisions of the defendants have been found to be unlawful under s 38(1) of the Charter. In a matter of public importance, particularly where the impugned decisions affect the human rights of children, a declaration is a remedy with substantial utility in the form of public vindication of a wrong.[263]
[263] Kracke v Mental Health Review Board (2009) 29 VAR 1, [818].

Defendants’ submissions

The defendants submitted that the plaintiffs have not established any basis for quashing the Grevillea Orders, the Weapons Exemption or any of the Transfer Decisions. Certiorari is, in any event, a discretionary remedy and the court may decline to order it where there would be no utility in quashing the decision.[264] In this case, the utility of any orders will depend on when they are made. At the time of final submissions, only two named plaintiffs were accommodated at Grevillea, and at the time of judgment only one. The evidence establishes that there are regular movements of young people in and out of Grevillea and that the average length of stay is 38.8 days. Certiorari, if it is to be granted in respect of either of the Transfer Decisions, should only be granted in respect to a plaintiff actually being accommodated at Grevillea when the court makes orders granting such relief.
[264]See the discussion in Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 108-109 [57]-[58] (Gaudron and Gummow JJ).

With respect to the Grevillea Orders (and Weapons Exemption by extension), the defendants contended, based on the evidence of Ms Peake, that Grevillea was only ever conceived of as a temporary measure in response to a crisis in safe and secure accommodation for young people ordered to be held on remand whilst infrastructure at Parkville was repaired and reinforced. Again, depending on when the court makes any orders after the trial, there might be little or no utility in an order for certiorari if Grevillea will soon cease to be used to accommodate young people. I pause to note that the evidence suggests that it will continue to be used for at least a further five months and I have no evidence about the management and monitoring of the timely performance of the necessary work that will lead to the cessation of the use of Grevillea.

In circumstances where both Parkville and Malmsbury remain at or above their secure capacity, it would be impossible or unlawful for the Secretary to comply with a mandatory injunction requiring the removal of those detained at Grevillea to Parkville or Malmsbury. Compliance with an injunction would likely expose the Secretary to breach of her obligations under the CYF Act to the plaintiffs and other young people in her custody. The Court should not make an injunctive order that cannot be complied with.[265]
[265]Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Ltd [1991] 1 Qd R 301, 308.

If, contrary to the defendants’ submissions, the court concluded that any of the decisions was unlawful, a declaration to that effect would be an appropriate remedy.[266]
[266]Kracke v Mental Health Review Board (2009) 29 VAR 1, [810]-[828].

Conclusion

There are different considerations affecting my decision whether to grant declarations on the one hand and certiorari and injunctions on the other hand. It is not in dispute that the remedies sought, including certiorari for non-jurisdictional error of law on the face of the record are discretionary.[267] The considerations influencing the exercise of the discretion differ.[268]
[267]See Re McBain; Ex P Catholic Bishops Conference (2002) 209 CLR 372, 394 [21], 410 [80], 415-423 [95]-[112], 454 [224], 465-466 [260]-[265]; Victorian Legal Aid v County Court of Victoria (2004) 9 VR 686, 691 [9].
[268]Compare Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 581-582 (declaration) and Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 108-109 [57]-[58] (Gaudron and Gummow JJ) (certiorari).

Declarations

Dealing first with the former claim to relief, I am persuaded that the plaintiffs are entitled to declarations from the court and that such entitlement is not to be denied by reference to discretionary considerations. I will make the following declarations.

(a) The court declares that the two Orders in Council, gazetted on 29 December 2016, being the decisions of the Governor in Council that established Grevillea as a remand centre and as a youth justice centre under s 478(a) and (c) of the CYF Act respectively, were unlawful under s 38(1) of the Charter.

(b) The court declares that the Secretary is prohibited from detaining children at a place of detention that has been declared to be unlawful.

(c) The court declares that the two transfer decisions –

(i) Decision made on 1 February 2017 under s 484(1) of the Act by Ms Jodie Henderson, Acting Director, Secure Services, as delegate of the Secretary, to cause the removal of Marco Gillespie-Jones from Parkville to Grevillea; and

(ii) Decision made on 1 February 2017 under s 484(1) of the Act by Ms Jodie Henderson, Acting Director, Secure Services, as delegate of the Secretary, to cause the removal of Andrew Pound from Parkville to Grevillea;[269]
[269]As I was about to deliver these reasons, I was informed that Andrew Pound was transferred to the Malmsbury YJC on 28 April 2017, meaning that this declaration need no longer be made.

were unlawful under s 38(1) of the Charter.

(e) The court declares that the Orders in Council under s 8B of the Control of Weapons Act 1990 gazetted on 27 January 2017, being the decisions of the Governor in Council exempting, inter alia, the possession and use of OC spray by Emergency Response Group officers employed by Corrections Victoria in the Grevillea Precinct from the prohibitions that would otherwise apply to the possession and use of those weapons under the Act, in so far as it extended to exempt officers of the Emergency Response Group, were unlawful under s 38(1) of the Charter.

Certiorari and injunctions

The claims for certiorari and injunction require consideration of the discretionary issues specifically identified by the defendants who contended that circumstances created a want of utility in an order quashing the decisions of the Governor in Council and an inability to comply with an injunction that was likely to place the Secretary in a position where her duties to one part of the cohort of remandees within her care was likely to come into conflict with her duties to other sections of the total cohort of children in her legal custody. There is a prospect that granting such relief may create very real administrative difficulties without adding to the court’s firm expression of the finding of Charter unlawfulness that will be made by the declaratory relief. The defendants submitted that if I was minded to grant the plaintiffs relief, a declaration is a remedy with substantial utility in the form of public vindication of a wrong.

I do not accept VEOHRC’s submission that the defendants conceded that certiorari was an available remedy. Counsel for the defendants made expressly clear that they did not make that concession. The plaintiffs put no case of error of law on the face of the record and the claim of jurisdictional error was lost.[270] The relevant record would be the Grevillea Orders in Council, the transfer warrants and the Weapons Exemption Orders in Council and would not include, in the case of the Orders in Council the ministerial briefing paper that contains the Charter assessment that revealed the error of law.[271] In Bare, where there was a finding of error of law on the face of the record, there were reasons for the decision. The plaintiffs have not persuaded me that there is a basis for certiorari as neither jurisdictional error nor error of law on the face of the record were made out.
[270]Wingfoot Australia Partners Pty Ltd v Eyup Kocak (2013) 252 CLR 480, 492 [26].
[271]Craig v South Australia (1995) 184 CLR 163, 180-183, Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 577 [84].

What remains to be considered is whether to grant prospective injunctive relief to the plaintiffs and, if so, how such relief ought to be framed.

There are two considerations warranting analysis. First, have the defendants established relevant discretionary considerations to a degree that permits the exercise of the discretion judicially, or are the defendants submitting, in essence, that these broad matters of administration into which the court cannot realistically inquire are determinative requiring that the discretion be exercised against prospective injunctions. Secondly are there countervailing discretionary considerations that require that the discretion be exercised in favour of granting relief.

I accept the evidence that the youth justice system is at capacity. The plaintiffs do not contend otherwise. However, at trial there were only 14 detainees at Grevillea and DHHS appeared to have committed to the fact that Grevillea functions best at approximately half capacity, which is about 18 detainees. This appears to have been a learned experience from the high of 28 detainees in January. There is no commitment, however, about a maximum number of detainees in the future. In other words, conditions could deteriorate.

The evidence provided no specific detail about the difficulties in reaccommodating 14 detainees beyond the broad issue of capacity. There was no analysis on a case by case basis.

Three aspects of the evidence are presently relevant on the question of whether injunctions affecting prospective conduct are appropriate. First, Monica Tulloch referred in respect of Malmsbury to risks and concerns that could have arisen if asked to accommodate more detainees requiring secure accommodation. Matthew Belleville stated, in respect of Parkville, that extra accommodation at Parkville could only be provided by the use of isolation and holding cells that do not provide a toilet, shower or running water. Ms Peake described, above at [316], the limitations on her obligations to persons in her custody across the youth justice system. I infer that accommodating even as few as 14 additional ‘clients’ requiring secure accommodation may impact on the best interests of each person detained in the custody of the Secretary. This is not a matter that the court can realistically evaluate further on the evidence. Consequentially, it is difficult, acting judicially, to balance this factor against the considerations that favour prohibiting the future use of a facility that unreasonably limits the human rights of detainees. Further, it is a matter advanced by the defendants that could have been the subject of more detailed evidence, notwithstanding the disinclination of the plaintiffs to test the evidence that was led.

Secondly, Ms Peake described the improvements in the current conditions at Grevillea, summarised above at [310]. Robert Pemberton confirmed her evidence about improvements in conditions during March 2017. I am invited to, and do, accept that there has been a lessening of interference with, or limitations on, engaged human rights in the current conditions at Grevillea in March. In particular, the use of 23 hour lockdown and OC spray had ceased to be needed although remaining an available option. Ms Buchanan acknowledged that there had been some improvements for detainees at Grevillea, although her concession did not extend to an endorsement. Ms Beaton also confirmed that the welfare of detainees is constantly monitored.

Thirdly, as I have noted, there was no evidence about the alternative less restrictive means of providing secure accommodation that might have been achieved by the application of significant government resources to the issue of emergency accommodation or to the issue of an expedited restoration of facilities at Parkville. In the absence of evidence that there are no further resources that the defendants are prepared to make available for youth justice, the present allocation of resources which is causative of the need for using Grevillea and the period for which it is needed can only be regarded as based on the flawed human rights assessment that informed it. The option of allocating greater resources to a less restrictive solution appears not to have been considered.

On the other hand, the impugned Grevillea Orders, which are on my findings infected with legal error in the form of unlawfulness under s 38(1), detrimentally affect the human rights of children. The plaintiffs submitted that the Court would sanction illegality on the part of the State if I declined to exercise my discretion to quash an unlawful decision. I do not accept that contention. I have already stated what declarations will be pronounced.

That said, the circumstances in which the defendants have breached the Charter are significant. This court declared on 21 December 2016 that the November Orders were invalid for reasons that included breach of s 38(1) of the Charter. Garde J gave detailed reasons explaining that breach. Those reasons were before the decision maker. As I have noted, at [502] and following, Garde J highlighted the very significant implications of the circumstances at Grevillea for the mental health and the welfare of detainees and of the lack of a proper environment for nurturing their developmental needs. The defendants’ case before me failed to explain why a central concern of this court about why limits on human rights were not demonstrably justified was not considered by the decision maker. The defendants did not challenge those parts of the evidence of Ms Buchannan and Dr Deacon, either by cross-examination or by answering evidence that addressed the very concern highlighted by Garde J. The proposition, established by the plaintiffs, that the circumstances at Grevillea for the mental health and the welfare of detainees and of the lack of a proper environment for nurturing their developmental needs was not demonstrably justified, remained unaddressed by the decision maker and unanswered at trial.

It is not to the point that there have been some improvements in circumstances for detainees at Grevillea, and the threat to the mental health and the welfare of detainee may have ameliorated to some extent and the environment for nurturing their developmental needs may have improved somewhat from a very low base. The degree of any improvement in circumstances and its impact on the welfare of detainees remains a matter largely of speculation.

Given the seriousness of the consequences, of the limitations, not simply for the individuals concerned but also for the whole community, a thorough analysis of less restrictive measures that involved the application of appropriate levels of resources was needed. As I have said, I am not satisfied on the evidence that such an inquiry was undertaken. The culpability of the failure to observe the statutory obligation cannot be easily dismissed and requires countervailing considerations of significant force and moment to warrant a refusal of discretionary relief.

On a proper consideration of the discretionary factors that I have identified, some injunctive relief is appropriate.

I will prohibit the defendants from detaining, or continuing to detain, any person deemed to be in her legal custody at Grevillea.

I will make a prohibitive and mandatory injunction, prohibiting the Secretary from detaining Marco Gillespie-Jones at Grevillea and requiring that he be removed to detention at either Parkville or Malmsbury.

I will, by prohibitory injunction, restrain officers of the Emergency Response Group from possessing and using OC spray within the area gazetted as a youth justice centre and remand centre at the Grevillea Unit at Barwon Prison when carrying out their duties, unless the Secretary of the Department of Justice and Regulation has first certified in writing that practical and workable guidelines for the use of such weapons by ERG officers when responding to any incident, having particular regard to the expected nature and circumstances of such a response, have been agreed as an amendment to the addendum to the Operations Order following proper consideration of the human rights of all detainees including, particularly, detainees who are bystanders in any such incident.

The position with the SESG officers is different as they must be invited to attend any incident and therefore have the opportunity to implement the guidelines in the Operations Order. While a basis for doubt that the human rights of bystander children will be respected in an incident involving SESG officers can be imagined, there was no evidence of an incident that had tested the efficacy of those guidelines in such circumstances. I am not in a position to draw adverse conclusions that would warrant a favourable exercise of discretion for the plaintiffs in respect of the weapons carried by the SESG.

Orders

I will make orders to the following effect and invite counsel for the plaintiffs to submit a precise minute of a proposed judgment that reflects my reasons.

(a) The court declares that –

i. the two Orders in Council, gazetted on 29 December 2016, being the decisions of the Governor in Council that established a youth justice centre and remand centre at the Grevillea Unit of Barwon Prison (Grevillea Precinct) as a remand centre and as a youth justice centre under s 478(a) and (c) of the CYF Act respectively, were unlawful under s 38(1) of the Charter.

ii. the Secretary is prohibited from detaining children at a place of detention that has been declared to be unlawful.
iii. the transfer decision made on 1 February 2017 under s 484(1) of the Act by Ms Jodie Henderson, Acting Director, Secure Services, as delegate of the Secretary, to cause the removal of Marco Gillespie-Jones from Parkville to the Grevillea Precinct was unlawful under s 38(1) of the Charter.
iv. the Orders in Council under s 8B of the Control of Weapons Act 1990 gazetted on 27 January 2017, being the decisions of the Governor in Council exempting, inter alia, the possession and use of OC spray by Emergency Response Group officers employed by Corrections Victoria at the Grevillea Precinct from the prohibitions that would otherwise apply to the possession and use of those weapons under the Act, in so far as such Orders extended to exempt officers of the Emergency Response Group, were unlawful under s 38(1) of the Charter.

(b) The defendants by their employees, agents, delegates, or howsoever otherwise be, and are, restrained –

i. from detaining, or continuing to detain, at the Grevillea Precinct, any person deemed to be in the second defendant’s legal custody.

ii. from detaining Marco Gillespie-Jones at the Grevillea Precinct and I direct that he be forthwith removed to detention at either Parkville or Malmsbury Youth Justice Precincts.

(c) The third defendant by its employees, agents, delegates, or howsoever otherwise be, and is, restrained from permitting officers of the Emergency Response Group (ERG) from possessing and using OC spray within the Grevillea Precinct when carrying out their duties, unless the Secretary of the Department of Justice and Regulation has first certified in writing that practical and workable guidelines for the use of such weapons by ERG officers when responding to any incident, having particular regard to the expected nature and circumstances of such a response, have been agreed as an amendment to the addendum to the Operations Order following proper consideration of the human rights of all detainees including, particularly, detainees who are bystanders in any such incident.

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[2017] VSC 251

11 May 2017 (Revised [22(h)], 18 May 2017)