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Judgment handed down in Certain Children v Minister for Families and Children

21 December 2016

The proceeding concerns the detention of some of the plaintiffs in a remand centre established at the Grevillea unit of the Barwon Prison under an Order in Council made on 17 November 2016 under the Children Youth and Families Act

2005 (Vic) (‘the Act’). A second Order in Council on the same day establishes a youth justice centre at the Grevillea unit within the Barwon Prison, but the youth justice centre is yet to receive young persons for detention.

The Court holds that the two Orders in Council are unlawful under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) as the defendants failed to give proper consideration to the human rights of the plaintiffs. The relevant and engaged human rights are:

•    Not to be treated or punished in a cruel, inhuman or degrading manner (s 10(b))

•    Every child has the right without discrimination to such protection as is in his or her best interests and is needed by him or her by reason of being a

child (s 17(2))

•    All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person (s 22(1)).

The Court also holds that the two Orders in Council are invalid and of no effect because they were made without taking into account relevant considerations and because they were made for an improper or extraneous purpose, namely for the purpose of ‘emergency accommodation’ rather than the purposes permitted by the Act.

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NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.

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