The Certain Children Cases and the Maturing of Victorian Human Rights Jurisprudence

In 2017 Justice John Dixon of the Victorian Supreme Court decided the latest of three cases concerning juvenile justice issues in Melbourne.[1] His decision, even more than the previous two cases in the saga illustrates how the Victorian Human Rights Charter (‘the Charter’)[2] could have an effect in remedying human rights abuses and also what a mature Australian human rights jurisprudence might look like. It also confirms that among the three remedial features of human rights acts in general (interpretative obligations, declarations of incompatibility and obligations on public decisionmakers to comply with the human rights act) the obligation on government decision makers to comply with Charter is proving the most significant.

The cases arose from riots by young persons in the Melbourne Youth Justice Centre at Parkville on the weekend of 12-13 November 2016. The riots led to damage to the facilities at the Youth Justice Centre and in response the Victorian government determined that part of the Barwon adult prison (named “Grevillea”) was to be made a youth justice centre and remand centre. On 17 November 2016 Orders in Council were made to create that classification. It would appear that the Victorian government was both trying to “get tough” with rioters and to find alternative accommodation for inmates of the Youth Justice Centre that was damaged.

On 21 December 2016 the matter was bought before Garde J in the Supreme Court in the first of the Certain Children cases.[3] The Plaintiffs argued that the Orders in Council establishing Grevillea as a Youth Justice Centre and remand centre and the decision of the delegate of the relevant Secretary to transfer children there should be found invalid. They argued that this was so both on orthodox administrative law principles and on the basis that proper consideration was not given to the children’s human rights by the Minister as required by s 38 of the Charter.

Justice Garde found for the Plaintiffs both on the administrative law and the Human Rights Charter grounds. I will not consider His Honour’s interesting discussion here concerning administrative law principles and the Children, Youth and Families Act 2005 (Vic). Several Important things were also stated by His Honour, however, concerning the Human Rights Charter.

His Honour reaffirmed earlier judicial statements about the duty under s 38 of the Charter to consider human rights as being much stricter that the corresponding common law duty. Importantly, these principles were then applied to the Briefing note to the Minister to find unlawfulness under s 38 of the Charter. His Honour then accepted an argument that the substantive and procedural limbs of s 38 combine to reach the result that a decision will not be in violation of the Charter unless it is substantively contrary to human rights and fails to take human rights into account. On that basis he found the relevant actions contrary to the Charter and ordered that the children be detained in a lawful facility.

In relation to the question of remedy, His Honour cited previous divided authority of the Court of Appeal as to whether a breach of the Charter leads to unlawfulness. At [228] His Honour then appears to offer a solution to that unresolved question by stating that a declaration would be issued that the Minister breached s 38 of the Charter. This result appears to lead to the inference that His Honour saw the breach of the Charter as leading to an unlawfulness that could bring forth a remedy.

The Minister then appealed the matter to the Court of Appeal.[4] For reasons ostensibly of speed of decision the Court of Appeal only considered the question from the point of view of administrative law principles. From the point of view of the development of Charter jurisprudence this was a disappointing development. However, given the time restraints in the matter it is also an understandable one.

Before the Court of Appeal had published its decision on 29 December 2016 the Governor in Council then made two more Orders in Council that re-established Grevillea as a remand centre and youth justice centre. On 27 January 2017 the Governor in Council also made additional Orders in Council under s 8C of the Control of Weapons Act 1990 (Vic) effectively allowing the possession and use by Corrections Victoria staff of capsicum spray and extendable batons inside Grevillea. These Orders in Council and the decision to transfer children to Grevillea were then challenged before John Dixon J in the Supreme Court of Victoria in what in the author’s view is the most important of the three cases from the point of view of the future use of the Charter.[5]

In the proceedings before John Dixon J the plaintiffs contended that this second group of Orders in Council constituted an unlawful attempt to circumvent the decision of the Court of Appeal. Those Orders in Council were then challenged on a new administrative law ground (jurisdictional fact) and on the basis of s 38(1) of the Charter.

His Honour rejected the administrative law challenge by the plaintiffs. This may have been predictable given that the Court of Appeal had already previously ruled using a different administrative law approach. However, he made a number of important findings in relation to the application of the Charter:

  • His Honour found at [190] that it is not necessary for a particular individual to be affected by governmental action for the human rights in the Charter to be engaged. The Charter, like administrative law, he found to be focused how governmental decisions are made rather than whether a person’s rights are violated;
  • His Honour at [203] reiterated that the standard of proof on the government to show that a limitation on a human right is reasonable is high and that only limited deference should be given to the decision made by the government. This appears to indicate a stricter standard of proof than that put forward by Garde J in the first of the cases;
  • Even though the briefing notes to the Minister in relation to the second group of Orders in Council referred to human rights considerations, His Honour found that that the government did not appreciate the true nature of the engaged human rights and the consequences to the children of their limitation. His Honour was particularly critical (at [456]) of the failure of the decision makers to obtain specialist advice on the special vulnerabilities of the child plaintiffs.
  • In relation to the question of whether Charter human rights were taken into account by the decision makers His Honour analysed the process rigorously to the point of finding that some of the facts relied upon were incorrect and that lip service was given to the Charter while working towards a predetermined outcome (at [515]).
  • On the question of remedies, His Honour not only made declarations of breach of the Charter (as Garde J had in the first case) but also issued prohibitory injunctions both in relation to detention of children at Grevillea and in relation to the possession of the capsicum spray and extendable batons by Corrections Victoria staff at Grevillea. This appears to signal that regardless of whether a breach of the Charter is considered to lead to invalidity or not the more coercive remedies of prohibitory injunctions can be sought to prevent breaches of the Charter.

The above findings of David Dixon J are of significance in the development both of the jurisprudence under the Charter and of human rights law in Australia generally. It points the case law towards both stricter scrutiny of governmental decisions and more forceful remedies for violations of the Charter. It shows a judiciary that is less cautious about using the Charter to prevent government actions that violate human rights. While the case is coloured by what may be judicial disapproval of failure by the Victorian government to abide by previous decisions, in the matter in the author’s view it is likely to have a wider applicability.

The statements of John Dixon J about lip service to the Charter are particularly to be welcomed given the large degree of mere lip service to human rights that has been given by the federal government and parliament to human rights under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). The salutary effect of the enactment of the Charter by the Victorian Parliament appears to have been to give the Victorian judiciary the confidence to get to the real facts of human rights violations and to determinedly restrain the government from violating such rights. This will be of benefit not only to Victoria and the ACT (where there are such Acts), but also in Queensland where the government has committed to introducing similar legislation in the near future.

[1] Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors (No 2)[2017] VSC 251.

[2] Charter of Human Rights and Responsibilities Act 2016 (Vic).

[3] Certain Children by their Litigation Guardian Marie Brigid Arthur v Minister for Families and Children & Ors [2016] VSC 796.

[4] See Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA 343 per Warren CJ, Maxwell P and Weinberg JA.

[5] Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors (No 2)[2017] VSC 251.

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